Operation and Effect of Pardon

A pardon is the release of a person who is convicted for a crime by an executive.  It can be full or conditional.  At the federal level, the U.S. President has the power to grant a pardon and at the state level the governor or a pardon board made up of high-ranking state officials can grant it.

When a person is granted parole the decision of the court is not overturned.  A pardon is an executive action that sets aside punishment for a crime[i].  However, when a person receives a pardon, it does not show that the person was not convicted of a crime.  Pardons just eliminate the further effect of having been convicted.  A defendant’s guilt or innocence is not adjudged when providing a presidential pardon.

Generally, a commuted sentence replaces the original sentence that was imposed[ii].  While commuting a punishment, there will be same legal effect on the status of the prisoner.  A full pardon absolves one from all legal consequences of the crime[iii].  A pardon restores the offender all of his/her civil rights.  If the person is provided a pardon before conviction it prevents the penalties and disabilities consequent upon conviction from attaching.  If the person is granted a pardon after conviction, it will remove the penalties and disabilities that follow a conviction.

A full pardon does not prevent a public officer entrusted with a duty to make appointments from considering the character of an applicant for a position.  The officer can take into account the crime of which the applicant was convicted and pardoned and the facts of the case.  A full pardon cannot be restricted so that it leaves the convicted person with the legal disabilities that previously attached on conviction.  Such a restriction will be considered void.  When the offense is pardoned, the judgment, with the legal consequences flowing from it, is removed[iv].  Generally, a full pardon of a person sentenced to pay a fine and suffer imprisonment discharges payment of the fine.  A full pardon granted before any proceedings are taken to confiscate property on account of the offense pardoned is a bar to such proceedings.  It relieves the convict from the liability of having the property confiscated by pending proceedings.

In most states, the authority of a board of pardons and paroles to grant pardons is entirely a separate and distinct power from its authority to remove disabilities imposed by law.  The board has the power to remove disabilities on the exercise of civil and political rights resulting from felony convictions.  However, the convictions cannot be removed.  The board only restores the right to vote, to serve on a jury, or to hold political office.  A pardon does not restore one to property or interests which have vested in others as a consequence of the conviction and judgment.  A pardon does not have the effect of restoring the right to a public pension forfeited by reason of the conviction pardoned.  Where an office has been forfeited as a consequence of a conviction of a criminal offense, a pardon does not restore that person to the office so forfeited.  Generally, a pardon does not restore a convicted person to a license or other special privilege forfeited because of a conviction of the crime for which the pardon was issued[v].

The pardon can restore the person to eligibility for appointment or election to office.  However, the pardon should remove the punishment and moral guilt for the crime committed.

Generally, an offender who accepts a pardon pending an appeal from the conviction waives all rights upon the appeal.  However, when it is conditional and its conditions constitute a semi-imprisonment, until it is shown that the prisoner has accepted such conditions affirmatively, the prisoner should not be held to have waived his/her right of appeal.

A pardon can remove the disability because of the consideration of prior offenses for the purposes of enhanced sentencing under habitual criminal statutes.  However, a state constitution can preclude a governor from granting a pardon or commutation to a person who is twice convicted of a felony.  A pardon does not provide amends for the past.  No relief is provided to the offender for sufferings by imprisonment or forced labor.  A pardon does not give or impose upon the government any obligation to give compensation for what has been done or suffered by the offender.  Normally, the offense is established by judicial proceedings.  Therefore, all the suffering is considered to have been rightfully suffered.  A pardon does not eliminate the fact of conviction.  It only results in ending further punishment for the offense of which the person pardoned was convicted.

An executive has no authority to pardon a private wrong or relieve the wrongdoer from civil liability towards the individual wronged.  A pardon is not an excuse not to discharge the obligation or liability of the convict to make restitution for the damages done to a private citizen as the result of the criminal act.

Generally, pardons are granted to a single offender.  However, there is no limitation to that rule.  Amnesty is the pardon of individuals or categories of people for the violation of law.  If a person is a joint offender in a felony and a pardon is granted to one person then a pardon can be granted to all the joint offenders.  Amnesty is usually exerted on behalf of certain classes of persons.  When an executive provides amnesty it restores full citizenship to the parties to whom the clemency has been extended.  However, a pardon extended in a particular case relates only to that case and will not cover other offenses not mentioned[vi].

An individual pardon can be provided on the basis of an application only.  However, an act of general amnesty or a legislative pardon need not be specifically pleaded.  A general proclamation of amnesty issued by the President of the U.S. is a public act.  All courts of the U.S. are bound to take notice in such a case and all courts are bound to give effect to the proclamation.

A pardon should be evidenced by a written deed which should be duly signed.  The offence of the person should also be detailed in the deed.  A pardon will be effective only after delivery and acceptance of the deed.  The acceptance of the pardon by the convicted person is essential for the validity of the pardon.  A pardon cannot be forced on a person[vii].  However, when a pardon has been delivered and accepted, it cannot be revoked.  The recipient can be deprived of its benefits only in some appropriate legal proceeding.  Acceptance or consent of the person convicted is not essential to the validity of a commutation of a sentence.  When the commutation is made upon conditions, it must be accepted by the prisoner.  Acceptance of a commutation of sentence by one legally imprisoned is not avoidable just because it is made under duress or coercion.

[i] People ex rel. Madigan v. Snyder, 208 Ill. 2d 457 (Ill. 2004).

[ii] Shepherd v. Davis, 1999 Tenn. Crim. App. LEXIS 848 (Tenn. Crim. App. Aug. 19, 1999).

[iii] Damiano v. Burge, 481 S.W.2d 562 (Mo. Ct. App. 1972).

[iv] Knote v. United States, 95 U.S. 149 (U.S. 1877).

[v] Blake v. State, 860 N.E.2d 625 (Ind. Ct. App. 2007).

[vi] Ford v. Cobb, 20 N.Y. 344 (N.Y. 1859).

[vii] United States v. Wilson, 32 U.S. 150 (U.S. 1833).

Inside Operation and Effect of Pardon