Pardoning power, which refers to an official statement of forgiveness for the commission of a federal crime, is the function of the executive department of a state. But in a state form of government, such as U.S., where the executive, legislative and judicial branches of government are separate, pardoning power is neither inherently nor necessarily an executive power, but it is a power of government inherent in the people, who may by constitutional provision place its exercise in any official, board or department of government they choose[i]. The executive department headed by a country’s President exercises the pardoning power. Therefore, the granting of a pardon is a function or act of the state rather than a personal act of an individual who occupies the office authorized to grant pardon[ii].
Generally, a presidential pardon is issued either when an offense is committed or at a time when the subject has finished serving his/her full sentence. Therefore the main aim behind creating a pardoning power is to bring about the welfare of the people and for the benefit of a convict. However, a pardon cannot be granted before a crime or before an offense is committed.
The presidential power to grant reprieves and pardons includes the power to grant conditional pardons, to commute sentences, to remit fines and forfeitures, and to grant amnesty by proclamation[iii]. Presidential pardon cannot be exercised in cases of impeachment[iv].
The pardoning power is basically the absolute discretion of the official having that power who is supposed to act in accordance with sound principles and upon proper facts[v]. The pardon granted by an executive is final and irrevocable. However, the discretionary power to pardon is made subject to certain standards, which in turn would limit the scope of such discretion. But no legislative action can limit or control the discretionary pardoning power[vi].
An executive can grant or deny a pardon for good or bad reasons or for any other reasons. But granting a pardon merely on the belief by the executive that the law under which the prisoner has been convicted is unjust or too harsh is not a sufficient reason for exercising the pardoning power. The reason that actuated the executive to grant a pardon is of no concern for the courts and the law affords no remedy even for the grossest abuse of such discretion in granting a pardon[vii].
The pardoning power cannot be used to set aside a death sentence on the ground that the official is opposed to the death penalty. However, a pardoning authority can inquire during a pardon or clemency proceeding about whether the inmate seeking a pardon from a death sentence contends that a death sentence was illegal. Even a death sentence cannot be commuted to life because of the delay caused by their own unsuccessful collateral attacks on their sentences[viii].
[i] State v. Jackson, 143 Miss. 745 (Miss. 1926).
[ii] Whittington v. Stevens, 221 Miss. 598 (Miss. 1954).
[iii] State ex rel. Forbes v. Caperton, 198 W. Va. 474 (W. Va. 1996).
[iv] Holliman v. Cole, 168 Okla. 473 (Okla. 1934).
[v] Sullivan v. Askew, 348 So. 2d 312 (Fla. 1977).
[vi] Martin v. State, 21 Tex. Ct. App. 1 (Tex. Crim. App. 1886).
[vii] Jackson v. Rose, 223 Ky. 285 (Ky. 1928).
[viii] Creech v. State, 137 Idaho 573 (Idaho 2002).