What is a Pardon?
A pardon is a method through which an executive authority legally forgives someone for a crime, and reinstates rights lost post-conviction. Pardons are different than an exoneration; they are not an acknowledgement of wrongful conviction, just a restoration of the civil status the person had prior to the conviction.
There are a few different types of pardons, which differ from state to state. In the federal system, there are full pardons and conditional pardons. A full pardon gives the convicted person back the status they had prior to conviction. Any rights that were lost are reinstated. The records are not erased however. A conditional pardon can be issued in exchange for something; a pardon will be granted if the person meets a certain condition, or complies with a request.
Why do pardons matter?
In the United States, when someone commits of a felony, they lose many of their rights. States differ slightly on what exactly felons lose post-conviction, but typically it includes the loss of voting rights, firearm ownership, and jury service. There are several different variations on what happens after a felony conviction, depending on the state. Four states, Iowa, Florida, Virginia, and Kentucky have permanent disenfranchisement for everyone convicted of a felony, unless the government approves a restoration of rights to an individual, typically through a pardon.
In other states, it depends on the type of felony committed. In Arizona, people convicted of two or more felonies are permanently barred from voting. With only one felony conviction, voting rights are restored after completion of sentence. In Mississippi, there are ten types of felonies which incur a permanent loss of voting rights. There are several other states, including Wyoming, Nevada, Delaware, and Tennessee, that all have different regulations and restrictions based on either the type of felony, or amount of felony convictions.
In 19 states, voting rights are automatically restored once the sentence is completed. This includes prison, parole, and probation. In five states, voting rights are automatically restored after prison and parole are completed, those who are on probation can vote.
12 states and the District of Columbia automatically restore voting rights at the time of release from prison. Felons may vote unless they are actually incarcerated, once released, their voting right is automatically reinstated. Lastly, there are two states, Maine and Vermont that do not disenfranchise those with criminal convictions.
Who has the power to Pardon?
Pardons are typically granted by the executive authority. In states that is the governor, for federal crimes, the president. In all states, some combination of the governor and the legislature has the power to pardon. There are a few states in which pardons are decided solely by a Board of Pardons and Parole. These states include Alabama, Connecticut, Georgia, Nevada, South Carolina, among others. This does not mean the governor is prohibited from involvement; for example in Nevada, the governor is on the Board of Pardons.
For DC code offenses, the president has the power to pardon offenders. For certain violations of municipal ordinances, the Mayor of DC also has the power to pardon.
The president has executive clemency power for federal offenses. Clemency power can be exercised as either the commutation of a sentence, or a pardon. Clemency is a broad term that encompasses all types of power the president has to affect the sentence and status of criminals. The president can only pardon violations of federal laws. Article II, Section 2 of the Constitution grants the President the power to pardon: “and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
Difference between Presidential and Gubernatorial Pardons
The main difference between the pardoning power of the president and that of governors is how much leeway they have. The president has a very broad pardoning power; they can grant pardons for almost any federal offense. Presidents can pardon whomever they want, and there is no review or oversight of presidential pardons. Many states have a more limited power for pardons. The only real limitation for presidential pardons is impeachments.
Some state constitutions have a provision declaring that only legislatures, and not the governor, can pardon traitors. Many states also require that a person request clemency through a formal process. Governors typically have to wait until after a conviction to pardon, Presidents can pardon prior to conviction, as Ford did for Nixon. Some states also require the governor to provide a written explanation of why he granted clemency, or explain to the legislature. There is no such requirement for presidential pardons.
In many states, there is also a clemency board that reviews the applications; the decision is not solely up to the governor. Oftentimes the clemency board merely serves in an advisory capacity to the government; they cannot override the governor’s decision whether or not to grant a pardon.
There is no clemency board for presidential pardons. In the Justice Department there is the Office of the Pardon Attorney, which the president can look to for guidance. The president does not, however, have to listen to their advice or recommendations. Presidential pardons are, in general, far less restricted than gubernatorial pardons.
Guidelines for Pardons
Commutations and pardons are distinctly different processes. The commutation of a sentence partially or completely reduces a sentence. Commutations do not change the facts of conviction, or suggest that the person is innocent. The civil disabilities that apply post-conviction are not removed when a sentence is commuted. In order to be eligible to have a sentence commuted, the prisoner must have begun serving his sentence, and cannot be challenging the conviction in courts.
Conversely, pardons are a demonstration of the governing executive authority’s forgiveness. Typically, they are granted in cases where the person has accepted responsibility for their crime and demonstrated good behavior for a significant period of time either following conviction, or release. Similar to a commutation, pardons do not signify innocence; they are not the same as exoneration. Pardons do, however, remove the civil penalties, reinstating the right to vote, sit on a jury, and hold local or state office.
If someone is seeking a presidential pardon, they have to apply for one through the Office of the Pardon Attorney (OPA), a subset of the Department of Justice. According to the website of the OPA, a person must wait five years after release from confinement of any sort before applying for a pardon. If the conviction did not carry actual confinement, the five year period begins on the date of the sentencing. The president, however, can choose to pardon someone anytime they want. The five year rule applies only to those going through the official channels. After the five year wait, the OPA considers and investigates the application, and then they make a recommendation to the president. The president alone conducts the final consideration of all applications. presidential pardons cannot be overridden. If the president denies the pardon, the applicant can try again two years later.
For states, the guidelines on pardons differ. Many states have an application for pardons available online. Typically, the application will go to either the governor’s office or the state pardon/parole board if there is one. Some states have clemency and pardon boards that process the applications, investigate, and then make recommendations to the governor, similar to the function the OPA performs for the president. Factors considered for both state and federal pardons include: good behavior, remorse and acceptance of responsibility for the crime, how serious the crime was, background and history of the applicant, including criminal history. The president, governor, or pardon board considers each case on an individual basis. In many states, authorities grant pardons in only few circumstances, and there must be an excellent reason why it is both deserved and necessary.
Controversies Surrounding Pardons
In January 2012, as he was leaving office, Mississippi Governor Haley Barbour pardoned 210 state inmates. Barbour had caused a controversy earlier in his term for pardoning five prisoners who were all assigned to work at the Governor’s Mansion. Four of the five he pardoned had killed their wives or girlfriends. The fifth was incarcerated for the murder and robbery of an elderly man. Out of the 210 he pardoned as he was leaving office, the majority of them were full pardons, meaning all rights would be reinstated. Almost a dozen of his 2012 pardons were murderers, and two were statutory rapists. The rest were convicted on DUI, burglary, and armed robbery charges.
As Arkansas Governor, Mike Huckabee pardoned a dozen murderers. One of the men he pardoned, Wayne Dumond, raped and killed two more women after his release and pardon.
Famous Presidential Pardons
Former President Bill Clinton pardoned Patty Hearst, an heiress kidnapped by Symbionese Liberation Army (SLA), who claimed to have been brainwashed. While brainwashed, Hearst helped the SLA commit bank robberies and other crimes. Her sentence was first commuted by President Jimmy Carter in the late 1970s. Clinton also pardoned a man named Marc Rich, a $48 million dollar tax evader. George H.W. Bush pardoned Caspar Weinberger, a man convicted for an illegal arms sale with Iran. Abraham Lincoln pardoned Arthur O’Bryan, convicted of attempted bestiality. One of the most famous pardons remains Gerald Ford’s pardon of President Nixon for the Watergate Scandal. Jimmy Carter pardoned Vietnam draft dodgers. Ronald Reagan pardoned Mark Felt, “Deep Throat.” Franklin Roosevelt pardoned 3,687 people during his twelve years in office, more than any other president. In his eight years in office, Woodrow Wilson pardoned 2,480 people. Harry Truman pardoned 2,044. One of Truman’s pardons was a Japanese-American who resisted the draft during WWII. In 6 years, Calvin Coolidge pardoned 1,545 people. Herbert Hoover pardoned more people than any single term president, in only four years, he pardoned 1,385 people.