The President’s pardon power is a near-blank check hidden among the Constitution’s checks and balances.1 Despite substantial hand-wringing 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 hypotheticals 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 limits9 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 underdeveloped. 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 that the President’s pardons may not include conditions that deprive an individual of rights not already deprived by that individual’s conviction (or, in the case of preemptive pardons, rights that would have been deprived by a guilty plea). This internal limitation is externally reinforced by the Due Process Clause. This Note’s historical and constitutional arguments should inform judges faced with conditional pardon cases. Whatever disagreements may arise over this Note’s descriptive account of the conditional pardon power’s limits, the examination of risks from unfettered conditional pardons commends to future administrations the wisdom of prudential limits.
Part I introduces the conditional pardon power jurisprudence. It begins by examining three cases showing that (1) English common law informs the President’s pardon power and (2) American courts oscillate between two distinct theories of the President’s pardon power. The first theory, which this Note dubs the “merciful-contract” theory of pardons, envisions pardons as a private act between President and pardon recipient. By contrast, the “public-welfare” theory understands pardons as an instrument of the general welfare. This Part next describes two conceptions of the conditional pardon power: a “Broad Position” that would impose no limits on the conditional pardon power and a “Narrow Position” that insists on limits but fails to precisely define them.
Part II argues that the Broad Position cannot be correct. After establishing that the conditional pardon power poses unique danger to constitutional rights, it concludes that the English common law, the Framing, and structural inference from our constitutional system all suggest a conditional pardon power that is far from plenary.
Part III identifies this limit: pardon conditions may only divest rights already forfeited by dint of conviction. It explains the limit using examples before fitting it into the theoretical framework of the pardon power. Finally, this Part compares the identified limit with other proposals and situates it within constitutional theory generally. Part IV concludes.
I. Conceptions of the Conditional Pardon Power
The Constitution grants the President the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”11 This barebones clause received scant attention from the Framers.12 Fleshing it out has fallen to the courts.
A. Theoretical Foundations
Pardon power jurisprudence sprang from Chief Justice John Marshall’s pen. In United States v. Wilson,13 he relied on English common law to hold that a court could not take notice of, and therefore could not give effect to, a pardon that a prisoner had intentionally declined to plead in court.14 The Court upheld the prisoner’s conviction for robbing the mail despite a presidential pardon from an earlier capital conviction for the same misconduct.15
Wilson established that English common law informs the President’s pardon power. Chief Justice Marshall justified adopting England’s “principles respecting the operation and effect of a pardon” because the “[pardon] power had been exercised from time immemorial by the executive of [England] . . . [,] to whose judicial institutions ours bear a close resemblance.”16 Nearly every subsequent Supreme Court decision has reaffirmed the pardon power’s common law basis.17
Though pardon power jurisprudence consistently looks to English common law, it equivocates about both the substance of the King’s common law pardon power18 and the extent to which the King’s power was modified, if at all, when adopted in the American constitutional system.19 The disjointed jurisprudence provides no clear answers. Instead, it oscillates between two distinct conceptions of the President’s pardon power with divergent substantive implications.20 Conflicting cases about pardon acceptance, Burdick v. United States21 and Biddle v. Perovich,22 highlight the distinct theories.
In Burdick, President Wilson pardoned a newspaper editor, George Burdick, who had refused to testify by invoking his Fifth Amendment right against self-incrimination.23 President Wilson reasoned that Burdick, once pardoned, would no longer risk self-incrimination and therefore could not refuse to take the stand.24 When Burdick rejected the pardon and still declined to testify,25 the Supreme Court held that a pardon must be accepted for it to have legal effect.26 The Burdick Court relied heavily on Chief Justice Marshall’s opinion in Wilson, which had found a pardon ineffective when not pleaded in court.27
Burdick embodies what this Note calls the “merciful-contract” theory of pardons. It conceives of a pardon as “a private deed”228 created by the President exclusively for the benefit of the individual upon whom it is bestowed.29 Burdick’s acceptance condition logically follows: a pardon, like all contracts, “must be delivered and accepted to be valid.”30 The merciful-contract theory of pardons shuts the door to additional constraints beyond an acceptance requirement. If a pardon is a private contract, then a bad pardon is one from which the parties do not benefit. Providing a “right . . . against the exercise of executive power not solicited by [an offender] nor accepted by him”31 fully prevents bad pardons.
Shortly after Burdick, the Supreme Court seemed to reverse course in Biddle v. Perovich.32 Writing for a unanimous Court, Justice Holmes held that the President could commute a death sentence to life imprisonment without the offender’s consent.33 President Taft had reduced Vuco Perovich’s death sentence to life in prison, whereby he was transferred from an Alaskan jail to a penitentiary in Kansas.34 After unsuccessfully applying for complete pardons, he sought a writ of habeas corpus on the grounds that the commutation and subsequent transfer were without his consent.35 The district court issued the writ and ordered him released.36 The Supreme Court reversed, finding that substituting life in prison for a death sentence without the prisoner’s consent was within the President’s Article II powers.37
Biddle forcefully articulated a “public welfare” theory of pardons incompatible with Burdick’s merciful-contract theory. The public welfare theory considers “bad” pardons those that do not improve “the welfare of the whole.”38 It rejects the notion that exercising the power of a public office can be a “private deed”39 — because America has a Constitution and not a king, “[a] pardon in our days is not a private act of grace from an individual happening to possess power.”40 Mercy still matters, but only for its moral and practical benefits.41 An offender’s consent, however, matters not at all: “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.”42
Advocates of a truly unfettered pardon power invariably adopt the merciful-contract theory, while those identifying limits to the pardon power correctly recognize the importance of public welfare.
B. The Broad Position
Some argue that the President may issue a pardon upon any condition he or she desires.43 Proponents of such a plenary conditional pardon power, what this Note dubs the “Broad Position,” find support in English treatises. According to William Blackstone, “the king may extend his mercy upon what terms he pleases, and may annex to his bounty a condition either precedent or subsequent, on the performance whereof the validity of the pardon will depend.”44 William Hawkins found English jurists “agreed” that the King “may annex to his pardon any condition that he thinks fit, whether precedent or subsequent.”45
The Supreme Court has often described the President’s conditional
pardon power in similarly expansive terms. Chief Justice Marshall began the trend, stating that “[a] pardon may be conditional, and the condition may be more objectionable than the punishment inflicted by the judgment.”46 The Court’s seminal conditional pardon case, Ex parte Wells,47 found that the Constitution “conferred in terms” the “power to pardon conditionally.”48 The Court subsequently described “[t]he power thus conferred [as] unlimited, with the [impeachment] exception stated.”49 In its most recent pardon case, Schick v. Reed,50 the Court described the pardon power as an “unfettered” power “completely independent of legislative authorization.”51
The Broad Position puts all its eggs in the merciful-contract theory basket. If a pardon is a “private . . . act . . . delivered to the individual for whose benefit it is intended,”52 then infinite flexibility in structuring the relationship between the pardon grantor and its recipient could make sense. Even a pardon granted on the condition of public torture could be justified if both the President and the recipient preferred torture to the original sentence.53 And because, under the merciful-contract theory of pardons, a pardon alters only the relationship of the two parties, a torture condition would not redound to the detriment of society as a whole even if society has decided not to brook cruel and unusual punishment.
C. An Ambiguous but Persistent Narrow Position
Despite some fiercely permissive rhetoric from pardon cases generally, courts and commentators faced squarely with conditional pardons have formulated a narrower position. The cases follow a strange pattern: they initially pay lip service to the Broad Position before articulating limits on the President’s ability to attach conditions.
The Court’s first conditional pardon power case, Ex parte Wells, exemplifies this pattern. Wells confirmed the President’s power to grant conditional clemency. After President Fillmore pardoned death row inmate William Wells “upon [the] condition that he be imprisoned during his natural life,”54 Wells filed a habeas petition seeking unconditional release on the grounds that the President could grant only absolute pardons.55 The Court held that the President’s “power to pardon conditionally . . . [was] a part of the power to pardon.”56
Wells was a full-throated defense of the President’s power to pardon conditionally, but it took care to note limits on the conditions that may be attached. Despite citing both English and American sources implying unfettered discretion in attaching conditions,57 the Court recounted several possible limits to that power. Wells implied that conditional pardons might be limited by the type of conduct pardoned,58 statutory restrictions,59 a lack of legislative authorization,60 or natural law.61 While the limits articulated were neither precise nor necessary to the holding, the Court insisted that limits do exist and implicitly rejected the Broad Position.
The Supreme Court’s other direct ruling on the conditional pardon power, Schick v. Reed, adopted a similar position. Schick involved a capital pardon granted on the condition that the prisoner be permanently imprisoned without the possibility of parole.62 Years after the pardon, the Supreme Court held the death penalty unconstitutional in Furman v. Georgia63 and reduced pending death sentences to life in prison with the possibility of parole.64 Mr. Schick argued that the condition attached to his pardon was unconstitutional; that his death sentence was thus still pending; and that therefore, under Furman, he should be eligible for parole.65 He contended that because his crime carried either a death sentence or life with the possibility of parole, the President could not substitute a punishment of life without parole by making it a condition of clemency.66
The Court rejected Schick’s argument and held the pardon and its condition constitutional.67 It found the President’s pardon power substantially similar to the English King’s.68 Though initially describing the King’s power as “unfettered”69 and “completely independent of legislative authorization,”70 the Schick Court suggested limits to the President’s conditional pardon power. The Court repeatedly noted that conditions attached to a pardon may not “offend the Constitution”71 or “aggravate punishment.”72 Justice Marshall, in dissent, went further, arguing that the separation of powers required a President to attach only penal conditions specifically authorized by statute.73 Anything beyond that, he argued, would constitute impermissible legislation by the executive branch.74 The majority disagreed, finding that while the statutorily authorized sentence is “relevant to a limited extent” for determining whether punishment is aggravated, because “the pardoning power is an enumerated power of the Constitution . . . its limitations, if any, must be found in the Constitution itself.”75 Because the Court upheld a pardon’s condition, it did not specify when a condition might actually “offend the Constitution” or “aggravate punishment,”76 but it unequivocally recognized that there exist constraints on the conditions a President may attach to pardons.
The most thorough attempt to articulate a test for pardon conditions came from the U.S. District Court for the District of Columbia in Hoffa v. Saxbe,77 decided just months before Schick. The Hoffa court upheld a pardon granted to labor leader and convicted fraudster Jimmy Hoffa “upon the condition that [he] not engage in direct or indirect management of any labor organization.”78 To make sense of “admittedly imprecise” standards for determining the validity of a condition,79 the court began by canvassing “ten centuries” of English and colonial precedent.80 It found the King’s conditional pardon power “inherently unfettered” unless “specifically limited by [an] act of Parliament.”81 Turning to the Framing, the court found that although “the [F]ramers intended to repose with the President the fullest extent of that authority which the words ‘reprieves and pardons’ ha[d] historically encompassed,” America’s constitutional system necessarily constrained the conditional pardon power.82
The Hoffa court “arrive[d] at a two-pronged test” for “determining the lawfulness of a condition.”83 Any condition (1) must “directly relate to the public interest;”84 and (2) may not “unreasonably infringe” on the recipient’s “constitutional freedoms.”F85 Applying the test to Hoffa’s pardon, the court found prong one satisfied because the country relied on “the integrity of union activities inasmuch as unions exert great influence on the economic life of the nation.”886 On the second prong, the court held that the condition did not unduly infringe Hoffa’s First and Fifth Amendment rights.87
The Hoffa court correctly recognized the necessity of limiting the President’s conditional pardon power. Its thoughtful attempt to delineate the bounds of the power was never reviewed, however, because Jimmy Hoffa disappeared before the D.C. Circuit decided his appeal.88 Nonetheless, Hoffa is the closest a court has come to defining what conditions may lawfully attach to a pardon.
II. The Broad Position Is Incorrect
The President does not have plenary power to attach conditions to pardons. Advocates of the Broad Position overlook a unique feature of the conditional pardon power: its potential to conflict with other constitutional provisions.89 The possibility of such conflicts strips the Broad Position of its intuitive appeal. Defending the Broad Position requires recognizing and countenancing such conflicts. It also requires defending two further propositions: First, the conditional pardon power was unlimited at common law. Second, the American system adopted, and still retains, the unlimited English conditional pardon power. Neither proposition withstands scrutiny.
A. Constitutional Conflicts and Rights Deprivations
Unconditional pardons almost exclusively restore rights to their recipients. The power’s ameliorative effect justifies its moniker, “[t]he benign prerogative.”90 Conditional pardons are different. They can deprive the recipient of rights, including constitutionally guaranteed ones. Some rights deprivations are permissible and have historically been upheld — for example, conditional pardons that deprive the recipient of property rights by requiring restitution payments.91 Other deprivations would be anathema to the Constitution, like pardons made on the condition that the prisoner be publicly tortured.
The Broad Position must defend both kinds of deprivations — and it has. English jurists permitted the King to “annex to his pardon any condition that he thinks fit, whether precedent or subsequent.”92 The Supreme Court has parroted this picture of a plenary conditional pardon power. Chief Justice Marshall noted that “[a] pardon may be conditional, and the condition may be more objectionable than the punishment inflicted by the judgment.”93 Subsequent courts have found the power “unlimited.”94 A proponent of the Broad Position would, at the very least, find it a difficult question whether to uphold a pardon condition that violated another provision of the Constitution. The proponent would struggle to weigh a constitutional constraint like the Eighth Amendment against the exercise of a constitutionally granted plenary conditional pardon power — a power specifically designed to supersede the strictures of the criminal justice system.95
B. The Conditional Pardon Power Was Limited at Common Law
By 1787, both parliamentary action and natural law limited the common law conditional pardon power. English history indicates that at least some pardon conditions required parliamentary authorization. After the Glorious Revolution of 1688 cemented the separation of powers in England, banishment, or “transportation” to the colonies, became a common pardon condition only once “legalised” by an act of Parliament.96 When Parliament later abolished banishment as a criminal punishment, it specifically provided that the King’s pardon power would remain unaffected — a provision that would have been unnecessary if the King’s power to attach conditions were “independent of legislative authorization.”97 Parliament’s ability to approve — and by implication, to forbid — certain pardon conditions indicates that the King’s conditional power did not supersede the legal system in which it existed.98
English sources also recognize natural law constraints on the conditional pardon power. Certain restorations of rights, like releasing a serf from bondage, immediately became permanent and could not be made upon conditions subsequent.99 The King also could not pardon certain offenses, conditionally or otherwise, where a pardon might remove the only means of vindicating a private right.100
American courts echo both legislative and natural law constraints on the conditional pardon power. The Supreme Court’s best historical analyses have recognized that the King’s power to impose a banishment condition required legislative authorization.101 Other courts have emphasized English jurists’ articulation of natural law constraints and added their own natural law–type limitations, for example, by disallowing “immoral” conditions.102 As these courts have recognized, preconstitutional common law limited the conditional pardon power.
Such limits can be squared with sweeping pronouncements of English jurists like Blackstone and Hawkins because those expansive articulations may have applied only to death sentences. Both jurists rely primarily on Edward Coke’s famous treatise on Littleton — Blackstone cites Hawkins, and Hawkins cites Coke. While Coke discusses conditional pardons exclusively in the context of capital punishment, both Blackstone and Hawkins curiously omit Coke’s contextualization.103 Cabining the broadest articulations of the conditional pardon power to only capital cases minimizes conflict between those broad articulations and the considerable evidence of a limited common law conditional pardon power.
C. The Constitution Adopted a Limited Conditional Pardon Power
The Constitution’s grant of the power to “pardon” includes that power’s common law limitations, with which the Framers were well acquainted.104 Even if, however, the King’s conditional pardon power was unlimited, the President’s is not.
The prevailing wisdom at the time of the Convention maintained that the King’s pardon power could not be adopted in a democracy. Blackstone gleefully called the pardon “one of the great advantages of monarchy . . . above any other form of government.”105 Blackstone’s belief was rooted in the notion that “the king acts in a superior sphere”106 and “the great operation of his scepter is mercy.”107 Because no super-legal entity exists in a democracy, “this [royal] power of pardon can never subsist.”1108
Blackstone was wrong that the pardon power cannot exist in a democracy, but he aptly identified the inherent tension between the pardon power and democratic ideals. A democracy’s executive cannot be above the law, and the pardon power is inevitably superlegal.109 The Framers knew this,110 and from the very beginning sought a new, anti-monarchical justification for the pardon power. As future-Justice James Iredell put it, the Constitution “combine[d] the acknowledged advantages of the British constitution with proper republican checks.”111 The Framers understood that the pardon power, if predicated on the English supposition that “it [is] impossible [for] the King himself [to] act unlawfully or improperly,”112 would deform rather than bolster the checks and balances undergirding the American experiment.113
The Framers instead envisioned the pardon power as a tool for public welfare.114 Early justifications for the power were quite practical, with Hamilton arguing, for example, that well-timed pardons could help neuter nascent rebellions.115 Even appeals to mercy employed a distinct public-welfare lens.116 The President’s power to pardon, the Framers believed, was incident to his obligation to promote the public welfare, not a derivative of his “merciful scepter.”117 And when the President granted pardons deleterious to the public good, the Framers imagined that “republican checks” would rein him in.
“Republican checks,” however, can safeguard the Republic against a weaponized pardon power only if effective against two types of abuses. The first type of abuse involves the President restoring too many rights that were legitimately forfeited. George Mason made this concern explicit, worrying that a President might encourage criminality on his behalf and then pardon coconspirators.118 The “republican check” for this type of abuse, the Federalists responded, would be swift impeachment and possible criminal prosecution.119
Little debate occurred about the second type of abuse: the President using his pardon power to deprive rights through conditional clemency. What republican check could work here? Impeachment is insufficient because it cannot remedy past wrongs. If, for example, a President commuted a death sentence upon the cruel and unusual condition that the prisoner have his fingernails pulled out one by one, the solution could not be to permit the torture and then impeach the President.120 If the conditional pardon power were not limited — that is, if all pardon conditions were enforceable with only ex post censure available — then individual rights deprivations produced by conditional pardons would be outside of the checks and balances process. Instead, some conditions must be circumscribed. A pardon condition of torture, for example, would rightfully be voided by the Eighth Amendment.
American practice confirms a limited conditional pardon power. No President has asserted an unlimited conditional pardon power, nor has any President, save President Nixon,121 attempted to attach a condition that might run afoul of well-established precedent.122 Despite dicta supporting the Broad Position, every court squarely considering the conditional pardon power has explicitly said that the power is not unlimited.123
A close reading of historical sources and a holistic look at our Constitution’s structure point to the same conclusion: the President’s conditional pardon power has limits.
III. Clarifying the Narrow Position: The Conditional Pardon Power’s Limits
The conditional pardon power’s borders remain fuzzy. Only one court has attempted to precisely describe the power’s limits, and even that test admitted significant ambiguity.124 This Note identifies a single, clear limit to the conditional pardon power. This Part first explains the identified limit and provides clarifying examples. It next justifies the limit before comparing it to other proposals.
A. The Identified Limit
The President may not attach conditions that would deprive a pardon recipient of rights not already stripped by dint of conviction. Put differently, pardon conditions may not deprive the recipient of additional rights beyond those already forfeited as a result of the pardon recipient’s crime. For preemptive pardons, which “carr[y] an imputation of guilt,”125 the pardon conditions may affect only rights that would be forfeited upon conviction for the crime pardoned.126
Specific examples illuminate this limit’s contours. Unobjectionable conditions include those that merely reemphasize a pardon recipient’s existing obligations. For example, President Harding pardoned a convicted counterfeiter on the condition “that he be law-abiding and not connected with any unlawful undertaking.”127 At least one Civil War–era pardon required the recipient refrain from acquiring slaves and pay all fines and fees that he owed.128 The Civil War amnesties conditioned upon an oath to support the U.S. Constitution and abide by the laws of Congress129 also fall in this category. Because these conditions impose no new restrictions or obligations, they do not violate the identified limit.
In most cases, a condition’s permissibility will depend on cong-ressional action. Conditions can only deprive individuals of rights already stripped by dint of conviction. Congress, through bicameralism and presentment, determines which rights these are. Jimmy Hoffa’s pardon condition, which deprived him of the ability to “engage in direct or indirect management of any labor organization,”130 was permissible because Congress had explicitly forbidden individuals convicted of bribery, like Hoffa, from leading labor organizations.131
Under the identified limitation, Congress defines the rights deprived by a conviction but need not sanction each individual pardon condition. Imagine Congress specified that tourists who deface U.S. monuments “shall either be excluded from the United States for one year or shall be permanently excluded from the United States.” A President could pardon a convicted individual on the condition that they be banned from entering the United States for ten years, even though the statute only contemplates one-year or permanent bans. Because Congress decreed that conviction for defacing monuments could permanently deprive an individual of the right to enter the United States, the pardon condition that temporarily deprived the same individual of this right would be permissible. This example parallels the majority’s holding in Schick.132
Difficulty arises when a pardon condition restricts ill-defined rights. Prison sentences restrict “liberty interests,” so pardon conditions should be allowed to restrict liberty as well. The specific lines, however, are fuzzy. Liberty interests might be restricted by a pardon condition prohibiting travel to certain locations. If, for example, an individual was sentenced to prison under a three-strikes law for repeatedly stealing from a mall, the President might pardon him on the condition that he not travel to the mall until the date his prison sentence would have ended.133 Because the prison sentence would have deprived the pardon recipient of his right to go to the mall, this condition would be valid.
Liberty interests might also be restricted by compelling action. President Harding allegedly pardoned Eugene Debs on the condition that he travel to Washington, D.C., to meet the President.134 Though a more difficult question than the permissibility of travel restrictions, such a compulsion to travel would probably be valid so long as the recipient was not forced to pay for the trip from his own pocket, which would abridge property rights. Even more suspect was President Ford’s amnesty to draft dodgers made upon the condition that they dedicate two years to public service.135 On the one hand, compelling only two years of public service seems a lesser restriction of liberty than the five-year sentence that could be imposed for draft dodging.136 On the other hand, forcing an individual to perform certain tasks seems a different kind of restriction than confining someone to a prison cell. A close question, but this pardon condition would probably be impermissible.137
The most difficult cases will be those where the rights deprived by a condition elude classification. It may be unclear whether a certain pardon divested or restored the recipient’s rights. A pardon made “on the condition that the recipient vote for the Democratic party,” for example, might be defended on the ground that it restores a limited right to vote. A judge would have to decide whether the condition is best construed as a permissible restoration of the right to vote or an impermissible compulsion of political speech.138
A similar problem might arise when conditions seem to infringe upon multiple interests, only some of which could permissibly be abrogated by a pardon condition. Someone sentenced to prison loses their right to travel but retains their right to religious exercise. Imagine a pardon that purported to release an offender from prison on the condition that they not worship at a certain church. As the pardon condition seems like both a valid restriction on travel and also an invalid encroachment on religious freedom, its permissibility would likely depend on specific facts about the case and the conviction.139
The identified limit is uniquely permissive of conditions attached to capital convictions.140 Because death sentences deprive the offender of more rights than any other punishment, Presidents have significantly more latitude to attach conditions to capital pardons.141 Even in capital cases, however, the President’s discretion is not “unfettered.” The prisoner retains some rights, such as the right to be free of cruel and unusual punishment, that cannot be infringed upon by a conditional pardon. A pardon on the condition of torture would therefore exceed the President’s conditional pardon power.
B. Advantages of the Identified Limit
The limit identified by this Note fits snugly into the theoretical foundation upon which the pardon power rests. Common law jurists have long recognized that the pardon power impacts only rights that the government may legitimately control. Pardons cannot infringe upon rights that have vested in others.142 For example, if a conviction creates a private right of recovery against the offender, a pardon cannot destroy the private right. As the Supreme Court put it, “[t]he government can only release what it holds.”143 This maxim applies with special force in the American system, which guarantees the right to be free from deprivations without the “due process of law.”144
The government “takes away” particular rights through the due process of law when it convicts an individual of a criminal offense,145 but it has no legitimate claim to infringe upon rights and liberties untouched by the conviction. The longstanding recognition that pardons can only “release what [the government] holds”146 prohibits the government from using the pardon power to affect rights untouched by the conviction. While pardons can restore rights legitimately “taken” by a conviction, they cannot divest the individual of retained rights.
This theoretical framework helps square this Note’s identified limit on conditional pardons with unequivocal statements about the King’s conditional pardon power from Blackstone and Hawkins. If pardons dealt exclusively with remission of rights, then executive attempts to deprive individuals of vested rights were beyond the scope of what can be considered a “pardon.” Thus, while Blackstone and Hawkins were unequivocal that the King “may annex to his pardon any condition he [saw] fit,”147 attempted deprivations of rights styled as pardon conditions were no pardons at all.
The theoretical framework also explains why many conditional pardons explicitly limit their conditions to the duration of a sentence.148 The pardon recipient has only been deprived of rights for a definite period. The government will not “hold” the recipient’s rights after the sentence ends and therefore cannot infringe upon those rights beyond the sentence’s expiration date.
The limit identified by this Note also clarifies how the Constitution reinforced and extended existing limits to the conditional pardon power. Two presuppositions already existed at common law: (1) the King could not use the pardon power to deprive vested rights;149 and (2) pardons, with their specific linguistic and procedural requirements, encompassed a “concept of due process.”150 Combining these propositions yields the conclusion that individual due process rights, if “vested,” cannot be stripped through exercises of the pardon power.
The U.S. Constitution makes such a conclusion unavoidable. It explicitly guarantees an individual the right to be free of deprivations except according to “due process of law.”151 Only rights stripped by a conviction accord with due process. Conditional pardons that attempt to strip additional rights violate both the conditional pardon power’s internal limit on depriving vested rights and the Due Process Clause, an external limit that parallels and reinforces the internal one.
Finally, the identified limit is normatively desirable. It prevents pardons that compel political expression, aggrandize executive power, or violate core constitutional tenets.152
C. The Identified Limit Is Preferable to Other Limits
Alternative theories have already been discussed and dismissed. Impeachment cannot be the only constraint on the conditional pardon power because impeachment is a consequence, not a limit. It does nothing to prevent the destruction of inalienable rights.153 Nor can pardon conditions be limited exclusively to punishments that Congress explicitly authorized.154 Such a limit finds no support in precedent155 and would undermine the instrument’s flexibility — a central justification for its inclusion in the Constitution.156
Professor Harold Krent proposes an interesting, if complex, limit. He first justifies using the recipient’s consent as the primary limit on the pardon power,157 then carves out several exceptions.158 Krent admirably identifies potential pitfalls of an unlimited conditional pardon power, but his argument suffers three infirmities. First, his normative prescription lacks the historical and precedential grounding provided by this Note. Second, his arguments presuppose a merciful-contract theory of pardons — he proves bargaining yields better results for the pardon recipient, but insufficiently justifies judging pardons by their benefit to the recipient rather than to the public.159 However, as previously discussed, the American system adopted a public-welfare basis for the pardon power,160 so limits on the conditional pardon power should be justified by reference to public welfare. Finally, his carveouts unduly complicate the picture. This Note’s identified limit prevents the worst potential abuses with a single, justiciable limit rather than an amalgamation of miscellaneous exceptions.
Virtuous societies beat their swords into plowshares. The conditional pardon power threatens to reverse that trend — potentially allowing a President to wield a tool of mercy for coercive ends. Fortunately, the English common law, the American experiment, and the power’s philosophical justifications all suggest a limit to the conditional pardon power: Presidents may not use their power to divest rights untouched by the initial conviction.
As a constitutional matter, the limit is clear. Practically, however, reducing the risk of abuse will require contributions from many actors. Courts seldom evaluate conditional pardons, both because pardon recipients rarely bring challenges and because conditional pardons may be underenforced.161 This paucity of jurisprudence raises the stakes for each conditional pardon case — when courts evaluate conditional pardons, they must get it right. Scholars should more thoroughly explore the conditional pardon power before a President decides to test its limits. If the conditional pardon power were truly a blank check, it could bankrupt our Republic.