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The Criminal Justice System, 2nd Edition

Pardons

Definition: Legal release from the punishment for a crime

Criminal justice issue: Government misconduct; Pardons and parole; Political issues

Significance: The power of government to pardon criminals is an essential part of the checks and balances of the American constitutional system, as it allows executive branches to check the fairness of rulings from the judicial branches.

Modern government’s power to pardon has its origin in ancient Hebrew law. It also existed within European churches and monarchies that had the power of clemency during medieval times. Centuries later, in England, the pardon power was recognized as the “royal prerogative of mercy.” In the United States, pardons are viewed as a way for the executive branches of state and federal government to check the judiciary.

Many scholars view the pardon power as antidemocratic because it permits one person to subvert the rulings of the criminal justice system. However, the Framers of the US Constitution supported the idea of a pardon power because it allowed executive leaders to use well-timed pardons during times of crisis to quell rebellion among dissatisfied segments of the population.

The chief executive officers at the national and the state levels may issue pardons in particular cases. In each of the fifty states, a board of pardons makes recommendations—often in consultation with the state boards of parole—on persons who should be given pardons. Three main goals are served through the use of the pardon power: remedying injustice, removing the disgrace of conviction, and mitigating the punishment stage of the criminal justice system. It is rare for pardons to be issued for injustices, but many convicted persons are released from prison after they are found to have been wrongfully convicted. Pardons are more commonly employed in cases in which young offenders seek to expunge their criminal records in order to pursue careers that are not open to convicted felons. Pardons allow all former convicts to find employment more easily and generally remove the disgrace of criminal records.

Presidential Pardons

The US Constitution provides US presidents with the power to pardon individuals for offenses against the United States, except in cases of impeachment. President pardons generally receive little attention, but they have been exercised frequently throughout history. In Ex parte Garland (1866), the US Supreme Court ruled that Congress cannot limit the president’s pardon power through legislation. Hence, the power to pardon at the federal level is potentially unlimited. Moreover, presidents can issue pardons at any time during judicial proceedings and for any offense. In fact, offenses do not even have to be specified, and a person need not be convicted of a crime to be issued a pardon.

By contrast, a large majority of states have placed limitations on their governors’ power to pardon. For example, many states have imposed postconviction requirements upon governors, requiring that a person must first be convicted of a crime to be eligible for a pardon.

The Pardon of Richard M. Nixon

The most controversial pardon in American history was issued on September 8, 1974, when President Gerald R. Ford pardoned former president Richard M. Nixon one month after succeeding Nixon as president. At that moment, Nixon had not even been charged with any crime; however, he was under investigation for his involvement in a burglary at the Democratic headquarters at the Watergate hotel in Washington, DC. Nevertheless, Ford’s proclamation pardoned Nixon for all offenses against the United States that he may have committed during his presidency.

Many Americans believed that Ford’s pardon of Nixon was motivated by partisan interests and contradicted the assumption of the Framers of the Constitution that presidents would not break the law. In fact, some speculated that Ford promised to pardon Nixon even before Nixon named him vice president on Spiro Agnew’s resignation, thus putting him in line for the presidency. Nevertheless, in Murphy v. Ford (1975), a federal district court judge upheld the constitutionality of Ford’s pardon of Nixon. Citing Ex parte Garland as precedent, the judge reaffirmed that the president’s power to pardon is not subject to any limitations.

President Ford announces his decision to pardon former President Richard Nixon. (Public domain, via Wikimedia Commons)

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Bush’s Pardons of Iran-Contra Figures

In December 1992, President George Bush pardoned six key figures in the Iran-Contra scandal, which involved members of President Ronald Reagan’s administration illegally selling weapons to Iran during the 1980s in exchange for funds to support the Contras who were fighting against Nicaragua’s Sandinista government. Congress had specifically addressed the issue of the Contras by passing legislation to keep the US government out of the Nicaraguan civil war. In December 1992, Reagan’s former vice president, George Bush, was himself a lame-duck president, after losing his bid for reelection in November. Bush pardoned former defense secretary Caspar Weinberger, three Central Intelligence Agency officials, and two former advisers to Reagan. By pardoning these people, Bush halted the criminal justice process and prevented more information from surfacing about the scandal. His action was troubling because many people speculated that Bush was acting in his own self-interest, as criminal trials might have produced information about his own involvement in the scandal during his time as vice president.

The pardon power is a significant grant of authority bestowed upon US presidents. The pardons issued by Ford and Bush demonstrate that the power might be used for political purposes and, more important, might pose risks to democratic government. The pardon power has the potential of being used by governors and presidents to conceal criminal and other government misconduct. Therefore, some politicians, such as former senator Walter Mondale of Minnesota, have proposed constitutional amendments to place a postconviction limitation on the president’s power to pardon individuals for federal crimes. Until such an amendment is ratified, however, the US Supreme Court’s interpretation of the pardon power prohibits restrictions upon presidents.

Scott P. Johnson

Further Reading

1 

Chabot, Steve. Presidential Pardon Power: Hearing Before the Committee on the Judiciary, US House of Representatives. Collingdale: Diane, 2003. Print.

2 

Genovese, Michael. The Power of the American Presidency, 1789-2000. New York: Oxford UP, 2000. Print.

3 

Johnson, Scott P., and Christopher E. Smith. “White House Scandals and the Presidential Pardon Power: Persistent Risks and Prospects for Reform.” New England Law Review (1999). Print.

4 

Macgill, Hugh C. “The Nixon Pardon: Limits on the Benign Prerogative.” Connecticut Law Review (1974). Print.

5 

Mollenhoff, Clark R. The Man Who Pardoned Nixon. New York: St. Martin’s, 1976. Print.

See also Amnesty; Clemency; Constitution, U.S.; Criminal justice system; False convictions; Good time; Miscarriage of justice; Parole; Parole officers; Political corruption; Probation, adult; Parole Commission, U.S..

Citation Types

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MLA 9th
"Pardons." The Criminal Justice System, 2nd Edition, edited by Hooper Michael K., Salem Press, 2017. Salem Online, online.salempress.com/articleDetails.do?articleName=CJ2E_0433.
APA 7th
Pardons. The Criminal Justice System, 2nd Edition, In H. Michael K. (Ed.), Salem Press, 2017. Salem Online, online.salempress.com/articleDetails.do?articleName=CJ2E_0433.
CMOS 17th
"Pardons." The Criminal Justice System, 2nd Edition, Edited by Hooper Michael K.. Salem Press, 2017. Salem Online, online.salempress.com/articleDetails.do?articleName=CJ2E_0433.