• Divah Sprik Law Notes


Published by: Akanksha Singh


The Constitution of the United States of America is the supreme law of the land and oldest and shortest written Constitution in the world. The Constitution follows the presidential form of government. The President is the executive head of the US federal system. 

The Power of President to grant pardon is disposed under Article II, section 2 of the US Constitution. The article says that the president "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Interpretation of the Pardoning Power

The clause says that the President of USA has power to reprieve, i.e., to cancel or postpone the punishment of someone especially in the case of death and to pardon a person convicted of a crime, thus removing any punishments or penalties on the convicted person and also preventing him from any new prosecution for the crime for which the pardon was granted. Hence, the President has power to officially forgive someone so that his punishment is no longer sustained.

Offenses against the United States 

The president has power to forgive for offences against the United States means crimes against the federal structure not for the state crimes. The Federal Crime Act defines offences against the United States e.g. treason, espionage, cybercrime, terrorism, aircraft hijacking etc. 

Except in Cases of Impeachment

The simplest interpretation of the term "except in cases of impeachment" means the President cannot pardon someone who's been impeached, or at least cannot pardon the offences which led to an impeachment. In other words, the president can pardon any federal criminal offences, including his own, but cannot pardon an impeachment which means he has no power over the Congress.

Procedure for Presidential Pardoning Power in USA

There is a lengthy procedure for the mercy petition. The Process starts with filing of a mercy petition to the President office. Then the application goes for a critical evaluation under the United States Department of Justice. The Pardon Attorney assists the President in the exercise of his power under Article II, Section 2, clause 1 of the Constitution. Thus, the following procedure has to be followed in order to get presidential pardon:

Submission of a petition to the office of the Pardon Attorney

A pardon petition with the clemency form (provided by the Department of Justice) must be forwarded to the office of the pardon attorney. The petition must be entirely legible. The form must be completed diligently and notarized in order to be considered. You may attach additional pages to clarify your answers with respect to any questions of the form.

Federal Convictions

Under the US Constitution, the President has power to grant pardon only for the cases of Federal Conviction. In regard to State conviction, one has to approach the Governor of the State where he resides or where the conviction occurred.

Waiting period for 5 Years 

Under the rules provided by the Department of Justice, the petitioner has to wait for five years and then after he is eligible to apply for a presidential pardon. The waiting period of five years is to demonstrate an ability to lead a responsible, productive and law-abiding life.

Valid grounds for seeking pardon

In the petition form, you have to provide reasons or purpose for seeking the presidential pardon. You may also support your claim by attaching additional copies. In addition, you should keep in mind that a presidential pardon is a sign of forgiveness and is granted because the applicant has accepted his guilt for the crime and demonstrated good conduct for a significant period of time after conviction or release from confinement. The merits of a pardon petition are decided by the petitioner’s acceptance of responsibility, remorse, and atonement for the offence. 

In case of Multiple federal convictions

When a petitioner has been convicted for many federal crimes, the recent conviction is taken into consideration for the presidential pardon.

Pardon for military offences

The military department has original jurisdiction to pardon a court-martial conviction. Thus, the petitioner must directly submit his completed petition to the Secretary of the military department for a court-martial conviction.

Additional arrest record

The petitioner has to disclose additional arrest record if he has been charged for any civil or military law or by any federal, state, local or foreign authority. You have to also disclose violations like traffic violations, etc. If you fail to disclose any such arrest or violation, it may be regarded as falsification of the petition.

Credit status and civil lawsuits

You have to provide information for credits obligations, bankruptcy proceedings, unpaid tax obligations whether it pertains to federal, state or local bodies.

Character references

There must be at three affidavits accompanied by the petition. These three affidavits must not be related to the petitioner by blood or marriage relation. The petitioner can provide more affidavits but there must be at least three primary affidavits with their full information and signature which must be notarized.

Scope of investigation 

After the submission of the clemency petition, the department officials conduct an exhaustive enquiry in determining the merits of the application. They analyze various factors like personal background, current activities, nature and seriousness of the offense, overall criminal record, charitable activities, etc.

Penalty for false statements

In case of falsification of the petition, it may be rejected and also the petitioner may be punished for the criminal offence which provides imprisonment upto 5 years or fine amounting $250,000.

Exclusive Presidential authority

The President has absolute authority to grant pardon. The petitioner cannot challenge the decision of the President in the Court of Law and there is no provision for hearing held by either the Department of Justice or the White House. The final decision will be notified in writing to the last address provided by the petitioner during the pardon process. However, the petitioner may submit a new petition for consideration after two years of denial. And the Department is not liable to disclose decision regarding the nature or results of any investigation to grant or deny a petition. Apart from the Department's recommendation to the President in a clemency matter, the petitioner has no right to get information under the Freedom of Information Act.

Standard for considering pardon petition

A pardon is generally granted when a petitioner demonstrates good conduct for a substantial period of time after the conviction or during the service of sentence. Also a petitioner has to wait a period of at least five years after conviction or release from confinement. However, the Department has power to waive the five-year requirement. The following are the principal factors that are taken into consideration while granting pardon to the petitioner.

Post-conviction conduct, character, and reputation

When an individual demonstrates after conviction “an ability to lead a responsible and productive life while serving imprisonment”, he presents a strong evidence of rehabilitation and worthiness for pardon. The petitioner conduct, character, reputation in the community, a sense of responsibility toward his family, social work, his financial status, etc. The background investigation is conducted by the FBI in pardon cases.  

Seriousness and relative recentness of the offence 

When nature of an offence is very serious like treason, drug trafficking, public scandal, etc., a suitable length of time should have passed as per prescribed by the department. Also in these major cases general public interest is considered.

Acceptance of responsibility, remorse, and atonement

Forgiveness is awarded when someone realizes guilt. Thus, while considering a pardon, it needs to be taken into account as to what extent a petitioner has accepted his responsibility for criminal conduct and restituted victims. In this regard, statements given like "everybody was doing it," or “I didn't realize it was illegal" should be judged and when a petitioner pleads innocence or miscarriage of justice, he bears the burden of proof.

Need for Relief 

The purpose for a pardon, as contemplated by the petitioner, is an essential instrument in determining the worthiness of a  pardon. Sometimes it is related to his family need or a specific employment-related need. Thus, purpose plays a vital role in disposing of a pardon petition.

Official recommendations and reports 

The Pardon Attorney assists the President in exercising his presidential power. He makes recommendations to the President regarding a pardon petition. Thus, while granting a pardon petition, the recommendations made by the United States Attorney or Assistant Attorney General are carefully considered.

Effect of a pardon

After a pardon is granted, the civil rights like the voting rights will be restored but it will not erase or expunge the record of your conviction. Thus, the petitioner must disclose conviction and also pardon where such information is required.

Judicial review

Unlike India, there is no provision for judicial review. The Supreme Court of United States has no power to review the pardon decision taken by the President nor it can be challenged. The President of United States has absolute power to grant pardon.


Thus, the presidential pardoning is totally an act of grace and mercy of the US President. It is on the discretion of the President as to the acceptance or denial of the mercy petition. It cannot also be challenged in the court of law and in order to get pardon from the President, one has to go through the exhaustive and obligatory procedure. Further, a presidential pardon is not a sign of vindication and does not connote or establish innocence. It is just a sign of forgiveness given by the President which means the petitioner is no more liable for punishment or fine.


#Divahspriklawnotes #divahsprik #lawnotes #law #lawyersblog

#presidential #pardoning #power #USA



2020. All rights reserved - © DIVAHSPRIK LAWNOTES


  • Facebook
  • Twitter
  • YouTube