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June 20, 2021

"The President’s Conditional Pardon Power"

The title of this post is the title of this new Note in the latest issue of the Harvard Law Review.  Here is the end of the Note's introduction:

This Note concludes that the President’s pardons may not include conditions that deprive an individual of rights not already deprived by that individual’s conviction (or, in the case of preemptive pardons, rights that would have been deprived by a guilty plea).  This internal limitation is externally reinforced by the Due Process Clause.  This Note’s historical and constitutional arguments should inform judges faced with conditional pardon cases.  Whatever disagreements may arise over this Note’s descriptive account of the conditional pardon power’s limits, the examination of risks from unfettered conditional pardons commends to future administrations the wisdom of prudential limits.

Part I introduces the conditional pardon power jurisprudence.  It begins by examining three cases showing that (1) English common law informs the President’s pardon power and (2) American courts oscillate between two distinct theories of the President’s pardon power.  The first theory, which this Note dubs the “merciful-contract” theory of pardons, envisions pardons as a private act between President and pardon recipient.  By contrast, the “public-welfare” theory understands pardons as an instrument of the general welfare.  This Part next describes two conceptions of the conditional pardon power: a “Broad Position” that would impose no limits on the conditional pardon power and a “Narrow Position” that insists on limits but fails to precisely define them.

Part II argues that the Broad Position cannot be correct.  After establishing that the conditional pardon power poses unique danger to constitutional rights, it concludes that the English common law, the Framing, and structural inference from our constitutional system all suggest a conditional pardon power that is far from plenary.

Part III identifies this limit: pardon conditions may only divest rights already forfeited by dint of conviction.  It explains the limit using examples before fitting it into the theoretical framework of the pardon power.  Finally, this Part compares the identified limit with other proposals and situates it within constitutional theory generally. Part IV concludes.

June 20, 2021 at 10:11 AM | Permalink


I would think the fact that a pardon (even non-conditional) can be rejected takes care of any problems conditional grants may raise. If the recipient doesn't like the conditions they are free to refuse the grant.

Posted by: Soronel Haetir | Jun 20, 2021 1:02:44 PM

I have seen various discussions of pardon power that tries to insert more limitations than I think the text supplies. We saw this during the Trump years. Some arguments are more convincing than others.

Take this: "pardon conditions may only divest rights already forfeited by dint of conviction." I find this dubious.

The right to refuse a pardon doesn't mean the executive gets to require you to go to Catholic mass (and only Catholic mass) in return of it.

But, any number of things could be allowed without violating due process. The constitutional pardon power is broad. Maybe too broad. And, if it is abused (though unlikely) there are institutional limits such as even impeachment.

Posted by: Joe | Jun 20, 2021 2:03:17 PM

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