Pardon

Article II, Section 2 of the United States Constitution states that the president has “the power to grant reprieves and pardons for offenses against the United States, except in the case of impeachment.” Pardons are orders that release an individual or group of individuals from the legal penalties for crimes they have committed. In the federal government, this power is solely in the hands of the chief executive, and it has historically been a source of controversy.

According to received tradition, two of the cherished characteristics of American government are that the president, Congress, and federal courts can and should check one another, and that, as a result, these countervailing actions will achieve a desirable balance of power among the three branches of government. James Madison, a leading architect of the Constitution, propounded this view when he wrote in the Federalist Papers that an essential goal of a desirable governmental design was to avoid tyranny—a concentration of power in the hands of one person or group of people. Yet when presidents exercise a check on the legislative and judicial branches in the area of criminal punishment by issuing pardons, there is frequently an outcry among pundits, policymakers, and the public.

The negative reactions to some pardons have been so great that they are believed either to have contributed to the electoral defeat of presidents who have run for reelection (Gerald Ford) or to have given rise to threats of impeachment (Andrew Johnson). The controversy has led to discussions about whether the presidential authority to issue pardons is an anachronism or simply a flaw in the Constitution. Why is there so much consternation over actions that apparently flow from the checks and balances mechanism, an extolled aspect of American government? Is it simply because presidents sometimes pardon rogues or other undeserving individuals and deny pardons to more the deserving? The undesirable nature of some of the individuals who receive pardons may explain some of the controversy, but the question then becomes, Why were such individuals pardoned, and does the structure and process surrounding pardons also contribute to the controversy?

Answers to these questions may be suggested by reviewing briefly the past and contemporary uses of presidential pardons, examining trends in the frequency of pardons, and viewing presidential pardons in the light of parallel pardons by state governments. The puzzle cannot be completely solved in this way, but such a review does clarify some aspects of the debate over presidential pardons and suggest an avenue that future researchers can pursue in increasing the understanding of pardons.