A pardon, which is the use of executive power to help its recipient to avoid punishment, is granted under Article II of the U.S. Constitution. Under the Constitution, the president’s clemency power extends to all federal criminal offenses – except impeachment. (It should be noted that the president’s clemency power does not extend to a civil, state, or local offense. This begs the question of whether a Presidential pardon means that the recipient is acknowledging that he or she is guilty of their original charge(s).
In the 1833 case of United States v. Wilson, the Supreme Court ruled that a pardon could be rejected by the convict. Due to the findings in the 1925 case, Burdick v. United States, it seems as though accepting a pardon is, in fact, admitting guilt. In Burdick the appellant was offered a pardon but declined it, also refusing to testify in criminal court. The opinion of the case given by the justices seemed to uncover that 1) a pardon can be given before a conviction and sentence; 2) a pardon can be refused, and 3) acceptance of a pardon implies acceptance of guilt.
When someone receives a presidential pardon, it restores a variety of the rights that were lost due to the pardoned offense. However, if someone refuses a pardon it simply will not take effect.
Legislative Immunity vs. Executive Pardon
It’s important to understand that there are major differences between legislative immunity and a pardon. The acceptance of a pardon imputes guilt, while legislative immunity does no such thing.
In Lorrance v. Commandant, USDB, the 10th circuit finds that accepting a pardon does not confess to anything and does not preclude the recipient from petitioning for habeas corpus relief from his or her court-martial conviction and sentence.
Put simply, a presidential pardon does not denote innocence or change an existing conviction. Rather, it represents forgiveness. When one accepts a presidential pardon, he or she is not admitting guilt or waiving habeas rights. It remains unseen as to whether or not the Department of Justice will petition the Supreme Court to get a final answer.
The Court-Martial Law Division of Aviso Law LLC Helps Military Members in Colorado Who Have Been Charged with a Crime
The U.S. Government has an interest in obtaining a conviction as soon as possible, as it does not wish to gain negative publicity about one of its service members. That is why it is so important to consult with a knowledgeable and experienced military attorney as soon as possible.
If you are a military service member and have been charged with a crime under the UCMJ, the Court-Martial Law Division of Aviso Law LLC can help. We proudly serve our military members, who sacrifice so much for our country. To learn more or to schedule a free consultation, contact us today!