By: Akanksha A. Panicker
The President of the United States has the constitutional power to issue a federal pardon, which effectively sets aside the punishment in a federal crime.
A federal pardon in the United States is the President of the United States’ action that completely sets aside the punishment for a federal crime. The President is the only individual thus empowered to take such measures. Clemency is one aspect of the presidential pardon, while the other is a commutation of punishment, revocation of fine or restitution, and remission of sentences.
Under the Constitution, the President’s commutation authority applies to all federal criminal offenses. All petitions for presidential clemency for federal offenses are usually referred to the Office of the Attorney General of the United States and the Pardon Attorney Department of Justice for inquiry and review. Still, the President is entitled to circumvent the office even if it is done. Parole shall not take place if the recipient disapproves of the pardon.
The President’s pardon is restricted to federal offenses; the Constitution merely allows the President the capacity to pardon “[o]ffenses against the United States.” The offense that breaches state law, but not federal law, is a violation against the state rather than an offense against the United States
[1.0] KEY TERMS TO REMEMBER
“Clemency” is the common phrase used to define the President’s authority to extend leniency to people who have broken federal legislation.
A “commutation of the sentence” partly or eliminates the sentence to be fulfilled. It will not reverse the sentence, presume innocence, or erases any civil liability that may be placed by the conviction conditions. Commutation can refer to jail time or penalties for reimbursement or compensation. A commutation does not change an individual’s immigrant or citizenship status and does not prohibit their detention or expulsion from the United States; neither does it shield an individual from extradition sought by other governments.
“Pardon” is a presidential act of recusing a person for a federal offense, which would be normally issued only if the alleged perpetrator has acknowledged liability for the conviction and has shown appropriate character for a substantial length of time preceding the arrest or completion of the penalty. Like a commutation, amnesty does not mean innocence. Pardon can also entail the dismissal of fines and restitution levied as part of the sentence. However, unlike a commutation, a pardon excludes all possible legal liabilities. In certain cases, pardon clears the formal basis for expulsion from the country. Under the Rules Governing Petitions for Executive Clemency, a person may not qualify for Presidential parole until at least five years after any jail term levied as part of their punishment has been completely completed.
The President and the U.S. Pardons Attorney
Although the Constitution provides practically no restriction on the President’s authority to offer clemency, imprisoned individuals who petition the President for clemency are expected to comply with a stringent collection of regulatory requirements. All petitions for Presidential clemency for federal crimes are submitted to the U.S. Office. Pardon Attorney at the Department of Justice. The Attorney General shall prepare a report to the President regarding every appeal for Executive clemency, including pardons, commutations of penalties, remissions of fines, and remissions. However, the President is not required to obey the advice of the Attorney for Pardon or to endorse them.
[2.0] SCOPE OF THE PRESIDENT’S POWER
The true scope of the President’s power to pardon has not been sufficiently clarified. Pardons were used in presumptive cases, such as when President Gerald Ford pardoned Richard Nixon, who was not prosecuted under the law for any alleged offenses about the Watergate scandal. Still, the Supreme Court never decided on the validity of such pardons. There is a dispute about how the pardon power functions in cases concerning impediments to an impeachment, especially during the Trump administration.
Federal pardon petitions are nominated to the President, who accepts or refuses the appeal. Normally, petitions for pardons are produced for consideration. Non-binding recommendation by the Office of the Attorney General of the United States Department of Justice and the Office of the Pardon Attorney, The volume of pardons and allowances issued ranged from the government to government. However, it is observed that far fewer pardons have been issued since the Second World War.
A federal pardon can be issued before starting a legal case or inquiry before any indictments are issued, unspecified offenses, and before or after a federal criminal conviction. Bringing up Ford’s broad federal pardon of former President Richard M. Nixon in 1974 for “all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969, through August 9, 1974” is relevant again, exemplifying fixed-period federal pardon that came before any indictments being issued and that covered unspecified federal offenses that may or may not has been committed.
The Justice Department normally requires that anyone filing a petition for a pardon wait five years after conviction or release before receiving a pardon. While clemency can be issued without submitting a formal appeal, in several instances, the Office of the Attorney General will entertain exclusively requests from people who have served their sentences and who have consistently shown their capacity to lead a decent standard of living for a substantial amount of time following incarceration or release from custody.
The Supreme Court ruled in United States v. Wilson (1833) that the convict could reject a pardon. In Burdick v. the United States (1915), the court specifically said: “Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy.” Commutations (reduction in a prison sentence), unlike pardons (restoration of civil rights after prison sentence had been served), may not be refused. In Biddle v. Perovich 274 U.S. 480 (1927), the commutation subject did not want to accept life in prison but wanted the death penalty restored. The Supreme Court said, “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”
[3.0] LIMITATIONS ON THE POWER OF PARDON
By the President’s order, federal pardons extend only to federal legislation, which does not apply to civil, state, or municipal crimes. Federal pardons also do not extend to instances of conviction. Pardons for state offenses shall be administered by the governors or the state pardon commission.
One restriction to the President’s authority to order commutations is in cases of impeachment. This means that the President cannot use a pardon to deter an official from being charged or reverse the consequences of an indictment and a conviction.
Several law scholars still analyze whether to recognize pardon is necessarily an admission of guilt. According to Associate Justice Joseph McKenna in the majority opinion held in the Supreme Court case Burdick v. the United States, parole “carries an imputation of guilt; acceptance a confession of it; however, the federal courts are yet to make it clear if this logic relates to dead individuals (such as Henry Ossian Flipper, who was pardoned by Bill Clinton), those who are deprived of sentences as a result of general amnesty, and those whose sanctions are relieved through a commutation of the language, which is unable to be rejected If the president believes that the individual is innocent and offers parole, then granting pardon does not mean that the individual is complicit.
While the President’s amnesty will restore the various rights that have been breached due to the pardoned offense and can, to a degree, relieve the prejudice of the conviction, it may not erase or expunge the record of the conviction. Thus the person who has been given the pardon must also reveal their record in some cases where that evidence is required, but the person must still declare that they were granted the pardon. Most of the substantive limitations associated with a federal criminal conviction, such as the deprivation of voting rights and to assume elected office, remain subject to state rule rather than a federal criminal conviction.
The moral and legislative right of the President to forgive himself (self-pardon) remains an outstanding issue. During the Watergate crisis, President Nixon’s counsel indicated that self-pardon would be legitimate. Simultaneously, the Department of Justice released a memorandum of agreement on 5 August 1974 claiming that the President should not forgive himself. The 1974 memo mapped out a situation in which, under the Twenty-fifth Amendment to the United States Constitution, the President could designate himself unfit to operate. The acting president could then pardon the president, and “thereafter, the president could either resign or resume the duties of his office.”
On July 22, 2017, President Donald Trump wrote, “While all agree the U.S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us. FAKE NEWS” sparking several news stories and online comments about the President’s willingness to pardon relatives, assistants, and perhaps even himself about the 2017 Special Counsel Probe, which ultimately concluded President Donald Trump could not be indicted at the time,
Arguments against self-pardon include constitutional themes of self-judgment and individual personality of meting out justice, the unjust existence of the President being above the rules, breaches of public confidence, the use of the term “grant” in the relevant provision (no one can grant anything to oneself), the concept of “pardon” (because one cannot grant forgiveness to oneself) and the inadequacy of other protections.
[4.0] KEY ASPECTS TO REMEMBER WHEN APPLYING FOR A PARDON
All requests, except those about military offenses, should be addressed to the Pardon Attorney’s Office. To be accepted, the form must be filled in full and must be accurate and notarized. Additional pages and papers that amplify or justify the response to any query can be added to the petition.
Under the Department’s regulations on discretionary clemency, applications the petitioner shall follow a reasonable holding time of five years before being able to request for Presidential parole for his criminal prosecution. The waiting time, which is intended to give the applicant a fair period of time to show the capacity to lead a responsible, positive and law-abiding life, starts on the day on which the petitioner is released from custody. Alternatively, where the crime ended in a punishment that did not include imprisonment, whether community or home confinement, the waiting period began on the sentencing day.
The applicant could have completely met the sentence levied, including any probation, parole, or supervised release, before asking for clemency. The waiting time starts following discharge from prison regarding a most current arrest, whether or not this is the crime for which pardon is requested. One can make a written request to waive this condition, although the exclusion of some aspect of the waiting time is seldom given and usually under the most extraordinary cases. To obtain a waiver, it is necessary to complete the application form and apply it with a cover letter outlining why the waiting time should be waived in one’s situation.
If one has more than one federal conviction, the most current conviction should be displayed in the petition and the conviction’s completed aspect. For any such federal convictions, including those in military courts-martial, the details sought in the petition should be contained in the attachment. Any federal prosecutions that do not end in a sentence should be recorded in the room given for the previous and subsequent criminal record.
If one is demanding amnesty for a court-martial conviction only, they need to send the completed petition directly to the Secretary of the Military Department, who has the original jurisdiction for the same Pardon of a combat offense would not alter the essence of a military discharge. Upgrades or other military discharge adjustments can be rendered only through the intervention of the relevant military authority.
All additional convictions or allegations by any civilian or military law enforcement body, including any federal state, municipal or international authority, whether they have happened before or after the crime for which pardon is being sought, should be disclosed, with every infringement, including traffic offenses that culminated in detention or felony proceedings, such as driving under the influence. Failure to report, whether or not it culminated in prosecution, can be viewed as a falsification of the petition. This list must also mention overdue credit commitments, whether or not they are contested, as well as civil cases in which one has been identified as a participant, whether as a plaintiff or a defendant, including insolvency proceedings. This also would include any outstanding tax liabilities, whether they be federal, state, or municipal. At least three character affidavits must support the petition. Persons linked to the individual seeking parson by blood or marriage cannot be used as main characters.
Pardon authorities are required to conduct a very comprehensive analysis to assess a petitioner’s admissibility for relief. A thorough investigation into the petitioner’s professional history and current activities is likely, considering the type, severity, and recentness of the crime, the petitioner’s cumulative criminal background, any particular difficulty that they might face as a consequence of the prosecution, and the nature and duration of their participation in community service or charitable or other praiseworthy activities following the conviction.
The failure to fully and accurately complete the application form may be construed as a falsification of the petition, which may provide a reason for denying the petition. The knowing and willful falsification of a document submitted to the government may subject the individual to criminal punishment, including up to five years’ imprisonment and a $250,000 fine.
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1.Article II, Section 2, Clause 1 of the U.S. Constitution: The President … shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
2.USDOJ: Office of the Pardon Attorney”. USDOJ. Archived from the original on January 5, 2015. Retrieved August 26, 2017
3.” Presidential Pardons – ABA Legal Fact Check – American Bar Association.” www.abalegalfactcheck.com.
4.”Pardon Information and Instructions.” www.justice.gov. January 12, 2015. Retrieved December 7th, 2020.
5. the United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833)
6.Burdick v. the United States, 236 U.S. 79 (1915),
7.Lieutenant Henry Ossian Flipper, U.S. Army 1856–1940 Archived September 22, 2009, at the Wayback Machine. U.S. Army
8.Nytimes.com. 2020. Trump Says He Has ‘Complete Power’ To Pardon (Published 2017). [online] Available at: <https://www.nytimes.com/2017/07/22/us/politics/donald-trump-jeff-sessions.html> [Accessed 7 December 2020].
9.28 C.F.R. §§ 1.1 et seq
10.See 18 U.S.C. §§ 1001 and 3571