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5 facts about presidential ‘pardon power’

Yesterday, President Obama granted 214 applications of clemency to federal inmates — the most grants of commutation in a single day since at least 1900. Here are five facts you should know about commutations and other forms of presidential pardon power, and why it is one of the more powerful moral and constitutional tools of the executive branch.

1. Executive clemency is the term for the power of the chief executive to pardon or lessen the sentence of a crime (the President has this power over federal crimes; the governor in the case of state crimes). In the case of the President, this power is given under Article II, Section 2, Clause 1 of the U.S. Constitution, which states he or she shall have, “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Because state laws are not offenses against the U.S., the president’s pardon power does not extend to state laws.

2. Executive clemency may take several forms, including pardon, commutation of sentence, and remission of fine or restitution. A pardon is an expression of the President’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence. It does not signify innocence. It does, however, remove civil disabilities (e.g., restrictions on the right to vote, hold state or local office, or sit on a jury) imposed because of the conviction for which pardon is sought. A commutation of sentence reduces a sentence, either totally or partially, that is then being served, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction. A commutation may include remission (release) of the fine or restitution that is imposed as part of a sentence.

3. Because it is intended to be used to temper justice with mercy, the clemency power of the president is almost unlimited. As Alexander Hamilton wrote in The Federalist No. 74:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

4. The President relies on the Department of Justice, and particularly the Office of the Pardon Attorney, for assistance in the exercise of the executive clemency power. Requests for executive clemency are sent to the Pardon Attorney, who reviews, investigates, and prepares a recommendation for the President. The Office of the Pardon Attorney also prepares the documents the President signs when granting executive clemency and notifies all applicants of the President’s clemency decisions.

5. To date, President Obama has granted 562 commutations — more commutations than the previous nine presidents combined and more commutations than any individual president since 1900. Several presidents, however, have issued more pardons, and three since 1900 have issued more than 1,000: Franklin D. Roosevelt – 2,819; Harry S. Truman – 1,913; and Dwight D. Eisenhower – 1,110.

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