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Who Gets a Presidential Pardon?

Bruce Gottlieb
Posted Wednesday, Dec. 30, 1998, at 4:14 PM ET

President Clinton pardoned 33 people this Christmas Eve. How did he pick this group?

Article II, Section 2 of the Constitution gives the president the power to pardon. Virtually every presidential pardon comes in response to a pardon petition, filed with a special Department of Justice office. If the request has merit, the office interviews the prosecuting attorney, sentencing judge, and other law enforcement officials involved with each case. FBI investigators also compile a dossier on the applicant. The DOJ then completes a report on the request and offers a recommendation to the president on whether or not to grant a pardon. The final decision belongs to the president, who could theoretically pardon an individual who had not filed a petition.

Who deserves a pardon? According to Department of Justice policy, presidential pardons are not meant to correct some judicial wrong, such as a false conviction or an unfair sentence (that's what the judicial appeals process is for). Rather, pardons go to those who have atoned for their crimes by subsequent good behavior. Presidents occasionally shorten the sentence of model prisoners who have demonstrated extraordinary remorse. But most presidential pardons go to people who have already completed their sentences and who can demonstrate that they've become honest citizens. In these cases, the pardon allows the recipient to hold certain jobs (law-enforcement and many professions) and exercise certain privileges (voting and carrying a gun) denied to un-pardoned criminals.

Occasionally, a president will pardon someone who hasn't even been convicted. Anticipatory pardons of this sort are generally given in the belief that they serve some national interest, such as when President Ford pardoned Richard Nixon or when President Carter pardoned the Vietnam draft-dodgers. President Bush also pardoned Caspar Weinberger after he'd been indicted, but before he'd been tried, which effectively short-circuited a trial. It makes sense that this power rests with the executive rather than the judicial branch, since it's an explicitly political decision.

Still, pardons of any sort are very rare. Clinton has issued only 107 in six years, despite more than 4,000 requests.

Next "Explainer": Can the president pardon himself?

Explainer thanks Professor Daniel Hays Lowenstein of the UCLA Law School.

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Bruce Gottlieb is a law student and a former Slate staff writer.
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