In a rechtsstaat, separation of powers in legislative, executive, and judicial powers provides some protection to the civilians and reduces the power of government. In some legislations, however, the head of state has the power to grant a pardon, meaning the forgiveness of a crime and the cancellation of the relevant penalty. Does this violate the separation of powers?

Similar, but slightly different question: What is the head-of-state pardon for?

  • I'm not sure that separation of powers is so much a law that has to be applied in every instance, but rather is is a guideline to be applied prudently, and so calling the pardon a "violation" of that ideal is a bit of an overstatement. – EvilSnack Sep 4 '19 at 3:38

As the linked question's cite of Federalist Paper #74 shows, the whole point of the pardon is to violate the separation of powers, to enable an additional check-and-balance.

So the answer to your question is "yes". It does violate separation of powers.

Separation of powers, like any other theoretical idea, is not absolute and has exceptions, blurry lines and other facets. Executive branch can legislate via regulations; legislature can administrate by conducting foreign policy (See Nancy Pelosy's visit to Syria as a very random example that first sprang to mind); Judges effectively legislate from the bench (I can easily find examples to satisfy both ends of political spectrum).

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    The executive branch legislating via regulations, "signing statements", and executive orders, and the judicial "legislating from the bench" are not constitutional powers. They are usurpations of the power granted exclusively to Congress. Congress stopped trying to impeach for these breaches long ago, though -- Something the founding-fathers could not imagine. – Brock Adams Dec 8 '12 at 3:17
  • wow, glad to know we have someone here who not only can read the minds of men centuries dead, but can get dozens of them, who in many cases hate each other and have wildly different political views, to completely agree with his position. – Ryan Jensen Jun 11 '19 at 20:58

The aim of the separation of powers is to prevent the situation wherein one person would have too much power over the others. So, he/she would have the right to make a law, execute it, and judge according to it.

Since the right of Pardon doesn't give the head of state the ability to condemn anyone, only to release someone who has been condemned, it is not a violation of the principle -- it does not give the head of state the possibility of condemning his/her opponents, for example.

The idea behind the right of Pardon is rather the correction of some judicial mistakes, when the letter of the law was against its spirit. I think it can be less the case in countries with Anglo-Saxon law systems, where the judges have more freedom with interpretation of the law.

  • It doesn't really correct judicial mistakes, doesn't it? If I'm given a pardon, it doesn't mean I'm declared innocent; just that I don't need to be in prison any longer. Now that's a legal question, not a political one... – gerrit Dec 7 '12 at 20:13
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    Actually @gerrit,in the U.S., a presidential pardon dissolves all aspects of the guilty verdict for the crime from the person's record. It's as if the criminal was found not guilty by jury or judge. – Kevin Peno Dec 7 '12 at 21:49
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    When the judicial mistake is the mistake in law making, than it can't be fixed otherwise. – Danubian Sailor Dec 7 '12 at 22:10
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    @kevin - Actually, you are BOTH wrong (or both right, if I'm feeling good natured :). A presidential pardon can do EITHER of those things. It can be " pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites and amnesties". As you can guess, "conditional commutations of sentence" does not actually render someone not guilty :) – user4012 Dec 7 '12 at 22:19
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    @gerrit The justice system can fail to deliver justice even when the law is followed and juries and justices make correct decisions in accordance with the law. There can be unusual circumstances that the lawmakers failed to think of. There can be cases where the moral thing to do was to violate a law. The power to pardon allows the head-of-state (or chief executive) to cut through the "red tape" and directly fix a problem. Also, it has been said that there can be no justice without mercy. The power to pardon allows for mercy. – Readin Aug 12 '17 at 7:14

In addition to the valid points made in the other two answers, the pardon power is a natural extension of discretion that the President has in the criminal justice and military domains. It also reflects the changing nature of the criminal justice process which was very different when the President was given the pardon power than it is today.

The Pardon Power Is A Natural Extension Of Executive Branch Criminal Justice Discretion

In the common law legal tradition of which the United States is a part, the executive branch has always had broad discretion to determine in what manner criminal law will be enforced by law enforcement officers on the street prioritizing which criminal laws scarce resources need to be applied towards, and by prosecutors, deciding which crimes that have been investigated by law enforcement to charge and what compromises to reach in the criminal justice process.

Likewise, in circumstances where the judicial branch has sentenced more people to criminal punishments than the executive branch has the funding and capacity to carry out as judicially ordered, it has been a long standing understanding that the executive branch must use its discretion to figure out what subset of judicially authorized punishments (imposed in the first place only because the executive branch asked for them in any case), will be carried out.

The executive branch's power to permanently refrain from enforcing a criminal law (which is equivalent to a pardon), and to commute sentences already imposed for reasons of correctional resource scarcity, naturally flow into the full fledged pardon power. And, if the executive branch can do something through the back door, its legitimacy is enhanced by formally authorizing it to do the same thing through the front door.

The Pardon Power Is Pertinent To The Commander In Chief Role

While it is little used these days, the Founders, who spent their formative years fighting the American Revolution, followed by the recent experience of Shay's Rebellion under the Articles of Confederation, which had concluded just two years before, were very attuned to issues pertinent to invasions and insurrections.

Executive branch pardons and commutations were critical tools in bringing the more than four thousand people who engaged in Shay's rebellion including several hundred who were prosecuted criminally for their conduct in the uprising to a peaceful conclusion which re-integrated the rebellious territory into the United States on a peaceful and loyal basis. Of the eighteen ring leaders sentenced to death in connection with this rebellion, only two were actually executed, while pardons and commutations prevented most of the other death sentences from being carried out and creating martyrs whose deaths could have reignited the conflict.

This model of post-insurrection use of pardons to end a civil war and reintegrate the rebellious territories back into the United States was, in fact, used in precisely the same manner in the way of the U.S. Civil War during the Reconstruction period.

Also, keep in mind that the modern Geneva Convention concepts of the right of prisoners of war to be released upon the end of hostilities did not exist in 1789 when the pardon power was inserted into the Constitution. Many people who would have been classified as prisoners of war and automatically released upon the close of hostilities in modern wars would have been considered criminal offenders who could only obtain relief at the end of hostilities via a pardon at the end of the conflict in the 18th century legal understanding of the status of losers who were captures in insurgencies.

Thus, the pardon power, in addition to having an ordinary criminal justice role, also served an important role as Presidential authority that would allow a President acting as commander-in-chief to secure peace after leading a war. Congress can declare war, but the Senate can only approve a peace treaty if a President can negotiate one to present to it. Constitutionally, then, primary responsibility for peacemaking following a war is vested in the President and the pardon power is a natural tool that the President can used to carry out that responsibility.

The Evolution Of The Judicial Power

A third consideration, expanding on the notion in the other posts that the pardon power operates as a check or balance on the judicial branch's authority made in other posts, is that there was much more of a need to check unsound trial court criminal convictions at the time that the pardon power was established in the constitution, because appellate review of criminal convictions was very primitive.

It is also worth recalling that from 1789 to 1890, the first century under the United States Constitution, there were no direct appeals from criminal convictions in federal trial courts, and the scope of the review of criminal convictions afforded by a writ of habeas corpus, which was the only way to legally challenge a federal criminal conviction at the time, was much narrower than the scope of a modern appeal from a criminal verdict. Also, law school trained lawyers themselves didn't even exist until the 1870s, so the kind of expertise necessary to write appellate briefs in criminal cases was much more scarce at the time.

In part, a lack of a direct appeal made sense in this era because accurate verbatim transcripts to use as an appellate record on appeal were much more difficult and expensive to produce, and much less reliable, than their modern equivalents which form the basis for all modern direct appeals of criminal convictions. A trial court record would have been a clerk's summary of the proceedings in the style of meeting minutes, rather than a verbatim record of the relevant testimony, evidence and argument, so the pardon process which focused not just on the nature of the crime and the proceedings, but also on evidence of innocence unmoored from the procedural complexities of the actual criminal trial and supplemented by the post-conviction conduct of the criminal defendant, may have been a more workable way to review wrongful convictions under the circumstances.

Appealing a 19th century federal criminal conviction was something done primarily via a writ of habeas corpus which was more like a request for relief from an arbitration award in a civil case today (which is possible only for very narrow grounds going to the soundness of the process rather than to issues like mistakes of fact or law by the decision maker), and less like an true "appeal" of the trial court proceedings. Thus, the pardon power provided a critical safety valve to provide relief from flawed criminal convictions that was only institutionalized in a more formal matter within the judicial branch a century later.

Interestingly, since the judicial branch made it possible to appeal criminal convictions and even to collaterally attack them as well after losing a direct appeal in some circumstances, the rate at which executive branch officials have granted pardons has plummeted. This corroborates the notion that in the early Republic, a much larger share of cases where the pardon power was exercised amounted to plain old appellate review of trial court criminal convictions.

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