Pardons: What They Are and How They Work

Pardons have the power to change lives, wiping away criminal convictions and restoring lost rights. Throughout history, pardons have been used to right legal wrongs, but they’ve also been criticized as unjust political favors. From Gerald Ford’s pardon of Richard Nixon to the debate over the January 6 defendants, pardons have fueled controversy. However, the process is complex, requiring careful navigation of legal procedures and government reviews. Understanding the process and seeking legal guidance can make all the difference if you or a loved one is considering applying for a pardon.

What Are Pardons?

Several types of pardons can be issued. A full pardon removes all legal consequences of the conviction and restores the person’s full civil rights, including the right to vote, run for office, and own firearms. A conditional pardon is granted with specific conditions, often requiring the individual to fulfill certain obligations, like community service or regular check-ins. A general pardon is granted to a group of individuals, typically for a specific category of offenses (for example, amnesty for political prisoners). A specific pardon is granted to an individual for a specific offense, usually a single conviction, rather than a blanket or general pardon.

Pardons are different from having criminal charges expunged. An expungement is the legal process of removing a conviction from a criminal record as if it never happened. A pardon leaves the conviction on the person’s record but forgives it. Pardons are also different from clemency. This is a broader term that includes pardons, commutations, and reprieves. Clemency may reduce sentences but not necessarily forgive the crime entirely. Presidents have the power to grant clemency. The U.S. Constitution grants clemency powers. The clemency process is similar to the pardon process. When a president issues a commutation of a sentence, they can reduce the amount of remaining time to be served or reduce it to time served.

Constitutional Basis and Legal Process

Under Article II of the U.S. Constitution, the President’s pardon power is granted the power to pardon individuals convicted of federal offenses. Congress cannot remove or limit the president’s power to issue pardons. It also gives presidents the power to remove the negative consequences of a service member’s court-martial. This power is unlimited, though it does not extend to cases of impeachment. Presidential pardons cannot be used to undo impeachments or remove the consequences of impeachment proceedings. A president also cannot grant reprieves for future crimes not yet committed.

Pardons are subject to public scrutiny, especially when granted to high-profile individuals. Courts generally do not have the power to overturn a pardon, but judicial challenges to the process may arise if the pardon is deemed to be in violation of the law or Constitution. The courts have limited authority over the exercise of the presidential pardon power, but cases can arise if the legality of the pardon is challenged.

Controversial Pardon Cases and Public Perception

Each U.S. president issues a series of pardons before leaving office. Many are accepted or go totally unnoticed by the general public. However, several pardons throughout the decades have created controversy. President Gerald Ford’s controversial pardon of Nixon, who was implicated in the Watergate scandal, is a key example of how pardons can stir political debate. President Jimmy Carter granted a pardon to thousands of men who avoided the Vietnam War draft, sparking discussions on the political nature of pardons. President Clinton sparked outrage when he issued a pardon for Marc Rich, a man known for his large-scale financial fraud and tax cheating.

President George H.W. Bush and President Barack Obama faced scrutiny for their pardons. Obama’s use of executive clemency for nonviolent drug offenders and Bush’s pardons for individuals involved in the Iran-Contra scandal are examples. President Joe Biden’s pardon of family members and preemptive pardons of members of Congress who investigated the January 6 U.S. Capitol attack, as well as President Donald Trump’s pardon of individuals convicted for crimes related to Jan. 6, raised concerns about justice and accountability.

Critics argue that pardons can be politically motivated and used to shield individuals from the consequences of their actions, particularly in cases of high-profile or politically connected individuals. Supporters view pardons as essential tools for justice and reconciliation, allowing individuals to overcome mistakes and reintegrate into society. This often leads to pardon petitions where people advocate for the pardon of an individual.

Another controversial pardon situation is that of President Trump. While the power of the president extends to federal law, it does not cover state offenses. So, while no president has ever tried to pardon themselves, Trump wouldn’t be able to self-pardon himself for the 34 counts of state offenses. The Constitution is silent on whether a president can pardon themselves. It will be a new and previously unaddressed issue if Trump pardons himself for any charges faced in federal court.

Who Can Give Pardons?

Who can issue a pardon will depend on the law that governs the person’s criminal offenses. The President has the power to grant pardons for federal crimes. This power is absolute, and the President may grant pardons to anyone convicted of a federal crime.

Governors have the power to grant pardons for state-level crimes. However, each state has its own procedures and criteria for granting pardons. Federal pardons apply only to federal crimes, whereas state pardons apply to offenses under state law. In federal cases, the U.S. Department of Justice (DOJ) reviews pardon applications through the Office of the Pardon Attorney, which provides recommendations to the President.

The Pardon Process

Once an applicant submits their request for a pardon, the Office of the Pardon Attorney reviews the request. The office then forwards a recommendation to the President. For state pardons, the process is similar through state authorities. The review process could be through the state Attorney General or board appointed by the governor. During the review process, several factors will be considered. The nature of the crime, time served, rehabilitation efforts, and the individual’s contribution to society are all considered. The final decision about whether to grant or deny the pardon is up to the president or governor.

Pardons vs. Commutation

A commutation reduces a sentence without erasing the conviction. It can shorten a prison sentence or modify the terms of a sentence, but it does not restore full rights as a pardon does. While a commutation may provide relief from a lengthy sentence, a full pardon goes a step further, clearing the conviction entirely and restoring the individual’s rights. The most notable example of a president using commutations is President Obama, who commuted the sentences of many people convicted of nonviolent drug offenses. This was done as part of his efforts for criminal justice reform.

Effects of a Pardon

Depending on the laws of the jurisdiction, a pardon can restore an individual’s right to vote, run for public office, and possess firearms. Convictions can create legal barriers to employment, housing, and education. A pardon can lift these restrictions. A pardon does not erase a criminal record but forgives the conviction, which can ease the individual’s integration into society.

How To Seek a Pardon

If you or someone you know wants to seek a pardon, the first step is to find out the eligibility requirements. The requirements vary depending on the jurisdiction. Generally, an applicant must have completed their sentence, shown remorse, and demonstrate rehabilitation. You must submit a pardon application with the Office of the Pardon Attorney to seek a federal pardon.

To seek a state pardon, you must submit an application to the appropriate state agency or governor’s office. The Department of Justice, state pardon boards, and legal aid organizations can provide resources and assistance to individuals seeking a pardon.

Finding Legal Guidance

The ability to grant pardons is a powerful aspect of the legal system, often sparking debate over justice, accountability, and rehabilitation. From historic cases to modern controversies, pardons continue to shape public perception and legal precedents.  Understanding the differences between pardons, commutations, and expungements can help individuals determine the best course of action. If you or someone you know is exploring the possibility of a pardon, working with legal experts can provide the necessary guidance to navigate the process successfully.

Visit the Super Lawyers directory to begin your search for an experienced criminal law attorney.