prev | next
ArtII.S2.C1.3.4.1 Pardons Generally

Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

A full or absolute pardon obviates any punishment for the crime at issue and restores the offender’s civil rights, if applicable.1 In the 1866 case Ex parte Garland, the Supreme Court recognized that a pardon granted before conviction “prevents any of the penalities and disabilities consequent upon conviction from attaching,” and “if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights . . . .” 2

A pardon may be made subject to conditions. In Ex parte Wells, the Court directly addressed the question of whether the pardon power included the power to pardon conditionally and concluded, in reliance on English precedent, that it does.3 Yet the scope of the President’s power to grant pardons has limits. With respect to conditions, the Court in the 1974 case Schick v. Reed stated that “considerations of public policy and humanitarian impulses support an interpretation of [the] power so as to permit the attachment of any condition which does not otherwise offend the Constitution,” 4 though the Court has not addressed the scope of this limitation on conditional pardons in any subsequent case. Regardless, a pardon may only be granted after the commission of the eligible offense,5 though the clemency may precede any institution of formal proceedings.6 A pardon is also waivable. In United States v. Wilson, the defendant pled guilty to a federal offense and, upon inquiry by the lower court as to the effect of a pardon known to have been granted to him, “waived and declined any advantage or protection which might be supposed to arise from the pardon referred to.” 7 The Supreme Court gave effect to the defendant’s wish, concluding that because the pardon was not “brought judicially before the court, by plea, motion or otherwise, ought not to be noticed by the judges, or in any manner to affect the judgment of the law.” 8 As a corollary, a pardon must be accepted to be effective,9 though this principle appears to differ as between pardons on the one hand and commutation and remission on the other.10

The Supreme Court’s view of the legal effect of a pardon has changed somewhat over time and is discussed in more detail at ArtII.S2.C1.3.7 Legal Effect of a Pardon. back
71 U.S. 333, 380 (1866). back
59 U.S. at 315 (explaining that the “power to pardon conditionally is not one of inference at all, but one conferred in terms” ); see also Klein, 80 U.S. at 147 (recognizing that pardon “may be granted on conditions” ). Though referred to in places as a conditional pardon, the act of clemency in Wells was in practice a commutation, that is, substitution of a less severe punishment in place of a more severe one, which is discussed in more detail infra. back
419 U.S. 256, 266 (1974). The Court in Schick addressed a conditional commutation, and Justice Thurgood Marshall, writing in dissent and joined by Justices William O. Douglas and William Brennan, argued that the condition at issue could not be constitutionally imposed. See id. at 274 (Marshall, J., dissenting). back
Garland, 71 U.S. at 380 (stating that a pardon “may be exercised at any time after [an offense’s] commission” ). back
Id. (recognizing that pardon may be granted “either before legal proceedings are taken, or during their pendency, or after conviction and judgment” ). For instance, President Gerald Ford pardoned former President Richard Nixon for any federal crimes he may have committed in relation to the Watergate scandal, before any charges could be brought. See Pardon of Richard M. Nixon and Related Matters: Hearings Before the House Judiciary Subcommittee on Criminal Justice, 93d Cong. (1974). back
United States v. Wilson, 32 U.S. 150, 158 (1833). back
Id. at 163. back
Id. at 161; Burdick v. United States, 236 U.S. 79, 94 (1915) (holding that “it was Burdick’s right to refuse [the pardon]” and his refusal allowed him to maintain “his right under the Constitution to decline to testify” ). back
See ArtII.S2.C1.3.6 Rejection of a Pardon. back