Pardon Power

Scope of the Pardon Power (Commander-In-Chief)

The pardon power embraces all “offences against the United States,” except cases of impeachment, and includes the power to remit fines, penalties, and forfeitures, except as to money covered into the Treasury or paid an informer,1 the power to pardon absolutely or conditionally, and the power to commute sentences, which, as seen above, is effective without the convict's consent.2 It has been held, moreover, in face of earlier English practice, that indefinite suspension of sentence by a court of the United States is an invasion of the presidential prerogative, amounting as it does to a condonation of the offense.3 It was early assumed that the power included the power to pardon specified classes or communities wholesale, in short, the power to amnesty, which is usually exercised by proclamation. General amnesties were issued by Washington in 1795, by Adams in 1800, by Madison in 1815, by Lincoln in 1863, by Johnson in 1865, 1867, and 1868, and by Theodore Roosevelt-to Aguinaldo's followers-in 1902.4 Not until after the Civil War, however, was the point adjudicated, when it was decided in favor of presidential prerogative.5

More about Pardon Power

The President cannot pardon by anticipation, or he would be invested with the power to dispense with the laws, King James II's claim to which was the principal cause of his forced abdication.6

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References

This text about Pardon Power is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] 23 Ops. Atty. Gen. 360, 363 (1901); Illinois Cent. R.R. v. Bosworth, 133 U.S. 92 (1890).

[Footnote 2] Ex parte William Wells , 59 U.S. (18 How.) 307 (1856). For the contrary view, see some early opinions of the Attorney General, 1 Ops. Atty. Gen. 341 (1820); 2 Ops. Atty. Gen. 275 (1829); 5 Ops. Atty. Gen. 687 (1795); cf. 4 Ops. Atty. Gen. 458 (1845); United States v. Wilson, 32 U.S. (7 Pet.) 150, 161 (1833).

[Footnote 3] Ex parte United States, 242 U.S. 27 (1916). Amendment of sentence, however, within the same term of court, by shortening the term of imprisonment, although defendant had already been committed, is a judicial act and no infringement of the pardoning power. United States v. Benz, 282 U.S. 304 (1931).

[Footnote 4] See 1 J. Richardson, supra, at 173, 293; 2 id. at 543; 7 id. at 3414, 3508; 8 id. at 3853; 14 id. at 6690.

[Footnote 5] United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1872). See also United States v. Padelford, 76 U.S. (9 Wall.) 531 (1870).

[Footnote 6] F. MAITLAND, CONSTITUTIONAL HISTORY OF ENGLAND 302-306 (W.S. Hein 2006) (1908); 1 Ops. Atty. Gen. 342 (1820). That is, the pardon may not be in anticipation of the commission of the offense. “A pardon may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1867), as indeed President Ford's pardon of former President Nixon preceded institution of any action. On the Nixon pardon controversy, see Pardon of Richard M. Nixon and Related Matters: Hearings Before the House Judiciary Subcommittee on Criminal Justice, 93d Congress, 2d Sess. (1974).