A Primer on Pardons

Whether you believe this is the worst of times or this is the best of times under the current presidential administration, we would like to legally enlighten you on the subject of presidential pardons.  Pardons have been frequently discussed in the news, most recently after President Trump issued a pardon to controversial former Arizona Sherriff Joe Arpaio just before he was set to be sentenced in October. This is President Trump’s first pardon since taking office in January of 2017. Not surprisingly, Franklin D. Roosevelt holds the record for having granted the most pardons during his time in office, having granted 3,687 between 1933 and 1945. James Garfield and William H. Harrison are the only Presidents never to have issued a pardon, although both died early into their terms.

A pardon coming from the Executive Branch of the government, federal or state, is simply an “excuse me” to the recipient. It wipes all criminal transgressions from the board of criminal responsibility. The authority to grant a pardon is found in the federal constitutional or state constitutional language. It is said in the federal constitution that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”  In some of our lifetimes, we can recall that President Gerald Ford bestowed a pardon upon President Nixon. It has been sought by many, but bestowed upon only a select few. It is legally considered an “act of grace”, exempting that person from any further punishment for the crimes committed.   In law, the recipient has the ability to reject a pardon.

There are two kinds of pardons: conditional and unconditional. A conditional pardon is one that requires an act to fulfil the pardon. The condition cannot be illegal, immoral, or impossible to perform. Once accepted, the pardon binds the person to all its conditions, limitations, and restrictions. The condition must be clear, specific, and written into the pardon.  Also, there don’t have to be any actual charges filed in order for someone to receive a pardon, as happened when President Ford pardoned President Nixon.

The Presidential pardons only apply to federal criminal law, and they are not applicable to civil, state, or local offenses. It would take a parallel pardon from a state governor to excuse those state or other offenses. A pardon “carries an imputation of guilt; acceptance a confession of it.” This comes from an opinion from the United States Supreme Court in 1915. This language flies in the face of the controversy every Thanksgiving where the President pardons the Thanksgiving turkey and saves its life. This kind of pardon is generally rationalized as a theatrical or symbolic pardon. We are uncertain of the crime the turkey committed.

For more information on the pardon process and its history, check out this informative podcast from NPR. 

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