minor legal/political question

[kaigou]

For the US president to pardon someone, doesn't that someone have to be accused of a crime in the first place? How do you pardon someone who hasn't been charged with anything?

Comments

[branchandroot]

*scratches nose* I could be wrong, but I think, in order to pardon someone, they actually have to have been convicted. Otherwise I think it's just 'dismissing charges'. And if they haven't been charged, I think it's just letting them go or ceasing pursuit or whatever.

Potential crimes count too, I guess.

[lunaludus.livejournal.com]

I think the model here would be Gerald Ford's pardon of Richard Nixon (http://en.wikisource.org/wiki/Proclamation_4311), which absolved Nixon of any and all crimes he "committed or may have committed or taken part in."

Re: Potential crimes count too, I guess.

[kdorian.livejournal.com]

Yes, this.

[clarentine]

I was all in agreement with the above until I remembered Nixon (prompted by the comments below). Hmm.

[branchandroot]

That's quite true. *considers* Though that was an interesting situation. Everyone was pretty well convinced that Nixon was guilty as sin, so simply dismissing charges, as would have been legally appropriate might not have been emotionally or politically sufficient. I think a pardon, in that case, was actually a backhanded acknowledgment that he was guilty but that the guilt wasn't going to be pursued.

[kaigou.livejournal.com]

My understanding was that any criminal investigation would have springboarded off the impeachment, and that Ford in fact was pardoning Nixon from the impeachment -- which in turn prevented any criminal investigations.

(Although, come to think of it, it's possible criminal investigations may have gone forward regardless, but that the pardon acted as an effective stopping point. Being pardoned for this crime does not mean you cannot be charged, tried and convicted of another crime.)

[kaigou.livejournal.com]

That's what baffles me: "potential crimes" -- my understanding was that for Nixon, the impeachment process had revealed well enough evidence to be used in criminal proceedings. Without a grand jury, the best way to sum would be "definitely committed crimes but we're not sure on the specifics quite yet" (like being charged with homicide but is it first degree, second, etc, I suppose).

It just seems... wrong to me, on a very basic level, that you could pardon someone -- independent of any actual charges or evidence of grounds for charges -- for "anything wrong the person may have done". I mean, that's just a blank slate, beyond a get-out-of-jail-free card. Well, I guess it is a get-out-of-jail-free card, literally.

Maybe I'm wrong but I could've sworn that the usual proceedings is that in the president's last sixty days or so, he (or someday, she) considers pardons of extreme/unusual cases. A kind of parting benevolence. (Sure, it could be done at any point during a presidency but I suspect it's a last-step thing because then you don't have to worry about people caterwauling for the rest of your presidency about who you did/didn't pardon.)

I guess I just find it baffling, and somehow ethically wrong on so many levels that I can't believe it'd actually be possible to pardon anyone who hasn't been, y'know, convicted. Hmph.

[stinky-horowitz.livejournal.com]

You know, I should know more about this since my father actually HAS a presidential pardon (from Nixon, no less). But I don't, and now you've made me curious.

The only time his pardon ever came up in my lifetime was when his permit to carry concealed weapons in Texas was rescinded because he'd served time in a federal penitentiary. He had to go find his pardon at my grandmother's house--a major chore, considering the state of her home; it was in the pile of papers under her mattress, WTH. Anyway, he used the pardon as his argument in court, but they still wouldn't give his permit back. Which only makes sense; anybody sane who's seen my father doesn't want him to have guns. I'm not sure what legal excuse they came up with to justify it, though.

[kaigou.livejournal.com]

Thing is, a pardon is not a verdict of innocent. It's just a notice that the time you have served (any, or none if you're Nixon) is time enough. I recall my govt teacher in HS going on at some length about Ford pardoning Nixon -- and that it was far from the most popular act, as well -- but especially the fact that Nixon spent the rest of his life acting as though this pardon exonerated him from all wrong-doing. Pardons don't exonerate you, they simply grant that the time served has been sufficient.

IOW, Nixon remained an impeached president. No way getting around that. And your dad may have been pardoned but that doesn't make him less guilty (and thereby having rights reduced per any felon). I recall my govt teacher fussing the most, however, about how people never really 'understood' pardons and even less so thanks to Nixon's loud-mouthing about how the pardon 'proved' he wasn't a crook. So I'm not surprised your father would've been under the impression that he should have all rights per non-felon thanks to having been pardoned.

Which is why I'm baffled as to whether one can pardon in the absence of any charges let alone convictions: because pardoning says "the time served has been sufficient and you are free to go" and you can't have served time (by any measure) until/unless you've actually, y'know, been threatened with being carted off to jail.

I wonder where I can find a constitutional lawyer to ask. Hrmph. Unfortunately, I think my govt teacher is now on the AP Govt test-writing board and probably little free time for academic (err, so to speak) questions. On the other hand...

*googles*

[stinky-horowitz.livejournal.com]

Pardons don't exonerate you, they simply grant that the time served has been sufficient.

No, that's a reprieve. Here's what I found on pardons:

"A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching [thereto]; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity." --Justice Stephen Field, U.S. Supreme Court, Ex parte Garland [Source: Cornell University Law School] (http://www.law.cornell.edu/anncon/html/art2frag13_user.html)

However, a later case determined that the pardoned's conviction record was not expunged by the pardon, so that's the reason they rescinded my dad's concealed carry permit. He does vote, go to jury duty, and enjoy the normal civil privileges, but if he were convicted of a crime today his previous record could still be held against him in court.

In Nixon's case, acceptance of the pardon would be considered tacit admission of guilt by most, though the pardon would preclude any punishment for his crimes. That's why pardoned persons are not required to accept the pardon, though in cases of life and death sentences they do not continue with the death sentence if the pardon is not accepted; instead, it's commuted to a life sentence.

Lots of interesting reading and phone calls, thank you! Turns out I was wrong: Dad never found his pardon at Grandma's house and he never contested the permit being taken away, though he thought about it. He served in a federal penitentiary for juveniles from ages 16 to 21. All of his car theft convictions were on his juvenile record; his only adult conviction was for a prison escape at age 18. (That's a long story I only knew of from other sources until last night. Thank you!) His parole officer applied for the pardon on his behalf and the warden helped get him in a halfway house so he never had to go home to his family again. They did all this because he saved a guard from being beaten to death during someone else's attempted prison break, as well as other things he did that resulted in less violence in the prison. Though I'm not sure how his parole officer was able to apply for a pardon, since you're not supposed to apply until five years after you've served your sentence, if convicted. Maybe that rule was put in place after 1971. I didn't find documentation.

I'll quit writing a book here, and just say thanks for raising the question. I was on the phone until 2 AM last night, getting answers I never expected to have.

[teeheeiambad.livejournal.com]

I believe, that in the case of Presidential Pardons, at times, there are matters of what is considered National Security or Presidential Privilege, that do not need to be fully written out, that he can pardon people for, totally without conviction/charge of anything.

I think, that is the logic and capability used, in (forgive me for using this as the example) The West Wing, when Pres. Bartlett pardoned Toby. Though it is mentioned a term of sentence for Toby, he never actually went to trial, but was waiting for it when the show ended. Toby was charged with Treason, however. As I always understood it, a charge of anything was not needed, only the fact that there could be, for a President to use his Pardon, in that manner.