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Persons and Bodies Authorized to Grant a Pardon

In U.S., the pardoning power is conferred on the President, the governor, and in some states it is vested in the executive branch.

Pursuant to the U. S. Constitution, the President is given the power to grant reprieves and pardons for offenses committed against the U. S.  But the President cannot use such power to eliminate guilt.  The President’s pardoning power includes the power to grant conditional pardons, to commute sentences, and to remit fines and forfeitures.  However the president has no power to grant a pardon in impeachment cases[i].

The President’s constitutional power to exempt an offender from punishment cannot be limited either by the Congress or by a state legislature.  But while fixing the penalty for an offense against the sovereign state, the offender’s past conduct, including the commission of an offense against another sovereign, must be taken into account even though the offender is pardoned by such other sovereign[ii].  The President’s applications for pardon must be presented through or referred to the Department of Justice.

However in most states in the U.S., the power to pardon is vested in the state’s governor.  A governor has the power to pardon or commute any sentence from the day on which a defendant is imprisoned and at any time thereafter during imprisonment[iii], to effect an inmate’s release, make conditional pardons effective, but does not have the power to grant pardon in cases of impeachment[iv].  A governor’s pardoning power is protected from legislative action, except in cases where the constitution permits such an intrusion.  Likewise the governor’s pardoning power is in no way dependent upon any act or acts of a board of prison terms and paroles, or other governmental branch or entity which is empowered to make recommendations or certify the rehabilitation of the applicant[v].

A lieutenant governor acting as a governor can exercise the clemency authority established under the state’s constitution.  The circumstances under which a lieutenant governor can exercise the power to pardon includes[vi]:

  • when the governor is absent from the state;
  • when the governor is unable to perform the duties of his/her office by reason of illness or other disability; and
  • when the governor is impeached from his/her office.

The pardoning power exercised by the secretary of state while acting as a governor in the absence of the governor is valid.  Sometimes the pardoning power is also vested in a board composed of several persons including the governor.  In the case of the pardoning power being exercised by a board, the action of the board need not be unanimous, but the decision to grant pardon must be supported by a majority of the board.  A board of pardons thus serves as a branch of the executive department of the state government.

[i] Goo v. Hee Fat, 35 Haw. 827 (Haw. 1941)

[ii] United States v. Noonan, 906 F.2d 952 (3d Cir. Pa. 1990)

[iii] In re Application of Fredericks, 211 Ore. 312 (Or. 1957)

[iv] Henry v. Webb, 21 Wn.2d 283 (Wash. 1944)

[v] In re Conditional Discharge of Convicts, 73 Vt. 414 (Vt. 1901)

[vi] Bacon v. Lee, 353 N.C. 696 (N.C. 2001)

Inside Persons and Bodies Authorized to Grant a Pardon