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42 Fed. Probation 3 (1978)
The Effect of a Presidential Pardon

handle is hein.journals/fedpro42 and id is 177 raw text is: The Effect of a Presidential Pardon BY JOHN R. STANISH United States Pardon Attorney PON conviction of a felony a criminal de- fendant generally suffers the imposition of certain civil disabilities in addition to what- ever specific penalty may be assessed by way of imprisonment or fine. Often this is termed a loss of civil rights. This article will be concerned with the effect of a Federal felony conviction, its at- tendant imposition of civil disabilities, and the effect of a Presidential pardon on removal of those disabilities. Guilt is presumed and the fol- lowing discussion is not intended to describe the effects of a pardon based on innocence, which should have the same effect as a judgment of ac- quittal.' Before going further, a description of the Presidential pardoning process seems ap- propriate. Function of the Department of Justice in Pardon Matters Under the Constitution, the President has the power to grant reprieves and pardons for Federal offenses and he looks to the Attorney General for advice on all matters concerning Executive clem- ency. Prior to 1850 the preliminary and advisory duties in pardon cases were performed by the Attorney General and the Secretary of State, jointly. About 1850 all the preliminary and ad- visory work was transferred to the Attorney General. However, warrants of pardon continued to be issued through the Department of State until 1893 when President Cleveland by Executive Order transferred that responsibility also to the Attorney General.2 I Weihofen, The Effect of a Pardon, 88 University of Pennsylvania Law Review 177 at 179 (1939); The Attorney General's Survey of Release Procedures (1939). Vol. 3 (Pardon). p. 293. 2 Preliminary Inventories Number 87, Records of The Pardon At- torney, The National Archives (1955), pp. 1 and 2. a Id. at 1. 413 stat. 516. 9 26 Stat. 946. 6 See note 2. supra. , Article II, section 2. United States Constitution, reads as follows: The President . . . shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. 8 Schick v. Reed. et a., 419 U.S. 256 at 263 & 267. reh. denied, 420 U.S. 939 (1974); Hoffa v. Sazbe. 378 F. Supp. 1221 at 1231 (D.C. 1974); 6 Pordham Law Review 255 at 258 (1937). 9 See note 7, supra. 'o See note 8. supra; Yelvington v. Presidental Pardon and Parole Attorneys, 211 F.2d 642 at 643 and 644 (D.C. Cir. 1954); Humbert, The Pardoning Power of the President (1941), p. 63. 11 Under the Code of Military Justice at 10 USC § 874 the Secre- taries of the military departments and various officials under them are authorized to remit or suspend sentences not approved by the President. This function is not an intrusion into the Presidential pardon process. 12 United States v. Wilson, 82 U.S. 150 at 160 (1833). The function of the Attorney General in pardon matters is based solely on the request or direction of the President and is not, in any sense, statu- tory.3 The Act of March 3, 18654 created the Office of Pardon Clerk in the Office of the Attorney Gen- eral. By the Act of March 3, 18915 an Attorney in charge of pardons was substituted for the Pardon Clerk. Thus the Office of the Pardon Attorney originated prior to the creation of the Department of Justice in 1870.6 The Pardon Attorney receives and reviews all petitions for Executive clemency, initiates the necessary investigations and prepares the At- torney General's recommendations to the Presi- dent. It is the responsibility of the Pardon At- torney to provide the President with the best in- formation available on which to base a fair and just decision. The Pardoning power as set forth in the Con- stitution7 is unlimited and unqualified.8 It gives the President discretionary authority to grant a pardon or deny a pardon. His authority extends to all offenses against the United States excepting only impeachment cases. He has no authority to act in state cases.9 The exercise of the authority is not subject to review by the courts, nor may it be circumscribed by Congress.0 There is no ap- peal from a clemency decision. The President has not delegated the power to any other official or agency though, as a matter of practice, he relies on the written advice of the At- torney General. The single exception is the modi- fication of prison sentences in military cases. In such cases clemency (i.e., commutation of sen- tence) is exercised by Clemency Boards within the military departments. Clemency may take several forms such as am- nesty, pardon, commutation of sentence, remis- sion of fine and reprieve. A pardon is an act of grace.., which exempts the individual on whom it is bestowed from the punishment the law in- flicts for the crime he has committed.12 Amnesty generally has the same effect as a pardon but usually is extended to a class of individuals and

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