Power To Pardon
The power to pardon has been a controversial issue since the times of kings. Throughout history there has been a concern for the abuse of this power by executives conflicted by a need for the means to offer mercy. These concerns were no different at the time of the drafting of our Constitution. In September 1787, George Mason, designer of the Bill of Rights, expressed his concern about the use of the power of pardon in cases of treason:
“The President of the United States has the unrestrained power of granting pardons for treason, which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.”
The Anti-Federalist Cato echoed this concern in his #67 letter regarding the power of pardon for treason:
“which may be used to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt;”
Cato, in this letter, will ask the question of the ages as to the application of this power:
“Will not the exercise of these powers therefore tend either to the establishment of a vile and arbitrary aristocracy or monarchy?”
Another Anti-Federalist, Brutus, expressed his concern of this “kingly” power in his letter #1:
“…designing men…will use the power, when they have acquired it, to the purposes of gratifying their own interest and ambition, and it is scarcely possible, in a very large republic, to call them to account for their misconduct, or to prevent their abuse of power.”
Alexander Hamilton counters with a response to these concerns in Federalist #74. He explains this power has always been a part of the Executive for two very important purposes; first as a way for the executive to offer grace and mercy:
“Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.” Fed 74,
Secondly, to be an important check and balance upon the judicial branch:
“The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
Events of history confirm the need for the ability to apply grace in a rigid criminal code and to correct the overzealous hand of a magistrate. In spite of the concerns regarding the Executive, the exercise of the power of pardon has often been more of an indication of a corrupt judiciary rather than executive abuse.
Presidents have used the power of pardon from the very beginning of our Constitutional Republic. President George Washington granted pardoned to those who participated in the Whiskey Rebellion. Thomas Jefferson, our 3rd President, after signing the repeal of the Alien and Sedition acts, pardoned those who had been convicted of those unconstitutional and arbitrary laws. Jefferson wrote in his pardon of David Brown:
“That I Thomas Jefferson, President of the United States of America, in consideration of the premises and of divers other good causes me thereunto moving, have pardoned and remitted and by these presents do pardon and remit to the said David Brown…”
The power of pardon for the president is not unlimited. Article 2 section 2 clause 1 establishes this executive power:
“…and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
The president cannot pardon after impeachment. He can only pardon federal crimes; he has no authority to pardon State crimes. The president can issue a pardon at any point beginning with the commission of the crime through conviction and even after sentence has been served. The president cannot issue a pardon before a crime is committed, that would truly make a king