Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

The legal significance of a pardon has been a subject of shifting judicial views over time. In the 1866 case Ex parte Garland, the Court took a broad view of the nature and consquence of a pardon:

Subsequent cases of the era maintained this view that pardon “blots out” both guilt and punishment—for instance, in Carlisle v. United States, the Court wrote that a pardon “not merely releases the offender from the punishment prescribed for the offence, but . . . obliterates in legal contemplation the offence itself.” 2 As such, the Court in Carlisle determined that a pardon entitled its recipient to obtain the proceeds of property previously abandoned or captured without having to establish loyalty to the Union during the Civil War as would otherwise have been required by statute.3 More broadly, the Court ruled in several cases during this period that pardons entitled their recipients to recover property forfeited or seized on the basis of the underlying offenses, so long as vested third-party rights would not be affected and money had not already been paid into the Treasury (except as authorized by statute).4 In Boyd v. United States, the Court addressed one of the “disabilities” referred to in Garland that a pardon removes, recognizing that the ability of a man convicted of larceny to act as a witness in court was restored by President Benjamin Harrison’s pardon.5 According to the Court, because the “disability to testify” was “a consequence, according to the principles of the common law, of the judgment of conviction, the pardon obliterated that effect. The competency as a witness of the person so pardoned was therefore completely restored.” 6

Cases following Garland and Carlisle also began to note limits to the Court’s broad framing of the effect of a pardon, however; in Knote, the Court wrote that although a pardon “blots out the offence” in a legal sense, “it does not make amends for the past. . . . The offence being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required.” 7 Later cases underscored the limits of the Court’s previous sweeping language. First, contrary to the suggestion of Garland that a pardon “blots out of existence the guilt” associated with the offense,8 the Court in Burdick stated that a pardon “carries an imputation of guilt; acceptance a confession of it.” 9 Then, in Carlesi v. New York, the Court determined that a pardoned offense could still be considered “as a circumstance of aggravation” under a state habitual-offender law,10 reflecting that although a pardon may obviate the punishment for a federal crime, it does not erase the facts associated with the crime or preclude all collateral effects arising from those facts.11

Footnotes

1

Ex parte Garland, 71 U.S. 333, 380–81 (1866).

2

83 U.S. 147, 151 (1872).

3

Id. at 153; see also Armstrong v. United States, 80 U.S. 154, 155–56 (1871) (stating that pardon “blots out the offence,” and “the person so pardoned is entitled to the restoration of the proceeds of captured and abandoned property, if suit be brought within ‘two years after the suppression of the rebellion’” ).

4

See Osborn v. United States, 91 U.S. 474, 477 (1875) ( “But, unless rights of others in the property condemned have accrued, the penalty of forfeiture annexed to the commission of the offence must fall with the pardon of the offence itself, provided the full operation of the pardon be not restrained by the conditions upon which it is granted.” ); Knote v. United States, 95 U.S. 149, 154 (1877) ( “Where, however, property condemned, or its proceeds, have not thus vested, but remain under control of the Executive, or of officers subject to his orders, or are in the custody of the judicial tribunals, the property will be restored or its proceeds delivered to the original owner, upon his full pardon. The property and the proceeds are not considered as so absolutely vesting in third parties or in the United States as to be unaffected by the pardon until they have passed out of the jurisdiction of the officer or tribunal. The proceeds have thus passed when paid over to the individual entitled to them, in the one case, or are covered into the treasury, in the other.” ); see also In re Armstrong’s Foundry, 73 U.S. 766, 769 (1867) ( “The general pardon of Armstrong, therefore, relieved him of so much of the penalty as accrued to the United States.” ); Ill. Cent. R.R. v. Bosworth, 133 U.S. 92, 103–05 (1890) (pardon restored property rights but subject to interest of third party acquired in interim); Jenkins v. Collard, 145 U.S. 546, 560–61 (1892) (same).

5

142 U.S. 450, 453–54 (1892).

6

Id. at 454.

7

Knote, 95 U.S. at 153–54.

8

Garland, 71 U.S. at 380.

9

Burdick v. United States, 236 U.S. 79, 94 (1915).

10

233 U.S. 51, 59 (1914).

11

See Nixon v. United States, 506 U.S. 224, 232 (1993) ( “[T]he granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is an executive action that mitigates or sets aside punishment for a crime.” (citation, internal quotation marks, and alteration omitted)).