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So I was reading today and I read for about the thousandth time about a presidential pardon, and I started to wonder:

Why is the president allowed to grant a pardon? What are the limits of a presidential pardon? What happens to people barred from prison or execution etc. who are granted a presidental pardon?

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Pardons have three major benefits:

  • By explicitly giving one person the power to overrule punishments, they make the law less impersonal. If public opinion concludes that an injustice has been done, a particular politician can be convinced to grant a pardon.
  • It makes it easier to end civil wars. A common provision of civil war settlements is an amnesty for participants in the civil war. Such an amnesty can be implemented using pardons. This can help end the cycle of vengeance that tends to make civil wars drag on.
  • It makes it easier for a president to hand over power at the end of their term of office -- or earlier, in the case of impeachment or other coup d'etat. It has become traditional for presidents to pardon a number of people at the end of their term. These pardons are often done at the suggestion of major political donors. Part of the resolution of the Watergate scandal was that Nixon was pardoned by Ford. This may not have been a quid pro quo, but it did help resolve the situation, without further degrading the former president.

There are some limits on presidential pardons:

  • A pardon can only be granted for an alleged crime that has already allegedly been committed. It does not grant immunity for future alleged crimes, nor does it grant immunity for current alleged crimes to the extent that they continue to be committed.
  • A presidential pardon is for federal crimes. The president cannot pardon someone for a state crime (or a crime committed subject to a local jurisdiction whose power is derived from a state).
  • Unless the pardoner presents strong evidence for the pardonee's actual innocence, a pardon tends to convict the recipient in the court of public opinion. Thus, it tends to harm the reputation of the pardonee.
  • As cpast points out, a defendant can decline the benefits of a presidential pardon.

Presidential pardons are reinforced by the constitutional prohibitions against double jeopardy and ex post facto laws. Once a person has been pardoned for a federal crime, the federal government (and any territories or districts that derive their power from the federal government) cannot re-try the pardonee for that crime.

Presidential pardons could theoretically have enormous power: "a power of summary execution." In Tom Kratman's fictional Caliphate, a dystopian United States opposes the Caliphate. President Buckman's party passes a law granting the federal government exclusive jurisdiction over, among other things, political murders. (This is arguably constitutional under the "guarantee of a republican government" clause.) This meant that Buckman could credibly threaten a person's life by offering to pardon any future murderer of that person.

  • Other limits: Pardons are only for criminal cases, and don't remove civil liability (you can still be sued). Also, pardonees have the right to decline a pardon; it can't be forced on someone. – cpast Jan 27 '15 at 0:32
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    @cpast The right to decline a pardon was indeed assessed in US v. Wilson, but this ruling was overturned in Biddle v. Petrovich. The President may grant pardon unilaterally, without the beneficiary's consent. – Eikre Mar 21 '16 at 20:32
  • @eikre So a president could grant a pardon to someone who had committed no crime to destroy their reputation? – Phil Lello Apr 2 '16 at 20:25
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    Interesting that you should ask. The findings of Wilson were extended in Burdick v. US, wherein justice McKenna opined that acceptance of a pardon was both 1) indeed, an admission of guilt and 2) necessary, to benefit from the pardon. Biddle would go on to overturn the second part of this ruling, but doesn't really speak to the first. It's my opinion that, to reconcile Biddle with earlier jurisprudence, one should treat a pardon as neither a consequence of guilt nor as an acquittal. It's not for the Executive to determine guilt, only to manage outcomes that serve the public good. – Eikre Apr 2 '16 at 21:38
  • To be fair, though: Gerald Ford disagreed with me. He would quote Burdick when people challenged him about pardoning Nixon. On the other hand, part of the reason that a lot of people were angry about that pardon was because they thought it was supposed to indicate innocence. All that goes to show: If the President wants to impugn someone's good name, he has far more straightforward ways to communicate his accusations, and either way, plenty of people are going to refuse to take his word for it. – Eikre Apr 2 '16 at 21:50
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Since time out of mind kings have been allowed to grant Royal Pardons. They are still available in some european monarchies, but they don't get handed out very often because they have been replaced by appeal courts and the like.

The authors of the US constitution couldn't and didn't reimagine absolutely everything from scratch; some royal prerogatives they just gave to the new head of state, the president.

As for restrictions, there are none whatsoever. Unlike any other presidential power, the president can give pardons to whoever they please, for any or no reason.

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    Presidential pardons are for federal prosecutions and/or convictions, not state prosecutions and/or convictions. – Jasper Jan 25 '15 at 19:00
  • Good point. OP asked if there were any limits to presidential pardons, by that I interpreted if his pardons could be overturned by anyone. – Ne Mo Jan 25 '15 at 19:17
  • There actually is one restriction: the person who is issued a pardon is free to decline it, and it can't be forced on them. Once they've accepted the pardon no one can revoke it (not even the president who issued it), but the president can't pardon anybody against their will. (it's not just idle speculation: there are actual cases where people have declined pardons, and courts have ruled that they have the right to do so) – cpast Jan 27 '15 at 0:18
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To add to Jasper's fine answer...

Fourth major benefit of pardons: Presidential pardons are about checks and balances. The legislative system has determined a law, the judicial system has determined an infraction of that law, and with a pardon the presidential system can react to a mistake made by either the legislative or judicial branch.

Additional constraints on pardons: There are no formal constraints on the president to pardon federal crimes, but there are many informal reasons why a president will not pardon a convicted person. These may be personal beliefs and moral constraints as well as the repercussions viewed by giving a pardon. For instance, people may come to dislike the President's pardon and penalize the administration or his/her party by not voting for them in future elections or helping finance the opposition. There are many reasons why people may come to dislike a pardon, including conflicting beliefs about the type of crime committed or framing by other political parties.

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protected by Philipp Mar 14 at 9:25

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