Pardon power Summary

  • Last updated on November 11, 2022

The authority to exempt a person from a punishment determined by the normal judicial process, granted to the president by Article II of the U.S. Constitution.

The pardon power is granted by Article II of the U.S. Constitution, which says that the president “shall have the power to grant reprieves and pardons against the United States, except in cases of impeachment.” By 1787, the English and Anglo-American political tradition had established that the person given executive power should also be given the power to pardon. The Founders accepted the notion that the rule of law was an essential part of a republican government; this meant that every person had to be treated the same way by the public law, which had the same punishment attached to the law for all people.

President Gerald R. Ford grated former president Richard M. Nixon a full pardon in 1974.

(Library of Congress)

The Founders, however, understood that there were some instances in which it might be unjust or greatly problematic to apply the law exactly as it was written. Defending the pardon power, Alexander Hamilton wrote in The Federalist (1788), No. 74, that “the criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a face too sanguinary and cruel.”

At the Constitutional Convention of 1787, the only debate regarding the pardon power was the prohibited areas of exercise. That is, several states granted some pardon power to their executive, but some exceptions existed. For example, some states permitted the pardon power except in cases of treason. At the end of the Convention, the Constitution prevented the president only from reversing an impeachment decision.

Throughout the history of the United States, presidents have exercised this power. The most famous instances include George Washington’s granting of pardons in 1795 to those involved in the Whiskey Rebellion, Abraham Lincoln’s granting of pardon in 1863 to soldiers from the southern states who pledged loyalty to the United States, and Gerald Ford’s grant in 1974 of a “full, free and absolute pardon…for all offenses which he…has committed or may have committed” as president to the recently resigned Richard M. Nixon.

The Court and the Pardon Power

The Supreme Court was not given the power to pardon, nor was it given the power to review pardon decisions at the Constitutional Convention, but it has ruled in some important cases involving the pardon power. The first of these cases was United States v. Wilson[case]Wilson, United States v.[Wilson, United States v.] (1833). In the majority opinion, Chief Justice John Marshall asserted that “a pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” Most significantly, he wrote that “a pardon is a deed, to the delivery of which…is not complete without acceptance.” Thus a pardon can be rejected.

Another important case was Ex parte Garland[case]Garland, Ex parte[Garland, Ex parte] (1867). This case involved Augustus Garland, a lawyer in Arkansas who had practiced before federal courts before the Civil War. After Arkansas joined the Confederacy, Garland became a member of the Confederate legislature. In 1865 Garland was granted a pardon for offenses committed during the Civil War by President Andrew Johnson, and he accepted that pardon. Even with a pardon, Garland was prohibited from resuming his legal work before federal courts because of a law passed by Congress that included a loyalty oath prohibiting those who actively supported the Confederacy from being admitted to the federal bar. The Court struck down the loyalty oath and in the process explained the effect of a pardon. Justice Stephen J. Field wrote in the majority opinion that “a pardon reaches both the punishment prescribed for the offense and the guilt of the offender” and that “when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence [sic].”

The next important case was Burdick v. United States[case]Burdick v. United States[Burdick v. United States] (1915). This case involved George Burdick, an editor for the New York Tribune, who refused to testify before a federal grand jury in a case about customs fraud because of fear of self-incrimination. Burdick was granted a pardon by President Woodrow Wilson, but he refused to accept it. The Court reaffirmed its opinion in Wilson that a pardon had to be accepted. Justice McKenna in his decision distinguished a pardon from immunity, asserting that a pardon “carries an imputation of guilt and acceptance a confession of it” while immunity is “non-committal and tantamount to silence of the witness.”

Expansions of the Power

In Ex parte Grossman[case]Grossman, Ex parte[Grossman, Ex parte] (1925), the Court addressed whether a pardon could be granted for contempt of court. Grossman was imprisoned for violating the National Prohibition Act and then acting in contempt of court. Grossman was granted a pardon. Despite the pardon, a federal district court committed Grossman to jail, asserting that the president’s pardon did not extend to contempt of court, which was considered a common-law offense. Chief Justice William H. Taft wrote that the pardon power must be understood to include offenses against the common law as well as federal criminal statutes.

In Schick v. Reed[case]Schick v. Reed[Schick v. Reed] (1974), the Court ruled that the pardon power included the power to commute a sentence. In this particular case, President Dwight D. Eisenhower changed a sentence from the death penalty to life in prison without parole.

The Court further affirmed that a pardon is an act of grace in Connecticut Board of Pardons v. Dumschat[case]Connecticut Board of Pardons v. Dumschat[Connecticut Board of Pardons v. Dumschat] (1981) and in Ohio Adult Parole Authority v. Woodard[case]Ohio Adult Parole Authority v. Woodard[Ohio Adult Parole Authority v. Woodard] (1998). In the former case, the Court asserted that there is no “due process right” to being considered for a grant of pardon or clemency and that a pardon is “simply a unilateral hope.” The latter case reaffirmed the former.

Thus the Court has made clear that the pardon power, which includes commuting sentences and offenses against the common law, is an act of grace that no one has a right to; however, one can refuse that gift.

Further Reading
  • Dorris, Jonathan Truman. Pardon and Amnesty Under Lincoln: The Restoration of the Confederates to Their Rights and Privileges, 1861-1868. Westport, Conn.: Greenwood Press, 1977.
  • Moore, Kathleen Dean. Pardons: Justice, Mercy and the Public Interest. New York: Oxford University Press, 1989.

Judicial powers

Marshall, John

Presidential powers

Self-incrimination, immunity against

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