Pardon

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v t e

A pardon is the forgiveness of a crime and the cancellation of the relevant penalty; it is usually granted by a head of state (such as a monarch or president) or by acts of a parliament or a religious authority. Clemency means the forgiveness of a crime or the cancellation (in whole or in part) of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves. Commutation or remission is the lessening of a penalty without forgiveness for the crime; the beneficiary is still considered guilty of the offense. A reprieve is the postponement of punishment, often with a view to a pardon or other review of the sentence (such as when the reprieving authority has no power to grant an immediate pardon).

Today, pardons are granted in many countries when individuals have demonstrated that they have fulfilled their debt to society, or are otherwise considered to be deserving. Pardons are sometimes offered to persons who are wrongfully convicted or who claim they have been wrongfully convicted. In some jurisdictions, accepting such a pardon implicitly constitutes an admission of guilt (see Burdick v. United States in the United States), so in some cases the offer is refused. Cases of wrongful conviction are nowadays more often dealt with by appeal than by pardon; however, a pardon is sometimes offered when innocence is undisputed to avoid the costs of a retrial. Clemency plays a very important role when capital punishment is applied.

By country

Canada

Pardons

The Parole Board of Canada (PBC) is the federal agency responsible for making pardon decisions under the Criminal Records Act (CRA). Under the CRA, the PBC can issue, grant, deny, and revoke pardons.

On March 12, 2012, the Government of Canada passed Bill C-10, new legislation which changed a number of elements regarding the criminal justice system. Bill C-10 replaces the terminology "pardon" with "record suspension", and the pardon system was similarly changed.^[1]

A pardon keeps a judicial record of a conviction separate and apart from other criminal records, and gives law abiding citizens an opportunity to reintegrate into Canadian society.

The CRA removes all information about the conviction for which an individual received the pardon from the Canadian Police Information Centre (CPIC). Federal agencies cannot give out information about the conviction without approval from the Minister of Public Safety Canada.

A pardon does not, however, erase the fact that an individual was convicted of a crime. The criminal record is not erased, but it is kept separate and apart from other (non-pardoned) criminal records.

A pardon removes disqualifications caused by a criminal conviction, such as the ability to contract with the federal government, or eligibility for Canadian citizenship.

If an individual in receipt of a pardon is convicted of a new offence, the information may lead to a reactivation of the criminal record for which the pardon was received in CPIC.

A pardon does not guarantee entry or visa privileges to another country. Before travelling to another country, individuals must still contact the authorities of the country in question to find out what the requirements are to enter that country.

Processing of pardons by the National Parole Board generally takes on average 60 days for a summary offence and 180 days for an indictable offence.

Individuals can apply for a Pardon if they were convicted as an adult of a criminal offence in Canada, or of an offence under a federal act or regulation of Canada, or if they were convicted of a crime in another country and were transferred to Canada under the Transfer of Offenders Act or International Transfer of Offenders Act. Non-Canadian citizens are not eligible for a Canadian pardon unless they were convicted of a crime in Canada.

To be eligible for a pardon or record suspension, individuals must have completed all of their sentences and a waiting period.

Individuals are considered to have completed all of their sentences if they have:

• Paid all fines, surcharges, costs, restitution and compensation orders
• Served all sentences of imprisonment, conditional sentences, including parole or statutory release
• Completed their probation order

Prior to Bill C-10, following completion of all of their sentences, individuals must have completed a waiting period, as follows:

• 3 years for summary convictions under the Criminal Code or other federal act or regulation, except sexual crimes against children
• 3 years under the National Defence Act, if fined $2,000 or less, detained or imprisoned 6 months or less, or subjected to various lesser punishments for a service offence
• 5 years for indictable convictions under the Criminal Code or other federal act or regulation and summary convictions of sexual crimes against children
• 5 years for all convictions by a Canadian offender transferred to Canada under the Transfer of Offenders Act or International Transfer of Offenders Act
• 5 years under the National Defence Act, if you were fined more than $2,000, detained or imprisoned more than 6 months, or dismissed from service
• 10 years for indictable convictions for sexual crimes against children and criminals receiving more than 2 years of imprisonment time for "serious personal injury offence" such as manslaughter or other designated offence under section 752 of the Criminal Code.^[2]

After Bill C-10, the eligibility criteria and waiting periods changed:

• 5 years for summary convictions under the Criminal Code or other federal act or regulation, except sexual crimes against children
• 5 years under the National Defence Act, if fined $2,000 or less, detained or imprisoned 6 months or less, or subjected to various lesser punishments for a service offence
• 10 years for indictable convictions under the Criminal Code or other federal act or regulation and summary convictions of sexual crimes against children
• 10 years for all convictions by a Canadian offender transferred to Canada under the Transfer of Offenders Act or International Transfer of Offenders Act
• 10 years under the National Defence Act, if you were fined more than $2,000, detained or imprisoned more than 6 months, or dismissed from service

• "Not Eligible" for indictable convictions for sexual crimes against children (Schedule 1 Offence under CRA)
• "Not Eligible" for criminals with more than three (3) offences prosecuted by indictment, each with a prison sentence of 2 or more years.^[3]

Applicants for a record suspension must be able to show that they have completed their sentences in full and provide proof of payment.^[4]

Individuals can apply for a pardon by filling out the application forms available from the Parole Board and by paying a $631 pardon application fee. Be sure to send all required documents or the application can be delayed. The NPB has a toll-free pardons helpline at 1-800-874-2652 and a website..^[5]

Clemency

In Canada, clemency is granted by the Governor-General of Canada or the Governor in Council (the federal cabinet) under the royal prerogative of mercy. Applications are also made to the National Parole Board, as in pardons, but clemency may involve the commutation of a sentence, or the remission of all or part of the sentence, a respite from the sentence (for a medical condition) or a relief from a prohibition (e.g., to allow someone to drive that has been prohibited from driving).

Chile

In Chile, the institution of pardon (indulto) is regulated in the Criminal Code (article 93, Nº 4º),^[6] which deals with the extinction of criminal liability. A pardon "only grants the remission or the commutation of the sentence; it does not remove the condition of having been condemned”. The pardon may be either general, when it is granted to all those covered by a specific law passed by qualified quorum in National Congress, or particular, when it is granted by Supreme Decree of the President of the Republic. In Chile's presidential regime, the President is the Head of State; in this capacity, he has the discretionary power to grant particular pardons. He is not obliged to seek opinion or approval from other authorities, although, the granting of pardons is limited by the norms of Law No. 18.050 (1981),^[7] and its Regulations (Decree No. 1542 of 1981 on particular pardons),^[8] which forbid particular pardons for those convicted of a crime of terrorism.^[9]

France

Pardons and acts of clemency (grâces) are granted by the President of France, who, ultimately, is the sole judge of the propriety of the measure. It is a prerogative of the President which is directly inherited from that of the Kings of France. The convicted person sends a request for pardon to the President of the Republic. The prosecutor of the court that pronounced the verdict reports on the case, and the case goes to the Ministry of Justice's directorate of criminal affairs and pardons for further consideration.

If granted, the decree of pardon is signed by the President, the Prime Minister, the Minister of Justice, and possibly other ministers involved in the consideration of the case. It is not published in the Journal Officiel.

The decree may spare the applicant from serving the balance of his or her sentence, or commute the sentence to a lesser one. It does not suppress the right for the victim of the crime to obtain compensation for the damages it suffered, and does not erase the condemnation from the criminal record.

When the death penalty was in force in France, all capital sentences resulted in a presidential review for a possible clemency. Executions were carried out if and only if the President reject clemency, by signing a document on which it was written: "decides to let justice take its course".

The Parliament of France, on occasions, grants amnesty. This is a different concept and procedure from that described above, although the phrase "presidential amnesty" (amnistie présidentielle) is sometimes pejoratively applied to some acts of parliament traditionally voted upon after a presidential election, granting amnesty for minor crimes.

Germany

Similar to the United States, the right to grant pardon in Germany is divided between the federal and the state level. Federal jurisdiction in matters of criminal law is mostly restricted to appeals against decisions of state courts. Only "political" crimes like treason or terrorism are tried on behalf of the federal government by the highest state courts. Accordingly, the category of persons eligible for a federal pardon is rather narrow. The right to grant a federal pardon lies in the office of the President of Germany, but he or she can transfer this power to other persons, such as the chancellor or the minister of justice.

In early 2007, there was a widespread public discussion about the granting of pardons in Germany after convicted Red Army Faction terrorist Christian Klar, who was serving six consecutive sentences of life imprisonment, filed a petition for pardon. President Horst Köhler ultimately denied his request.

For all other (and therefore the vast majority of) convicts, pardons are in the jurisdiction of the states. In some states it is granted by the respective cabinet, but in most states the state constitution vests the authority in the state prime minister. As on the federal level, the authority may be transferred. Amnesty can be granted only by federal law.

Greece

The Constitution of Greece grants the power of pardon to the President of the Republic (Art. 47, § 1). He/She can pardon, commute or remit punishment imposed by any court, on the proposal of the Minister of Justice and after receiving the opinion (not the consent necessarily) of the Pardon Committee.

Hong Kong

Prior to the return of Hong Kong to China in 1997, the power of pardon was a royal prerogative of mercy of the monarch of the United Kingdom. This was used and cited the most often in cases of inmates who had been given the death penalty: from 1965 to 1993 (when the death penalty was formally abolished) those who were sentenced to death were automatically commuted to life imprisonment under the Royal Prerogative.

Since the return, the Chief Executive of Hong Kong now exercises the power to grant pardons and commute penalties under section 12 of article 48 Basic Law of Hong Kong. "The Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions...to pardon persons convicted of criminal offences or commute their penalties".

India

Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment. A similar and parallel power vests in the Governors of each State under Article 161.

However, it is important to note that India has a unitary legal system and there is no separate body of state law. All crimes are crimes against the Union of India. Therefore, a convention has developed that the Governor's powers is exercised for only minor offenses, while requests for pardons and reprieves for major offenses and offenses committed in the Union Territories are deferred to the President.

Both the President and Governor are bound by the advice of their respective Councils of Ministers and hence the exercise of this power is of an executive character. It is therefore subject to Judicial Review as held by the Supreme Court of India in the case of Maru Ram v. Union of India [1980] INSC 213, 1981 (1) SCC 107, Supreme Court. It was subsequently confirmed by Kehar Singh v. Union of India [1988] INSC 370, 1989(1) SCC 204, Supreme Court. In the case of Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors [2006] INSC 638, Supreme Court, it was held that "clemency is subject to judicial review and that it cannot be dispensed as a privilege or act of grace". The court made these observation while quashing the decision of then Governor of Andhra Pradesh Sushil Kumar Shinde in commuting the sentence of a convicted Congress activist.^[10]

Iran

In the Islamic Republic of Iran, the Supreme Leader has the power to pardon and offer clemency under Article 110, § 1, §§ 11.

Ireland

In Ireland the power of clemency is nominally exercised by the president. However the President of Ireland must act "on the advice" of the cabinet, so in practice such decisions are made by the government of the day and the president has no discretion in the matter. The responsibility can also be vested in persons or bodies other than the president. The Irish constitution states (in Article 13.6) that "The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities".

List of people who have received a Presidential Pardon since 1938

• 1940 – Thomas Quinn granted by Douglas Hyde
• 1943 – Walter Brady granted by Douglas Hyde
• 1992 – Nicky Kelly granted by Mary Robinson
• 1999 – William Geary granted by Mary McAleese

• Source: Murdoch's Dictionary of Irish Law by Henry Murdoch, Page 566: 3rd Edition: ISBN 0-9514032-5-7

Israel

In Israel the President has the power to pardon criminals or give them clemency. The pardon is given following a recommendation by the Minister of Justice.

After the Kav 300 affair, President Chaim Herzog issued a pardon to four members of the Shin Bet prior to them being indicted. This unusual act was the first of its kind in Israel.

Italy

In Italy, the President of the Republic may “grant pardons, or commute punishments” according to article 87 of the Italian Constitution. Like other acts of the president, the pardon requires the countersignature of the competent government minister. The Constitutional Court of Italy has ruled that the Minister of Justice is obliged to sign acts of pardon.^[11]

The pardon may remove the punishment altogether or change its form. Unless the decree of pardon states otherwise, the pardon does not remove any incidental effects of a criminal conviction, such as a mention in a certificate of conduct (174 c.p.).

According to article 79 of the Italian Constitution the Parliament may grant amnesty (article 151 c.p.) and pardon (article 174 c.p.) by law deliberated a majority of two thirds of the components. The last general pardon, discounting 3 years from sentences, was approved in 2006.

Poland

In Poland, the President is granted the right of pardon by Article 139 of the Constitution of the Republic of Poland. As of October 2008, 7,819 people were pardoned, while 3,046 people's appeals were declined.

• Lech Wałęsa
  • Approved – 3,454
  • Declined – 384
• Aleksander Kwaśniewski
  • Approved – 3,295 (the first term); 795 (the second term); total – 4,090
  • Declined – 993 (the first term); 1,317 (the second term); total – 2,310
• Lech Kaczyński (until October 2007)
  • Approved – 77
  • Declined – 550

Russia

The President of the Russian Federation is granted the right of pardon by Article 89 of the Constitution of the Russian Federation. The Pardon Committee manages lists of people eligible for pardon and directs them to the President for signing. While President Boris Yeltsin frequently used his power of pardon, his successor Vladimir Putin was much more hesitant; in the final years of his presidency he did not grant pardons at all.

De jure pardon can be requested after half of the sentence has been served (one year minimum), de facto even after sentence made in force. But in practice, the president reduced the sentence only to those eligible for parole.

Article 103 of the Constitution states that "the jurisdiction of the State Duma shall include...granting amnesty". It is the nature and use of this power of the Duma that will be taken up here. The constitution the president pardons and the Duma grants amnesty not subject to presidential veto. Unlike arrangements in some other constitutional democracies, the Duma does not share this power with the upper house of the legislature.^[12] One possible explanation for this is that the provision was crafted such that the State Duma would enhance its ability to serve as a counterweight to a super-presidential constitutional arrangement.

The first and perhaps most dramatic case of legislative amnesty came in early 1994, shortly after the first Duma was seated. Although voters ratified Yeltsin’s Constitution in December, they also elected a rather combative opposition Duma. In February 1994, as one of their first orders of business, they overwhelmingly approved a resolution granting amnesty to the leaders of the October insurrection as well as to those hard-line Communists who were facing trial for their role in the failed coup of August 1991 against then-Soviet president Mikhail Gorbachev. Yeltsin, clearly opposed to the move, attempted to argue that the Duma was exceeding its authority by replacing pardoning with amnesty, but to no avail. The president’s argument rested on the idea that amnesty is reserved for those already convicted of a crime.^[13] But, under the Russian Constitution, amnesty is granted by way of a Duma resolution, not law, and thus is not subject to presidential veto.^[14]

There have been other, less controversial amnesties granted by the Duma since 1994. Mainly, these have dealt with prisoners of Russia’s overcrowded, under-funded, and disease-ridden prison system, which has attracted the attention of human rights groups worldwide. In April 1995, they voted to release some 30,000 prisoners to mark the 50th anniversary of the Allied victory in World War II.

There were only two pardons where full sentences were discarded: one for espionage (a 20-year sentence), another for robbery (fled under arrest).

South Africa

Under section 84(2)(j) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), the President of the Republic of South Africa is responsible for pardoning or reprieving offenders. This power of the President is only exercised in highly exceptional cases.

To pardon a person is to forgive a person for his/her deeds. The pardon process is therefore not available to persons who maintain their innocence and is not an advanced form of appeal procedure.

Pardon is only granted for minor offences after a period of ten years has elapsed since the relevant conviction.

For many serious offences (for example if the relevant court viewed the offence in such a serious light that direct imprisonment was imposed) pardon will not be granted even if more than ten years have elapsed since the conviction.

Spain

The derecho de gracia ("right of grace") or indulto ("pardon") is acknowledged by the Spanish Constitution of 1978 as a privilege of the King of Spain (article 62.i: "Functions of the King"). The Spanish Constitution defines it as a renounce on the State's part of its own punitive power on behalf of an individual, founded on reasons of equity or public interest. The Constitution subjects royal pardons to the Law and forbids general pardons, so they have to be granted individually. Theoretically, royal pardon can be granted for the general offense or the accessory offenses alone; if it is granted for the general offense, the accessory ones it implies are also pardoned, with the exception of punishments involving political rights (i.e., removal of the right to run for a public office as a result of a sentence), which have to be explicitly mentioned in the pardon decree if they are going to be pardoned.

The procedure and requirements for the grant of the pardon are given by the Law of 18 June 1870, modified by the Law 1/1988 of 14 January. The application for royal pardon has to be carried out by the convicted person himself, his relatives or any other person in his name. The convicting Court will then issue a report of the case, which shall be considered along with the public comments of the Prosecutor and the victims of the crime if there were any. All of this is gathered by the Minister of Justice, who will present the pardon issue it to the Cabinet of Ministers. If the Cabinet decides pardon to be granted, then the Minister of Justice will recommend it to be granted to the King. Pardons are issued by Royal Decree and have to be published in the Boletín Oficial del Estado ("Public Journal").

Pardons are not commonly conceded in Spain but for offenders convicted for minor crimes who are about to complete their sentence and have shown good behaviour and repentance. Dating back to medieval times, several organisations and religious brotherhoods still hold the right of granting pardons as part of some privilege or other granted to them by the King of Spain. The scope of this privilege depends on the royal charter received by the organisation when their right to concede pardons was granted, though it usually holds only for minor offenses in very especial conditions; this right is implicitly acknowledged by the public offices nowadays, though it is not exercised but following the usual procedure for royal pardons. Traditionally, they will propose some petty criminal about to end his sentence for pardon being granted to him, and he/she will be released following the tradition to which the pardon holds, usually during the Holy Week. This type of pardons are distinguished from the usual ones in that they only release the prisoner from jail, halting the sentence, but do not pardon the offense itself.

Switzerland

In Switzerland, pardons may be granted by the Swiss Federal Assembly for crimes prosecuted by the federal authorities. For crimes under cantonal jurisdiction, cantonal law designates the authority competent to grant pardons (if any). In most cantons, the cantonal parliament may pardon felonies, and the cantonal government may pardon misdemeanors and minor infractions.

Turkey

The president of Turkey is granted the right of pardon under certain circumstances defined in the constitution, article 104. According to the article, the president can "remit, on grounds of chronic illness, disability, or old age, all or part of the sentences imposed on certain individuals." After the convict's or his or her proxy's application, if the Council of Forensic Medicine determines that the convict suffers from chronic illness, disability, or old age, the Ministry of Justice presents the situation to the president, and the president can choose to grant a pardon.

Additionally, the parliament of Turkey has the power to announce general amnesty.

United Kingdom

The power to grant pardons and reprieves in the United Kingdom is known as the Royal prerogative of mercy. It was traditionally in the absolute power of the monarch to pardon an individual for a crime, whether or not he or she had been convicted, and thereby commute any penalty; the power was then delegated both to the judiciary and the Sovereign's ministers. Since the creation of legal rights of appeal, the Royal prerogative of mercy is no longer exercised by the person of the sovereign, or by the judiciary, but only by the government.

In constitutional terms, under the doctrine of the Rule of Law, the power of ministers to overrule the judiciary by commuting criminal sanctions imposed resolves different and sometimes conflicting public interests. In civil matters, only the legislative branch, and not ministers, have the power to override the judiciary.

Until the nineteenth century, for many crimes the sentence was mandatory and was formally pronounced in court immediately upon conviction, but judges and ministers were given powers to exercise the Royal prerogative of mercy out of court, in order to mitigate the rigour of the law. Before there was any general form of criminal appeal, a judge might grant a pardon either by way of clemency, because he felt in his opinion that the law was unduly harsh (for example, in the case of convictions of minors), that the verdict was dubious, that to seek public approval, or it was otherwise in the public interest. Capital sentences imposed by the Assizes were generally executed when the Assize was concluded and as the circuit judge left the town, so there was a limited window of time to apply to a judge or directly to the Crown for a pardon. Especially for Assizes that were far away from the then capital and major cities of London, York, Durham, Edinburgh, or Dublin, a pardon might well arrive too late. Perhaps as a form of temporary punishment, to give solace, to avoid public disorder, to consult or obtain further evidence, or to maximise the public approval of the King's mercy, judges often did not grant their pardons until their departures; the convict often hoped until his last moments that the sentence of death would not actually be executed, and it was generally popular for a reprieve to arrive at the scaffold at the very moment of the execution.^[15]

Conditional pardons were granted to many in the 18th century, in return for transportation to British colonies overseas for life in lieu, especially to the places we now call in history the Australian Colonies.

The first known General Pardon in post-Conquest England was issued during the celebrations at the coronation of King Edward III in 1327. In 2006 all soldiers from England, Wales, Scotland, and Ireland, who were executed for cowardice during the First World War, were given a statutory pardon by an Act of Parliament, resolving a long-running controversy about the justice of their executions.^[16] (See the Armed Forces Act 2006.)

Today the Sovereign only grants pardons upon the advice of her ministers: currently they are the Secretary of State for Justice, for England and Wales, the First Minister of Scotland, or the Secretary of State for Northern Ireland. The Secretary of State for Defence is responsible for military cases. It is the standard policy of the Government to only grant pardons to those who are considered "morally" innocent of the offence, as opposed to those who may have been wrongly convicted by a misapplication of the law. Pardons are generally no longer issued prior to a conviction, but only after the conviction. The use of the Royal prerogative of mercy is now a rare occurrence, given that the Criminal Cases Review Commission and the Scottish Criminal Cases Review Commission are now avenues to statutory remedies against miscarriages of justice.

Therefore, the grant of pardons is now very rare occurrence indeed, and the vast majority of acknowledged miscarriages of justice were decided upon by the courts. During the Birmingham Six case, Home Secretary Douglas Hurd stressed that he could only make the decision for a pardon if he was "convinced of [their] innocence", which at the time he was not.^[17]

One recent case was that of two drug smugglers, John Haase and Paul Bennett. They were pardoned in July 1996 from their sentences of imprisonment both of 18 years, having served some ten months, on the advice of Home Secretary Michael Howard.^[18] This was intended as a reward for their information given to the authorities, but there were speculations as to the motives of the Home Secretary.^[19] In 2008 they were sentenced to imprisonment for 20 and 22 years, respectively, after subsequent discovery that their information given was unreliable.

In 1980, after the courts had dismissed their appeals, the Home Secretary, William Whitelaw, used the Royal prerogative of mercy to free David Cooper and Michael McMahon from their imprisonment, both having been convicted of murder on poor evidence.^[20][21]

Under the Act of Settlement, a pardon cannot prevent a person from being impeached by Parliament, but a pardon may commute any penalties imposed for the conviction. In England and Wales no person may be pardoned for an offence under Section 11 of the Habeas Corpus Act 1679 (unlawfully transporting prisoners out of England and Wales).^[22]

United States

Federal law

In the United States, the pardon power for federal crimes is granted to the President of the United States under Article II, Section 2 of the United States Constitution which states that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment". The U.S. Supreme Court has interpreted this language to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, and amnesties.^[23]

All federal pardon petitions are addressed to the President, who grants or denies the request. Typically, applications for pardons are referred for review and non-binding recommendation by the Office of the Pardon Attorney, an official of the United States Department of Justice. The percentage of pardons and reprieves granted varies from administration to administration (fewer pardons have been granted since World War II).^[24]

The pardon power was controversial from the outset; many Anti-Federalists remembered examples of royal abuses of the pardon power in Europe, and warned that the same would happen in the new republic. Alexander Hamilton defended the pardon power in Federalist Papers, particularly in Federalist No. 74. In his final day in office, George Washington granted the first high-profile federal pardon to leaders of the Whiskey Rebellion.

Many pardons have been controversial. Critics argue that pardons have been used more often for the sake of political expediency than to correct judicial error. One of the more famous recent pardons was granted by President Gerald Ford to former President Richard Nixon on September 8, 1974, for official misconduct which gave rise to the Watergate scandal. Polls showed a majority of Americans disapproved of the pardon, and Ford's public-approval ratings tumbled afterward. Other controversial uses of the pardon power include Andrew Johnson's sweeping pardons of thousands of former Confederate officials and military personnel after the American Civil War, Jimmy Carter's grant of amnesty to Vietnam-era draft dodgers, George H. W. Bush's pardons of 75 people, including six Reagan administration officials accused and/or convicted in connection with the Iran–Contra affair, and Bill Clinton's commutation of sentences for 16 members of FALN in 1999 and of 140 people on his last day in office, including billionaire fugitive Marc Rich. Most recently, George W. Bush's commutation of the prison term (but not the significant fine) of I. Lewis "Scooter" Libby was controversial. In commuting Libby's prison term, Bush stated: "I am commuting the portion of Mr...leaving intact his remaining sentence and fine and leaving on his record his felony". In 2007 Bush issued 29 pardons but did not include Libby among them.

The Justice Department requires that anyone requesting a pardon wait five years after conviction or release prior to receiving a pardon. A presidential pardon may be granted at any time, however, and as when Ford pardoned Nixon, the pardoned person need not yet have been convicted or even formally charged with a crime. Clemency may also be granted without the filing of a formal request and even if the intended recipient has no desire to be pardoned. In the overwhelming majority of cases, however, the Office of the Pardon Attorney will consider only petitions from persons who have completed their sentences and, in addition, have demonstrated their ability to lead a responsible and productive life for a significant period after conviction or release from confinement.^[25]

It appears that a pardon can be rejected, and must be affirmatively accepted to be officially recognized by the courts. Acceptance also carries with it an admission of guilt.^[26] However, the federal courts have yet to make it clear how this logic applies to persons who are deceased (such as Henry Ossian Flipper, who was pardoned by Bill Clinton), those who are relieved from penalties as a result of general amnesties and those whose punishments are relieved via a commutation of sentence (which cannot be rejected in any sense of the language).^[27]

While a presidential pardon will restore various rights lost as a result of the pardoned offense and should lessen to some extent the stigma arising from a conviction, it will not erase or expunge the record of that conviction. Therefore, even if a person is granted a pardon, they must still disclose their conviction on any form where such information is required, although they may also disclose the fact that they received a pardon.^[28] In addition, most civil disabilities attendant upon a federal felony conviction, such as loss of the right to vote and hold state public office, are imposed by state rather than federal law, and also may be removed by state action.

A symbolic use of the presidential pardon is the National Thanksgiving Turkey Presentation each Thanksgiving, in which a domestic turkey is pardoned from being slaughtered for Thanksgiving dinner and allowed to live out its life on a farm.

State law

The pardon power of the President extends only to offenses cognizable under federal law^{[citation needed]}. However, the governors of most of the 50 states have the power to grant pardons or reprieves for offenses under state criminal law. In other states, that power is committed to an appointed agency or board, or to a board and the governor in some hybrid arrangement (in some states the agency is merged with that of the parole board, as in the Oklahoma Pardon and Parole Board).

Nine states in the United States have Boards of Pardons and Paroles that exclusively grant all state pardons. Alabama (Board of Pardons and Paroles), Connecticut (Board of Pardons and Paroles), Georgia (Board of Pardons and Paroles), Idaho (Commission of Pardons and Paroles), Minnesota (Board of Pardons), Nebraska (Board of Pardons), Nevada (Board of Pardon Commissioners), South Carolina (Board of Probation, Parole and Pardon), and Utah (Board of Pardons and Parole) are the nine states in the United States with all state pardons granted through state boards.

On at least two occasions, state governors — George Ryan^[29] of Illinois and Toney Anaya^[30] of New Mexico — have commuted all death sentences in their respective states prior to leaving office.

Related concepts

These terms differ subtly from country-to-country, but generally:^[31][32]

• Amnesty: A pardon applied to a group of people rather than an individual. President Jimmy Carter offered amnesty to anyone who had evaded the draft. Weapon amnesties are often granted so that people can hand in weapons to the police without any legal questions being asked as to where they obtained them/why they had them/etc... After a civil war a mass amnesty may be granted to absolve all participants of guilt and 'move on'.
• Commutation: Substituting the penalty for a crime with the penalty for another, whilst still remaining guilty of the original crime (e.g., in the USA, someone who is guilty of murder may have their sentence commuted to life imprisonment rather than death)
• Remission: Complete or partial cancellation of the penalty, whilst still being considered guilty of said crime (i.e., reduced penalty).
• Reprieve: Temporary postponement of a punishment, usually so that the accused can mount an appeal (especially if he or she has been sentenced to death)^[33]
• Clemency: Catch-all term for all of the above, or just referring to amnesty and pardons.
• Expungement: Process by which record of criminal conviction is destroyed or sealed from the official repository thus removing any traces of guilt or conviction.
• Immunity from prosecution: A prosecutor may grant immunity, usually to a witness, in exchange for testimony or production of other evidence. The prosecutor conditionally agrees not to prosecute a crime that the witness might have committed in exchange for said evidence. e.g. If a car thief witnesses a murder, he will often be granted immunity for his crime in order to allow him to testify against the murderer.
• Other immunity: Several other types of immunity are available depending on the status of a person as a member of the government.

Some criminals who testify for the prosecution put their life in jeopardy by doing so. To coerce witnesses to testify, the government may offer witness protection. In the United States Federal Witness Protection Program, about "95% of [witnesses in the program] are ... criminals."^[34] Those who testify for the prosecution may be offered immunity from prosecution for their own crimes.^[34]

Controversy

Among those who see some legitimate use for the power to pardon in some cases, there are those who see it as being susceptible to abuse if applied inconsistently, selectively, arbitrarily, or without strict, publicly accessible guidelines.

The principle of the rule of law is intended to be a safeguard against such arbitrary governance. The rule of law, in its most basic form, is the principle that no one is above the law. Thomas Paine stated in his pamphlet Common Sense (1776): "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other."

The history of this debate reaches at least as far back as Plato, and evidence of it is found in many cultures (see Overview of the Rule of Law).

See also

• Ius strictum
• Rule of Law

References

External links

Look up pardon in Wiktionary, the free dictionary.

United States

• List of pardon/clemency policies for various U.S. states
• USDOJ Office of the Pardon Attorney
• State by State listing of Pardon Information