The President's Conditional Pardon Power.

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Date: June 2021
From: Harvard Law Review(Vol. 134, Issue 8)
Publisher: Harvard Law Review Association
Document Type: Article
Length: 10,536 words
Lexile Measure: 1740L

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The President's pardon power is a near-blank check hidden among the Constitution's checks and balances. (1) Despite substantial handwringing about possible abuses of the power, scholars have almost entirely overlooked the most potent tool in the President's pardon power arsenal: the ability to attach conditions to clemency grants (the "conditional pardon power"). (2) As a subset of the general pardon power, the conditional pardon power is assumed to be similarly "unfettered," (3) "plenary," (4) or "unlimited." (5) This cannot be correct.

If the conditional pardon power were truly "unfettered," then the President could wield it for political advantage. He or she could pardon, and thereby re-enfranchise, thousands of convicted felons in key swing states upon the condition that they vote for his or her party in the upcoming election. Pardon recipients who failed to fulfill the condition would be thrown back in jail. (6)

If the conditional pardon power were truly "plenary," then the President could use it to replace a duly enacted penal scheme with one of his or her own choosing. Imagine Congress unanimously passed, over the President's veto, a bill requiring jailtime for police officers who killed unarmed civilians with chokeholds. A President who preferred only limited civil liability could unilaterally impose a different penal scheme by pardoning all such officers upon the condition they pay the victim's family a sum of money not to exceed $500. (7)

And if the conditional pardon power were truly "unlimited," then the President could impose horrifying conditions. He or she could pardon a healthy prisoner upon the condition that the prisoner donate her kidney to the President's ailing cousin, or commute a death sentence upon the condition that the prisoner be strung up by his ankles and tortured in the Rose Garden for the First Family's entertainment.

Some hypothetical seem more plausible than others, but history teaches us to take seriously the hard boundaries of executive power, especially where its exercise could be catastrophic.

Presidents have so far avoided controversial conditional pardons. (8) As a result, the boundaries of the conditional pardon power have not been clearly drawn. This Note fills that gap. It answers two questions: Are there limits (9) to the conditional pardon power? If so, what are they?

This Note's examination of the conditional pardon power is valuable for a few reasons. First, the power is ripe for abuse. It could allow a norm-breaking President to infringe upon individual rights and, as perniciously, to undermine America's separation of powers. Second, the original understanding of the conditional pardon power is sorely under developed. Given the increasingly originalist federal judiciary, the outcome of future conditional pardon cases could turn on the power's original meaning. Finally, the conditional pardon power is underappreciated but not entirely neglected. America's history books contain scattered instances of conditional pardons, some of which received scrutiny from the Supreme Court. History provides enough data points for this Note's pardon power connect-the-dots to sketch an intelligible picture of the President's conditional pardon power. (10)

This Note concludes...

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Gale Document Number: GALE|A666333827