criminal-law constitutional-law us-constitution pardon
Does the President&#39;s Pardon authority extend to crimes not committed at the time of the pardon?
<p>Does the U.S. Constitutional power of the President to pardon extend to crimes not yet committed?</p>

<p>I know Ford gave Nixon a blanket pardon, but he did so for acts that (might have) been committed in the past.</p>

<p>No.</p>

<p>The relevant provision of the United States Constitution is Article II, Section 2, Clause 1 which states in the pertinent part:</p>

<blockquote>
  <p>The President . . . shall have Power to Grant Reprieves and Pardons
  for Offences against the United States, except in Cases of
  Impeachment.</p>
</blockquote>

<p>The correct conclusion flows pretty directly from the definition of a "reprieve" and a "pardon", both of which, in the ordinary senses of these words refer to granting forgiveness for acts that have already occurred.</p>

<p>One of the leading cases on point which supports this view is <em>Ex parte Garland</em>, 59 U.S. (18 How.) 307, 380 (1855), which states:</p>

<blockquote>
  <p>The power thus conferred is unlimited, with the exception stated. It
  extends to every offence known to the law, <strong>and may be exercised at any
  time after its commission,</strong> either before legal proceedings are taken,
  or during their pendency, or after conviction and judgment. This power
  of the President is not subject to legislative control. Congress can
  neither limit the effect of his pardon, nor exclude from its exercise
  any class of offenders. The benign prerogative of mercy reposed in him
  cannot be fettered by any legislative restrictions.</p>
</blockquote>

<p>Despite its antiquity, this case remains good law and has been applied repeatedly in subsequent cases (although few on the right of a President to pardon future crimes which just hasn't come up).</p>

<p><strong>Other Observations</strong></p>

<p>The President's pardon power is limited to federal crimes, so no President may pardon or commute a state or foreign conviction.</p>

<p>The nature of the pardon power, if any, with respect to state and local crimes is governed by each respective state constitution and varies rather considerably.</p>

<p>The power in the U.S. Constitution is broader than that is some state constitutions. For example, the corresponding provision of the Colorado Constitution, applicable to convictions entered by the state of Colorado, does not allow crimes to be pardoned prior to a conviction.</p>

<blockquote>
  <p>Article IV, Section 7, of the Colorado Constitution provides:</p>
  
  <p>"The governor shall have the power to grant reprieves, commutations
  and pardons <strong>after conviction</strong>, for all offenses <strong>except treason</strong> * * *."</p>
</blockquote>

<p><strong>The History Of The Pardon Power</strong></p>

<p>One of the most thorough and up to date reviews of the scope and nature of the federal pardon power can be found in the law review article, Todd David Peterson, "Congressional Power Over Pardon and Amnesty: Legislative Authority In The Shadow of Presidential Prerogative" 38 Wake Forest L. Rev. 1225 (2003). </p>

<p>In particular, it has an interesting historical overview of the power at pages 1228-1235 (pagination and footnotes omitted):</p>

<blockquote>
  <p>The President's pardon power derives from the authority that had been
  invested in English kings since the end of the first millennium.
  Although the King possessed plenary power to grant pardons, over the
  years Parliament imposed specific limitations on the pardon power in
  order to avoid perceived abuses. For example, the Habeas Corpus Act of
  1679 made it an offense for any person to imprison an English subject
  outside of the country and, in order to avoid an evasion of the writ,
  Parliament prohibited the King from granting a pardon for violation of
  the statute. Nevertheless, English courts frequently took an
  absolutist view of the King's pardon power. Thus, in <em>Godden v. Hales</em>,
  the Lord Chief Justice upheld a royal pardon on the ground that the
  Kings of England were absolute sovereigns; . . . the laws were the
  King's laws; . . . the King had a power to dispense with any of the
  laws of Government as he saw necessity for it; . . . he was sole judge
  of that necessity; that no act of Parliament could take away that
  power.</p>
  
  <p>The Parliament, however, persisted in its efforts to rein in the
  pardon power and, in 1700, adopted the Act of Settlement, which stated
  that "no pardon under the great seal of England [shall] be pleadable
  to an impeachment by the commons in Parliament." This limitation was
  enforced against the King, although it did not apply to pardons
  granted to relieve punishments imposed after the impeachment of an
  official. The royal pardon prerogative was imported into the American
  colonies whose charters gave the leaders substantial authority to
  pardon offenses.</p>
  
  <p>At the Constitutional Convention of 1787, neither the Virginia plan
  nor the New Jersey plan contained a pardon power. Nevertheless, at the
  insistence of Charles Pinckney, Alexander Hamilton, and John Rutledge,
  a pardon clause similar to the English Act of Settlement of 1700 was
  added to the draft constitution. Thus, the first report of the
  Committee on Detail proposed that the clause read: "He [the President]
  shall have power to grant reprieves and pardons; but his pardon shall
  not be pleadable in bar of an impeachment."</p>
  
  <p>The issue of legislative control over the pardon process was addressed
  directly by an amendment proposed by Roger Sherman of Connecticut.
  James Madison's journal notes that "Mr. Sherman moved to amend the
  <code>power to grant reprieves and pardon' so as to read</code>to grant
  reprieves until the ensuing session of the Senate, and pardons with
  consent of the Senate.'"  George Mason argued that the Senate already
  possessed too much authority, and the proposed amendment was rejected
  by a vote of eight to one.</p>
  
  <p>The convention did approve a motion to insert "except in cases of
  impeachment" after pardon and remove the words "but his pardon shall
  not be pleadable in bar." Luther Martin then sought to limit the
  President's power to grant pre-conviction pardons by inserting the
  words "after conviction," following the words "reprieves and pardons."
  Martin, however, withdrew his motion after James Wilson argued that
  "pardon before conviction might be necessary, in order to obtain the
  testimony of accomplices." Edmund Randolph then offered an amendment
  to exclude "cases of treason" from the pardoning power. This proposed
  amendment was defeated, although its exclusion was later to prove
  controversial. Thus, although the framers realized that the pardon
  power was subject to potential abuse by the President, they declined
  to place any limitations on the President's pardon power or grant the
  legislature any authority to check potential presidential abuses.</p>
  
  <p>The debates following the convention's passage of the Constitution
  reveal more about the framers' views on the pardon power. In the
  Federalist 74, Alexander Hamilton attempted to respond to the
  criticism that the President could pardon his accomplices in a case of
  treason. Hamilton acknowledged that "there are strong reasons to be
  assigned for requiring in this particular the concurrence of [the
  legislative] body or of a part of it." Hamilton argued, however, that
  the reasons against such legislative authority outweighed any in its
  favor: "[i]t is not to be doubted that a single man of prudence and
  good sense, is better fitted, in delicate conjunctures, to balance the
  motives, which may plead for and against the remission of the
  punishment, than any numerous body whatever." In particular, Hamilton
  argued, in the case of large scale seditions that attracted
  significant popular support, we might expect to see the representation
  of the people tainted with the same spirit, which had given birth to
  the offense. And when parties were pretty equally matched, the secret
  sympathy of the friends and favorers of the condemned person, availing
  itself of the good nature and weakness of others, might frequently
  bestow impunity where the terror of an example was necessary.</p>
  
  <p>Thus, Hamilton argued not only that the power was properly reposed in
  the President, but that it would be dangerous to grant such power to
  Congress.</p>
  
  <p>Finally, Hamilton argued that it was appropriate to grant the
  President pardon power in order to ensure that the authority could be
  exercised with appropriate dispatch:</p>
  
  <p>"In seasons of insurrection or rebellion, there are often critical
  moments, when a well timed offer of pardon to the insurgents or rebels
  may restore the tranquility of the commonwealth; and which, if
  suffered to pass unimproved, it may never be possible afterwards to
  recall. The dilatory process of convening the Legislature, or one of
  its branches, for the purpose of obtaining its sanction to the
  measure, would frequently be the occasion of letting slip the golden
  opportunity. The loss of a week, a day, an hour, may sometimes be
  fatal. If it should be observed that a discretionary power with a view
  to such contingencies might be occasionally conferred upon the
  President; it may be answered in the first place, that it is
  questionable whether, in a limited constitution, that power could be
  delegated by law; and in the second place, that it would generally be
  impolitic before-hand to take any step which might hold out the
  prospect of impunity."</p>
  
  <p>There was little debate about the pardoning power during the state
  ratifying conventions. George Mason continued to argue that the power
  should not be given to the President. An opponent in New York
  suggested that pardons for treason should not be allowed without
  congressional consent. Ultimately, the Constitution was adopted
  without any express limitation on the President's pardoning power.</p>
  
  <p>The Supreme Court has on a number of occasions discussed the general
  scope of the pardoning power. For the most part, with exceptions to be
  discussed later, these decisions contain broad dicta concerning the
  unfettered nature of the President's power and the inability of
  Congress to impose any legislative restrictions on it. For example, in
  <em>United States v. Wilson</em>, the Court held that a pardon must be pleaded
  in order to be effective. Chief Justice Marshall wrote that the
  [C]onstitution gives to the [P]resident, in general terms, "the power
  to grant reprieves and pardons for offences against the United
  States."</p>
  
  <p>As this power had been exercised from time immemorial by the executive
  of that nation whose language is our language, and to whose judicial
  institutions ours bear a close resemblance; we adopt their principles
  respecting the operation and effect of a pardon, and look into their
  books for the rules prescribing the manner in which it is to be used
  by the person who would avail himself of it. Marshall further defined
  the pardon as an act of grace, proceeding from the power entrusted
  with the execution of the laws, which exempts the individual, on whom
  it is bestowed, from the punishment the law inflicts for a crime he
  has committed. It is the private, though official act of the executive
  magistrate, delivered to the individual for whose benefit it is
  intended, and not communicated officially to the court.</p>
  
  <p>In <em>Ex parte Wells</em>, the Supreme Court considered whether the
  President could grant a conditional pardon in the form of commutation
  of a death sentence to a sentence of life imprisonment. The Court
  noted that pursuant to the Pardon Clause, the President has granted
  reprieves and pardons since the commencement of the present
  government. Sundry provisions have been enacted, regulating its
  exercise for the army and navy, in virtue of the constitutional power
  of [C]ongress to make rules and regulations for the government of the
  army and navy. No statute has ever been passed regulating it in cases
  of conviction by the civil authorities. In such cases, the President
  has acted exclusively under the power as it is expressed in the
  [C]onstitution.</p>
  
  <p>The Court noted, however, that "[t]here are also pardons grantable as
  of common right, without any exercise of the king's discretion; as
  where a statute creating an offence, or enacting penalties for its
  future punishment, holds out a promise of immunity to accomplices to
  aid in the conviction of their associates. When accomplices do so
  voluntarily, they have a right absolutely to a pardon . . . ."</p>
  
  <p>Thus, at least in dicta, the Court recognized Congress's authority to
  regulate clemency in the military and to adopt statutes granting
  immunity for cooperation in a criminal investigation.</p>
  
  <p>In <em>Ex parte Garland</em>, the Court spoke in sweeping dicta about the
  exclusive power of the President over pardon and amnesty. In Garland,
  the Court considered the issue whether a former Confederate senator
  would be permitted to be a member of the Supreme Court Bar without
  taking the statutorily required oath that he had never voluntarily
  given aid or comfort to the confederacy. The petitioner had received a
  presidential pardon and argued that the pardon exempted him from the
  requirements of the oath to which he could not truthfully subscribe.
  The Court held that it was "not within the constitutional power of
  Congress thus to inflict punishment beyond the reach of executive
  clemency," and therefore, the petitioner was entitled to membership in
  the Bar. In the course of the opinion, the Court broadly defined the
  President's pardon power:</p>
  
  <p>"The power thus conferred is unlimited, with the exception stated. It
  extends to every offence known to the law, and may be exercised at any
  time after its commission, either before legal proceedings are taken,
  or during their pendency, or after conviction and judgment. This power
  of the President is not subject to legislative control. Congress can
  neither limit the effect of his pardon, nor exclude from its exercise
  any class of offenders. The benign prerogative of mercy reposed in him
  cannot be fettered by any legislative restrictions."</p>
  
  <p>In <em>Ex parte Grossman</em>, the Court considered whether the President's
  pardon power extended to criminal contempts of court. The Court upheld
  the President's power to issue such pardons based on the history of
  royal pardons for contempt in England. The Court also looked to the
  long history of presidential pardons of criminal contempts of court.
  In responding to the argument that a presidential pardon of contempt
  of court would interfere with the ability of the federal courts to
  protect their own decrees, Chief Justice Taft noted that the
  Constitution provides a number of powers to the branches which give
  them the ability to check the other branches of government. With
  respect to the pardon power, the Court stated: "[t]he 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." The Court also noted that the President
  exercised the pardon power without any significant judicial check on
  his pardoning authority:</p>
  
  <p>"It is a check entrusted to the executive for special cases. To
  exercise it to the extent of destroying the deterrent effect of
  judicial punishment would be to pervert it; but whoever is to make it
  useful must have full discretion to exercise it. Our Constitution
  confers this discretion on the highest officer in the nation in
  confidence that he will not abuse it. An abuse in pardoning contempts
  would certainly embarrass courts, but it is questionable how much more
  it would lessen their effectiveness than a wholesale pardon of other
  offenses. If we could conjure up in our minds a President willing to
  paralyze courts by pardoning all criminal contempts, why not a
  President ordering a general jail delivery?"</p>
  
  <p>In <em>Biddle v. Perovich</em>, Justice Holmes wrote an opinion for the Court
  in which he upheld the President's conditional pardon of a convict
  sentenced to death on the condition that his sentence be commuted to
  life imprisonment. Justice Holmes suggested a different rationale for
  the pardon power than Chief Justice Marshall had enunciated early in
  the 19th century. Rather than being a private act of grace that must
  be accepted and proffered to the court by the one pardoned, Justice
  Holmes saw the President's pardon as serving public policy ends:</p>
  
  <p>"A pardon in our days is not a private act of grace from an individual
  happening to possess power. It is a part of the Constitutional scheme.
  When granted it is the determination of the ultimate authority that
  the public welfare will be better served by inflicting less than what
  the judgment fixed. . . . 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."</p>
</blockquote>

<p>'Pardons' are for past offences. The relevant power for future offending is 'prosecutorial discretion', which would be under the control of the relevant officials at the time of the offending. So you definitely can't, on your last day in office, give someone a prospective get-out-of-jail-free card, because you can't bind your successor in office.</p>

<p>Prosecutorial discretion is generally not subject to judicial control (i.e. you can't sue a prosecutor to force them to prosecute a person for a crime), but is subject to political control, i.e. are you going to re-elect a politician who prospectively declares that person X can violate the law with impunity? (Well you might or you might not, it's up to your judgment as a voter.)</p>

<p>Note that the executive can't control civil (as opposed to criminal) court processes. So, suppose the President pardons D for shooting a Senator (I'm trying to think of an example of a federal offence, but I'm not too familiar with US law). The Senator could still sue D for damages for battery in a civil court, and there's nothing anybody in the executive branch can do about that.</p>
