Presidential pardons are back in vogue in the United States. First, it was President Donald Trump’s pardon of the Arizona Sheriff convicted of contempt of court, which Harvard Professor Laurence Tribe and others argued was unconstitutional. Then it was Kim Kardashian’s success in securing a pardon for a non-violent first time drug offender. Finally, there is the anticipation that Trump might try to pardon his way out of the Robert Mueller investigation, either by pardoning people in his camp or even by pardoning himself. This latter issue – the legality of the presidential “self-pardon” – came to dominate the recent confirmation hearings of Supreme Court nominee Brett Kavanaugh. Amid all the noise, the return to prominence of the pardon is a welcome opportunity to reflect on the scope of this unique executive power, in the United States and elsewhere, and to consider its amenability to judicial review.
In this post, I discuss the state of the law in the United States, Australia and New Zealand. For other jurisdictions see the excellent short post by Adam Perry at I-CONnect, and for a deeper dive, see Andrew Novak’s book-length treatment of the subject.
In the United States, the Constitution gives the President: “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment”. Despite the spare wording, the pardon power has been the source of considerable legal debate. A number of different opinions exist as to whether the President may issue posthumous pardons, whether pardons may issue for crimes that violate constitutional rights and whether the pardon power extends to self-pardons. Despite the controversies, it remains largely true, as the Supreme Court said in the mid 1800s, that “[t]his power of the President is not subject to legislative control” and is otherwise “without limit”.
Apart from the scope of the pardon power, also contentious has been its susceptibility to judicial review. In a 1981 Supreme Court case, Chief Justice Burger remarked in an aside: “pardon and commutation decisions … are rarely, if ever, appropriate subjects for judicial review.” In 1998, in Ohio Adult Parole Authority v Woodard, the Court split on the issue. Four members of the Court endorsed the proposition that executive clemency is an act of “grace” and not capable of being judicially reviewed. The majority, however, indicated that, in certain circumstances, judicial review would be appropriate to correct arbitrary processes or outcomes in the field of executive clemency. In the years since Woodard, however, the Court has not had the opportunity to clarify exactly the circumstances in which judicial review will be available. Given reports that Trump is considering pardoning certain subjects of the Mueller investigation, this question may be resolved sooner rather than later.
By virtue of the Australian Constitution and the Australia Act 1986 (Cth), the prerogative power of mercy is vested in the Governor-General of Australia and in the Governors of each State. While this residual power undoubtedly remains today, it has been supplemented by a variety of legislative avenues to pardon, exoneration, remission of sentence, and conditional release. The result has been that the true prerogative of mercy is rarely exercised, and instead clemency is usually approached through the statutory framework.
Despite its enthusiasm to legislate for executive clemency, Australia has been slow to embrace the idea that any form of executive clemency (prerogative or statutory) might be susceptible to judicial review. In 1908, the High Court asserted that “no Court has the jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy.” Almost a century later, that view appeared to be confirmed by the South Australian Court of Appeal, which described the power as “unconfined and uncontrolled”. More recently, however, another Australian court arrived at a different view, ruling that while the outcome of an application for mercy could not be reviewed by the courts the process was reviewable. Similarly, a federal court recently observed that “the clear trend of authority is towards some degree of judicial supervision of, at least, the process by which the mercy prerogative is exercised.” The High Court has not yet had a chance to settle this apparent conflict of authorities and has quite deliberately left the question open for future consideration. Overall, it appears that, just as in the United States, Australian case law on the reviewability of executive clemency is currently in a state of uncertainty.
In New Zealand, the prerogative power of mercy is delegated to the Governor-General by Letters Patent. In at least one iteration, those Letters Patent explicitly described the prerogative to encompass: the power to grant a free or conditional pardon; the power to grant a respite of sentence; and the power to conditionally or unconditionally remit a sentence. While the prerogative has been supplemented with statutory avenues for reviews of convictions, these legislative supplements have preserved the original prerogative power.
Interestingly enough, it was New Zealand that commenced the trend in the common law world towards the view that the prerogative of mercy may be subject to judicial review. That possibility was first adverted to in the 1992 case of Burt v Governor-General, which case was subsequently considered persuasive by courts in the United Kingdom and Australia. In Burt, the Court of Appeal wrote of the prerogative as “an integral element in the criminal justice system, a constitutional safeguard against mistakes.” Cases since Burt have tended to suggest that the prerogative of mercy will be reviewable in certain circumstances in New Zealand.
Perry and others have argued that, with the exception of bad faith, the executive power of clemency should remain sequestered from judicial review in order to preserve the essential quality of the pardon as extra-legal. There is real force to this argument, especially in jurisdictions where the clemency power remains a constitutional or purely prerogative exercise (as opposed to a statutory power). Yet we need to be careful that nostalgia for the traditional idea of the sovereign pardon does not cloud our view of the modern reality. It may be that clemency today is more an exercise of the “Crown-as-executive” than the “Crown-as-monarch”.
In many countries, including Australia and New Zealand, the pardon has been described as “an integral element in the criminal justice system”. In the United States, Barack Obama, writing in the Harvard Law Review, described his administration’s use of the pardon power as a “systemic” means to “correct injustices” in sentencing law and policy. Supreme Court nominee Kavanaugh has written of the pardon power as “an independent protection for individual citizens against the enforcement of oppressive laws that Congress may have passed”. If the pardon power has become an essential cog in the criminal justice system, then we might think that it is appropriate and desirable for the courts to ensure that this cog is well oiled and functioning appropriately.