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Pardonable Offenses

Pardon is the exemption of a convict from punishment for a criminal conviction.  It is normally granted by the grace of the executive of a government.  Providing pardon in a criminal offense terminates the criminal liability of the person.  All restrictions that result from a criminal conviction will be terminated.  However, a pardoned person is not exonerated from the civil liability that a crime may have incurred.

The U.S. constitution provides pardoning power to the President for all federal crimes.  The federal constitution does not authorize the President to release a person from the effects of impeachment.  The President has the power to grant conditional pardons; to commute sentences; to remit fines and forfeitures; and to grant amnesty by proclamation. This power can be exercised at any time after the offense has been committed, before conviction or afterwards, and even after sentence of imprisonment has been served.  The pardons issued by the President cannot be limited or controlled in any way by legislative action[i].  In most of the states, the governor has the same pardoning power regarding state crimes.  However, the governor can not grant pardon to persons convicted of treason or criminal contempt of court[ii].

The U.S. constitution limits the pardoning power of the executive.  Under the limits of the constitution, the power to pardon extends to every offense committed against the government.  However, pardon is not provided to offenses committed against the state.  An executive does not have the power to pardon a private wrong.  Even if a criminal act is pardoned, the civil liability of the wrongdoer cannot be written off.

In some states, the constitution provides that a pardon can only be provided for criminal offenses.  In such states, the governors are not authorized to provide a pardon to a person who is a holder of a license from an administrative cancellation.

Generally, in most of the jurisdictions, statutes limit the power to pardon particular offenses.  This is mostly provided in cases such as violent crimes and sex offenses.  In some states, “no early release acts” are instituted.  Statutes and the state constitution can preclude a pardons board from changing a death sentence or life sentence without parole possibility to any different sentence.  No early release act normally applies to aggravated assault offenses.  Such acts are strictly construed in the states.

The pardoning power of the executive does not provide relief to defendants from judgments that are rendered in impeachment proceedings.  The U.S. constitution and most of the state constitutions exclude granting of pardon for persons convicted in impeachment proceedings.

Governors of the states are not authorized to provide pardon to persons convicted of treason[iii].  But in some jurisdictions, governors can grant reprieves in treason cases until the end of the next legislature.  The power of pardoning would be vested in the legislature.  When the case is presented, the legislature can pardon, direct execution of the sentence, or grant full reprieve to the treason convict.  In circumstances where the legislature fails or refuses to make disposition of such case, the governor can direct enforcement of the sentence at such time and place.

The President of the U.S. has the power to grant pardons in criminal contempt of court cases.  The power is provided by the U.S. constitution.  If there is a clear expressed authorization of the executive pardon, it can be granted to the offending party if punished[iv].

In some states, courts do not consider criminal contempt an offense for which pardon can be granted by the governor under the constitution[v].  Under some jurisdictions, courts state that pardon should not be granted for civil contempt because civil and criminal contempt are not the same[vi].  In some states, the pardoning power of the executive is upheld because contempt of court is an offense against the state and not an offense against the judge personally.  Therefore, in contempt of court cases, the state will be the offended party and the executive can grant pardon to the offender based on its discretion.

[i] Jamison v. Flanner, 116 Kan. 624 (Kan. 1924).

[ii] People ex rel. Robin v. Hayes, 163 A.D. 725 (N.Y. App. Div. 1914).

[iii] Ferguson v. Wilcox, 119 Tex. 280 (Tex. 1930).

[iv] United States v. Grossman, 1 F.2d 941 (D. Ill. 1924).

[v] Parker v. State, 135 Ind. 534 (Ind. 1893).

[vi] In re West Wildwood, 42 N.J. Super. 282 (Ch.Div. 1956).

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