The pardons recently issued by outgoing President George Bush set off public discussions about executive clemency powers in the United States. This comes as no surprise; presidents often issue pardons that spark controversy at the end of their terms, with the lame duck period after the election of a new president bringing with it debates over the scope and propriety of the power to pardon.
The pardon power, granted in Article II, Section 2, of the US Constitution, is unchecked. The president may issue any number of pardons, to whomever he or she chooses, and without any legislative or judicial oversight. A pardon may be issued after a crime is committed, including before trial, while a sentence is being served, or after a sentence has been completed. The pardon power is only restricted by two conditions: pardons may not affect an impeachment process, and the president may only pardon offenses against the United States (i.e., federal crimes, rather than civil or state crimes).
In 1891, the US Congress established the Office of the Pardon Attorney, a branch of the Justice Department. The office typically handles all requests for presidential pardons, completes the appropriate background investigations, and submits its recommendations to the deputy attorney general and White House counsel, who discuss them with the president, though the president is under no obligation to heed the suggestions of this counsel.
A pardon—or, more broadly, executive clemency—actually refers to a range of possible actions. In addition to a full pardon, which completely wipes out the legal consequences of a conviction, the president may issue a conditional pardon (such as the one issued to labor leader Jimmy Hoffa by Richard Nixon in 1971 on the condition that he not take part in union organizing for ten years); a remission, which reduces a sentence; a reprieve, which delays the execution of a sentence; or a general pardon or amnesty, which pardons an entire class of people.
Despite its wide application in the United States, the pardon is not an American innovation. In many civilizations, the power to pardon was vested in the sovereign and might be exercised for political expediency, personal sentiment, to address a deficit in the law, or to influence enemy combatants in time of war. In France, for example, any homicide was considered a murder, and any murder was punishable by death; the king’s pardon served as a check against the unyielding severity of this law.
Revolutionary Roots and Political Continuity
In pre-revolutionary America, the colonial governors generally exercised broad pardoning power, and individual states after the revolution were careful to put checks on the executive pardon into their constitutions. The debate over presidential pardon power during the 1787 convention to draft a new constitution was largely pragmatic. Proponents such as statesman Alexander Hamilton argued that the need for executive pardon powers in times of crisis superseded fears of a quasi-monarchy. They pointed out that a president who can pardon dissidents and factionalists can restore the unity of the country. One point of contention was the power to pardon in cases of treason. Ultimately, this power was retained, and the cogency of this choice was soon put to the test.
In 1791, the new federal government imposed a tax on whiskey that many small distillers considered unfair. The distillers turned to armed insurrection, in what came to be known as the “Whiskey Rebellion.” The issue reached a fevered pitch in 1795, when President George Washington declared martial law and called up the militia to end the rebellion. The rebels were rounded up, two were sentenced to death for treason, and order was restored. Having established the power of the federal government, Washington issued the first pardon in US history and overturned the death sentences of the two traitors. He also issued a general amnesty for those who had taken part in the rebellion.
Following Washington’s precedent, many US presidents have used the power of the pardon to protect the nation and heal the wounds of a country divided. In 1799, President John Adams sent troops to apprehend a group of insurrectionists who had accosted federal tax assessors. Three of the leaders were found guilty of treason and sentenced to death. His cabinet unanimously called for execution, but Adams instead pardoned the rebels in a move that was received positively by most citizens. In 1798, congress passed the Alien and Sedition Acts, which aimed to curb free speech and criticism of the government’s undeclared war with France. Thomas Jefferson believed that the acts were unconstitutional, and after his election in 1801 he pardoned everyone who had been prosecuted under them.
Abraham Lincoln made extensive use of his power to pardon during the US Civil War, pardoning virtually every Union deserter whose case crossed his desk, essentially bolstering the Union’s chance of victory. He also issued a general amnesty in 1863 for confederate soldiers, with the purpose of encouraging enemy desertions. Following Lincoln’s assassination, President Andrew Johnson followed a similar program to lead the country through reconstruction. In 1921, President Warren Harding commuted the sentences of 24 political prisoners. In recent history, Jimmy Carter issued a general pardon to all those who evaded the Vietnam War draft on his first day in office on January 20, 1977.
The Controversy and Value of Pardons
In 1974, Gerald Ford, who was appointed president after Richard Nixon resigned due to the Watergate scandal, pardoned Nixon. Ford’s unpopular decision sank his approval ratings and likely contributed to his loss in the presidential election to Jimmy Carter in 1976. At the time, Ford said that the Nixon saga was “an American tragedy in which we all have played a part.” He went on to state: “It could go on and on and on, or someone must write the end to it. I have concluded that only I can do that, and if I can, I must.”
Ford’s controversial action puts him in good company. Many presidential pardons have been viewed as inept or even corrupt. But while presidents may try to expand the office’s powers, the presidential pardon is one exercise of power that bucks the trend. The total and rate of pardons requested and granted have all decreased over the last century. Regulative forces—such as higher standards by the Office of the Pardon Attorney—and social forces, notably the “tough on crime” trend of the late 20th century, no doubt have played a part in this phenomenon.
Despite inevitable controversies, the pardon power is ultimately about expressing forgiveness. As Alexander Hamilton wrote in The Federalist No. 74, “In seasons of insurrection or rebellion there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.” As leaders seek paths to harmony for their citizens and countries—an ambition deeply ingrained in Chinese society—these are important words to keep in mind.