Pardon and Commutation

Pardons and commutations are distinct varieties of clemency available in nearly every American jurisdiction. Both are official acts that usually originate in the executive branch of government. To varying degrees, pardons and commutations remit punishment for crimes. Although the term ‘‘pardon’’ is sometimes used to refer generally to all nonjudicial reductions in punishment, it is more accurate to think of pardon, like commutation, as a discrete aspect of the executive clemency authority. A pardon is the broadest type of clemency recognized under American law. It releases the offender from punishment and is generally understood to eliminate moral guilt for the offense. By contrast, a commutation simply substitutes a lesser punishment for a greater one. Pardons and commutations protect individual civil liberties by curtailing governmental power when it has been employed mistakenly or harshly.

The authority to grant pardons and commutations in the United States can be traced directly to the prerogative of the British monarch. Historically, the English Crown used pardons to soften penalties imposed under the common law, to garner the support of key nobles and clerics, and even to provide cheap labor for the American colonies through the use of conditional pardons. Pardons were also used as incentives to persuade accomplices to incriminate codefendants.

Federal Pardons and Commutations

Although legal theorists such as Blackstone asserted that the clemency power could not exist in a democracy because there was no official who was ‘‘above’’ the law, the drafters of the U.S. Constitution vested in the president the authority ‘‘to Grant Reprieves and Pardons for offenses against the United States, except in cases of Impeachment’’ (Article II, Section 2). As Alexander Hamilton observed in Federalist No.74, this power was intended to be expansive so that exceptions in favor of ‘‘unfortunate guilt’’ could readily be made. Presidential pardons may be granted before or after conviction, or with conditions attached. Although the Constitution only mentions pardons and reprieves, the U.S. Supreme Court has confirmed that the president also has the power to grant commutations (Biddle v. Perovich, 274 U.S. 480, 1927).

Despite a decline in the number of pardons and commutations granted in recent decades, the clemency power historically has been employed in a variety of ways. In 1795, President Washington granted unconditional pardons to many of the participants in the Pennsylvania Whiskey Rebellion. The clemency power was also used freely after the Civil War to heal the wounds of a divided nation. President Lincoln, and his successor, Andrew Johnson, pardoned many who had fought against the Union, conditioned on their swearing to uphold the Constitution. In response, Congress sought to limit the clemency power through legislation. However, Congress’s efforts to restrict the clemency authority were frustrated in cases such as Ex parte Garland, 71 U.S. 333 (1866), in which the U.S. Supreme Court held that the pardon power ‘‘is not subject to legislative control.’’

As a practical matter, the issuance of pardons and commutations is subject only to the constraints that each president chooses to recognize, which has led to some controversial uses of the power. The most famous of these was President Gerald Ford’s pardon, prior to prosecution and conviction, of former President Richard Nixon for all federal crimes he had committed in connection with the Watergate scandal. However, the federal clemency power is seldom used. Indeed, the Code of Federal Regulations specifies that a request for pardon typically may not be filed until ‘‘at least five years after the date of the release of the petitioner from confinement.’’ Commutations are granted even more rarely and may be sought only in exceptional circumstances.

State Pardons and Commutations

After the Revolution, states initially rejected the British model of vesting the pardon and commutation power solely in an executive. Eight of the first thirteen states placed the authority to remit punishment for state law violations in a legislative council and the governor jointly, or in the legislature alone. However, perhaps influenced by the federal Constitution, most states that thereafter joined the union allocated the clemency authority to the governor.

Today, the governor retains the clemency power in a majority of jurisdictions, typically pursuant to state constitutions. Many of these states, while granting primary clemency authority to the governor, have established advisory boards that process pardon and commutation applications and make nonbinding recommendations. In the remaining states, the governor shares the power to pardon and commute with an administrative board, or it is placed in the hands of an administrative body alone.

Few formal constraints are imposed on the issuance of pardons apart from limitations on the types of offenses for which clemency can be granted (treason and impeachable crimes are often excluded) and the timing of pardons (some states permit clemency only after conviction). Notwithstanding this wide latitude, in recent years the number of pardons and commutations issued has declined steeply, particularly in controversial cases such as those involving the death penalty. Former Governor George H. Ryan of Illinois proved a notable exception to this trend when he issued four pardons and 167 commutations to prisoners on Death Row shortly before he left office in 2003.

Pardons and Commutations in Practice

Pardons at the state and federal level are usually sought by persons who have completed their punishment, have proved to be law-abiding citizens for a substantial period of time, and desire to be free of the civil disabilities that often accompany a criminal conviction. The disabilities typically imposed on those who have been convicted of a crime include prohibitions against voting, serving on juries, holding public office, and owning firearms. Though local laws vary widely, in most jurisdictions a pardon is an effective means for restoring these privileges. Because of the political repercussions that sometimes attend the granting of pardons, the manifestation of broad community support for a pardon—especially from the victim, prosecutor, or Sentencing judge—can be crucial in obtaining relief. However, because pardons are usually seen as wiping out guilt entirely, they are seldom used to release prisoners from incarceration apart from rare situations when there is a compelling show of innocence.

Commutations are most often used to remit ongoing punishment. Typical grounds for commuting sentences include the existence of extreme sentence disparities, pervasive doubts about guilt or the fairness of judicial proceedings, or changes in the law that render a punishment suspect. Because a commutation sets aside punishment imposed through a legal system replete with procedural protections and other safeguards against error, such grants of clemency are highly unusual in most jurisdictions. However, a few states have used commutations with some frequency in order to meet exigencies unrelated to the situations of individual defendants. For example, Oklahoma and Kentucky recently sought to reduce spiraling prison costs by commuting the sentences of large numbers of nonviolent offenders, and South Dakota issued numerous commutations to prisoners who performed work for the state.

Procedures to be followed when applying for pardons and commutations vary from jurisdiction to jurisdiction. Applicants who seek a presidential pardon or commutation must complete an FBI background check before the Justice Department will consider their application and make a nonbinding recommendation to the president. Various states likewise require that clemency requests be investigated and also mandate that specified individuals, such as the prosecuting attorney, the Sentencing judge, or the victim, be notified before a pardon or commutation can be granted.

In certain cases, particularly when minor offenses are involved and the punishment has been completed, it may be possible to prepare a request for pardon without the assistance of an attorney. In more complicated cases or when a commutation is sought, employing a professional advocate to assist in making the argument for clemency is desirable.

Conclusion

Pardons and commutations are the official embodiment of mercy and flexibility in our systems of justice, but they currently play a limited role in the remission of punishment. However, given the fallibility of judges, juries, and attorneys, as well as the modern tendency to punish harshly, pardons and commutations will no doubt remain an important tool in restoring civil rights and safeguarding liberty in individual cases.

DANIEL T. KOBIL

References and Further Reading

• Duker, William F., The President’s Power to Pardon: A Constitutional History, William and Mary Law Review 18 (1977): 475–538.
• Humbert, W. H. The Pardoning Power of the President. Washington D.C.: American Council on Public Affairs, 1941.
• Kobil, Daniel T., The Quality of Mercy Strained: Wresting the Pardoning Power from the King, Texas Law Review 69 (1991): 569–641.
• Moore, Kathleen D. Pardons: Justice, Mercy, and the Public Interest. New York: Oxford University Press, 1989.
• Sarat, Austin. Mercy on Trial: What it Means to Stop an Execution. Princeton: Princeton University Press, 2005.

Cases and Statutes Cited

• Biddle v. Perovich, 274 U.S. 480 (1927)
• Ex parte Garland, 71 U.S. 333 (1866)
• 28 Code of Federal Regulations }1.2 (2005)