What Does Clemency Mean? The American Constitution wields the executive the power of clemency. This includes the power to pardon a federal convict.
As with federal executive, the state laws also give the governors the power of executive clemency to pardon persons convicted of state offenses.
Simply put, a presidential pardon connotes ‘forgiveness.’ Hence, persons who claim innocence may not get an executive pardon.
A pardon neither vindicates a criminal nor expunge or erase your conviction records. A pardon request is but an appeal to reinstate your good name.
Before granted pardon, you must show that you’ve been a law-abiding citizen and have made significant efforts to lead a good life after your conviction.
Offenders who receive pardon have their citizen rights reinstated – including the right to serve on a jury and right to vote.
Before completing his tenure, Bill Clinton, then president of the United States, granted his brother, Roger, pardon. Roger who was pardoned in 2001, had been doing time for a drug-related crime.
Donald Trump in his first year in office, pardoned Joe Arpaio, a former Arizona sheriff who had been incarcerated for flaunting a Judge’s order to cease racial profiling of arrestees.
Past executives have taken advantage of this constitutional power to grant mercy. The history dates back to 1975 when George Washington pardoned two offenders linked to the infamous Whiskey Rebellion.
For many, a pardon strikes off punishments for federal convictions, but soon, a few may realize how the convictions still stick on the records even after an executive ‘forgiveness.’
SO, what are the effects of clemency? What are the limitations of a presidential pardon? What are the presidential pardon rules?
This article seeks to explore these and other concerns related to presidential clemency.
Constitutionally, what does the presidential pardon entail?
According to Article II, Section 2 of the United States’ constitution, the presidents can grant reprices and pardons for federal offenses, except for impeachment cases.
Over time, the courts and the former executives have created a clearer picture of what clemency entails.
Since the constitution specially mentions “offenses against the United States,” this limits the presidential pardon power to federal convictions only, just as the governor’s clemency powers do not exceed the state’s legal boundaries.
In the 1866 Ex Parte Garland case, the Supreme Court challenged President Andrew Johnson’s (a former Confederate soldier).
The court, in its opinion, exerts that the constitutional power touches every crime recognized by the law and can be exercised at any point after the offense is committed – whether before court proceeding, during the trial or after judgment.
Presidents also have rights to pre-emptive pardons. This entails a pardon for crimes committed or charged with.
Also, the President can order conditional pardons (such as doing a lesser term) commutations or remission of forfeitures, fines, and respites (sentence delay) with his clemency power.
No one has a right to being pardoned, but rather, as with presidential clemency, a gubernatorial pardon is an unmerited act of forgiveness shown by the state governor.
It is within the governor’s absolute and exclusive discretion to grant pardon. Offenders have no right to appeal or overturn a governor’s decision to grant clemency – except where some illegal conditions are spotted in the pardon.
For such illegalities, the court may review pardon conditions, not the governor’s decision to pardon.
While some states give power to governors, many states establish ‘pardon boards.’ These bodies recommend to the executive, or where the law permits, make the pardon decisions independently.
In both cases, the governor either belongs to the board, makes the appointment of board members or does both.
Note that the board must not have a unanimous decision to grant a pardon – a simple majority, based on the state law though, maybe enough.
Pardon limits the federal and states constitution and builds some limitations on presidential and gubernatorial pardoning powers, respectively.
Only the federal and state constitutions can limit the powers of the executive to pardon – not the legislature nor the judiciary.
The procedural rules on how and when to apply for pardons vary across states. However, while rules and laws that interfere with an executive’s clemency power are considered unconstitutional.
That said, here are some pardon limitations across jurisdictions
U.S and State
Typically, pardons apply to crimes spelled out in the federal and state constitutions. The president and state governors do not have the legal powers to grant mercy to municipal convictions.
Where a city’s law authorizes, the may grant pardon to violators of city ordinances.
Of course, one person cannot be granted pardon twice – except otherwise, on a majority vote by the supreme court.
Most states do not allow pardon until after court conviction.
In some jurisdictions, certain criminal cases cannot be pardoned. Impeachment, treason, and prisoners on death row are typical cases.
Types of Clemency (What Does Clemency Mean?)
- Full Pardon
Full Pardon clemency restores a citizen’s rights, removes all resultant disqualification or collateral consequences caused by the conviction without restrictions of conditions. This type of pardon, however, leaves the conviction on your criminal record.
- Partial Pardon
For partial pardons, an offender is given restricted relief and may come in various forms, based on the circumstances surrounding individual applicants.
Unlike a full pardon, the partial pardon does not offer a complete relief package from the consequences of a conviction. A partial pardon may include the restoration of rights, though.
- Commutation of Sentence
Just like pardons, the president may also express his clemency authority to convicts through commutations.
Commutation is, however, different from pardons as it does not offer formal forgiveness for crimes nor restoration of whatever the convicts must have lost during the period – such as the right to possess firearms and rights to vote.
Commutations only stop the offender’s sentence. However, commutations are less popular for federal pardons.
A reprieve is a clemency act given to an offender to offer them an opportunity to request a modification of a court-imposed sentence. This clemency is granted only after passing the sentence.
Pardon Application Process
Typically, those who seek presidential clemency are required to apply through the Pardon Attorney’s Office, a unit under the Justice Department answerable to the deputy attorney general.
The case goes through the pardon attorney for review. The review process may entail the request of a background check report from the FBI as well as opinions from the judge and prosecutors.
If everything looks good, the deputy attorney may then send a recommendation to the white house. Typically, the recommendation goes from a staff attorney, through the pardon attorney, then to the deputy attorney general, associate white house counsel, white house counsel, and then the president.
However, the president may not necessarily obey this line of authority. He can bypass all processes and grant pardon to whoever he wishes.
How Does One Qualify for a Pardon?
To be considered for federal pardon, one must:
- Be a criminal convict of a federal crime. State offenses can only be considered for pardon by state governors.
- Ensure five years have passed since your release from incarceration. Or five years after conviction, for those who weren’t incarcerated.
- Be ready to give relevant information about your life — like a civil lawsuit, credit scores, and related legal excesses — after conviction.
- Have character references — at least 3 —willingly to vouch for your impeccable character after conviction.
Effects of Pardon
Again, a pardon does not vindicate a criminal, neither do they expunge convictions.
However, a pardon restores one’s civic rights lost to a conviction. Generally, here’s what a pardon does:
- Restores one’s right to vote and hold public offices
- Reinstates one’s right to firearms possession
- Restores one’s right to become a juror
- For deportable offenses, a pardon may avert deportation.
Note, however, that civil consequences for crimes may remain even after a pardon.
For instance, a person who gets pardoned for murder may still face a lawsuit for criminal killing.
Also, license suspension and related administrative effects of a crime hold even after the pardon.
Can a president pardon himself?
Whether an executive can grant pardon to themselves have been a topical concern among legal scholars over the years.
While the constitution remains silent on the executive’s right to pardon self of federal convictions, it only mentions “impeachment” as a limiting condition for granting pardon.
That said, a pardon request and an eventual pardon, in itself, connotes a clear admittance of guilt.
Hence, any move by the president to grant self-pardon will most likely spark off a constitutional uproar and may lead, in the least, to impeachment inquiries.
If presidents are freely allowed to grant self-pardons, a tyranny which the constitution Framers were wary of, could come starring as the provision may rid the executive of criminal liabilities for acts – both official and unofficial – and criminalities they got involved in before they assumed office.
What is the basis for a pardon decision?
The decision whether or not to grant pardon ought to be inspired by public welfare and the event of any wrongful judgment the court may not be able to reverse.
However, since the president’s decision is neither reviewed nor under any oversight, only him knows what influence his decision – except where he wishes to explain.
That said, pardon revocation is not possible, except before they granted and accepted.