Jones: Pardon me? Can you deny a presidential pardon or commutation?

By Tyler Jones

The president’s power to pardon individuals and commute sentences is found in Article II, Section 2 of the U.S. Constitution, which provides in relevant part: “The President shall … have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Though most of us might strain ourselves thinking of a reason why one might refuse a pardon or a commutation — especially while facing the daunting prospect of a federal prosecution, trial, incarceration or execution — multiple individuals have attempted to reject a pardon or commutation, providing both interesting stories and a strange, potential check on the executive.

In United States v. Wilson, 32 U.S. 150 (1833), George Wilson was facing a slew of charges for robbing and endangering the life of a postal worker. Wilson was convicted and sentenced to death, but President Andrew Jackson intervened and issued Wilson a pardon with the understanding that Wilson would still be sentenced on other crimes to which he had previously pleaded guilty. For unspecified reasons, Wilson refused the pardon, and a battle ensued to determine the validity and effect of the pardon.

Reaching the U.S. Supreme Court, Chief Justice John Marshall characterized the power as “an act of grace” but observed that the pardon needed to be “deliver[ed]” to take effect:

“A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered, and if it be rejected, we have discovered no power in a court to force it on him.” Id. at 161.

While the court acknowledged the seeming peculiarity of refusing a pardon, it justified the need for acceptance in situations where the pardon is made contingent (or conditional) on an even worse punishment than before. Consequently, Wilson’s refusal prevailed and he was subsequently hanged.

In Burdick v. United States, 236 U.S. 79 (1915), George Burdick, editor of the New York Tribune, refused to testify before a grand jury on the sources for an article on the grounds that it could incriminate him. In response, President Woodrow Wilson issued a pardon with the understanding that he would then provide testimony. Burdick declined to accept the pardon and refused to testify — eventually landing him in custody for contempt.

The matter worked its way to the Supreme Court to address the question of whether a pardon can become effective without the subject accepting the pardon. Writing for the majority, Justice Joseph McKenna reaffirmed that a pardon was a “private” act or deed that had to be accepted. Citing the potential for abuse, the court rejected the notion “[t]hat a pardon, by its mere issue, has automatic effect resistless by him to whom it is tendered, forcing upon him by mere executive power whatever consequences it may have… ,” or that Wilson had limited its holding to conditional pardons.

But the Supreme Court’s opinions are nothing if not dynamic. In Biddle v. Perovich, 274 U.S. 480 (1927), Vuco Perovich was convicted in Alaska of murder and sentenced to death in 1905. After several respites, President William Howard Taft in 1909 commuted Perovich’s sentence to life imprisonment. After two subsequent failed pardon attempts, in 1925 Perovich filed an application for a writ of habeas corpus, arguing the commutation had been without his consent and was invalid.

Taking up the case from certified questions of the 8th Circuit Court of Appeals, Justice Oliver Wendell Holmes opted to address a single question: “Did the President have authority to commute the sentence of Perovich from death to life imprisonment?” Both sides acknowledged the commutation was “properly styled,” but Perovich argued his consent was needed. The court disagreed, stating it had only previously required consent for conditional pardons. Framing the pardon as a part of the constitutional framework, the court likened the imposition of a commutation to the imposition of a criminal sentence — something that is done for the public good and not at the behest or consent of the convict:

“When granted, (a pardon) is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. Just as the original punishment would be imposed without regard to the prisoner’s consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done.”

In Schick v. Reed, 419 U.S. 256 (1974), the court was faced with a challenge to a conditional commutation. Master Sergeant Maurice L. Schick was convicted of murdering an 8-year-old girl while he was stationed in Japan in 1954. He was originally sentenced to death, but in 1960 President Dwight Eisenhower commuted his sentence to life in prison on the condition that he never be eligible for parole.

In 1971, Schick sought parole, arguing in part that the president’s conditional commutation was invalid. Writing for the majority, Chief Justice Warren Burger explored the history of the pardon in England, arguing that the Framers “spoke in terms of a ‘prerogative’ of the President, which ought not be ‘fettered or embarrassed.’” Though Schick argued the president’s condition was not provided for in the relevant sentencing statute — thus exceeding what the sentencing statute permitted — the majority rebuffed his claim, stating, “Presidents throughout our history as a Nation have exercised the power to pardon or commute sentences upon conditions that are not specifically authorized by statute.” The dissent, authored by Justice Thurgood Marshall, rebuked the majority’s characterization of English common law and argued that by imposing a condition that was not provided for by statute, President Eisenhower had impermissibly infringed on the Legislature’s prerogative:

“While the clemency function of the Executive … is consistent with the separation of powers, the attachment of punitive conditions to grants of clemency is not. Prescribing punishment is a prerogative reserved for the lawmaking branch of government, the legislature.”

So if you were in the unenviable position of needing a pardon, could you turn it down? Maybe if it was conditional, though recent cases have cast a pall over what had previously seemed clear. Whatever the case, the potential rejection of a pardon paints a curious fresco of individual rights clashing with executive power, along with the captivating notion that every American might have the right to check the most powerful position in government.•

• Tyler Jones is an associate at Stuart & Branigin LLP in Lafayette. Opinions expressed are those of the author.