A pardon exempts someone from punishment for a crime. The pardoning power is an inherent right of the people, and they can vest that power in whomever they choose. State constitutions usually spell out where the pardoning power lies. Pardons are typically issued to individuals, but they can also go to groups of people.
Whether made by the President or a state governor, the decision to grant or deny a pardon rests solely in the executive’s discretion. That decision is typically final and not subject to judicial review.
Decisions about whether to pardon an offender are supposed to factor in the public welfare and whether there’s some unfairness that the courts can’t correct. But, since the decision generally isn’t subject to review or oversight, there’s often no way to know what factored into a pardon decision unless the President or governor explains it. (See How do pardons work?)
Pardons generally assume the offender is guilty of the underlying offense, and that he or she has been rehabilitated. So, the President or a governor might deny a pardon to an offender who denies guilt. Pardons can be revoked before they’re delivered, but not after they are delivered and accepted—unless the offender fraudulently obtained it.
Pardons symbolize forgiveness for the crime, but usually don’t wipe out guilt or expunge the conviction. This typically means that, where asked, job applicants must disclose the conviction, though they can add that a pardon was granted. It also means courts can consider pardoned offenses when deciding the appropriate punishment for any future crimes. See below for more on the effects of pardons.
(For much more on the job-application issue, including state-specific information, see State Laws on Use of Arrests and Convictions in Employment.)
There are different types of pardons, each having its own effect. Pardons can be full or partial, absolute or conditional.
A pardon doesn’t indicate the convicted person is innocent. Pardons generally don’t expunge convictions. But, they will usually restore civil rights lost as a result of the conviction. So, pardons will generally restore:
A pardon may prevent deportation if the pardoned conviction is a deportable offense.
A pardon doesn’t affect any civil consequences that might flow from the crime. So, even someone who receives a pardon for murder may still be subject to a lawsuit for wrongful death. Pardons also tend not to affect administrative consequences, such as license suspensions.
Article II, Section 2 of the U.S. Constitution designates the President as the only person with the power to grant pardons and reprieves for federal crimes. The Constitution prohibits the President from pardoning impeached officials (but he can issue pardons for the crimes that led to the impeachment). All applications for a presidential pardon must be submitted through, and reviewed by, the Department of Justice. According to the department’s rules for clemency petitions, no one may apply for a pardon until five years after release from prison.
There’s no “right” to a pardon, which is often described as an individual act of grace granted by the governor. The decision to pardon typically rests in the governor’s exclusive and absolute discretion, so the pardon-seeker can’t appeal it to any court or have it overturned by another official, department, or agency. One narrow exception is if the pardon involves illegal conditions. In that case, a court could review the conditions, but not the governor’s decision to grant the pardon.
Although most states vest pardoning power in their governors, several states have created “pardon boards.” These boards make recommendations to the governor or, if the law authorizes it, the board makes the decision itself. Under either scenario, the governor either sits on the board, appoints its members, or both. The board’s decision doesn’t have to be unanimous; depending on the state, a simple majority can be enough.
Only the U.S. Constitution limits the presidential pardoning power. State constitutions may limit gubernatorial pardoning powers.
Neither the courts nor the legislature can restrict or limit the pardoning power unless the state constitution specifically says otherwise. Some states have procedural rules specifying when and how to apply for pardons, but any laws or rules that infringe upon a governor’s pardoning power are most likely unconstitutional.
Nevertheless, there are some permissible limits on pardons:
Because pardons are uncommon, because the law varies from state to state and from state to federal government, and because the decision-making process isn’t transparent, an experienced attorney is a good bet for explanation and guidance.