Restrictions Upon Pardoning Power

According to the principle of separation of powers, the government departments do not deal with the pardoning power[i].  The federal and state constitutions provide the executive with pardoning powers[ii].  The powers cannot be controlled even by the judiciary.  The reason for granting or refusing pardon by the executive cannot be questioned by the courts.  Courts can only interfere in an exercise of pardoning power if the power is not granted by a competent authority or unless fraud has entered the case.  If a statute provides the judiciary the power of commutation, it will be in violation of the doctrine of separation of powers that is provided under a state constitution.  According to the state constitution, the governor has the exclusive power of commutation[iii].

The prerogative power of granting mercy is vested in the executive by the constitution.  It cannot be bound by any statute[iv].  The power to grant mercy cannot be delegated to any other officer or authority.

The U.S. constitution provides powers to grant pardon exclusively to the President[v].  This power cannot be modified, curtailed, or diminished by the Congress or any other legislative enactments[vi].  The President’s pardoning power can be limited only by the U.S. constitution.  The constitutional provision provides the limitation that no money can be drawn from the treasury, other than in consequence of appropriations made by law.  The President’s power to grant pardon is thus restricted.

Generally, the state constitution confers the absolute power to pardon to the governor.  This power cannot be limited by other statutes.  The limitations should be provided by the state constitution.  The legislature can neither limit the effect of a pardon nor exclude from its exercise any class of offenders[vii].

The executive power cannot be deprived of its constitutional authority regarding pardons by legislation that try to regulate the powers.  However, the legislature can create enactments to render the exercise of such a power convenient and efficient.  In most of the states, the constitutions provide that the executive can grant pardons based on the laws and regulations prescribed by law[viii].  When the governor does not comply with the rules and regulations imposed by the enactments for the effectiveness of the pardoning power, such pardons or commutation of sentences will be considered void as per law.

If a statute removes the disability of existing convicts to testify in criminal prosecutions, it is considered invalid under a state constitution that vests in the governor the power to pardon and to remit forfeitures.  Clemency investigation files and reports produced by the parole board on behalf of the state executive need not be produced pursuant to a state’s public records law[ix].

Pursuant to parole law, if any person receives a final discharge from parole, s/he can be restored to all the rights and privileges of citizenship.  This parole law does not encroach on the power of a governor to grant pardon when the constitution provides that the removal of civil disabilities following conviction of specified crimes can be made by a pardon issued by the governor.

The reason that a provision in a statute empowers a jury to appoint life imprisonment without any possibility of parole does not violate the provisions of a constitution that empowers the governor, the justices of the Supreme Court, and the attorney general to remit fines and forfeitures, or to grant pardons, reprieves, or commutations of sentences.

When a state board of pardons has authority to investigate the conduct of a convict whose case is under consideration for proving pardon, there will be no constitutional infringement of the governor’s power to pardon.  The state board can provide recommendations to the advisability of granting a pardon.  The governor can accept or reject the recommendations based on his/her own judgment of the facts of the case.  However, some courts hold that even though the recommendation of a state pardoning board is not binding on the governor, a statute establishing such a board with power to investigate applications for pardons and to certify its conclusions to the governor is unconstitutional as an infringement of the pardoning power.

The recommendations made by the board can be considered a prerequisite to pardon by the governor because of the constitutional provision that the governor will have power to grant pardons upon such conditions and with such restrictions and limitations that is provided by law.

A statute creating a board of pardons can be unconstitutional and void if the act limits the governor’s powers to cases that are recommended by the board.  Such an act would be an infringement to the power of the executive.  The constitution only provides power to the legislature to prescribe regulations on the manner of applying pardons, but the act interfering with the executive power will be void.

In some states, the governor has the authority to grant pardons and commutations of sentence to convicted prisoners which extends to those sentenced to life imprisonment without parole.  In other jurisdictions, a community release board can recommend to the governor the names of prisoners for commutation of sentence or pardon in instances it believes the governor should exercise his/her pardoning powers.  Therefore, when routine parole by the community release board is not available to a life prisoner, commutation of this sentence by the governor on the recommendation of that same community release board remains available.  When the state constitution provides that the pardoning power rests exclusively on the governor by and with the advice of counsel, concurrent exercise of that power by both is appropriate.

[i] United States v. Pollard, 416 F.3d 48 (D.C. Cir. 2005).

[ii] Snodgrass v. State, 67 Tex. Crim. 648 (Tex. Crim. App. 1912).

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

[iv] Shepherd v. Davis, 1999 Tenn. Crim. App. LEXIS 848 (Tenn. Crim. App. Aug. 19, 1999).

[v] USCS Const. Art. II, § 2, Cl 1.

[vi] Bradford v. Cardoza, 195 Cal. App. 3d 361 (Cal. App. 1st Dist. 1987).

[vii] Wilkinson v. Maurer, 1993 Ohio App. LEXIS 2045 (Ohio Ct. App., Franklin County Apr. 8, 1993).

[viii] In re McKinney, 33 Del. 434 (Del. Super. Ct. 1927).

[ix] Graham v. Angelone, 73 F. Supp. 2d 629 (E.D. Va. 1999).


Inside Restrictions Upon Pardoning Power