The Pardon Clause

The President . . . shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

—Paul J. Larkin

Introduction

The Framers vested the nation’s chief executive with the authority, almost without limitation, to correct errors in the federal criminal justice system or to grant mercy at any time after a crime has been committed. The President generally may relieve someone charged with a federal offense of the burden of trial, the weight of a conviction, and the pain of punishment as he or she sees fit without interference from Congress or the federal judiciary. Clemency serves as “the fail safe in our criminal justice system.”¹ Given the clause’s breadth, the President’s power to grant clemency is perhaps the last surviving royal prerogative.

History Before 1787

Clemency has an ancient lineage in England.² Because a felony was considered “an act contrary to the peace and dignity of the crown,” only the king or queen could excuse an offender from blame or punishment through clemency on whatever conditions the monarch deemed fit. Sir William Blackstone wrote that “the king may extend his mercy upon what terms he pleases, and may annex to his bounty a condition, either precedent or subsequent, on the performance whereof the validity of the pardon will depend; and this by the common law.”3 Lord Edward Coke explained that a pardon from the king was “a work of mercy, whereby the King, either before attainder, sentence, or conviction, or after, forgiveth any crime, offence, punishment [or] execution.”³

Monarchs exercised the pardon power with alacrity and granted clemency for many reasons. Pardons would avoid sending a person to the gallows because of the primitive state of the common law of crimes. For example, a minor could be convicted of a capital crime because every felony was a capital crime, and there was no infancy defense. Moreover, the law of criminal procedure was not developed, and there was no right to counsel in felony cases. The king also recognized that every felony was a capital offense, and a commutation of the death sentence might be warranted in the interests of justice. The Crown may also have had other motives. Kings would offer a pardon to people willing to serve in the army or navy or would send them to populate colonies in America or Australia. Pardons could be sold to generate revenue without a need for an appropriation from Parliament. And in all cases, clemency could “curry favor with the Almighty.”⁴

Over time, Parliament restricted the Crown’s pardon power. For example, the king could not grant clemency before a person committed a crime; such a preemptive pardon would amount to a suspension of the law. In 1689, Parliament won a long battle with the Crown over such legal supremacy by passing the English Bill of Rights, which eliminated a royal suspensionary power,⁵ and the Act of Settlement of 1701 disallowed the Crown from using clemency to frustrate parliamentary impeachment.⁶ Generally, however, the Crown’s clemency authority was plenary.

Clemency accompanied the colonists to America. Colonial governors or other Crown officials had that power. For example, the Virginia Charter of 1609 granted the governor “full and absolute Power and Authority to correct, punish, pardon, govern, and rule” all English subjects in the colony.⁷ Every colony and state placed the pardon power somewhere in the government.

The Constitutional Convention

Clemency was little discussed at the Constitutional Convention of 1787.⁸ The two principal models for the new federal government—the Virginia Plan and the New Jersey Plan—created an office of the President, but neither one granted him a clemency power. Alexander Hamilton proposed granting the chief executive pardon authority.⁹ Hamilton’s proposal resembled the English Act of Settlement of 1701: the chief executive could excuse someone from a crime or its punishment, but he could not prevent Congress from removing a government official from office. The Convention accepted this proposal.

The Convention rejected proposals to limit the President’s clemency authority. Roger Sherman sought to limit the power to grant a reprieve until only the next session of the Senate and to require the Senate to concur in the granting of a pardon.¹⁰ Edmund Randolph would have exempted treason from the category of pardonable offenses.¹¹ The Convention rejected each proposal. Luther Martin proposed making the pardon power a purely post-conviction authority, but he withdrew his proposal once James Wilson pointed out that a pre-trial pardon might be necessary to secure the testimony of accomplices to a crime.¹² Otherwise, the Convention spent little time on the Pardon Clause. It became part of the Constitution sent to the states for their consideration, and the states ratified it.

The laconic text of the Pardon Clause is deceptively simple. It vests the President with authority to grant “Reprieves and Pardons” but is not limited to those forms of relief. A President may also commute an offender’s sentence—that is, nullify a death sentence or reduce the length of a prison sentence, even to zero. The President may remit, or cancel, whatever fine was imposed. The President may also return any property that was forfeited.¹³ The President generally grants clemency on a case-by-case basis to correct “individual cases of injustice”¹⁴ but may also award clemency to multiple offenders, a practice known as granting amnesty.¹⁵

There may have been so little discussion because the Framers relied on the well-known history from England. Chief Justice John Marshall would later observe that the pardon “power had been exercised, from time immemorial, by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance.”¹⁶ Marshall added that the Framers “adopt[ed] their principles respecting the operation and effect of a pardon, and look[ed] into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.”¹⁷ Another explanation for the lack of debate might be that everyone at the Convention of 1787 anticipated that George Washington would become the first President, and they had complete confidence in his judgment and character.¹⁸

The Ratification Debates

Alexander Hamilton discussed the clemency power in Federalist No. 74. Hamilton wrote, “The criminal code of every country partakes of so much necessary severity that that without an easy access to exceptions in cases of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Anti-Federalists warned that the pardon power was too broad. George Mason of Virginia stated that the President had the “unrestrained Power of granting pardon for Treason.”¹⁹ Mason even insinuated that the President might himself be implicated in the treason, and the pardon would “thereby prevent a Discovery of his own Guilt.” Luther Martin of Maryland raised similar objections.²⁰ No objection carried the day, and the states ratified the Constitution, including the Article II Pardon Clause.

Limitations on the Pardon Power

The clemency power is not unlimited. First, the President can pardon only federal crimes: The Pardon Clause is limited to “Offences against the United States.” Second, the pardon power does not extend to “Cases of Impeachment.” In other words, the President cannot prevent Congress from removing his appointed subordinates from office. Third, if a convicted person has already paid a fine, the President cannot return funds that were already paid into the federal treasury. The Appropriations Clause ensures that “[n]o money shall be drawn from the treasury, but in consequence of appropriations made by law.”²¹ Fourth, the U.S. Supreme Court stated in dicta that the President cannot deny relief on an arbitrary ground elsewhere forbidden by the Constitution, such as a person’s race, religion, or political views.23 Fifth, the President cannot grant someone clemency before he commits a crime. Such a preemptive pardon would be uncomfortably close to exempting that person from the law and would resemble the sort of suspensionary power that was prohibited by the English Bill of Rights. Under the Constitution, a preemptive pardon might violate the President’s Article II obligation to “take Care that the Laws be faithfully executed.”²²

The Supreme Court has suggested in dicta that there might be other limitations as well,²³ but it also has explained that this power “cannot be modified, abridged, or diminished by the Congress.”²⁴ Likewise, the Court has not created any procedural rules that a President must follow when acting on a clemency application. Nor has the Court placed any substantive restraints on when, how, and to whom a President can extend relief. The President’s power to grant clemency is perhaps the last surviving royal prerogative.

Executive Branch Practice

Presidents have used clemency to correct mistaken convictions, to soften unduly onerous punishments, to end a period of domestic political turmoil, for “reasons of state,” and for personal reasons, not all of which would have been legitimate. President George Washington granted amnesty to participants in the Whiskey Rebellion against federal whiskey taxes.²⁵ Presidents Abraham Lincoln and Andrew Johnson pardoned and granted amnesty for Confederate soldiers and officials.²⁶ President Warren G. Harding pardoned Eugene Debs, the prominent socialist who ran for President from prison.²⁷ Presidents Gerald Ford and Jimmy Carter granted amnesty to a large number of men who unlawfully failed to register for the Vietnam War draft.30 Ford also pardoned former President Richard Nixon for his actions during the Watergate scandal.²⁸ President Joseph Biden used clemency as part of a prisoner exchange with Russia.²⁹

Judicial Precedent

The Supreme Court has rarely discussed the Pardon Clause.³⁰ Chief Justice John Marshall characterized clemency as similar to an act of divine “grace.”³¹ In the twentieth century, however, the Court abandoned that description. According to Justice Holmes, clemency is “not a private act of grace from an individual happening to possess power.” Rather, pardons are “the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”³² The lack of precedent about the pardon power is likely due to standing doctrine. Under settled precedent, a third party lacks standing to challenge the grant or denial of clemency to an offender.³³

Open Questions

• Some scholars have contended that clemency has fallen into desuetude.³⁴ Whether that remains true after President Biden granted sweeping clemency before leaving office remains to be seen. Critics have faulted the U.S. Department of Justice, which has the power to strangle a clemency application in the cradle.³⁵ As a result, there have been calls to shift the pardon recommendation process to an independent clemency board or to transfer the process to the Executive Office of the President.³⁶
• Some Presidents have used their clemency authority for allegedly corrupt purposes, and some critics have urged Congress to restrain such pardons.³⁷ Would such a statute infringe on the President’s pardon power?
• Can a pardon be granted or denied based on an arbitrary ground elsewhere forbidden by the Constitution, such as a person’s race, religion, or political views?
• Can the President pardon himself? This issue has arisen several times over the past half-century. There is disagreement over the legality of such pardons. The Justice Department’s Office of Legal Counsel and some scholars have argued that the President cannot self-pardon.41 Others (including the author of this essay) argue that the President can issue a self-pardon.³⁸ The Supreme Court has never addressed that issue.
• During President Biden’s final days in office, he issued pardons to members of his family and government officials who had not yet been charged with any crimes.³⁹ Are such preemptive pardons valid?

1. Herrera v. Collins, 506 U.S. 390, 415 (1993) (citation and punctuation omitted). The author was one of the lawyers who represented the United States in Herrera. ↩︎
2. Naomi D. Hurnard, The King’s Pardon for Homicide Before A.D. 1307 (1969); K.J. Kesselring, Mercy and Authority in the Tudor State (2003). ↩︎
3. Jonathan Harris & Lothlu00f3rien Redmond, Executive Clemency: The Lethal Absence of Hope, 3 Am. Univ. Crim. L. Brief 2, 12, n.15 (2007) (quoting 3 Edward Coke, Institutes of the Laws of England 233 (8th ed., 1680)). ↩︎
4. Paul J. Larkin, Jr., Guiding Presidential Clemency Decision Making, 18 Geo. J.L. & Pub. Pol’y 451, 477 (2020). ↩︎
5. 1 Wm. & M., Sess. 2, c. 2; Philip Hamburger, Is Administrative Law Unlawful? 65–73 (2014). ↩︎
6. 12 & 13 Will. 3, c. 2, § 3 (1700); William Duker, The President’s Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475, 487–96 (1977). ↩︎
7. 7 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the State, Territories, or Colonies Now or Heretofore Forming the United States of America 3801 (Francis Newton Thorpe ed., 1909). ↩︎
8. 2 Farrand’s 419, 627; Duker, supra, at 476–77; Larkin, supra, at 480–81, 501–02. ↩︎
9. 1 Farrand’s 292. ↩︎
10. 2 Farrand’s 419. ↩︎
11. 2 Farrand’s 564, 580, 626–27. ↩︎
12. 2 Farrand’s 426. ↩︎
13. Ex parte Wells, 59 U.S. (18 How.) 307, 314–15 (1855). ↩︎
14. Barack Obama, The President’s Role in Advancing Criminal Justice Reform, 130 Harv. L. Rev. 811, 835 (2017). ↩︎
15. Knote v. United States, 95 U.S. 149, 152–53 (1877); United States v. Klein, 80 U.S. (13 Wall.) 128, 147–48 (1871). ↩︎
16. United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833) (Marshall, C.J.). ↩︎
17. Id. ↩︎
18. Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 244 (1996). ↩︎
19. Storing 2.2.9. ↩︎
20. Id. at 2.4.85. ↩︎
21. Art. I, § 9, cl. 7; Knote, 95 U.S. at 154–55; United States v. Padelford, 76 U.S. (9 Wall.) 531, 542–43 (1869). ↩︎
22. Art. II, § 3; Kendall v. United States ex rel. Stokes, 37 U.S. 524, 612–13 (1838). ↩︎
23. Ex parte Wells, 59 U.S. (18 How.) at 312. ↩︎
24. Schick, 419 U.S. at 266. ↩︎
25. Jeffrey P. Crouch, The Presidential Pardon Power 55–56 (2009). ↩︎
26. Jonathan Truman Dorris, Pardon and Amnesty Under Lincoln and Johnson, 1861–1898 (photo. reprt. 2018) (1953). ↩︎
27. James D. Robenalt, 100 Years Ago, a President Forgave His Opponent’s Alleged Subversion, Wash. Post (Jan. 6, 2022). ↩︎
28. Murphy v. Ford, 390 F. Supp. 1372, 1374 (W.D. Mich. 1975). ↩︎
29. Paul J. Larkin & Dakota Wood, Clemency for Favored Constituents: The Brittney Griner–Viktor Bout Prisoner Swap, 56 Int’l Law. 443 (2023). ↩︎
30. Paul J. Larkin, Focusing Presidential Clemency Decision-Making, 70 Buff. L. Rev. 1, 19 n.42 (2022). ↩︎
31. Wilson, 32 U.S. (7 Pet.) at 160. ↩︎
32. Biddle v. Perovich, 274 U.S. 480, 486 (1927) (Holmes, J.). ↩︎
33. Linda R.S. v. Richard D., 410 U.S. 614, (619 (1973). ↩︎
34. Paul Rosenzweig, Reflections on the Atrophying Pardon Power, 102 J. Crim. L. & Criminology 593 (2012). ↩︎
35. Mark Osler, Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System, 41 Vt. L. Rev. 465 (2017). ↩︎
36. Rachel E. Barkow & Mark Osler, Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal, 82 U. Chi. L. Rev. 1 (2015); Paul J. Larkin, Jr., Essay—A Proposal to Restructure the Clemency Process—The Vice President as Head of a White House Clemency Office, 40 Harv. J.L. & Pub. Pol’y 237 (2017). ↩︎
37. Albert W. Alschuler, Bill Clinton’s Parting Pardon Party, 100 J. Crim. L. & Criminology 1131 (2010). ↩︎
38. Paul J. Larkin, Jr., The Legality of Presidential Self-Pardons, 44 Harv. J.L. & Pub. Pol’y 763, 782–824 (2021). ↩︎
39. Presidential Statement on Pardons of General Mark A Milley et al. (Jan. 20, 2025), https://perma.cc/3HTU-JRQQ; Presidential Statement on Pardons of Gerald G. Lundergan and Ernest William Cromartie and Commutation of Leonard Peltier’s Sentence (Jan. 20, 2025), https://perma.cc/HW78-NG9A. ↩︎