PRESIDENTIAL PARDONS

Common reader questions on the law of Presidential pardons - to submit your question, e-mail JURIST@law.pitt.edu.

• Can a Presidential pardon be refused?

  Yes. In Burdick v. United States (1915), the city editor of the New York Tribune was asked before a federal grand jury to reveal sources of information for a story his paper had printed. Burdick refused to testify, claiming his answers might incriminate him. To facilitate Burdick's testimony and avoid any possibility of self-incrimination, the U.S. Attorney arranged for him to be granted a full pardon from President Wilson for all offenses he "committed or may have committed". Burdick, however, declined to accept the pardon and persisted in his refusal to answer questions. He was convicted of contempt. On appeal, the United States Supreme Court rejected the notion that a pardon could be forced on Burdick; Mr. Justice McKenna wrote that although offered with good intention, a pardon may bring with it even greater disgrace than it initially sought to avoid. The putative recipient of a pardon can therefore reject it, rather than making the confession of guilt implied by its acceptance.

  There is, however, an apparent limitation on the Burdick rule as applied in the law of commutations. In Biddle v. Petrovich (1927), the recipient of a Presidential commutation of sentence from death to life imprisonment claimed it was invalid because he had not consented to the commutation. The Supreme Court ruled that his consent was not required. Mr. Justice Holmes wrote: "A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed...Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent determines what shall be done." This logic could theoretically be applied to pardons as a whole, but the Supreme Court has not yet overruled Burdick.

• Given the checks-and-balances in American government, why is the pardon power lodged solely with one individual, the President?

  At the Constitutional Convention in Philadelphia the Framers appear to have accepted the argument that the prerogative of mercy, upon which the pardon power is based, is most efficiently and equitably exercised by a single individual, as opposed to a body of legislators or judges. In Federalist No. 74, supporting the ratification of the Constitution, Alexander Hamilton wrote:

  Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed...As the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives, which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance...On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of the government than a body of men.

• How many pardons did President Clinton give during his two terms?

  In total, President Clinton issued 456 executive clemency orders - 395 pardons and 61 commutations - between 1993 and January 20, 2001. The vast majority were issued in the last three years of his presidency - 176 (140 pardons, 36 commutations) were issued on his last day in office.

• Who did previous Presidents pardon, and how many pardons did they issue?

  Given the unlimited range of discretion provided in Article II, Section 2 of the Constitution, previous Presidents have pardoned reprobates, political allies, wrongly-convicted persons, friends, contributors and outright rebels. For individual pardons by particular Presidents, see Notable Pardons. Of the all-but-two Presidents who granted pardons between 1789 and 2001 (Presidents William Henry Harrison and James Garfield did not live to do so), Franklin Delano Roosevelt issued the most clemency orders (3687), while George Washington issued the fewest (16). Click for a full statistical breakdown.

• Is President George W. Bush likely to issue many pardons during his term?

  No. For one thing, his father issued very few (77) when he was in office. For another, during his prior term as Governor of Texas, George W. issued fewer pardons than any Texas Governor since the 1940s (16 up to January 2000, as opposed to 70 for his immediate predecessor Ann Richards, 822 for 2-term governor Bill Clements, and 1048 for John Connally, Texas governor from 1963-69).

  In a January 2000 interview with reporter Jay Root of the Austin Star-Telegram, Governor Bush explained that his low number of pardons "comes not from political calculation but from pardoning Steven Raney in 1995 for a 1988 marijuana conviction. A few months after being absolved of his crime, the unpaid Ellis County constable was caught stealing cocaine from a drug bust. 'That caused a complete review of the process,' Bush said. 'I have nothing against pardoning. I just haven't been very aggressive on it. There's no philosophical reason. It's just that it kind of slowed us down initially. I said, `Whoa!' because it was a pretty rough story." If anything, the Clinton pardon controversy will make President Bush even more cautious.

• Once a Presidential pardon has been granted, does the petitioner still have a record, or is the record of the offense destroyed?

  Generally speaking, a pardon does not mandate expungement of the record. In United States v. Noonan (Third Circuit, 1990), the recipient of a presidential pardon requested a court order expunging all court records relating to his conviction. The Court ruled that while expungment might be in order when an arrest or conviction was constitutionally infirm, there was no precedent for expungement being granted on the basis of a pardon following an unchallenged or otherwise valid conviction: a pardon did not 'blot out guilt' or restore the offender to a state of innocence in the eye of the law.

• Can a Presidential pardon be reversed?

  No. Under Article II, Section 2 of the Constitution there are no grounds for reversal provided, and no authority identified that could accomplish a legal reversal (although Congress might theoretically pass a resolution condemning a Presidential clemency order, as was done for the first time in the wake of President Clinton's 1999 commutation of the sentences of 16 FALN Puerto Rican nationalists). Early in the 2001 pardons controversy, certain lawyers in the Bush administration suggested that, under a line of 19th century cases, signed pardons, like warrants, might require delivery to be valid, but this argument was not officially pursued in the wake of President George W. Bush's subsequent statement that he would allow President Clinton's pardons to stand.

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