Balancing Justice and Mercy: A Study of Pardon and Amnesty Practices in the U.S.A.
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The United States presidential clemency power, rooted in Article II, Section 2 of the Constitution, grants the executive a broad and multifaceted authority to provide relief from federal criminal penalties through pardons, amnesties, commutations, remission of fines, and reprieves. This article explores the constitutional foundations, historical evolution, and practical application of the U.S. pardon and amnesty mechanism. Drawing on empirical data, judicial precedent, and scholarly analyses, it examines how clemency serves as a tool for mercy, political reconciliation, and social reintegration, while also raising concerns about transparency, fairness, and potential politicization. The study further discusses administrative processes, especially the role of the Department of Justice’s Office of the Pardon Attorney, and evaluates ongoing debates on reform. By integrating constitutional doctrine, case law, and policy perspectives, the article offers a comprehensive understanding of the clemency system’s legal and social dimensions.
1. Alschuler, A. (2022). The corruption of the pardon power, page 25.
2. Alschuler, A. (2022). The corruption of the pardon power, page 22-30.
3. Perry, A. "Pardons," Oxford Studies in Political Philosophy, Vol. 8.
4. Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866).
5. Burdick v. United States, 236 U.S. 79, 94 (1915).
6. https://www.justice.gov/pardon
7. Barkow, R. E. (2008). The ascent of the administrative state and the demise of mercy. Harvard Law Review, 121(7), 1358–1362.
8. Foster, M. A. (2020). Presidential pardons: Overview and selected legal issues (CRS Report No. R46066). Congressional Research Service, page 16.
9. Barkow, R. E. (2008). The ascent of the administrative state and the demise of mercy. Harvard Law Review, 121(7), page 1359.
10. E.g., D.W. Buffa, The Pardon Power and Original Intent, BROOKINGS INSTITUTION (July 25, 2018), Erik Larson, What You Need to Know About Presidential Pardon Power, WASH. POST (Mar. 13, 2019).
11. U.S. CONST. art. II, § 2, cl. 1.
12. Ex parte Wells, 59 U.S. 307, 314 (1855).
13. Schick v. Reed, 419 U.S. 256, 266 (1974).
14. Absolute Pardon, BLACK’S LAW DICTIONARY (11th ed. 2019); United States v. Arpaio, No. 16-01012, 2017 WL 4839072, at *1 (D. Ariz. Oct. 19, 2017), appeal docketed, No. 17-10448 (9th Cir. Oct. 20, 2017).
15. Ex parte Garland, 71 U.S. 333, 380 (1866) (“The power . . . may be exercised at any time after [an offense’s] commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”)
16. Burdick v. United States, 236 U.S. 79, 94 (1915) (“Granting, then, that the pardon was legally issued and was sufficient for immunity, it was Burdick’s right to refuse it[.]”). As noted infra, the Supreme Court subsequently departed from Burdick in the context of commutations.
17. Burdick v. United States, 236 U.S. 85-86 p. (1915) (“Granting, then, that the pardon was legally issued and was sufficient for immunity, it was Burdick’s right to refuse it[.]”). As noted infra, the Supreme Court subsequently departed from Burdick in the context of commutations.
18. Burdick v. United States, 236 U.S. 85-86 p. (1915) (“Granting, then, that the pardon was legally issued and was sufficient for immunity, it was Burdick’s right to refuse it[.]”). As noted infra, the Supreme Court subsequently departed from Burdick in the context of commutations.
19. Burdick v. United States, 236 U.S. 87 p. (1915) (“Granting, then, that the pardon was legally issued and was sufficient for immunity, it was Burdick’s right to refuse it[.]”). As noted infra, the Supreme Court subsequently departed from Burdick in the context of commutations.
20. Burdick v. United States, 236 U.S. 94 p. (1915) (“Granting, then, that the pardon was legally issued and was sufficient for immunity, it was Burdick’s right to refuse it[.]”). As noted infra, the Supreme Court subsequently departed from Burdick in the context of commutations.
21. Knote v. United States, 95 U.S. 149, 153 (1877); see id. (indicating that “the distinction between” the two terms “is one rather of philological interest than of legal importance”); Reed Cozart, Clemency Under the Federal System, 23 FED. PROBATION, Issue No. 3, at 3 (Sept. 1959) (noting that “the terms are sometimes used interchangeably,” but amnesty is normally “extended by proclamation to grant clemency to groups of persons who have committed offenses but who have not been convicted”). In a case subsequent to Knote, the Supreme Court suggested that there are some other “incidental differences of importance” between pardon and amnesty, including that amnesty “is usually addressed to crimes against the sovereignty of the state, to political offenses, forgiveness being deemed more expedient for the public welfare than prosecution and punishment.” Burdick, 236 U.S. at 95.
22. Exec. Order No. 11967, 42 Fed. Reg. 4393 (Jan. 21, 1977); Andrew Glass, President Carter Pardons Draft Dodgers, Jan. 21, 1977, POLITICO (Jan. 21, 2018).
23. Hoffa v. Saxbe, 378 F. Supp. 1221, 1231–32 (D.D.C. 1974) (“Both the Federal and state cases have practically universally upheld the executive’s power to commute as part of the power to pardon.”); Frequently Asked Questions, U.S. DEP’T OF JUSTICE, supra note 2 (“A commutation of sentence reduces a sentence, either totally or partially, that is then being served[.]”). As discussed infra, commutation does not remove the civil disabilities attendant to a criminal conviction.
24. Hoffa, 378 F. Supp. at 1223–25.
25. The Laura, 114 U.S. 411, 413–14 (1885).
26. Biddle v. Perovich, 274 U.S. 480, 486–87 (1927) (“No one doubts that a reduction of the term of an imprisonment or the amount of a fine would limit the sentence effectively on the one side and on the other would leave the reduced term or fine valid and to be enforced, and that the convict’s consent is not required.”). This decision is in some tension with the Supreme Court’s earlier holding in Burdick v. United States that a full pardon must be accepted to be effective. See Haugen v. Kitzhaber, 306 P.3d 592, 605 (Or. 2013) (recognizing that Burdick “squarely held that a pardon must be accepted by the recipient to be effective,” but the Supreme Court “backed away from the acceptance requirement” in Biddle). At least one piece of legal scholarship has argued that the differing treatment of acceptance in Burdick and Biddle is justified by the different ostensible legal effects of a full pardon and a commutation. See Zachary J. Broughton, Constitutional Law—I Beg Your Pardon: Ex Parte Garland Overruled; the Presidential Pardon is No Longer Unlimited, 41 W. NEW ENG. L. REV. 183, 205–06 (2019) (asserting that acceptance of a pardon also entails acceptance of “the implication of a confession of guilt,” whereas “acceptance of a commutation involves no such admittance, so a commutation cannot be refused”). The legal effects of clemency are discussed in more detail infra, “Legal Effect of Clemency.”
27. Ex parte Wells, 59 U.S. 307, 314–15 (1855).
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