Published on: Mar 4, 2016
Transcripts - PresPaperNov092006
Michael-Lee O’Brien Brockhouse
Dr. J. Staab
October 7, 2006
The Clemency Clause: Origins and Evolution
The clemency clause, found in Article II, Section 2 of the United States
Constitution, gives the President the power to “grant reprieves and pardons for offenses
against the United States, except in cases of impeachment” (Madison 758). Overtime,
however, the scope of the clemency power has been enlarged and clarified through
numerous court cases but remains, in the words of one presidential scholar, “exclusive,
broad, and unfettered by the regular checks and balances of the governmental structure”
(Hibbitts). This study will discuss the clemency clause’s origins and then its evolution via
decisions of the court. Before this begins, however, it is important to discuss the
difference between clemency, pardons, amnesties, commutations, remissions of fines, and
Clemency is any act of “leniency or mercy in the exercise of authority or power”
and encompasses pardons, amnesties, commutations, reprieves, and remissions of fines
(Kobil 576). A pardon is act that officially nullifies “punishment or other legal
consequences of a crime” (Hibbitts). An amnesty is a “pardon extended … to a group or
class of persons, usually for a political offense” (Hibbitts). A commutation, on the other
hand, is a “substitution …of a less severe punishment for a more severe one that has
already been judicially imposed” (Hibbitts). A reprieve postpones the execution of a
sentence. Lastly, a remission of fines, while in no way changing the sentence, alleviates
the burden of financial restitution. The clemency clause gives the President the power to
grant all of these acts of mercy.
Since its inception, clemency has been employed more for political convenience
than to attain justice (Kobil 583). In ancient Athens, for example, to grant a pardon it
“required that at least 6000 citizens support a petition for clemency in a secret poll”
(583). The excessive nature of this requirement made the acquisition of a pardon a rare
occasion and “thus, grants of clemency often hinged on popularity rather than concerns
that a just result be reached” (583-584). Rome, which adopted this, and other Greek
traditions, utilized clemency very similarly. The Romans, however, rested the power of
clemency in the emperor, rather than the people (584). Via Roman subjugation, in the
early part of the 1st
century, “this tendency to use the clemency power for reasons
unrelated to justice eventually found its way into the law of England” (585).
In England clemency was used much like it was in Rome and Greece, for
“reasons entirely unrelated to justice” (Kobil 588). A prime example of this can be seen
in King Charles II’s pardon of Thomas Osborne, Earl of Danby, after being impeached by
Parliament “prior to the conclusion of the impeachment process” (587). Infuriated by the
King’s action, the Parliament subsequently passed several measures limiting the King’s
power (587-588). Even after these measures were passed, however, there were many
flagrant abuses of the clemency (589). Regardless of the limits placed on the use of
clemency in England, it was used when it was politically convenient rather than to ensure
justice. Royal Governors prior to the American Revolution also had the clemency power.
Relying on English tradition, the framers of the United States Constitution would rest the
power to grant clemency in the President of the United States.
The Constitutional Convention
There was very little debate about the clemency power at the Constitutional
Convention. The first mention occurred on Tuesday May 29, 1787, when Edmund
Randolph, a delegate from Virginia, presented the Virginia Plan (Madison 59-64). This
plan contained the provision that the president “shall have the power to grant pardons and
reprieves, except in impeachments” (70). This clause of the Virginia plan inspired no
debate. Another mention of executive clemency did not occur until August 6, when John
Rutledge, a delegate from South Carolina, presented the report from the Committee of
Detail. The Committee of Detail took resolutions passed by the convention and formed
them into draft constitution. Article X, Section 2 of this draft stated that the president
“shall have the power to grant reprieves and pardons, but his pardon shall not be plead
able in bar of impeachment” (457). While the wording added by the Committee of Detail
word not endure, this clause would change only slightly for the remainder of the
A few weeks later on Saturday, August 25, during Convention debate, Roger
Sherman, a delegate from Connecticut, proposed to “amend the ‘power to grant reprieves
and pardons’ so as to read ‘to grant reprieves until the ensuing session of the senate, and
pardons with the consent of the senate’” (Madison 612). Sherman’s proposal was voted
down without discussion. Directly after this vote the phrase “but his pardon shall not be
pleadable in bar of impeachment” was replaced by “except in cases of impeachment”
(612-613). The next mention of executive clemency occurred on Monday September 10,
when Edmund Randolph requested that there be a more “definite boundary…on the
unqualified power of the President to pardon treasons” (698). This objection, which was
referred to the Committee of Style, may have been unwarranted considering that later in
Federalist Paper Number 69 Alexander Hamilton would argue that the Governor of New
York had more clemency power than President (qtd. in Hirschfield 36). On Wednesday
September 12, the Committee of Style presented its report. Article II, Section 2 of this
report, stated that the president “shall have the power to grant reprieves and pardons for
offenses against the United States, except in cases of impeachment” (709). Nothing
would change in this clause for the rest of the Convention.
The last actual debate about executive clemency occurred on Saturday, September
15, when Edmund Randolph proposed to change the phrase “except in cases of
impeachment” to “except in cases of treason” stating that he believed the “the prerogative
of pardon in these cases was too great a trust” (Madison 734). The ensuing debate would
be the most in depth discussion of the clemency clause during the entire Convention.
James Wilson, a delegate from Pennsylvania, supported the original wording of this
clause stating that the power of the “pardon is necessary for cases of treason, and is best
placed in the hands of the Executive” (734). James Madison, a delegate from Virginia,
disagreed stating, “the pardon of treasons was so peculiarly improper for the president”
(734) he would rather have the President issue pardons on the advice of the senate (735).
After George Mason voiced an objection to Madison’s proposal, Randolph’s original
motion was put to a vote and was defeated 8 to 2 (735). Later Hamilton would defend this
power in Federalist Paper Number. 74 arguing, “in seasons of insurrection or rebellion,
there are often critical moments, when a welltimed offer of pardon to the insurgents or
rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass
unimproved, it may never be possible afterwards to recall”(Ball 363).
At the end of the Constitutional Convention Monday, September 17, the clemency
power was granted to the President under Article II, Section 2 of the United States
Constitution. This clause stated, “The President…shall have the power to grant reprieves
and pardons for offenses against the United States, except in cases of impeachment”
(Madison 758). Bernard J. Hibbitts, from the University of Pittsburgh School of Law,
goes as far as to say that “the pardon power emerged from Philadelphia as exclusive,
broad, and unfettered by the regular checks and balances of the governmental structure”
(Hibbitts). Thus, while the presidential pardon power does have some limits, it remains
solely in the hand of one person, broad in its capacity, and free of any checks or balances.
Evolution of the Pardon Power
This section of the paper will discuss the effects of seven court cases concerning
the clemency power in chronological order, the first being United States v. Wilson. In this
case George Wilson was accused of several accounts of robbing the mail “and putting the
life of the carrier in jeopardy,” to which he plead not guilty, but was found guilty and was
sentenced to death on May 27, 1830(United States v. Wilson, 32 U.S. (7 Pet), 150,
January 26, 1833). Luckily, for Wilson, less than a month before he was to be executed,
on June 14, President Andrew Jackson issued him a pardon. So, the court asked Wilson if
he wanted to accept the benefit of the pardon. Wilson and his counsel both expressed to
the court that he had no desire to take advantage of the benefit of the pardon. Then, the
district attorney argued “That the prisoner can, under this conviction, derive no advantage
from the pardon, without bringing the same judicially before the court by plea, motion or
otherwise” (United States v. Wilson). Regardless of the prosecution’s argument, the lower
court was confused as to the effect that the pardon had on Wilson’s conviction.
Therefore, this court requested a writ of certiorari from the Supreme Court.
Chief Justice John Marshall delivered the unanimous opinion of the court, ruling
that “A pardon is a deed, to the validity of which delivery is essential, and delivery is not
complete without acceptance. It may then be rejected by the person to whom it is
tendered; and if it be rejected, we have discovered no power in a court to force it on him”
(United States v. Wilson). Essentially, this case found that for a person to be pardoned the
pardon must be offered to that person, and the person must accept it; if the pardon fails to
be accepted, the court cannot recognize it.
The next significant case decided by the Supreme Court regarding the clemency
clause was Ex parte Garland. This case began when Congress, in July of 1862, passed an
act mandating that “every person elected or appointed to any office of honor or profit
under the government of the United States” must take an oath affirming that he or she has
“never voluntarily borne arms against the United States” (Ex parte Garland, 71 U.S.
(Wall), 333, December 1866). This act was later altered on January 24, 1865, to include
“attorneys and counselors of the courts of the United States” (Ex parte Garland). Then, in
July of 1865, Augustus Garland, a lawyer from the state of Arkansas was issued a pardon
from President Andrew Johnson for his involvement in the rebellion, on the condition
that he take an oath affirming allegiance to the United States. Garland took the said oath,
and then requested permission to continue to practice law “without taking the oath
required by the act of January 24th, 1865” (Ex parte Garland).
This case split the Supreme Court 5 to 4. Justice Stephen Field delivered the
opinion of the court ruling that “a pardon reaches both the punishment prescribed for the
offence and the guilt of the offender” (Ex parte Garland). Therefore, Garland did not
have to recite the congressional oath, and in effect, this decision established the precedent
that a pardon completely removes all existence of guilt in addition to removing the
punishment. Justice Samuel Miller wrote a dissenting opinion arguing that “the man who,
by counterfeiting, by theft, by murder, or by treason, is rendered unfit to exercise the
functions of an attorney or counsellor-at-law, may be saved by the executive pardon from
the penitentiary or the gallows, but is not thereby restored to the qualifications which are
essential to admission to the bar” (Ex parte Garland).
Then, in 1915, the Supreme Court would hear Burdick v. United States. In this
case, George Burdick, the editor of the New York Tribune, refused to answer certain
questions asked of him before a grand jury, claiming, “that his answers might tend to
criminate him” (Burdick v. United States, 236 U.S. 79, January 25, 1915). The next day
Burdick was issued “a full and unconditional pardon” by President Woodrow Wilson
(Burdick v. United States). Burdick, however, refused the pardon and again refused to
answer the questions before the grand jury. Due to this refusal, Burdick was held in
contempt and put into jail. Burdick then appealed this decision to the Supreme Court.
Solicitor General John Davis argued two points “(1) that the President has power to
pardon an offense before admission or conviction of it, and (2) the acceptance of the
pardon is not necessary to its complete exculpating effect” (Burdick v. United States).
Essentially, Davis argued that a person could not contend that his answers would be
incriminating him if that person had at his disposal the means by which to gain immunity
for those answers.
Justice Joseph McKenna delivered the unanimous opinion of the court, ruling that
because “the pardon was legally issued and was sufficient for immunity, it was Burdick's
right to refuse it… and … therefore, not becoming effective, his right under the
Constitution to decline to testify” (Burdick v. United States). Justice McKenna went on to
say that there is a “confession of guilt implied in the acceptance of a pardon” (Burdick v.
United States). This statement overturned the Garland decision, which argued that a
pardon completely removes all existence of guilt. Then Justice McKenna dismissed the
contempt proceedings and ordered that Burdick be released.
Next came Ex parte Grossman. In this case, Phillip Grossman was issued an
injunction on November 24, 1920, for selling alcohol under the National Prohibition Act.
Then on January 11, 1921, he was again cited for selling alcohol, and arrested. Finding
him guilty of contempt, the District Court sentenced Grossman “to imprisonment in the
Chicago House of Correction for one year and to pay a fine of $1,000” (Ex parte
Grossman, 267 U.S. 87, March 2, 1925). Grossman then appealed to the Circuit Court of
Appeals, but in February of 1922, the lower court’s decision was upheld (Grossman v.
United States, 280 F.683, (7th Cir), February 7, 1922). Nevertheless, in December of
1923, President Calvin Coolidge issued Grossman a pardon stipulating that the fine be
paid. Grossman accepted the pardon, paid the fine, and was released. In defiance of the
President’s pardon, in May of 1924, the District Court sent Grossman back to the
Chicago House of Correction to serve the original sentence. Grossman then appealed his
imprisonment to the Supreme Court.
Chief Justice William Taft authored the unanimous opinion, ruling that “the
executive can reprieve or pardon all offenses after their commission, either before trial,
during trial or after trial, by individuals, or by classes, conditionally or absolutely, and
this without modification or regulation by Congress” (Ex parte Grossman, 267 U.S. 87,
March 2, 1925). In effect, the Supreme Court found that the President does have the
constitutional authority to pardon contempt charges.
Then came Biddle v. Perovich. The facts of this case revolve around Vuco
Perovich who was convicted of first-degree murder and sentenced to hang on September
15, 1905. Then on June 5, 1909, President Taft commuted Perovich’s sentence “to
imprisonment for life in a penitentiary to be designated by the Attorney General of the
United States” after which Perovich was moved to a federal penitentiary in Leavenworth,
Kansas (Biddle v. Perovich, 274 U.S. 480, May 31, 1927). However, on February 20,
1925, Perovich filed an appeal challenging the constitutionality of the President’s order
commuting his sentence because he did not consent to the commutation. The District
Court ruled in favor of Perovich, but the defense appealed this case to the Supreme Court.
The legal question in this case being “did the President have authority to commute the
sentence of Pierovich from death to life imprisonment?” (Biddle v. Perovich).
Justice Oliver Wendell Holmes wrote the unanimous opinion of the court ruling
“just as the original punishment would be imposed without regard to the prisoner's
consent and in the teeth of his will, whether he liked it or not, the public welfare, not his
consent determines what shall be done,” (Biddle v. Perovich) and thus President Taft’s
commutation was constitutional. In effect, this decision weakened the precedent set in
Burdick, that for a pardon to be legal it must be delivered and accepted. Chief Justice
William Taft did not take part in this case.
Another important decision concerning the pardon power came in Schick v. Reed.
This case started in 1954 when then Master Sergeant, Maurice Schick, murdered an
eight-year-old girl. At trial, he claimed that he was insane and could not control his
actions, but the court did not believe him and on March 27, 1954, he was found guilty
and sentenced to death. Schick then appealed the decision and in 1960, the case was
brought before President Eisenhower for review as required by the Uniform Code of
Military Justice. At which time President Eisenhower commuted Schick’s sentence from
death to life in prison without parole. After serving several years of his sentence in 1971,
Schick appealed the constitutionality of the President’s commutation.
In this case, the court split 6 to 3. Chief Justice Warren Burger delivered the
opinion of the court, ruling that the Constitution authorizes “the President to deal with
individual cases by granting conditional pardons” and that “the very essence of the
pardoning power is to treat each case individually” (Schick v. Reed, 419 U.S. 256,
December 23, 1974). Burger goes on to say that under Article II, Section 2 the President
has the authority to “‘forgive’ the convicted person in part or entirely, to reduce a penalty
in terms of a specified number of years, or to alter it with conditions which are in
themselves constitutionally unobjectionable” (Schick v. Reed). Justice Thurgood Marshall
wrote a dissenting opinion that Justice William Brennan and Justice William Douglas
joined. Justice Marshall argued that the President breached the scope of his constitutional
authority and that conditioning the pardon was “extra- legal” in nature. Fundamentally,
Schick v. Reed constitutionalized conditional pardons.
President Eisenhower, however, was not the first President to condition a pardon.
Conditions have been attached to pardons since George Washington’s presidency.
Presidential Scholar, Harold J. Krent notes, “presidents have required, on pain of
revocation of the pardon, that offenders make restitution, drop financial claims against
the government, or except deportation…not drink, not associate with undesirables, and
provide their families with greater financial support” (Krent 1668). So, while presidents
had been attaching condition to pardons for more than 200 years, it was not
constitutionalized until 1974 in Schick v. Reed.
The next and last significant case concerning the pardon power was U.S. v.
Noonan. This case started in 1969 when Gregory Noonan was sentenced to three years in
prison for dodging the draft. Then in 1977, President Carter granted amnesty for
“violations of the Military Selective Service Act between August 4, 1964 and March 28,
1975” (United States. v. Noonan, 906 F.2d 952, (3d Cir), June 28, 1990). Later, in 1988
Noonan moved to expunge this offense from his record citing President Carter’s pardon.
The lower court ruled in favor of Noonan, but the United States appealed. Judge Aldisert
from the Court of Appeals for the Third Circuit ruled in favor of the government.
Arguing, that “the grant of a pardon does not wipe out the record of a conviction”
(United States. v. Noonan) citing Burdick v. United States. Further he stated that “the
Presidential pardon of 1977 does not eliminate Noonan's 1968 conviction and does not
‘create any factual fiction’ that Noonan's conviction had not occurred to justify
expunction of his criminal court record” (United States. v. Noonan).
Clemency has its roots in Greek, Roman, and English traditions. The framers of
the United States Constitution, with wisdom and foresight, vested this power in the
President of the United States and rejected suggestions of dividing the power between the
President and the Senate. They created this power with few guidelines save that “acts to
be pardoned must constitute offenses against the United States, no impeachment may be
involved, and the offense already must have been committed” (Krent 1673). In the 21st
century, the power of executive clemency remains much as it did at the close of the
Constitutional Convention, broad in its authority and without oversight. With the
exception of Burdick, the courts have only enlarged the scope of the pardon power as
shown in the cases discussed previously.
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Burdick v. United States, 236, U.S. 79, January 25, 1915.
Ex parte Garland, 71, U.S. (Wall), 333, December 1866.
Ex parte Grossman, 267, U.S. 87, March 2, 1925.
Grossman v. United States, 280, F.683, (7th Cir), February 7, 1922
Hibbitts, Bernard J. Presidential Pardons. 2004. University of Pittsburgh. 15 September
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Kobil, Daniel T. “The Quality of Mercy Strained: Wresting the Pardoning Power from
the King.” Texas Law Review 69.3 (1991): 569-642.
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Law Review 89.6 (2001): 1665-1721.
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United States v. Wilson, 32, U.S. (7 Pet), 150, January 26, 1833.
United States. v. Noonan, 906, F.2d 952, (3d Cir), June 28, 1990.