Gavin Howe
The President of the United States has the authority to pardon persons convicted of federal offenses against the United States or the District of Columbia. This power extends to persons convicted in a US District Court, the Superior Court of the District of Columbia, or a military court-martial. A pardon absolves the individual of guilt and punishment and restores certain civil rights. However, it does not erase the conviction from their criminal record. The President's pardoning power is limited to criminal offenses and does not extend to civil actions or violations of state laws. Therefore, the governor cannot pardon family law civil judgments, as these fall outside the scope of the President's pardoning authority.
| Characteristics | Values |
|---|---|
| Who can grant a pardon? | The President of the United States or the Governor or state Attorney General of the state in which the person was convicted. |
| Who can be pardoned? | Anyone who commits a federal offense against the United States or the District of Columbia. |
| What does a pardon do? | It is an expression of forgiveness and can help eliminate some of the consequences of a conviction. It can restore certain civil rights and relieve a person of federal firearms disabilities. |
| What does a pardon not do? | It does not remove an offense from a person's criminal record, nor does it overturn a judgment of conviction. It does not affect vested rights of third parties or remove civil liabilities to individuals wronged. |
| What is the process for requesting a pardon? | A person must submit a petition to the Secretary of the military department that had original jurisdiction in their case. |
| Are there any limitations to the President's pardoning power? | Yes, the President can only pardon federal offenses and cannot interfere with state prosecutions. The pardoning power only extends to criminal offenses and does not apply to civil offenses or civil contempt charges. |
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What You'll Learn
The President's power to pardon
The President of the United States has the authority to pardon individuals who have committed a federal offence against the United States or the District of Columbia. This power is derived from the Constitution, which grants the President plenary authority to forgive convicted persons, reduce their penalties, or alter their sentences with certain conditions.
The President's pardon power is broad but not without limitations. Firstly, the President can only pardon federal offences and cannot interfere with state prosecutions or violations of state laws. Secondly, the pardoning power only applies to criminal offences and does not preclude civil actions. For example, a pardon does not remove an offence from a person's criminal record; it merely erases the associated guilt and punishment. Thirdly, the President may not preemptively immunize future criminal conduct or aggravate punishment. Finally, the pardon power does not affect vested rights of third parties or relieve the wrongdoer from civil liability to the individual they have wronged.
The process of seeking a presidential pardon begins with contacting the appropriate clemency authorities in the state of residence to understand the specific procedures. The Office of the Pardon Attorney assists the President in this process by reviewing clemency petitions and providing recommendations. The Deputy Attorney General oversees this office. While the President may choose to provide reasons for granting clemency, it is not a requirement, and recent Presidents have rarely announced their justifications.
The Supreme Court has affirmed the President's pardon power in several landmark cases. In United States v. Klein (1871), the Court ruled that Congress cannot infringe on the President's pardon power by changing the effect of a pardon. In Ex Parte Garland (1866), the Court clarified that a pardon could allow a pardoned individual to take an oath and practice law in federal court. The Court also recognized the President's authority to commute a sentence without the person's consent if it serves the public welfare.
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Pardoning civil contempt
The US Constitution gives the President the power to pardon individuals for federal offenses. This power is not without limitations, however, and it does not extend to state prosecutions or civil actions.
The President's ability to pardon civil contempt has never been definitively addressed by the Supreme Court. In Ex parte Grossman, Chief Justice Taft argued that the President does not have the power to pardon civil contempt. This argument was purportedly based on English precedent, but this is not supported by pre-ratification English cases and treatises.
History, common law precedent, and functional considerations support the view that the Constitution permits pardoning contempt unless the pardon extinguishes the private legal interests of third parties. Under this interpretation, the President can pardon all criminal contemnors and can release a subset of civil contemnors from coercive fines or imprisonment. These civil contemnors must owe tangible, not equitable, relief.
While the President's pardon power is broad, it does have some accepted limitations. The President can only pardon federal offenses and cannot interfere with state prosecutions. Additionally, the pardoning power only applies to criminal offenses and does not include civil actions. For example, the President can pardon a person jailed for criminal contempt of court but not for civil contempt.
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Pardoning and civil liability
The US Constitution vests the President with the power to "grant reprieves and pardons for offences against the United States, except in cases of impeachment". The President's pardon power is an extraordinary remedy that is sought by many but received by few. The President may use their clemency authority only for criminal penalties, not civil. They may use their clemency authority to pardon federal offences but not state offences.
A pardon is the President's forgiveness for the commission of an offence, which removes civil disabilities and collateral consequences. However, some recipients of a pardon may still face legal consequences from a criminal conviction despite receiving a pardon. For example, a pardoned offence may still be considered in subsequent proceedings as a circumstance of aggravation under a state habitual offender law.
In the federal system, commutation of sentence and pardon are different forms of executive clemency. A commutation of sentence reduces a sentence, either totally or partially, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction. A commutation may include remission (release) of the financial obligations that are imposed as part of a sentence, such as payment of a fine or restitution.
At present, a presidential pardon is the only means by which a person convicted of a federal felony offence may obtain relief from federal firearms disabilities.
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Pardoning and restoration of civil rights
The President's constitutional authority to pardon is considered unlimited and unreviewable in the courts. The President can grant clemency or issue a pardon, which mitigates or sets aside punishment for a crime. However, a pardon does not overturn a conviction, and the pardoned individual must still answer "yes" if asked about their criminal history. A commutation of sentence reduces a sentence in whole or in part but does not change the fact of conviction or imply innocence.
State law governs the loss and restoration of civil rights, including the right to vote, hold public office, serve on a jury, and serve as a notary public. While some states have procedures for restoring these rights, others do not. A pardon can restore firearms rights, but only if the crime did not involve the use of a dangerous weapon. It is important to note that a pardon does not expunge or remove the conviction from an individual's record.
To pursue relief from a state conviction, one should contact the Governor or state Attorney General in the state where the conviction occurred. The Governor's power to pardon first felony offenders is typically unlimited, and they may appoint an independent board to exercise this power. The pardon process often involves a judicial certificate of rehabilitation, followed by a recommendation from the parole board to the Governor.
In summary, while a pardon can restore certain civil rights, it does not erase the conviction from an individual's record, and the restoration of rights may vary depending on state law and the nature of the offense.
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Pardoning court-martial convictions
The President can grant pardons for any reason and the number of pardons granted is unlimited. Pardons can be granted to those convicted in a United States District Court, the Superior Court of the District of Columbia, or a military court-martial. A pardon is an expression of forgiveness and can help eliminate some of the consequences of a conviction. However, it does not erase the record of the conviction.
For those convicted at a court-martial, clemency requests are usually denied, and military court-martial appeals are often unsuccessful. The last possible recourse to restore rights such as voting, gun ownership, and addressing citizenship and deportation concerns is to apply for a presidential pardon. A pardon application for a court-martial conviction can be submitted to the Office of the Judge Advocate General (OTJAG) or the Judge Advocate General Criminal Law Division (Code 20) of the U.S. Navy/U.S. Marine Corps, depending on the branch of the military. The application will first go to the Secretary of the service that convicted the individual, who will then make a recommendation to the Office of the Pardon Attorney (OPA). The OPA will conduct its own review and make a recommendation to the President. The entire process typically takes about six weeks.
It is important to note that a pardon will not change the nature of the discharge received as a result of the court-martial conviction. Additionally, pardons for wrongful convictions or unfair treatment at trial are rarely successful. The OPA looks for evidence of contrition and sustained positive community contributions. The odds of receiving a pardon are generally low, and applicants should not expect a favorable outcome.
While the President has the power to pardon court-martial convictions, it is not common for this power to be exercised frequently. In recent times, there has been increased scrutiny of presidential pardons, and the public perception of pardons has been influenced by controversial cases. As a result, the use of pardons by Presidents and Governors has become more cautious and frugal.
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Frequently asked questions
No, the governor cannot pardon family law civil judgments. The president's pardoning power only extends to criminal offenses and federal offenses against the United States or the District of Columbia.
A commutation of sentence reduces a sentence, either fully or partially, but it does not change the fact of conviction or imply innocence. On the other hand, a pardon is an expression of forgiveness that can help eliminate some of the consequences of a conviction.
To request a pardon, you should contact the Governor or state Attorney General in the state where you were convicted. If you are requesting a pardon for a court-martial conviction, you should submit your petition to the Secretary of the military department that had original jurisdiction in your case.
While it is generally not the policy of the Department of Justice to process applications for posthumous pardons, there have been a few instances where Presidents have pardoned persons known to be deceased at the time.
