The Nature and Exercise of the Pardon Power: Three Perspectives

The New Digest is delighted to publish today a guest essay by Elijah Granet. Mr. Granet has law degrees from both sides of the Atlantic, is an attorney at the Colorado Bar, and an incoming doctoral candidate at the UCL Faculty of Laws in London.

The pardon power—both in its English origins in the Royal Prerogative of Mercy and the American expression as the presidential authority for federal offenses—is conventionally expressed as a plenary power, one without restriction or limitation. As a practical matter, the pardon is beyond any review or challenge, in the hands of the president alone. The chief magistrate, then, is faced with a frightening dilemma. Why and how should this vast power be used?

Montesquieu had a mixed view of the pardon power. The French jurist praised the use of pardon in England (in comparison to the despotism of Russia and China), but only because it was as a fix for the failure of the law. Namely, English law provided the same sentence for robbery and murder, incentivizing highwaymen to also kill their victims. The pardon had the welcome effect of encouraging robbers not to add on murder (for hope of sentence being commuted to transportation), but it was a side effect of the failure of the law to not provide for a difference in punishment. A proper legislature, considering the logic, would do better to pass sensible laws.

This remedial use of the pardon power discarded, Montesquieu saw the pardon as a way a good monarch helped eliminate the disgrace and resentment towards the state created by the criminal process. The wise monarch (as opposed to the despot) would use the pardon to alleviate the disgrace, beyond a mere criminal penalty, that accompanied, particularly as against a great man, a prosecution. The experience of the punitive and arbitrary process of criminal justice and law “divest the subject of the affection he has for the person of his prince, and of the respect he ought to have for public posts and employments.” The individual pardon healed the rift between subject and sovereign, to the stability of the king’s reign and to relief of the loss of “of their fortune, credit, acquaintances, and pleasures” that went with criminal trial (separate to the punishment of the law). The consequence was that Montesquieu saw the pardon as less necessary in a republic, where the separation of the power of judging and virtue of the legislature provided better checks.

In England, which Montsquieu identified as a republican constitution within the structure of monarchy, a different view of the pardon was advanced by Sir Edward Coke, breaking with more expansive views of the royal prerogative. In 1607, he wrote that the pardon power exists only insofar as it benefits the entirety of the commonwealth. The king had no ability to pardon except where it aligned with the public welfare. Thus, the pardon power could not alleviate a penalty (such as being required to repair a bridge) that would benefit the public. Similarly, an offender who was bound by a court to keep the peace could not be relieved from this obligation by pardon, since the obligation to keep the king’s peace is an obligation to the people. On the same logic, the king could not use the pardon to allow offenses which were inherently wrong by the moral law (rather than simply prohibited by the law of the land), since to do so would go against the public interest (which was aligned with the moral law).

This restrained view of pardon, as bound up with the collective people and public interest, may seem more democratic than the monarchical personal pardon identified by Montesquieu. Yet, it was the latter which was codified in the new American republic. Justice Joseph Story, writing in his commentaries on the U.S. Constitution, argued that vesting the pardon power in the president alone ensured a reduction in favoritism and use for personal gain. The president bears total responsibility for each pardon, including the risk of public censure, whereas a legislature can diffuse responsibility for pardons among its members and be more vulnerable for lobbying. The president would be also weighed towards responsible usage by the individual burden, too, of having a man’s life solely in his hands. This responsibility would lead towards a “just responsibility” excluding “favouritism, personal caprice, or personal resentment.” If anything, Story saw the problem as a president being likely to be too reticent about pardons, rather than misuse it for private interests. Thus, whereas Montesquieu thought a legislature would be a repository of republican virtue, Story thought an individual was more able to demonstrate public spirit than a collective body.

Story therefore opposed any restrictions on the pardon power, beyond the existing constitutional limitation against cases of impeachment. The public good was best served by an unbounded discretion, so as to limit the severity and harshness of the criminal law or, in cases of treason or insurrection, to restore public peace. No rules could predict the need for pardon and nor could any law constitutionally restrict the prerogative of pardon vested in the president. The pardon power thus was necessarily “general and unqualified” and included “remission of fines, penalties, and forfeitures” of any kind.

How can these three views of the pardon power be reconciled? Montesquieu’s notion that legislation alone could primarily replace individual consideration places too much faith in general provisions. There are always exceptions, degrees of guilt, unusual cases, and so on. Montesquieu also seemed to think that a criminal justice system built around republican virtue and the rule of law would be sufficiently regular that subjects would not be alienated by arbitrary or unjust outcomes. That is plainly too optimistic.

Coke’s view has more merit. The common weal is the basis for any rational exercise of public power. How can anyone defend arbitrary and perverse pardons which relieve offenders of obligations to the public good or in effect license immorality? Meanwhile, Story contended that favoritism or caprice would not be shown by a virtuous chief magistrate subject to public scrutiny and his own conscience. The experience of American pardons, particularly in the lame duck period at the end of terms, suggests this is not entirely true. Yet, Story has more merit where he points out that investing the necessary pardon power in any other department of government, or subjecting it to legislative or judicial limitation, would undermine its efficacy. Coke suggests that the pardon might relieve an offender of conviction but not punishment, but does not provide a clear guide for how anyone would determine the effect of a pardon short of litigation after the fact.

Coke also conceives of the pardon power as an act of public grace for the common benefit, rather than (as Story and Montesquieu do) an act of private grace based on the conscience of the pardoner. As a matter of law, it is the latter. For instance, the U.S. Supreme Court, in the 1833 case of United States v. George, described pardons as a private act for the benefit of the pardonee.

However, the pardon is ultimately a question of practical application, not legal definition. The best approach may be a balance between the two. Pardons should ultimately benefit the common good in aggregate, but in any given case, the argument for mercy is more likely to be individual. Coke’s limitation of the pardon power may be impractical and, in an American context, descriptively incorrect, but preferable as an approach to presidents imitating Montesquieu’s idea of royal favoritism. A wise chief executive, though not bound by any formal limitations, should consider the common weal before ever exercising this vast (in Story’s words) “benign prerogative” of pardon.