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43 Fed. Probation 16 (1979)
Rethinking the President's Power of Executive Pardon

handle is hein.journals/fedpro43 and id is 18 raw text is: Rethinking the President's Power of Executive Pardon BY CHRISTOPHER C. JOYNER, PH.D. Assistant Professor of Political Science, Muhlenberg College, Allentown, Pa. WO EVENTS within recent years--President Ford's pardon of Richard M. Nixon on Sep- tember 8, 1974, and President Carter's proc- lamation of conditional amnesty for Vietnam draft resisters on January 23, 1977-again have underscored significance of the power of presi- dential pardon in the American jurisprudental system. However, despite widespread publicity over these two specific case instances, the pardon power in general still remains only superficially understood by most citizens. It is therefore the purpose of this article to examine the practical evolution of the President's pardoning powers, and in so doing, to ascertain the juridical scope and legal implications inherent in such an execu- tive act of clemency. 1. The President's Pardoning Power in Historical Perspective A. The Traditional Legacy.-The President's power to grant reprieves and pardons for of- fenses against the United States is a direct lineal -descendant of executive clemency provisions which had been exercised. from the early times by the English Crown.1 A multiplicity of writers and scholars-both legal and philosophical and including Thomas Hobbes, Sir Mathew Hale, Sir William Hawkins, Sir Edward Coke, and William Eden-explored diverse ramifications of clemency by the monarch in trying to ascertain its true character and proper usage. Further, an examina- tion of the charters granted to the early English continental colonies clearly indicates that the Crown delegated all pardoning power in the col- onies, usually to the jurisdiction of the local British executive authority.2 B. The Founding Father's Perceptions.-Fol- lowing the American War for Independence and the attendant estrangement from Great Britain, the framers of the Constitution also saw fit to vest the pardoning power in the executive branch * The author wishes to acknowledge his appreciation to Mr. David C. Stephenson, Deputy Pardon Attorney, for his cooperation and assistance in the preparation of this paper. of the United States government. The political history of the new republic, as chronicled during the Constitutional Convention in 1789 by James Madison, provides insight into various policy con- siderations expressed by the Founding Fathers over the pardon clause, Article II, section 2. According to Madison's diary, one early critic of the pardon clause argued that the President should not retain power to grant clemency, while another delegate remained skeptical about exer- cising such a power before conviction, or without the consent of Congress, in cases involving ac- cusations of treason.3 In addition, there surfaced grave reservations that a President's grant of clemency could become a dangerous device if: (1) it were used to shield his accomplices during an abortive attempt to subvert the Constitution; or (2) it were used to impede investigations by pardoning offenders before formal indictments had been made.4 Despite these admonitions, how- ever, it remains an irony of history that the most worrisome misgiving posited at the Convention concerned the possibility that treasonous activ- ities instigated by the President's confederates (or his associates) might go unpunished-not be- cause of collusion, but rather because of some sympathetic willingness to excuse a just and proper penalty because of former friendships.5 Notwithstanding this, the advocates for execu- tive pardon made convincing argument. Should such a hypothetical conspiracy occur, they con- tended, testimony by participants surely would be needed in order to secure conviction of the leaders. Accordingly, such testimony might be won only by a grant of clemency from the execu- tive. I An excellent history of the ancient practice of pardoning can be found in The Attorney General's Survey of Release Procedures: Pardon. Vol. III (Washington. D.C.: Government Printing Office, 1939), pp. 1-53. For a discussion of the pardon in English law, see generally, Sir James F.J. Stephen. A History of the Criminal Laws of England (New York: Macmillian. 1902). and Camden Pelham, The Chronicles of Crime (London: Reeves and Turner, 1886). 2Christen Jensen, The Pardoning Power in the American States (Chicago: University of Chicago Press. 1922). p. 8. 3 Jonathan Elliot. Madison's Debates on the Federal Constitution (Philadelphia: J.B. Lippincott Co., 1845). pp. 380, 480. 549, and 562. 4 W.H. Humbert, The Pardoning Power of the President (Wash- ington. D.C.: American Council on Public Affairs, 1941). p. 17. 5 Ibid., p. 18.

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