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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