Accepting Pardon Doesn't Admit Guilt

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An interesting Tenth Circuit decision yesterday in U.S. v. Lorance, by Judge David Ebel, joined by Judges Robert Bacharach and Gregory Phillips. The analysis is long and detailed (and much worth reading, if you're interested in the topic); I think it's basically correct, for the reasons I discussed in 2017:

1. In 1915, the Supreme Court indeed said, of pardons, that "acceptance" carries "a confession of" guilt. Burdick v. United States (1915). Other courts have echoed that since. [The Tenth Circuit decision concludes that, in context, this refers to how some people might see the acceptance, rather than to how the legal system should view it.]

2. On the other hand, a pardon has historically been seen as serving several different functions, one of which is protecting people who were convicted even though they were legally innocent. In the words of Justice Joseph Story, the most respected early commentator on the Constitution (writing in 1833),

There are not only various gradations of guilt in the commission of the same crime, which are not susceptible of any previous enumeration and definition; but the proofs must, in many cases, be imperfect in their own nature, not only as to the actual commission of the offence, but also, as to the aggravating or mitigating circumstances. In many cases, convictions must be founded upon presumpions and probabilities.

Would it not be at once unjust and unreasonable to exclude all means of mitigating punishment, when subsequent inquiries should demonstrate, that the accusation was wholly unfounded, or the crime greatly diminished in point of atrocity and aggravation, from what the evidence at the trial seemed to establish? A power to pardon seems, indeed, indispensable under the most correct administration of the law by human tribunals; since, otherwise, men would sometimes fall a prey to the vindictiveness of accusers, the inaccuracy of testimony, and the fallibility of jurors and courts.

Indeed, some pardons expressly state that they are based on the pardoner's decision that the defendant was actually innocent; and some legal rules expressly contemplate that—consider, for instance, the federal statute that provides for compensation of the unjustly convicted, which allows a plaintiff to prevail by showing (among other things) "that he has been pardoned upon the stated ground of innocence and unjust conviction." UPDATE: The Justice Department Standards for Consideration of Clemency Petitioners also expressly contemplate the possibility of "pardon on grounds of innocence or miscarriage of justice," though they unsurprisingly note that such applicants "bear a formidable burden of persuasion" (since the Justice Department's strong presumption is that people convicted in federal court were indeed justly convicted).

3. Another function of a pardon has historically been protecting people who were seen as legally guilty but morally innocent. Returning to Story,

Besides; the law may be broken, and yet the offender be placed in such circumstances, that he will stand, in a great measure, and perhaps wholly, excused in moral and general justice, though not in the strictness of the law. What then is to be done? Is he to be acquitted against the law; or convicted, and to suffer punishment infinitely beyond his deserts?

Conviction followed by a pardon, Story argues, is a means of making sure the law is followed, but that "moral and general justice" is nonetheless served.

4. Of course, pardons have also been seen as having various other functions as well, such as decreasing the punishment of someone who is legally and morally guilty, for instance when "the situation and circumstances of the offender, though they alter not the essence of the offence, ought to make [a] distinction in the punishment" (Story's words again). Sometimes the pardoning statement explains the pardoner's reasons for the pardon; sometimes it doesn't. And the beneficiaries of the pardon may of course disagree with the reasons given, even if they agree that a pardon is proper.

Legal authorities, then, are split on the subject of how the law should understand pardons; but because some pardons are understood as being based on the pardoned person's factual innocence, I doubt that any judge today would genuinely view acceptance of pardon as always being an admission of guilt. And my sense (though I realize that it might be mistaken) is that most people's moral judgment today would be that, even if a pardon is offered just as a gesture of mercy and not as exoneration, the recipient may honorably accept it even if they continue to deny their factual guilt or their moral guilt.

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  1. “that he has been pardoned upon the stated ground of innocence and unjust conviction.”

    Is there more to it than simply the “stated” ground of innocence. Stated by whom? If say a president Trump pardons someone like Paul Manafort, claims he was innocence, we all know he wasn’t, can he claim damanges?

    1. No. Obviously the evidence at trial would still be available as evidence in a civil suit.

      I do think their were clear grounds for Trump to pardon Manafort, although he was clearly guilty. Manafort was investigated and charged solely because of his association with Trump, and the investigation into Russiagate that ensnared Manafort for crimes he committed well before his association with Trump was a political witch-hunt.

    2. “We all”?

  2. Until the Nixon “pardon”, which was actually a grant of immunity, pardons were understood as being given only to those convicted. Their guilt was “res judicata” and no pardon could change that, no matter whether they accepted the pardon or not.

    1. But if that’s the original meaning, can’t the Constitution change and adapt to a modern age?

      1. James Madison (who *might* know a bit about what the Constitution meant) pardoned Lafitte’s pirates after they fought bravely in the Battle of New Orleans) –

        https://www.britannica.com/biography/Jean-Laffite

        I don’t think they had *all* been convicted.

        I won’t mention another famous example, because it might be triggering.

        1. If, like some of the Trump pardons, they were simply rewards for criminal obstruction in the service of protecting the pardoner from legal jeopardy, accepting the pardon could not be construed as anything other than admission of guilt.

          1. I was thinking of your claim that “Until the Nixon ‘pardon’, which was actually a grant of immunity, pardons were understood as being given only to those convicted.”

            I’m citing Adams and Madison, not Trump, against that proposition.

            1. So with the historical precedents I’ve provided in mind, and adding to it Hamilton’s comment in Federalist 74

              “in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”

              https://avalon.law.yale.edu/18th_century/fed74.asp

              then the best interpretation is that pardons include amnesties of the not-yet-convicted.

          2. You might be able to say that if Trump was ever credibly accused of any crime, but they just needed some testimony to concretely tie Trump to it.

            What specific crime was Trump accused of that the people he pardoned refused to testify about? Just saying they must have known something won’t fly.

            In the case of Bill Clinton, David Hale did accuse Bill Clinton of actual fraud in connection with the Whitewater real estate deal. He said Clinton knew he was not legally eligible for the loan, Bill McDougal was ready to also testify to that fact, but Susan McDougal went to jail rather than provide testimony. That’s what criminal obstruction actually looks like.

          3. What nonsense. That any Trump pardons were “simply rewards for criminal obstruction” is a legally-endorsed fact exactly never, and your further deranged assertion in no way follows from your premise.

        2. May 21, 1800: Proclamation of Pardons to Those Engaged in Fries Rebellion

          Whereas the late wicked and treasonable insurrection against the just authority of the United States of sundry persons in the counties of Northampton, Montgomery, and Bucks, in the State of Pennsylvania, in the year 1799, having been speedily suppressed without any of the calamities usually attending rebellion; whereupon peace, order, and submission to the laws of the United States were restored in the aforesaid counties, and the ignorant, misguided, and misinformed in the counties have returned to a proper sense of their duty, whereby it is become unnecessary for the public good that any future prosecutions should be commenced or carried on against any person or persons by reason of their being concerned in the said insurrection:

          Wherefore be it known that I, John Adams, President of the United States of America, have granted, and by these presents do grant, a full, free, and absolute pardon to all and every person or persons concerned in the said insurrection, excepting as hereinafter excepted, of all treasons, misprisions of treason, felonies, misdemeanors, and other crimes by them respectively done or committed against the United States in either of the said counties before the 12th day of March, in the year 1799, excepting and excluding therefrom every person who now standeth indicted or convicted of any treason, misprision of treason, or other offense against the United States, whereby remedying and releasing unto all persons, except as before excepted, all pains and penalties incurred, or supposed to be incurred, for or on account of the premises.

          Given under my hand and the seal of the United States of America, at the city of Philadelphia, this 21st day of May, A. D. 1800, and of the Independence of the said States the twenty-fourth.
          JOHN ADAMS.

          https://millercenter.org/the-presidency/presidential-speeches/may-21-1800-proclamation-pardons-those-engaged-fries-rebellion

          1. July 10, 1795: Proclamation of Pardons in Western Pennsylvania

            Whereas the commissioners appointed by the President of the United States to confer with the citizens in the western counties of Pennsylvania during the late insurrection which prevailed therein, by their act and agreement bearing date the 2d day of September last, in pursuance of the powers in them vested, did promise and engage that if assurances of submission to the laws of the United States should be bona fide given by the citizens resident in the fourth survey of Pennsylvania, in the manner and within the time in the said act and agreement specified, a general pardon should be granted on the 10th day of July then next ensuing of all treasons and other indictable offenses against the United States committed within the said survey before the 22d day of August last, excluding therefrom, nevertheless, every person who should refuse or neglect to subscribe such assurance and engagement in manner aforesaid, or who should after such subscription violate the same, or will fully obstruct or attempt to obstruct the execution of the acts for raising a revenue on distilled spirits and stills, or be aiding or abetting therein; and

            Whereas I have since thought proper to extend’ the said pardon to all persons guilty of the said treasons, misprisions of treasons, or otherwise concerned in the late insurrection within the survey aforesaid who have not since been indicted or convicted thereof, or of any other offense against the United States:

            Therefore be it known that I, George Washington, President of the said United States, have granted, and by these presents do grant, a full, free, and entire pardon to all persons (excepting as is hereinafter excepted) of all treasons, misprisions of treason, and other indictable offenses against the United States committed within the fourth survey of Pennsylvania before the said 22d day of August last past, excepting and excluding therefrom, nevertheless, every person who refused or neglected to give and subscribe the said assurances in the manner aforesaid (or having subscribed hath violated the same) and now standeth indicted or convicted of any treason, misprision of treason, or other offense against the said United States, hereby remitting and releasing unto all persons, except as before excepted, all penalties incurred, or supposed to be incurred, for or on account of the premises.

    2. “Until the Nixon “pardon”, which was actually a grant of immunity, pardons were understood as being given only to those convicted.”

      Nothing is accurate in this statement.

      “given only to those convicted.”

      Did you read U.S. v. Lorance, it says flat out:

      “This plenary power allows the President to “reprieve or pardon all
      offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress.” Ex parte Grossman, 267 U.S. 87, 120 (1925).

      It was utterly accepted in1974 that Ford could pardon Nixon. The dispute was over its wisdom, not his power.

      “actually a grant of immunity”

      Complete nonsense. Ford was not acting as a prosecutor or judge granting immunity but as president exercising the pardon power.

    3. How do you reconcile this claim with the Burdick opinion, which shows the federal government using the pardon power preemptively to compel a witness to testify over a fifth amendment claim?

      1. What conflict supposedly requires reconciliation?

        It’s not anyway clear to me that the pardon power is involved, as opposed to an enforceable promise of prosecutorial discretion and non-use. Grants of use immunity certainly don’t involve pardons.

        1. What conflict supposedly requires reconciliation?

          captcrisis claimed the Nixon pardon was the first time that a person who has not been convicted at trial was pardoned, which is in tension with the fact that Woodrow Wilson tried to pardon Burdick, a person who has never even been charged with a crime, in order to compel his testimony.

          It’s not anyway clear to me that the pardon power is involved

          This is the operative language of the presidential decree in Burdick:

          Now, Therefore, be it Known, that I, Woodrow Wilson, President of the United States of America, in consideration of the premises, divers other good and sufficient reasons me thereunto moving, do hereby grant unto the said George Burdick a full and unconditional pardon for all offenses against the United States which he, the said George Burdick, has committed or may have committed, or taken part in, in connection with the securing, writing about, or assisting in the publication of the information so incorporated in the aforementioned article, and in connection with any other article, matter or thing, concerning which he may be interrogated in the said grand jury proceeding, thereby absolving him from the consequences of every such criminal act.

          Is it seriously your contention that it did not involve the pardon power?

          Grants of use immunity certainly don’t involve pardons.

          That’s true, but also irrelevant. Grants of immunity are an option created by the Organized Crime Control Act of 1970. At risk of belaboring the obvious, they weren’t an option in 1915—which is presumably why the government tried to use the pardon power instead.

  3. “…Is he to be acquitted against the law; or convicted, and to suffer punishment infinitely beyond his deserts?…”

    Is the last word a quaint 1833 spelling of “desserts”? Or is/was “to suffer punishment beyond one’s deserts” really talking about the hot and/or dry places? (In which case; I don’t really understand.)

    1. Um…never mind. Wish I had not been too lazy to Google the phrase before posting my first comment. Mea culpa.

      https://heinonline.org/HOL/LandingPage?handle=hein.journals/waynlr33&div=57&id=&page=

      1. In the dessert you can remember your name
        ‘Cause there ain’t no one for to give you no pain

        1. Only if it is a just dessert.

  4. Makes sense to me; there are enough examples of factual innocence exonerations – as in, the DNA evidence confirmed that someone else was the rapist – that the rationale of Burdick is readily distinguishable in some cases. This isn’t a surprising result except to folks that read way too much into a 100 year old opinion that didn’t fully consider this issue.

    1. It takes a special kind of obstinate to insist that by accepting a pardon based on DNA evidence of innocence, a person who has maintained that their conviction was always incorrect simultaneously walks out of prison and admits their guilt.
      https://innocenceproject.org/two-are-pardoned-in-virginia-and-a-texas-man-is-cleared-posthumously/

      1. Yet people are punished differently depending on whether they confess, display remorse, etc.

        The demand for groveling backed by threat of worse punishment is not an attractive feature, IMHO.

  5. This isn’t a real cogent legal analysis, but, the pardon is a pretty lame power if it only applies to the guilty.

  6. What’s all this talk about accepting a pardon?

    Can’t the President simply pardon someone against that person’s will?

    1. No he can’t.

      The textualist argument for this is that the original meaning of the word “grant” requires acceptance. You cannot grant someone something and have them not accept.

      Now, I personally don’t think its a very good argument, but thats the one that precedent has.

      1. Really? So if the President pardons me for something, say robbery, and I say publicly that I do not accept the pardon, a prosecutor can go ahead and prosecute me for that robbery? Or is the prosecution proscribed no matter what I say?

  7. https://www.law.cornell.edu/supremecourt/text/274/480

    Even if the convict says “no, I don’t accept this pardon, keep me locked up!” he can be forcibly dragged out of prison and freed.

    So what is this talk of acceptance?

    I realize that I’ve probably missed something, but what?

    You can refuse a pardon if you *haven’t* been convicted? Then presumably (because the Pres is required to see the laws faithfully executed) the executive would *have* to prosecute the person.

    1. As far as I can tell, in the case cited above the commutation was only challenged several years after the fact. I think the opinion days you cannot do that.

      But pretty much every other case on this issue says quite clearly that a person, under ordinary circumstances, is well within their rights to refuse a pardon.

      1. This was a death penalty case, and the Court said: “Supposing that Perovich did not accept the change, he could not have got himself hanged against the Executive order.”

        So at least in capital cases, the Court is allowing a pardon against the will of the convict (in this case, commuting a death sentence to life in prison).

        1. And if indeed the convict has no real power to reject the pardon, then it obviously cannot be an admission of guilt.

  8. How about the couple in St. Louis who were charged with misdemeanors for brandishing weapons at protesters who were in their private neighborhood, and who are now at risk of losing their law licenses:

    “Still, Missouri Chief Disciplinary Counsel Alan Pratzel, whose office is responsible for investigating ethical complaints against lawyers in the state, asked the state Supreme Court this week to suspend the McCloskey’s law licenses, according to a court filing first reported by KCUR-FM.

    “Mark and Patricia McCloskey were admitted to the Missouri bar in 1986, according to the report. The couple works together at the McCloskey Law Center where they represent clients in personal injury, medical malpractice, and defective products cases.

    “Pratzel argued that while the pardon takes away the conviction, “the person’s guilty remains,” according to the report.”

    1. The person’s guilty remains… do what?

      I’d like to see if Pratzel still thinks defending one’s home against an angry mob that already vandalized property and is trespassing while shouting threats still involves “indifference to public safety” and “moral turpitude” when his home is the one in question.

      1. “Defending?”

        Get an education, you bigoted right-wing hayseed.

      2. I’d like to see if you think that someone threatening to shoot a person for walking past his house is “defending his home” or just being a criminal, when you’re the person walking past the house.

    2. Do lawyers usually get suspended for misdemeanors, pardoned or not? Maybe if it had something to do with their practice, but if every lawyer who has a misdemeanor dui on their record were suspended, then there would be an awful lot of clients looking for new representation.

  9. You guys are making this way too complicated. Acceptance of a pardon isn’t a confession because they’re two different things.

    Like a sock and a hippopotamus.

  10. The US constitution does not condition the pardon, and would suspect that many state constitutions similarly do not qualify conditions related to the pardon. Is it even possible to not accept a pardon, and elect to remain in jail? What of posthumous pardons?

    We should assume the pardoned individual has not made any particular statement by being pardoned. It seems cruelly unfair to demand that one pardoned must make incriminating speech in order to receive the pardon.

    At minimum, the pardon document itself must be clear what is being offered.
    -pardon document says nothing more than ‘pardon’, then no inference may be drawn about what the person pardoned speaks regarding guilt
    -pardon document states actual innocence, then that which follows is based upon actual innocence, including invoking compensation laws
    -pardon document states guilt but reduction/commutation of sentence, then the guilt stands, the person pardoned still has not spoken, but still gets the pardon

    1. Under what circumstances can the pardoned person insist on being prosecuted or staying in prison, as the case may be?

      What if he’s being pardoned against his will? Can he then go and demand that he be indicted and sent to prison?

      If his consent isn’t relevant and makes no difference one way or the other, how can we say he’s consented? Because he failed to file a formal and meaningless protest against his pardon?

  11. So – correct me if I’m wrong because this is confusing:

    in 1915, the Court said you can refuse a pardon – but this was in the context of *uncharged* conduct.

    in 1925 the Court said you *can’t* refuse a pardon – in the context of a guy who had his death sentence commuted to life and then protested that he hadn’t consented.

    Are both cases still good? Where does one precedent apply and when does the other kick in? What about people charged but not convicted – can they insist on the trial continuing?

  12. I’m curious as to what barriers might exist as to offering a pardon to someone conditional on their admitting guilt or fulfilling other conditions.

    1. I would imagine that “the greater power includes the less” – the power to offer a full pardon includes the right to offer a partial pardon, eg, a pardon with conditions. Conditional pardons have historically often been a thing.

  13. Is there — could there be? –a worse American than disgraced, deplorable former first lieutenant Clint Allen Lorance?

  14. A pardon should not necessarily be interpreted as an admission of guilt, any more than a plea deal is. It simply means that the person in question, in consultation with their attorney, has decided to take the deal on the table because it’s better than the alternative.

    97% of federal convictions are plea bargains, and it’s 94% at the state level. All those people are most certainly not guilty, they just don’t have the resources to fight.

    1. I think there’s some force to the position that when that a person comes into court and admitting under oath that they’re guilty, that should in fact be construed as an admission of guilt.

      1. To preserve some measure of integrity in the system, prosecutors should be forced to accept a nolo contendere plea as part of a plea bargain.

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