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Many countries have pardoning powers vested in the hands of presidents and governors by their constitutions. There don't appear to be any limitations on this power in many cases, but on what basis are decisions to pardon someone taken by those presidents or governors?

The US Constitution vests the power to pardon in the President in Article II, Section 2, Clause 1, but there doesn't seem to be an accompanying code of conduct for the use of those powers. If a president pardons one person but doesn't pardon another despite the same facts and circumstances is it political reasons for the most part or are they also required to look at the facts and circumstances beyond that?

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    Not related to the question: I find it a bit ambiguous that the only place where the word "pardon" appears is in a long sentence which starts with "The President shall be Commander in Chief of the Army and Navy of the United States" - suggesting that "pardons" can be done only within those institutions (Army and Navi).
    – virolino
    Apr 28, 2023 at 9:43
  • @virolino The president is also the head of the executive branch of government, and it's from this power that the department of justice, which deals with both the prosecution of suspects and incarceration of convicted criminals.
    – hszmv
    Apr 28, 2023 at 11:02
  • It is generally not acceptable to post the same (or similar) questions on multiple SE sites. The Law SE post could be deleted if you want answers in Politics.
    – doneal24
    Apr 29, 2023 at 1:16
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    Is this question us based?
    – paul23
    May 1, 2023 at 6:45
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    @PCLuddite: If there are two legitimately-different but related questions, they should link to each other.
    – Ben Voigt
    May 1, 2023 at 15:03

5 Answers 5

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Usually there is none. The legitimization for pardon powers is usually that there should be a person in the loop who is able to look at the individual case (unlike the legislature) but isn't bound to follow the letter of the law (unlike the judiciary). That person can override the letter of the law if there is an edge-case that resulted in what they consider an unjust punishment. If there were clear instructions on when to pardon and when not to pardon, then those instructions could be written into the criminal law and applied by the judiciary directly.

So positions with pardon power usually have the right to exercise those based on their conscience alone. Which also means that there is usually no redress for someone who feels they should be entitled to a pardon because someone else in similar circumstances got a pardon. Because nobody is ever entitled to a pardon.

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    Not always the case. For example, Texas' Pardon power is invested in the Governor and the Texas Board of Pardons and Parole, which must sign off on the Governor's desire to parole an individual.
    – hszmv
    Apr 28, 2023 at 11:06
  • wouldn't uneven distribution of pardons be against legal egalitarianism
    – user45449
    Apr 28, 2023 at 12:57
  • @hszmv Are they bound by certain laws? Apr 28, 2023 at 16:25
  • It looks like the board has to vote to pass the pardon to the Governor who must approve the pardon or can reject it. If a pardon is rejected, the applicant must wait for two years before they can re-apply. Pardon restores rights forfeit by conviction, but does not expunge arrest records, which is a separate process but usually pardon recipients do get the related arrest records.
    – hszmv
    Apr 28, 2023 at 17:16
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    @OldAccount2005 I don't think so. Everyone has an equal right to petition for a pardon, nobody is formally excluded from it. Other legal processes also don't guarantee equal outcomes for everyone, just equal access to and treatment in, the legal processes. Apr 29, 2023 at 8:24
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The entire point of pardon powers (as per the answers to your earlier question) is that they are discretionary, to allow for justice when the legal system produces an unjust outcome.

Having written limitations or rules for this power would either be pointless (when they are not enforceable) or defeat the purpose (who would decide that the rules have been broken? The legal system - which produced the outcome we want to correct).

In practice, the limitations on the pardoning process are political: if you abuse it too much, you won't be reelected or might even face a revolt of some sort.

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    There is the implied limitation that it can't pardon state convictions, since it's a federal power. I don't think that contradicts your answer.
    – axus
    Apr 28, 2023 at 16:38
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    "to allow for justice when the legal system produces an unjust outcome" that is a very optimistic view of the world... Some people are fine with murder as long as the victims are (who they perceive to be) their political enemies edition.cnn.com/2023/04/14/us/…
    – user43134
    Apr 29, 2023 at 11:55
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    @Gantendo The intended, stated purpose of something and how it's actually used differ quite often. Apr 29, 2023 at 18:44
  • This is just my opinion but I do not think that they allow for justice when the legal system produces an unjust outcome. Instead they allow for injustice when the legal system produces a just outcome. An unknown innocent that is wrongly convicted by the legal system is unlikely to get a pardon. A famous guilty that is rightly convicted by the legal system is more apt to get a pardon because the executive branch does not want to implement an unpopular policy.
    – emory
    Apr 30, 2023 at 15:06
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    @axus That's true for the US President. It's not true for governors, and the rules will be different in other countries.
    – Barmar
    May 1, 2023 at 0:44
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The Pre-Modern Pardon Power

It is worth noting that direct appeals of criminal convictions are relatively recent.

In federal courts prior to the 1890s, the only judicial remedy you had if you were convicted of a crime was a habeas corpus petition which largely tested whether the court had jurisdiction over your case, and whether you were being detained without receiving a speedy trial or after being acquitted.

The innovation of allowing direct appeals of criminal convictions came to state courts at different times, but generally in the same era. Even when states started to authorize them, in many states back then, the sole appellate court was the state supreme court with a purely discretionary docket of criminal appeals (similar to the U.S. Supreme Court docket today).

Prior to the advent of direct appeals of criminal convictions, the pardon power was used much more expansively, and mostly to address convictions that were likely to have been wrongful.

The stakes were also higher in the early pre-modern period when the death penalty was the norm for most serious felony offenses, and not just murders and a handful of other crimes often carrying a great risk of causing a death. With death at stake and few options for a judicial appeal, there was a much greater moral obligation for Governors to avert a travesty of justice by pardoning criminal defendants in doubtful cases.

Also, of course, the mediocre state of forensic science meant that the accuracy of guilt finding that was possible in a criminal jury trial was often much lower than it is today.

In part, this pre-modern regime reflected the fact that society didn't have the economic resources to incarcerate serious felons securing for the many, many years of incarceration that we now think is appropriate for serious felonies. Society also didn't have the economic resources to incarcerate convicted criminals for long periods of time to allow criminal appeals to be litigated as we do now.

Driven by similar economic considerations, harsh corporal punishments short of the death penalty or exile were also common penalties for less serious felonies and serious misdemeanors.

A discretionary pardon, in contrast to a judicial appeal, could provide relief in appropriate cases in the short time available before a sentence of death or corporal punishment was carried out (frequently within days to a couple of months after the criminal defendant was convicted).

FUN FACT: The U.S. Constitution still does not guarantee a right to a direct appeal of a criminal conviction, although habeas corpus relief remains available and addresses more cases than it used to, and if the government legislatively gives you a right to a direct criminal appeal at all, it must meet certain constitutional requirements in doing so.

While this all goes to the pre-modern practice of using the pardon power, you can find what the Founders thought about the pardon power when the U.S. Constitution was being written as a matter of theory, for example, here:

On the afternoon of Wednesday, June 18, 1788, George Mason rose from his chair on the floor of the Virginia Ratifying Convention deeply troubled by what he thought of the convention’s failure to understand—the president of the United States might not always be someone of sound character and high intelligence. There would rarely, if ever, he reminded the delegates, be a commander in chief with the courage and rectitude displayed by George Washington during the War of Independence. There might even be a president who would try to change our form of government. The president, argued Mason,

“ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.”

Some of the most famous men in American history were there that day as delegates to the Virginia convention. Patrick Henry, afraid that a national government would destroy the states, was leading the fight to reject the Constitution. John Marshall, who, as Chief Justice of the Supreme Court, would do more than anyone to make the Constitution the foundation for the kind of strong national government Henry feared, was one of the leaders in the fight to ratify it. But there was no one—no one in Virginia, nor in the country—with a deeper understanding of the Constitution and what it meant than James Madison.

Madison understood immediately the force of Mason’s objection, but he had a response—a response in which he described limitations on presidential power that, to our great misfortune, have for too long been forgotten. Was there a danger in giving the president the power to pardon? “Yes,” replied Madison, but there was a remedy for the danger in the Constitution as drafted.

“There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.”

The Modern Pardon Power

In the modern era, a direct appeal of a criminal conviction of right, followed by a discretionary appeal of a criminal conviction to a state supreme court and possibly the U.S. Supreme Court, followed by a state habeas petition and appeals from that, followed by a federal habeas petition and appeals from that are potentially available.

Coinciding with the rise of judicial branch appeals, the number of pardons of people who have not fully served their criminal offense sentences has grown vanishingly small at both the state and federal level (except for policy changes like mass pardons of draft dodging offenders following the Vietnam War, or several mass pardons of people guilty of marijuana possession), although the decline in the use of the pardon power lagged behind the growth of access to appeals.

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(Source)

Even when the pardon power is used at all these days, the vast majority of pardons are of people who have fully served their criminal sentence and shown evidence of being reformed after being released, to allow those people to be free of the collateral effects of a criminal conviction like not being able to vote or own a gun or enter a regulated occupation.

There are a trickle of pardons or commutations of people who haven't finished serving their sentences in cases where the original sentences seemed harsh or guilt is cast into doubt and the courts are unresponsive. But they are now exceedingly rare.

Also, while the federal government vests the pardon power in the President, and many states vest comparable pardon power in Governors, this isn't universal.

Many U.S. states have a more limited pardon power (e.g. only allowing pardons of people once they are convicted of crimes), and a minority of U.S. states vest the pardon power entirely in a board of pardons and paroles, or requires a Governor's pardons to involve cooperation of some sort from a board of pardons and paroles.

A 50 state survey of state pardon systems can be found here. The District of Columbia, the federal system, and three U.S. states are basically completely unstructured. In 19 states, the Governor may pardon unilaterally, but has a board of pardons to provide optional advice to the Governor. In 8 states, consultation with the pardon board is mandatory but the Governor isn't bound by its advice. In 4 states, the Governor is on a pardon board and the decision is made by the Board collectively. In 10 states, the Governor can only consider pardons that the pardon board approves. In 6 states pardons are made by a pardon board without involvement from the Governor. And, in addition to these general rules some states have some exceptions or qualifications of the general rules (per the linked survey of pardon policies above):

In states which usually don't involve the Governor with pardons at all:

In Alabama and South Carolina, the governor remains responsible for clemency in capital cases, and in Idaho, the governor must approve the board’s decision to pardon certain serious crimes.

In states with "gatekeeper boards":

In Rhode Island, the senate must advise and consent to every pardon.

In South Dakota, the governor has constitutional authority to pardon without consultation with the board, but sealing is unavailable to a grantee if the statutory procedure requiring board approval is not followed. The result is that in recent years all pardons have been granted after board approval.

California's Governor generally has unilateral pardoning power with a board that the Governor may, but is not required to consult it, but there is an exception to that rule:

In California, the governor is required to consult with the parole board and seek approval of the state supreme court in recidivist cases only.

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(Source)

The variety of U.S. state level criminal justice rules matters quite a lot because something on the order of 98% of criminal convictions occur in state courts which the President can't pardon, while only about 2% of criminal convictions occur in federal courts and can be pardoned by the President.

Very little serious "blue collar crime" that occurs outside of Indian Reservations is handled in federal court. Bank robbery and interstate kidnappings are some of the main exceptions to this general rule.

OBSERVATION: The dramatically reduced use of the pardon power also coincides with another notable political development. In the premodern era after the U.S. Constitution was adopted, the U.S. House routinely resolved disputed Congressional elections itself (almost always on party-line votes). But around the same time that more appeals were provided for criminal defendants, there was a fairly dramatic shift towards having courts resolved disputed elections, and Congressional resolutions of disputed elections became vanishingly rare.

Indeterminate v. Determinate Sentencing Considered

A final twist that is worth recognizing is that while the federal criminal justice system in the U.S. and some states have mostly determinate sentencing (which means that the length of the prison term is mostly decided when you are sentenced by a judge for a crime), many U.S. states mostly have an indeterminate sentencing system for serious crimes.

In an indeterminate sentencing system, the sentencing judge sets a minimum sentence and a maximum sentence that are quite far apart from each other, and a parole board in the prison system decides at what time between the minimum and maximum date set by the judge you are actually released from prison with your behavior while incarcerated playing a significant role in that decision.

In a sense, in an indeterminate sentencing system, commutation (i.e. reduction) of prison sentences becomes the norm and serving a maximum prison term becomes the exception.

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  • how are pardon applications managed ? also I know that in accordance with other answers , people don't have a right to pardon but is there a right to seek and/or be considered for pardon anywhere ? it doesn't seem like there's any mefhanism for representation
    – user45449
    Apr 29, 2023 at 2:41
  • The federal government and most states have a small office that receives and vets pardon applications for the President or Governor as the case may be, although this process is usually optional for the President/Governor. The President could, for example, write a pardon on a napkin at a dinner meeting after receiving a suggestion to do so from the waitstaff, with no formal process whatsoever. Pardons and parole boards have a formal application process. There is no right to pardon application counsel although some lawyers will help pro bono or as part of a non-profit.
    – ohwilleke
    Apr 29, 2023 at 2:50
  • [There is no right to pardon application counsel although some lawyers will help pro bono or as part of a non-profit] wouldn't this be covered under free legal aid schemes
    – user45449
    Apr 29, 2023 at 2:58
  • @OldAccount2005 The right to a public defender is limited to trial court proceedings and a direct appeal of a criminal conviction if one is available. Few legal aid schemes will provide representation for a discretionary appeal in a non-death penalty case, or for a a pardon application in any case.
    – ohwilleke
    Apr 29, 2023 at 3:04
  • @OldAccount2005 The Office of the U.S. Pardon Attorney's website is at justice.gov/pardon/apply-clemency
    – ohwilleke
    Apr 29, 2023 at 3:09
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The concept of a pardon by the leader is very old. Monarchs have nearly always had the power to dispense such largesse, particularly when the offense was one ordinarily thought to be "against the crown." For example, enemy soldiers who surrendered would often be disarmed, held to the end of the war, and marched home. The goal of such would be for the monarch to appear to be a nice guy so long as you don't fight him. Make peace and get to go home. Fight on and get killed. We want to train the opposition to have the idea of surrender as a shining option.

There are reasons for pardons that most people will find acceptable even laudable. The principle mentioned in other answers, for example, of having a means of being able to correct edge or extreme cases where the letter of the law requires punishment that an ordinary person will find unacceptable.

There are also reasons that are more political. These will include motives of self aggrandization on the part of the office holder. And they will include straight-up favoritism and cronyism.

Consider, as an example, Trump's posthumous pardon of Susan B. Anthony on the 100th anniversary of the 19th Amendment. It is clearly a symbolic gesture. One expects (despite one's crystal ball being out of order) that Trump's reasons for this included the thought that it would make him look good.

Clearly in more "banana republic" type places, the president will pardon his friends and leave his enemies in jail if he can. And even in "first world" situations, the temptation to get your buddies out of "nick" will be strong.

And, there are occasionally reasons of general contrariness, the pardon being granted because the POTUS (or governor or whatever) perceives that his political opponents won't like it. This may be part of why the last few POTUS to leave office have had a rush of pardons just before leaving the White House.

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  • how are pardon applications managed ?
    – user45449
    Apr 29, 2023 at 2:24
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    @OldAccount2005 that's going to be a very locale specific answer, and I imagine in most places it's either convention/precedent, codified by the executive issuing the pardon, specified constitutionally, or more likely some combination of all three.
    – PC Luddite
    Apr 29, 2023 at 4:03
  • @PCLuddite: At least in the US, I believe most states (and the federal government) have some sort of advisory board or committee which looks over applications and makes recommendations (depending on the jurisdiction, such a board might dismiss a disfavored petition altogether, or they might simply make a negative recommendation that gets rubber stamped). I would tend to expect a similar system in most places that have a pardon power, unless the number of applications is very small.
    – Kevin
    Apr 30, 2023 at 8:19
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Somehow there seems to be a sentiment of "it's a tradition, just leave it alone".

If you start to argue about pardons, you can come up with arguments that say it stands outside the rule of law and cannot be included in a system of reviews. Or you try to describe their role as a correction of laws that are unjust and find a way to make them a regular part of checks and balances. That is where these discussions tend to be aborted as unsolvable.

In 1969, the German Bundesverfassungsgericht (constitutional court) had to decide whether a pardon decision could be subject to judicial review. Their decision is an example of helplessness.

The first obstacle they encountered was that the authors of the constitution never discussed the content and meaning of Art. 19 Absatz 4 GG, apart from consciously excluding amnesties. They just copied old phrasings from the time of the monarchy.

(Following translations by DeepL, mostly.)

Four of the eight judges argued that the right of clemency gave its holder a "a special kind of formative power" that defied checks:

Das Grundgesetz knüpft die Ausübung des Begnadigungsrechts nicht an bestimmte normative Voraussetzungen. Es legt dem Gesetzgeber nicht auf, solche Voraussetzungen zu schaffen und eröffnet nicht einmal die Möglichkeit hierzu, da dies eine Bindung und Beschränkung bedeuten würde, die...nicht zulässig wäre.

Das Grundgesetz hat...dadurch, daß es das Begnadigungsrecht in dem geschichtlich überkommenen Sinn übernommen und auf ein Organ der Exekutive übertragen hat, die Gewaltenteilung modifiziert und im Bereich der Einzelbegnadigung dem Träger des Gnadenrechts eine Gestaltungsmacht besonderer Art verliehen. Das Gnadeninstitut kann daher nicht den Sicherungen, den Gewaltenverschränkungen und -balancierungen unterliegen, die gewährleisten sollen, daß Übergriffe der Exekutive durch Anrufung der Gerichte abgewehrt werden können... [Es] ist demgemäß davon auszugehen, daß ebenso wie positive Gnadenakte auch ablehnende Gnadenentscheidungen einer gerichtlichen Nachprüfung nicht unterliegen.

The Basic Law does not link the exercise of the right to pardon to certain normative prerequisites. It does not impose on the legislature to create such preconditions and does not even open up the possibility to do so, as this would mean a binding and restriction which...would not be permissible.

The Basic Law has...by taking over the right to pardon in the historically traditional sense and transferring it to an organ of the executive, modified the separation of powers and, in the area of individual pardons, given the holder of the right to pardon a special kind of formative power. The institute of clemency cannot therefore be subject to the safeguards, the interlocking and balancing of powers, which are intended to ensure that encroachments by the executive can be averted by recourse to the courts...it must accordingly be assumed that, just as positive acts of clemency, negative clemency decisions are also not subject to judicial review.

The other four judges dissented and claimed that a pardon must be verifiably "oriented towards the idea of justice":

Um der Berechenbarkeit und Sicherheit des Rechtes willen muß die gesetzliche Regelung allgemein gehalten sein und typisierend verfahren. Die Gerechtigkeit ist hingegen ihrem Wesen und ihrer inneren Struktur nach immer auf den konkret-individuellen Einzelfall bezogen. In der rechtsstaatlichen Ordnung dient der Gnadenakt dazu, die Auswirkungen gesetzeskonformer Richtersprüche zu modifizieren, wenn diese mit den Postulaten individueller Gerechtigkeit ausnahmsweise in einen Konflikt geraten.

Die Inhaber des Gnadenrechts dürfen dieses daher nur im Rahmen der verfassungsmäßigen Ordnung und der durch diese...gezogenen Grenzen ausüben. Jede positive und jede negative Gnadenentscheidung muß von Motiven getragen sein, die sich an der Gerechtigkeitsidee orientieren, wie sie vom Grundgesetz im einzelnen konkretisiert worden ist...

[Gnadenentscheidungen] müssen von den Gerichten daraufhin überprüft werden, ob sie materiell den durch das Grundgesetz abgesicherten Mindestanforderungen der Gerechtigkeit entsprechen und daher rechtsstaatskonform sind.

For the sake of the predictability and security of the law, legal regulation must be general and proceed in a typifying manner. Justice, on the other hand, is by its nature and internal structure always related to the concrete individual case. In the rule of law, the act of pardon serves to modify the effects of judicial decisions that conform to the law, if these exceptionally come into conflict with the postulates of individual justice.

The holders of the right of clemency may therefore only exercise it within the framework of the constitutional order and the limits...drawn by it. Every positive and every negative decision on clemency must be based on motives that are oriented towards the idea of justice as it has been concretised in detail by the Basic Law...

[Decisions on clemency] must be reviewed by the courts to determine whether they materially meet the minimum requirements of justice secured by the Basic Law and are therefore in conformity with the rule of law.

Since there was a tie, no violation of the constitution could be determined by the court.

And that was the end of it. The status quo stands, and has not successfully been challenged in fifty plus years.

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