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Issuance and Revocation of Pardon

Legislative regulations providing the manner of obtaining pardons are valid.  The due process clause of the federal constitution will not be violated if the clemency and pardon procedures do nothing more than confirm that the clemency and pardon power is committed to the power of the executive[i].

Generally, an application for a pardon by the President of the U.S. is presented through or referred to the Department of Justice.  Such an application is not considered as a proceeding in court or one before an administrative officer[ii].  The application can be forwarded by any person.  The convict’s knowledge about the application is not mandatory.  The plea for mercy can be made by a spouse, relatives, or friends of the prisoner.

A person convicted of a crime has no life or liberty interest with respect to any entitlement to a clemency proceeding.  Therefore, there is no right protected by due process as to clemency proceedings.  There will be no constitutional right to a clemency hearing.  Most states give the pardoning board or executive the absolute discretion to grant or deny a hearing on an application.  If the request for a hearing is denied, it is not considered a violation of due process rights[iii].

A state can provide the right to a clemency proceeding even if there is no constitutional right.  In the pardon process, a governor can hold hearings on the record.  However, it is rarely done.  The governor usually receives information and advice from many sources, including prosecutors, victims, and witnesses.  The governor can delegate the pardoning power to an agency that holds formal hearings.  No constitutional right exists to counsel in clemency hearings.

Where the statute or constitution places no restriction on the exercise of discretion by the granting authority, there is no interest created which would entitle the applicant to an unbiased decision maker.  The due process applicable to state clemency procedures does not include the right of an inmate seeking clemency to have his/her request reviewed by an impartial executive.

The statutes that provide the procedure for applying for commutation does not impose standards constraining the discretion of the granting executive or pardons board as to when commutation or clemency must be granted.  The statute also does not create a constitutional right or entitlement sufficient to invoke the due process clause.  However, the statute creates a right to ask for mercy.

The executive can commute the punishment or pardon a convict without any judicial proceedings.  However, a person under sentence of death must be permitted a hearing, during which the person can produce evidence to establish extenuating or mitigating circumstances that justify the commutation of the death sentence.  Generally, unlike judicial proceedings, the clemency decision-maker is not limited in discharging his/her extrajudicial function by the rules of evidence, the rules of procedure, or the other indicia of judicial proceedings.  In such proceedings, the burden is usually on the prisoner[iv].

In some states, the governor is required to communicate to the legislature at each regular session each case of reprieve, commutation, or pardon granted.  The report of the governor should include the name of the convict, the crime of which the person was convicted, the date and place of conviction, and the date of commutation, pardon, or reprieve.  In some jurisdictions, the governor must file with each application for a pardon, reprieve, or commutation a statement of the reasons for the decision, which must always be open to inspection.

A pardon can be revoked by the officer or body granting it before delivery and acceptance[v].  However, after its delivery and acceptance, a pardon cannot be revoked for any cause.  This is because then it has passed beyond the control of the officer or body granting it, and has become a valid and operative act.  Its recipient can be deprived of its benefits only through some appropriate legal proceeding.  This is true even in cases where the pardon was fraudulently obtained.  However, when a person voluntarily surrenders a pardon in open court to have it canceled with knowledge of that action the person cannot subsequently claim any rights under it.  The authority to revoke a conditional commutation remains in effect during the term of the original sentence.  Therefore, a commutation can be revoked after the expiration of the commuted sentence.  However, it should be before expiration of the original sentence.

Generally, a pardon obtained by fraud is void[vi].  An executive can grant a pardon for any reason, and the act is final and irrevocable.  The constitutional power of the executive to grant pardons is beyond the control of the judiciary.  No court has the power to review grounds or motives for the action of the executive in granting a pardon.  The constitutional power of the President to grant reprieves and pardons for offenses against the U.S. is an unreviewable power.

The general rule is that a pardon must be evidenced by writing.  The writing should be subscribed by the executive who grants the pardon because it is an official action of the executive.  The pardon will be valid only if it is attested and authenticated by the seal of the state.  The offense intended to be forgiven should be described in detail.  However, even if a pardon provides incorrect details of a crime of which the offender was accused or convicted, it will be an effective pardon.

A pardon will be effective only after delivery and acceptance of the deed.  The acceptance of the pardon by the convicted person is essential for the validity of the pardon.  No courts can force a pardon on a person.  When a pardon has been delivered and accepted, it cannot be revoked.  The recipient can be deprived of its benefits only in some appropriate legal proceeding.  Acceptance or consent of the person convicted is not essential to the validity of a commutation of sentence.  When the commutation is made upon conditions, it must be accepted by the prisoner.  Acceptance of a commutation of sentence by one legally imprisoned is not avoidable just because it is made under duress.

In many of the state constitutions, the pardoning power can be exercised only after conviction.  However, under the U.S. constitution, if the constitution does not expressly prohibit the exercise of the power until after conviction, it can be exercised at any time after the commission of an offense.  However, the pardoning power of the President is exercised in cases of individuals only after conviction.  A pardon granted after conviction and pending an appeal is considered valid.

[i] Wigglesworth v. Mauldin, 195 Ariz. 432 (Ariz. Ct. App. 1999).

[ii] Ex parte Collins, 32 Okla. Crim. 6 (Okla. Crim. App. 1925).

[iii] People v. Flores, 147 Cal. App. 4th 199 (Cal. App. 4th Dist. 2007).

[iv] Woratzeck v. Arizona Bd. of Exec. Clemency, 117 F.3d 400 (9th Cir. Ariz. 1997).

[v] In re St. Amour, 127 Vt. 576 (Vt. 1969).

[vi] Rathbun v. Baumel, 196 Iowa 1233 (Iowa 1922).

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