Written by Aditya Singh, a grade 12 student.

The topic of US Presidential has been in the recent news cycles.

Here’s all you need to about the issue.

What is the Presidential Pardon?

The federal pardon is a power granted to the US President by Article II, Section 2, Clause 1 of the US Constitution. It allows the President to completely set aside the punishment for a federal crime committed by someone. A Federal Crime includes things like – mail fraud, animal cruelty, aircraft hijacking, carjacking, kidnapping, bank robbery etc – it does not include killing someone.

Though it does not expunge the conviction, it restores rights such as the right to vote, hold office, vote and bear arms which convicted felons do not enjoy. Originally based on the Royal Prerogative of English Kings, it was inserted into the Constitution on the reasoning that investing in the President’s ability -at a moment’s notice and without consulting any other governmental branches- to grant reprieves to groups during periods of crisis could allay its further cementation. Notably, Andrew Johnson used the pardon to redeem Confederate soldiers after the Civil War.

However, that is not its only use. The pardon can be utilised as a political tool as well. A notable example is when John F. Kennedy pardoned first-time offenders convicted under the Narcotics Control Act of 1956, in effect overturning much of the law passed by Congress. The Presidential Pardon is also used symbolically during the National Thanksgiving Turkey Presentation, in which a domestic turkey is pardoned from being killed for Thanksgiving dinner and can live out its life on a farm.

The President is recommended pardon petitions to accept by the Office of the Pardon Attorney based on various factors such as the pardon applicant’s character, their display of remorse, efforts towards making amends, etc. However, the President is not legally obliged to follow this recommendation. President Clinton is said to have disregarded the Attorney’s decision regarding the pardon of Marc Rich.

Why are you hearing about it so much?

Two factors, outgoing President Donald Trump and the case of one Brandon Bernard’s execution have contributed heavily to increased interest in the topic.

The Trump Angle

Since losing his re-election bid President Trump has indicated that he will be making full use of his pardon powers. Speculation is that he plans to pardon multiple close aides and family members before he leaves office due to his fear over the Biden administration bringing up charges against them after assuming office on January 20, 2021. Trump has even gone as far as stating that he has the absolute right to pardon even himself. It must be noted that none of these aides or even Trump himself have been convicted of a crime yet and any pardons issued in their cases shall be pre-emptive.

This is by no means the first time that such pardons have been issued. President Jimmy Carter, a Democrat, declared an unconditional amnesty to the thousands of Vietnam War draft evaders, fulfilling a campaign promise to heal the nation’s wounds over the polarising conflict. Trump’s pardons would however be outliers as they seem to be born out of a fear of material loss rather than an intention for national well-being during a pivotal historical moment.

However, experts argue that self-pardon on the other hand is not within the President’s power as it violates the basic principle that no one should judge their own case. A 1974 Justice Department Office of Legal Counsel memo echoed this sentiment: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”

Brandon Bernard v. United States

Brandon Bernard was given the death penalty for his role in the murder of two youth ministers Todd and Stacie Bagley in June 1999. He was 18 years old at the time. The two were shot in the head by Christopher Vialva(19) and their car was later set on fire by Bernard, with them locked inside the trunk.

Vialva was executed in September while others involved in the case were given prison sentences due to them being juveniles at the time. 

Bernard’s attorneys had argued that he get life in prison instead of the death penalty due to his continued display of good behaviour, his participation in outreach programs and his constant efforts to discourage others from following in his path. His attorneys sent a clemency (a form of pardon seeking a reduction of the sentence rather than its complete removal) petition to the President stating that Bernard was just a subservient member of the gang who was being influenced by Vialva and that the prosecution had withheld crucial information capable of revealing this. 

In her dissent Supreme Court Justice Sonia Sotomayor wrote, “Today, the court allows the federal government to execute Brandon Bernard, despite Bernard’s troubling allegations that the government secured his death sentence by withholding exculpatory evidence and knowingly eliciting false testimony against him”.

“Bernard has never had the opportunity to test the merits of those claims in court. Now he never will.”^[1]

One of the prosecutors at Bernard’s original trial has alleged that the jury was influenced by racial bias against Bernard, a black man. Five of the nine jurors at Bernard’s trial either supported or did not oppose his current clemency petition to commute his death sentence to life in prison^[2].

The clemency petition and Supreme Court request for an emergency stay to his execution were both denied with the three liberal judges dissenting against the decision.

Thousands of people including anti-death row activists, legal experts, celebrities such as Kim Kardashian and high-profile politicians such as Democrat Cory Brooker appealed to the president to grant Bernard clemency but to no avail. On 11 December 2020, he became the youngest person to be executed by the US in nearly 70 years.

His was the ninth execution carried out by the United States this year. Though the denial of clemency with what many legal experts considered to be more than enough evidence was controversial in itself, further eyebrows were raised due to it being a part of the sudden spate in executions under the Trump administration.  After Bernard, there are 4 more executions planned before Trump leaves office. These executions are the first that the country has seen in the past 17 years. If all are carried out, Trump will be the US’s most prolific execution President in more than a century. With that, he will also break a 130-year-old precedent of pausing executions during the ‘lame duck’ or sitting period of an outgoing president.

“This is really outside the norm, in a pretty extreme way,” said Ngozi Ndulue, director of research at the non-partisan Death Penalty Information Center when asked for his thoughts on the matter.

Sources: [1],[2]- https://www.supremecourt.gov/opinions/20pdf/20a110_1972.pdf