Philip Vigol. Robert E. Lee. David Brown. John Fremont. Pierre Lafitte. Al Jennings. Samuel Mudd. Marc Rich. Patty Hearst. Jimmy Hoffa. Who were these people? Some of their names may be familiar to you, others completely unknown. They lived in different times, and were accused of or committed different crimes: treason, sedition, murder, bank robbery, conspiracy, tax evasion, fraud, mutiny, and even piracy. But they all have one thing in common: each was the recipient of some form of presidential clemency, in the form of a pardon or reprieve of sentence.
But what exactly does it mean to receive a pardon or a reprieve? How are they different? Where does the presidential clemency authority come from, and are there any limits on it? How do you apply for a pardon reprieve? We will examine each of these questions in our discussion below.
What Is the Source of the Presidential Clemency Authority?
The power of the President to issue pardons and reprieves comes from the U.S. Constitution, Article II, Section 2, which empowers the President to grant these forms of relief to those who have violated federal law. Pardon authority itself predates the Constitution: throughout history kings, emperors and other rulers have had the right to issue commutations, reprieves, pardons and other types of relief from punishment to those they have deemed worthy. The phrase, “Begging your royal pardon” is more than a sarcastic expression, it has carried real meaning in the past.
Why Have Pardons and Reprieves?
The ability of the chief executive to show clemency to those charged with or convicted of certain crimes is not based on political considerations, nepotism or cronyism, although in some cases, people opposed to clemency in any given case may feel otherwise. In fact, this power can serve individually and societally beneficial purposes. Individually, a pardon reprieve can mitigate injustice in the form of wrongful convictions or disproportionate sentences. In some cases, a pre-conviction pardon of one accused conspirator, offered in exchange for testimony against the other conspirators, can be a valuable prosecutorial tool in cases that may be otherwise difficult to prove.
Although the use of the presidential clemency authority as a means of removing unjust convictions is largely subordinate to the judicial appeals process, having this tool available still provides a backstop in cases of extreme miscarriage of justice.
At the social level pardons can help to promote domestic tranquility, particularly in situations of civil unrest. Through an offer of mass clemency or amnesty, the President can set a national tone of healing by “Letting bygones be bygones.” Examples of this in the United States include the amnesty for Confederate soldiers after the Civil War and amnesty for those who illegally avoided conscription during the Vietnam War.
What is the Difference Between a Pardon and a Reprieve?
A pardon is the type of presidential clemency that most people are familiar with. Through it, the president can not only commute a criminal sentence, but can also eliminate the lasting effects of the crime, such as prohibitions on gun ownership, restrictions on voting rights or the right to sit on a jury, prohibitions against holding public office, or the inability to be bonded or to obtain some professional licenses.
Note, however, that a pardon is not the same thing as an acquittal: the pardon is not a declaration of innocence. Indeed, part of the criteria to receive a pardon is the at least the implied acceptance of responsibility by the person receiving it.
It is not necessary to wait for a conviction before the president can grant a pardon. As an example, possibly the most well-known pardon in American history is that of former President Richard Nixon by his successor Gerald Ford. Aside from being the only example of a President receiving a pardon, Nixon’s pardon also took effect before he could be formally charged with the crimes that led him to resign the presidency. Nixon’s case provides a good example of presidential clemency benefiting both the individual and arguably society: “Our long national nightmare is over,” President Ford stated at the time he granted the pardon, reflecting his desire to put the politically and socially divisive effects of the Watergate political scandal to rest.
Compared to a pardon, a reprieve is not as broad in its legal effect. It is mainly used to reduce or commute a criminal sentence, but does not erase the crime from a person’s record and thus does not restore lost rights like a pardon can. Patty Hearst was a well-known example of a reprieve in the 1970s, with President Jimmy Carter commuting her sentence for bank robbery. She also provides an example of how presidential clemency can overlap: President Bill Clinton later turned her reprieve into a full pardon.
What Limits Exist on Presidential Clemency Authority?
Federal Crimes Only
We have already indicated that the presidential clemency authority only extends to federal crimes: The Constitution refers to “offenses against the United States,” which judges and legal scholars alike interpret as precluding presidential pardons or reprieves for state-level crimes. This does not mean that you cannot receive clemency if you are charged with or convicted of a local or state law; you will, however, need to seek it from the state governor instead of the President.
No Blank Check Clemency
Another limitation to the presidential clemency authority is that a pardon or reprieve cannot be anticipatory in nature: that is, a President cannot “immunize” in advance person who might commit a federal crime. You must have at least been accused of such a crime, if not convicted of it, before a pardon or reprieve can issue.
No Clemency for Impeachment Cases
The Constitution also expressly precludes presidential clemency authority in cases involving impeachment. Impeachment is the ultimate legislative safeguard against abuse of executive authority, were the President to have the ability to override this tool of Congress it could have the effect of damaging the arrangement of checks and balances that exists among the executive, judicial and legislative branches of the federal government.
Can the President Pardon Himself?
Consider a hypothetical: the President is accused of committing perjury in a federal lawsuit in which he testifies as a witness. This would be a federal crime. The Congress tries but fails to impeach him, but the court eventually finds him guilty of perjury. Can the President pardon himself in this situation?
A plain reading of the presidential clemency authority in Article II, Section 2 does not preclude this possibility, but leaves open the question of why the drafters of the Constitution failed to address it: did they consider the idea to be so outrageous that it wasn’t worthy of mention, did they consider it acceptable, or did they simply neglect to think about it? No one knows for sure. Constitutional scholars disagree on whether a presidential self-pardon would violate the spirit of the Constitution, arguing that in any other criminal matter it would seem inappropriate for a person to effectively serve as the judge of his own case.
So far, no President has attempted a self-pardon. If it ever happens in the future, it would likely trigger a review of the Constitution and the founders’ intent by the U.S. Supreme Court. In the meantime, we can only speculate how the Court would answer this question.
What Is the Process to Receive Presidential Clemency?
Although the Constitution vests clemency power solely in the President, the President ordinarily relies on the Office of the Pardon Attorney (OPA) to screen presidential clemency requests and for the U.S. Attorney General to make recommendations on which to grant. The OPA exists under the U.S. Department of Justice. Even if you attempt to apply for a pardon or reprieve directly to the President, your request will likely still be forwarded to the OPA.
An important exception to this procedure, though, is if you were convicted through a military court-martial. In this situation, instead of sending the petition to the OPA, your petition for pardon or reprieve must go through the secretary of the service branch that conducted the court-martial and imposed the sentence.
The application process can begin online. Before you begin, you should be aware that as a matter of policy, the OPA expects clemency applicants to wait at least five years after being released from prison or, if no prison sentence was imposed, after the date of conviction. This is not a requirement: the presidential clemency authority allows the President to grant clemency to a person at any time. But to bypass the usual procedure here, you will likely need some compelling reason for the President to make an exception for you.
The OPA also frowns upon clemency petitions by applicants who are still on parole, probation or supervised release. If you are applying for a reprieve of sentence, you should be prepared to explain why you have not exhausted your appeal remedies through the judicial system if you have not already done so. This is particularly true if your petitioning for clemency from a sentence of death.
The Investigation and Attorney General Recommendation
If the OPA proceeds upon your clemency petition, then the U.S. Attorney General’s office will investigate the merits of your application. The investigation will consider your background, delinquent debts and tax obligations, civil lawsuits you’re involved in, and your other current activities. If the crime you are seeking clemency for had any victims, the OPA may contact them. It will also expect you to provide three character references, typically in the form of written affidavits (the affidavit forms are included in the OPA’s pardon or reprieve packet).
The OPA can be coy about answering the question of how long your investigation may take, but given how thorough it is, the investigation can take years to finish. When the investigation is complete, the Attorney General will make a recommendation to the President whether to approve or reject your petition. The final decision will rest with the President, although in non-death penalty cases, the Attorney General’s negative recommendation can take effect without presidential action if the President fails to override it within 30 days of receiving it.
If your petition is denied, that is not necessarily the end of your hopes for clemency. You can petition again for reprieve one year after the date of denial, or two years after the denial of a pardon request.
Do You Need an Attorney to Request Presidential Clemency?
Just like how you can represent yourself in a criminal trial, you do not need an attorney to file a petition for clemency. Given the potentially high stakes involved, however, and the potential complexity of the petition request, even if you fill it out yourself, you may want to have an attorney at least review your petition before submitting it. This can prevent errors that could delay consideration of your petition or even lead to its rejection based on an avoidable error.
The purpose of this article is to introduce you to the topic of the presidential clemency authority. It is not meant to be an in-depth treatment, and you should not take what you read here as legal advice. If you have questions about what you read here, you can learn more by going to the OPA’s Frequently Asked Questions page on its website or speak with an attorney, preferably one who is already familiar with clemency petitions.