38

This answer provides some insight into a way for a President to pardon someone with virtually no consequences:

(..) in reality, presidents often wait until his final days/hours to grant the most controversial pardons.

And once a pardon is granted, there is no recall of the pardon.

Therefore, there is really no checks to pardon power, making it the most KING like power the presidency holds.

I am wondering why do modern democracies (with rather complex check and balances in place) allow pardons to exist in the first place. In a political system having separation of powers and where persons can appeal if they think the verdict is not correct, it does not make much sense to have the president pardon someone.

Question: Why do presidential pardons exist in a country having a clear separation of powers?

Note: I will narrow this to US only, since there might hard to provide an answer to cover all countries that have presidential pardons.

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    @pjc50 By "the original constitution" do you mean the Articles of Confederation? I am rather unfamiliar with them, but I suppose they are technically the original constitution of the United States. – Joel Harmon Aug 30 at 0:14
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    Comments deleted. This is not an appropriate place to discuss whether the United States are a democracy or a republic. – Philipp Aug 30 at 11:26
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Question: Why do presidential pardons exist in a country having a clear separation of powers?

In a word: history...

The case of the US is tied to that of the UK. In the UK you have the Royal Prerogative of mercy which has been used since at least 1617.

This is likely copied from across the Channel in France, where the Droit de grâce (Fr) was used by Philippe VI to pardon nobles and then got extended to the rest of the population by John II in the 14th century. The power still exists today and lies in the hands of the French President.

The point in the above historical note is that the Head of State's right to pardon was likely seen as a matter of course when the US constitution was written. Article II, Section 2 almost certainly reflected this line of thought (see Federalist 69 mentioned in C'est Moi's answer), and the POTUS right to pardon has been a thing since -- with some haggling in between with some SCOTUS cases over how it should get exercised.

Interestingly, the prerogative evolved similarly on both sides of the Atlantic. Namely, on the British side of the Atlantic it seems to have been taken out of the monarch's hands in practice, and it is the PM who suggests a pardon. On the American side of the Atlantic, the Department of Justice has an Office of the Pardon Attorney to review cases. But in both cases the power still formally remains in the hands of the Head of State.

In some sense, what's unusual with the current US administration is that Trump appears to be exercising the power on a whim without bothering to consult the Office of the Pardon Attorney, and in the middle of his presidency at that. By contrast, and as you note, his predecessors usually stuck to the very last days of their presidencies to issue controversial pardons. (Nixon's pardon by Ford is the only major exception that springs to mind in recent memory. That one was done in Ford's early days in office, in an effort to try to heal the nation.)

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    I don't think history is a sufficient reason without describing the utility that the pardon power provides for governments, as well as how it actually bolsters separation of powers and provides a check on the courts. – K Dog Aug 30 at 12:49
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    With the addition of an argument that the status quo has a heretofore insurmountable (or, at least, insurmounted) momentum, such that the now-defunct historical reasoning is still the overriding factor behind having this power in the current era, this is a great answer. – Lightness Races in Orbit Aug 30 at 13:31
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    Is there evidence that only the current administration is not consulting anybody? I don't believe Clinton consulted anybody over Rich or his own brother, otherwise he might have realized it was unwise at best. I'm sure there are other such pardons before Trump, since the office was established in 1981. I think it would be a good idea to mention that the President grants pardons for federal crimes and, historically, there weren't many federal crimes nor was the intent for there to be many. The expansion of federal regulations has expanded the scope of the pardon power. – gormadoc Aug 30 at 14:29
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    @gormadoc: No quibbles. Per what I wrote, Trump appears to be exercising the power on a whim. Best I'm aware there are no details on how he's exercising it in practice. I would contrast Trump with Clinton though in that the latter generated well deserved outraged when he appeared to abuse the power, whereas Trump seems to be doing it on a routine basis. For the other part of your comment see my answer to K Dog. – Denis de Bernardy Aug 30 at 16:57
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    “in an effort to try to heal the nation”, or because a trial would lead to scrutiny of the imperial presidency itself – Anton Sherwood Sep 1 at 21:35
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There is a proverb that hard cases make bad laws. The pardon power is a check and balance on laws and their application.

  • The legislative has to write laws with general scope.
  • The judiciary interprets those laws in specific cases, and their role in questioning laws is rather limited. They can only set the law aside if they can find overriding principles in a constitution or the like to justify why they are ignoring the law as written.

The executive may be given the power to pardon whenever the application of a generally just law to a specific case creates an injustice.

  • Comments are not for extended discussion; this conversation about the definition of justice has been moved to chat. – Philipp Sep 2 at 13:59
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The President has pardon power in part to prevent abuses by the other branches of government

Let's start with this statement of yours:

In a political system having separation of powers and where persons can appeal if they think the verdict is not correct, it does not make much sense to have the president pardon someone.

Assume for the moment that you are a wrongfully convicted person, or someone who is correctly convicted of something that shouldn't even be a crime. Who do you appeal to who? You appeal to higher courts, typically. What happens when you've run out of higher courts to appeal to?

Suppose that the courts have decided against you every time because of some inherent flaw in the law, either as it was written or as a judge interpreted it. If you need a concrete example, imagine that you are black person living in 1850's who has escaped slavery (e.g. Dred Scott - see Dred Scott v. Sanford)

If your problem is with the law as it's written, then the legislature would have to re-write it, but that wouldn't help you; just other people like you in the future. Maybe the court could help you by vacating the law, but if your problem is with the judicial system deciding that you have no rights at all, then that's not going to happen.

Dred Scott was "lucky" in the sense that he was privately manumitted by a new owner after the Supreme Court decided he had no rights whatsoever. What if you, as an individual, were not so "lucky"?

What you need is a third branch of government who can check the abuse that you are suffering at the hands of the legislature and the judiciary. That would be the executive, because that's the only one that's left. By pardoning you, the President can sidestep the entire question of whether or not the law is bad and simply say that you shouldn't be in prison/facing death whatever.

(It's a little more thorny as to whether or not a pardon would have actually helped Dred Scott; I just picked it because it was an obvious injustice that was nonetheless sanctioned by the judiciary at the highest level).

There's probably a bunch of common law historical context about how the President gets to do it because Kings used to do it, but that makes things less obvious rather than more obvious about how the pardon power is still important when powers are separated.

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    In addition to Presidential pardons for Federal crimes, most if not all US states have a state level pardon process. Usually by the governor, but sometimes by an independent board. – jamesqf Aug 30 at 4:50
  • for many great examples of this, one only has to look at the 'war on drugs' which turns what should otherwise be a misdemeanor or minor crime into a life sentence. there are murderers who spend less time in prison. the sentence generally oversteps the severity of the crime, but because that's the way the laws are written, judges have little choice (and some are just plain assholes). But the war on drugs is popular - it keeps prisons well occupied - and won't otherwise be repealed so instead, the president pardons the lowest offenders who copped otherwise unfair punishments – Zac Faragher Aug 30 at 6:56
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    There are other reasons to appeal to the executive rather than "he's the only one left" like the unitary executive can make decisions faster to redress injustices, as he is the representative of all the states and of the Union, he has a clearer mandate to appeal to common ideas of justice, etc. etc. – K Dog Aug 30 at 12:56
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    There's also the fact that he's explicitly tasked with "tak[ing] care that the laws be faithfully executed", so if he thinks there's been a miscarriage of justice, he absolutely should intervene. It's no surprise that the controversies pop up with individuals who didn't suffer a miscarriage of justice, like Marc Rich, Roger Clinton, Jr., and Joe Arpaio. – gormadoc Aug 30 at 14:37
  • @gormadoc - There is no doubt that the only reason the government prosecuted Arpaio is because the Obama administration had a vendetta against him. So he doesn't belong on your list at all. If the government wants to get you, they will. Which is why it is so amazing that despite all the corrupt behavior of Obama appointees and minions to prosecute Trump that they still couldn't come up with a single piece of evidence that could even reach the level of 'preponderance of evidence' let alone 'beyond a reasonable doubt'. – Dunk Sep 3 at 22:34
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No matter how you structure the government, on any point there is always somebody who has the final say. The only alternative is that nothing falling under that topic is ever finally settled, until the people who care are dead.

In the case of the president's pardon authority:

  • If there were no pardon authority, then the Supreme Court would have the final say.

  • If the president's pardons had to be cleared with some other person before they become valid, then that other person would have the final say.

IMHO, giving the president the final say is preferable to leaving it in the hands of the Supreme Court, because he is subject to removal after his first four years, and at any point by impeachment.

5

I believe the framers of the US constitution wanted to copy the good parts of British and colonial government and abolish the bad parts of British and colonial government.

And - at least according to the Declaration of Independence - they believed one of the worst aspects of British laws was the ability of the government to unfairly convict people and enforce arbitrary and unjust punishments on the people unfairly convicted.

And in those days British justice could sometimes be very arbitrary and more like "justice".

For example, the British government used a very broad definition of treason, and if the British government wanted to try someone for treason would stretch even that broad definition as much as possible to arbitrarily claim that person's actions were treason. And it might try those persons in a kangaroo court biased against them to ensure they were convicted.

And the British government could get the British Parliament to pass bills of attainder against persons, which were laws decreeing that someone was guilty of treason without any trial taking place. And at that time the property of convicted traitors (who were often very rich noblemen) was confiscated by the British government instead of inherited by the traitor's heirs. And at that time the maximum possible British legal penalty for treason was still a very horrifying and painful death.

And so Article III, Section Three of the US constitution says:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

https://www.law.cornell.edu/constitution/articleiii1

And for similar reasons the Fifth Amendment to the US Constitution says:

No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.

And the Sixth Amendment says:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

And the Seventh Amendment says:

n suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law.

And the Eighth Amendment says:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

https://nccs.net/blogs/americas-founding-documents/bill-of-rights-amendments-1-102

So the Americans in that era knew that they needed laws and courts and punishments, but also believed that they had to restrain the government from inflicting arbitary, unjust, and cruel punishments. So designed a system that they hoped would eliminate the ability of the executive department to achieve unjust convictions. The power of the chief executive to pardon did not seem like a dangerous power that needed to be abolished to them, even though it might sometimes be used arbitrarily.

That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved.

Benjamin Franklin.

https://www.bartleby.com/73/953.html3

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    Yes, to be able to pardon treason after a civil war or a huge unrest is very important. The US Civil War had about a million soldiers fighting for a side which lost. Could you achieve stability in a country while a million people were imprisoned or taken revenge on, fueling another cycle of revenge? Or was it better to re-integrate them into society? – vsz Sep 1 at 10:02
  • @vsz Currently there are a few millions people imprisoned in the USA, and it doesn't affect stability much. – Alice Sep 2 at 9:23
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    @Alice : 1: The total population now is much larger. 2: It would greatly affect stability if you just put a million people into prison in a single day. – vsz Sep 2 at 19:45
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There are a couple points to consider there -

And once a pardon is granted, there is no recall of the pardon.

Therefore, there is really no checks to pardon power, making it the most KING like power the presidency holds.

In most cases, yes, but this is not absolute. In this op-ed, Laurence Tribe and Ron Fein argue that is a pardon undermines the ability of a co-equal branch to exercise the powers given or mandated them under the Constitution, then such a pardon is an unconstitutional act, and can be reversed or invalidated by the courts.

The power to pardon is limited by the Fifth Amendment's guarantee that no person be "deprived of life, liberty, or property, without due process of law." That guarantee requires that courts must be able to issue and enforce injunctions to stop constitutional violations by government officials. Otherwise, compliance with a court order would be optional.

In 1925, the Supreme Court upheld President Calvin Coolidge's pardon of a speakeasy operator who had violated a court order to stop selling liquor during Prohibition. But the court has not considered a pardon for contempt since 1925. And it has never considered a pardon issued to a ranking government official for disobeying a court order to stop a systemic practice of violating individuals' constitutional rights.

The framers suggested one solution to the prospect of such abuse. During a Virginia debate over whether to ratify the Constitution, George Mason worried that the president might "pardon crimes which were advised by himself." James Madison replied that a president who did so could be impeached. Trump's pardon of Arpaio should trigger congressional hearings on whether it constitutes an impeachable offense.

But it strains logic to suggest that, although a president can be removed from office for an unconstitutional pardon, the pardon itself must be judicially enforced. By pardoning Arpaio for his willful disobedience of a court order to stop violating Arizonans' constitutional rights, Trump has pulled the republic into uncharted waters. Our best guide home is the Constitution.

WaPost Op-Ed:Trump’s pardon of Arpaio can — and should — be overturned

The second is the idea that because the power of one branch can overrule the actions of another, that means the other branches are unable to check the powers of that branch. Would the issuing of a pardon possibly be viewed in the light of the Executive Branch checking the powers of the legislative and judicial branches? Sure. That's a very different "spin" than "a pardon means this branch is unstoppable."

But if we accept the premise that it means the Executive is unchecked, then wouldn't a SCOTUS ruling invalidating an executive action or a law passed mean that the Judicial Branch is running amok with unchecked powers? Having powers checked doesn't mean that each and every action can be stomped out by another branch, it means that, overall, each branch has the ability to reign in excesses by other branches (in this case, the President could be removed by Congress for flagrant and criminal abuse of pardon powers).

  • Comments are not for extended discussion; this conversation about the legal details of presidential pardons has been moved to chat. – Philipp Sep 4 at 8:52
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I note with interest that none of the answers mention Federalist 69.

" In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York."

https://avalon.law.yale.edu/18th_century/fed69.asp

It is the most King-like of the Presidential powers.

In general, I think that any question which can be formulated as 'Why does the American political system ...' or something similar should start with a search through the Federalist papers.

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