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151

Law / pardon power of the American President

« on: March 16, 2013, 02:39:36 PM »

Constitutional Basis



The President's pardon power is established under the United States Constitution, Article II, Section 2:
The President ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
Although the original versions of the New York and Virginia Plans that provided the frameworks for debate at the Constitutional Convention included no provisions for pardon, revisions to both plans eventually did. Scholars have suggested that the basic idea, when presented, was not controversial and therefore prompted little debate. The Virginia Plan pardon clause, inserted by John Rutledge, lodged the pardon power with the new executive branch. Alexander Hamilton supported this strategy in Federalist 74, writing, 'It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever.' Reflecting on recent American experience, he added that, 'in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.'
But how, if at all, should such a power be limited? A proposal introduced by Connecticut's Roger Sherman to make Presidential pardons subject to the consent of the Senate was considered but quickly rejected by the Convention (the Senate was deemed to be powerful enough already). So was Luther Martin's suggestion of confining pardons to convicted persons only; the Framers concluded that pre-conviction pardons might be useful to further national interests - immediately pardoning a captured spy, for instance, might produce yield important military intelligence. The Constitutional Convention did, however, agree that pardons could not be issued "in cases of impeachment"; this may have been prompted by concerns arising from a 17th century English constitutional crisis which had developed after King Charles II pardoned the Earl of Danby, Thomas Osborne, who had been impeached by Parliament.
With the single exception of impeachment, then, the pardon power emerged from Philadelphia as exclusive, broad, and unfettered by the regular checks and balances of the governmental structure.

152

Law / pardon power of USA president

« on: March 16, 2013, 02:37:25 PM »

The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the. This Topic Page concerns Presidential Pardons. Pardons are mentioned in the Constitution at Article 2, Section 2.
A reference of particular use in the preparation of the topic was Pardons: Justice, Mercy, and the Public Interest by Kathleen Dean Moore (1989, Oxford University Press).
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Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.
So wrote Alexander Hamilton in The Federalist #74, first published on March 25, 1788. The argument was that when the power to pardon is granted, it should be granted only to a few people, or, in the case of the U.S. Constitution, to just one person.
The U.S. Constitution grants the power to pardon to the President. In keeping with the feeling of the day, expressed in Hamilton's words, the power to pardon is virtually unqualified:
The President ... shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
Hamilton expanded on why he thought this power was important:
The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind.
To the framers, the power to pardon, familiar as a power of the King of England, was necessary because the way the law was applied. In England, it was common for minor offenses to carry a sentence of death, with pardon by the King being the only way to avoid the punishment. Judges often applied a death sentence, having no choice, but at the same time applied for a Royal Pardon in the same breath. This is what Hamilton was referring to when he mentioned "necessary severity" and "unfortunate guilt."
President George Washington used the pardon power after the suppression of the Whiskey Rebellion on 1794. The Rebellion was seen as one of the first tests of the new government. The government instituted taxes on whiskey, the government raised troops to put down a rebellion against the tax, and the President pardoned the participants in the rebellion who had not already been indicted.
Over time, the power of the President to pardon has evolved quite a bit from the words in the Constitution. The President has the power to completely overturn a criminal conviction. This is a full pardon. The conviction is wiped away as if it never happened. The President can commute a criminal sentence, turning a life sentence into a 10 year sentence or a death penalty into a life sentence. The President can make a pardon conditional, vacating a conviction but leaving paid fines in place, or even making the payment of a fine a prerequisite before a pardon takes effect.
It appears as though a pardon can even be granted against the will of the grantee. Originally, however, a pardon could be refused. In the case of US v Wilson (32 US 150) the Supreme Court stated that a pardon is like a gift that can be refused, upholding the notion in Burdick v US (236 US 79). Then began a reversal of the so-called "acceptance doctrine" in Biddle v Perovich (274 US 480) when it declared that the commutation of a death sentence to a life sentence could not be refused: "A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed." President Calvin Coolidge, in an unadjudicated case, pardoned a prisoner named Craig, and when he refused the pardon, ordered him removed from the prison and "the doors locked behind him."
A pardon can also be granted to a class of people, such as those involved in the Whiskey Rebellion. In US v Klein (80 US 128), the Supreme Court upheld such blanket or group pardons — President James Carter pardoned all Vietnam draft dodgers.
Pardons can take place before or after a criminal proceeding. President Gerald Ford, for example, pardoned Richard Nixon before Nixon was ever charged with, let alone convicted, of any crime. Such pardons, however, are rare, and general procedures dictate that at least five years of a sentence should be served before a pardon is considered. In the Constitutional Convention of 1787, this issue was brought up and debated quickly, with no restriction on when a pardon might be granted, suggested by James Wilson as a way of obtaining the testimony of accomplices.
There are, however, things that a pardon cannot cover. The first and most obvious is impeachment, since it is specifically excepted in the Constitution. Civil liability cannot be excused — a harm against another can still be considered a harm even if there is no longer any criminal liability. Contempts of court cannot be pardoned, as they are offenses against the dignity of the court, and not necessarily offenses against the law. In the Constitutional Convention, a proposal to except treason was popular, but was defeated when the talk turned to granting the Senate only the power to pardon treason.
There are several reasons for a President to issue a pardon, and they come from all sides of the political world. The pardons of President William Clinton can illustrate some of the various reasons. Clinton pardoned his brother, Roger, for obvious familial reasons. He pardoned a pair of Hasidic Jews convicted of defrauding the government, restoring their civil rights but leaving monetary penalties intact. In a controversial move, he pardoned fugitive financier Marc Rich, after application for clemency, in part, from the state of Israel, which had benefited from Rich's philanthropic gestures. President Ford pardoned President Nixon of any wrong-doing in order to put a close to the Nixon era for good. President James Madison pardoned army deserters in an attempt to refill the military's ranks for the War of 1812. President Abraham Lincoln pardoned all Civil War deserters on the condition that they return to their units to fight. Carter pardoned the Vietnam War draft dodgers to help in the long healing process the nation endured after that war.
Finally, there is no review of pardons. This issue, too, was brought up in the Constitutional Convention, that pardons be granted with the consent of the Senate, but the measure was defeated on the vote of eight states to one. In modern days, there is an office in the Justice Department where pardons are sent, and a Pardons Attorney who reviews and recommends applications. The President may still receive pardons personally, and may grant them at any time. The President need not provide a reason for a pardon, and the courts and the Congress have no legal authority to approve, disapprove, reject, or accept a pardon. Currently, the only way to change the pardon power is by constitutional amendment, though history has shown that the scope of the power can be modified by the courts (as in the acceptance doctrine).

153

Law / pardon power of the American President

« on: March 16, 2013, 02:31:57 PM »

Administration and Regulations
The Constitution itself offered no guidance on how the President's pardon power was to be administered. Pardons were issued from the time of President Washington, but routine responsibility for supervising their issuance was not vested in any particular officer of the government, apart from the President. In 1865, however, as the Civil War came to a close, the office of Pardon Clerk was set up; its functions were tranferred to the office of the Attorney in Charge of Pardons in 1893, which eventually became the U.S. Department of Justice's Office of the Pardon Attorney. The present Pardon Attorney is Roger Adams, appointed to that post in 1998. Working with him in 1999 were approximately 14 junior attorneys, paralegals and support staff.
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Regulations
General regulations regarding the submission, consideration and award of pardons are set down in Title 28 of the U.S. Code of Federal Regulations, Sections 1.1-1.10. The regulations suggest a five-year waiting period (after conviction or the end of incarceration) before a person becomes eligible to apply for a pardon, set out the forms and information that should be submitted by persons seeking pardon, allow for FBI investigation of the petitioner before a pardon is recommended, and give the Pardon Attorney jurisdiction to review the completed pardon application and recommend action to the President. The President retains the right to grant or deny the pardon request. If the President does not act on a recommended denial of pardon within 30 days, his concurrence with the denial recommendation is assumed. All petitioners are notified in writing of recommendations on their cases.
Note, however, that the Title 28 regulations are merely "advisory and for the internal guidance of the Department of Justice personnel"(28 CFR 1.10). Given his Constitutional authority under Article II, Section 2, the President does not have to follow them, and indeed Presidents, for various reasons, have gone outside them at various historical junctures (for example, the pardon granted to Richard Nixon did not go through the standard process; neither did President Clinton's recent pardon for Marc Rich).
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Procedures and Standards
The Pardon Attorney assists the President in the exercise of his power under Article II, Section 2, clause 1 of the Constitution (the pardon clause). See Executive Order dated June 16, 1893 (transferring clemency petition processing and advisory functions to the Justice Department), the Rules Governing the Processing of Petitions for Executive Clemency (codified in 28 CFR Sections 1.1 et seq.), and 28 CFR Sections 0.35 and 0.36 (relating to the authority of the Pardon Attorney). The Pardon Attorney, under the direction of the Deputy Attorney General, receives and reviews all petitions for Executive Clemency (which includes pardon after completion of sentence, commutation of sentence, remission of fine and reprieve), initiates and directs the necessary investigations, and prepares a report and recommendation for submission to the President in every case. In addition, the Office of the Pardon Attorney acts as a liaison with the public during the pendency of a clemency petition, responding to correspondence and answering inquiries about clemency cases and issues. The following sets forth guidance on clemency matters.
Role of the United States Attorney in Clemency Matters
The Pardon Attorney routinely requests the United States Attorney in the district of conviction [the "District Attorney"] to provide comments and recommendations on clemency cases that appear to have some merit, as well as on cases that raise issues of fact about which the United States Attorney may be in a position to provide information. Occasionally, the United States Attorney in the district in which a petitioner currently resides also may be contacted. In addition, in cases in which the petitioner seeks clemency based on cooperation with the government, the Pardon Attorney may solicit the views of the United States Attorney in the district(s) in which the petitioner cooperated, if different from the district of conviction. While the decision to grant clemency generally is driven by considerations that differ from those that dictate the decision to prosecute, the United States Attorney's prosecutive perspective lends valuable insights to the clemency process.
The views of the United States Attorney are given considerable weight in determining what recommendations the Department [of Justice] should make to the President. For this reason, and in order to ensure consistency, it is important that each request sent to the district receive the personal attention of the United States Attorney. Each petition is presented for action to the President with a report and recommendation from the Department, and the recommendation by the United States Attorney is included in this report.
The United States Attorney can contribute significantly to the clemency process by providing factual information and perspectives about the offense of conviction that may not be reflected in the presentence or background investigation reports or other sources, e.g., the extent of the petitioner's wrongdoing and the attendant circumstances, the amount of money involved or losses sustained, the petitioner's involvement in other criminal activity, the petitioner's reputation in the community and, when appropriate, the victim impact of the petitioner's crime. On occasion, the Pardon Attorney may request information from prosecution records that may not be readily available from other sources.
As a general matter, in clemency cases the correctness of the underlying conviction is assumed, and the question of guilt or innocence is not generally at issue. However, if a petitioner refuses to accept guilt, minimizes culpability, or raises a claim of innocence or miscarriage of justice, the United States Attorney should address these issues.
In cases involving pardon after completion of sentence, the United States Attorney is expected to comment on the petitioner's post-conviction rehabilitation, particularly any actions that may evidence a desire to atone for the offense, in light of the standards generally applicable in pardon cases as discussed in the following section. Similarly, in commutation cases, comments may be sought on developments after sentencing that are relevant to the merits of a petitioner's request for mercy.
In pardon cases, the Pardon Attorney will forward to the United States Attorney copies of the pardon petition and relevant investigative reports. These records should be returned to the Pardon Attorney along with the response. In cases involving requests for other forms of executive clemency (i.e., commutation of sentence or remission of fine), copies of the clemency petition and such related records as may be useful (e.g., presentence report, judgment of conviction, prison progress reports, and completed statement of debtor forms) will be provided.
The Pardon Attorney also routinely requests the United States Attorney to solicit the views and recommendation of the sentencing judge. If the sentencing judge is retired, deceased, or otherwise unavailable for comment, the United States Attorney's report should so advise. In the event the United States Attorney does not wish to contact the sentencing judge, the Pardon Attorney should be advised accordingly so that the judge's views may be solicited directly. Absent an express request for confidentiality, the Pardon Attorney may share the comments of the United States Attorney with the sentencing judge or other concerned officials whose views are solicited.
The United States Attorney may support, oppose or take no position on a pardon request. In this regard, it is helpful to have a clear expression of the office's position. The Pardon Attorney generally asks for a response within 30 days. If an unusual delay is anticipated, the Pardon Attorney should be advised when a response may be expected. If desired, the official views of the United States Attorney may be supplemented by separate reports from present or former officials involved in the prosecution of the case. The United States Attorney may of course submit a recommendation for or against clemency even if the Pardon Attorney has not yet solicited comments from the district. The Pardon Attorney informs the United States Attorney of the final disposition of any clemency application on which he or she has commented.
Standards for Considering Pardon Petitions
In general, a pardon is granted on the basis of the petitioner's demonstrated good conduct for a substantial period of time after conviction and service of sentence. The [Justice] Department's regulations require a petitioner to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application (28 CFR Section 1.2). In determining whether a particular petitioner should be recommended for a pardon, the following are the principal factors taken into account.
1.   Post-conviction conduct, character, and reputation. An individual's demonstrated ability to lead a responsible and productive life for a significant period after conviction or release from confinement is strong evidence of rehabilitation and worthiness for pardon. The background investigation customarily conducted by the FBI in pardon cases focuses on the petitioner's financial and employment stability, responsibility toward family, reputation in the community, participation in community service, charitable or other meritorious activities and, if applicable, military record. In assessing post-conviction accomplishments, each petitioner's life circumstances are considered in their totality: it may not be appropriate or realistic to expect "extraordinary" post-conviction achievements from individuals who are less fortunately situated in terms of cultural, educational, or economic background.
2.   Seriousness and relative recentness of the offense. When an offense is very serious, (e.g., a violent crime, major drug trafficking, breach of public trust, or white collar fraud involving substantial sums of money), a suitable length of time should have elapsed in order to avoid denigrating the seriousness of the offense or undermining the deterrent effect of the conviction. In the case of a prominent individual or notorious crime, the likely effect of a pardon on law enforcement interests or upon the general public should be taken into account. Victim impact may also be a relevant consideration. When an offense is very old and relatively minor, the equities may weigh more heavily in favor of forgiveness, provided the petitioner is otherwise a suitable candidate for pardon.
3.   Acceptance of responsibility, remorse, and atonement. The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to its victims are important considerations. A petitioner should be genuinely desirous of forgiveness rather than vindication. While the absence of expressions of remorse should not preclude favorable consideration, a petitioner's attempt to minimize or rationalize culpability does not advance the case for pardon. In this regard, statements made in mitigation (e.g., "everybody was doing it," or I didn't realize it was illegal") should be judged in context. Persons seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion.
4.   Need for Relief. The purpose for which pardon is sought may influence disposition of the petition. A felony conviction may result in a wide variety of legal disabilities under state or federal law, some of which can provide persuasive grounds for recommending a pardon. For example, a specific employment-related need for pardon, such as removal of a bar to licensure or bonding, may make an otherwise marginal case sufficiently compelling to warrant a grant in aid of the individual's continuing rehabilitation. On the other hand, the absence of a specific need should not be held against an otherwise deserving applicant, who may understandably be motivated solely by a strong personal desire for a sign of forgiveness.
5.   Official recommendations and reports. The comments and recommendations of concerned and knowledgeable officials, particularly the United States Attorney whose office prosecuted the case and the sentencing judge, are carefully considered. The likely impact of favorable action in the district or nationally, particularly on current law enforcement priorities, will always be relevant to the President's decision. Apart from their significance to the individuals who seek them, pardons can play an important part in defining and furthering the rehabilitative goals of the criminal justice system.
Standards for Considering Commutation Petitions
A commutation of sentence reduces the period of incarceration; it does not imply forgiveness of the underlying offense, but simply remits a portion of the punishment. It has no effect upon the underlying conviction and does not necessarily reflect upon the fairness of the sentence originally imposed. Requests for commutation generally are not accepted unless and until a person has begun serving that sentence. Nor are commutation requests generally accepted from persons who are presently challenging their convictions or sentences through appeal or other court proceeding.
The President may commute a sentence to time served or he may reduce a sentence, either merely for the purpose of advancing an inmate's parole eligibility or to achieve the inmate's release after a specified period of time. Commutation may be granted upon conditions similar to those imposed pursuant to parole or supervised release or, in the case of an alien, upon condition of deportation.
Generally, commutation of sentence is an extraordinary remedy that is rarely granted. Appropriate grounds for considering commutation have traditionally included disparity or undue severity of sentence, critical illness or old age, and meritorious service rendered to the government by the petitioner, e.g., cooperation with investigative or prosecutive efforts that has not been adequately rewarded by other official action. A combination of these and/or other equitable factors may also provide a basis for recommending commutation in the context of a particular case.
The amount of time already served and the availability of other remedies (such as parole) are taken into account in deciding whether to recommend clemency. The possibility that the [Justice] Department itself could accomplish the same result by petitioning the sentencing court, through a motion to reward substantial assistance under Rule 35 of the Federal Rules of Criminal Procedure, a motion for modification or remission of fine under 18 U.S.C. Section 3573, or a request for compassionate relief under 18 U.S.C. Section 3582(c)(1), will also bear on the decision whether to recommend Presidential intervention in the form of clemency. When a commutation request is based on the serious illness of the petitioner, transmission of the United States Attorney's response by facsimile in advance of mailing the original is always appreciated.
When a petitioner seeks remission of fine or restitution, the ability to pay and any good faith efforts to discharge the obligation are important considerations. Petitioners for remission also should demonstrate satisfactory post-conviction conduct.
SOURCE: United States Attorneys' Manual, 1-2.110 - 1.2.113

154

Law / Re: legal issue

« on: March 07, 2013, 05:53:02 PM »

thanks but not most appropriate

155

Law / Re: UNITED WE STAND: My Personal Feelings about Team Work for the Exhibition

« on: February 25, 2013, 12:10:26 PM »

Congratulation madam.

156

Law / legal issue

« on: February 25, 2013, 12:05:29 PM »

Can one define and differentiate between Article and Section used in law?





The best answer giver may be awarded.

Hurry up.
First answer       first prize. 

157

Law / Re: constitutional quiz competition

« on: February 25, 2013, 12:00:02 PM »

take a good preparation for winning the most attractive award.

158

Law / Re: Husband was Ordered by the Magistrate to Post Facebook Apologies to Wife

« on: February 25, 2013, 11:52:33 AM »

interesting

159

Law / constitutional quiz competition

« on: January 22, 2013, 02:56:14 PM »

Dear,
All students of the department of law of daffodil international university, you will be very glad to know that the law department is going to arrange a quiz competition named "Constitutional Quiz Competition" in the next month. So from today take preparation and engaged your mind in the constitution.
Area of the Quiz:
1. Bangladesh Constitution with historical background,
2. Basic information of the U.k, USA and India Constitution.

Best regards,
Md. Abdur Rahim
lecturer in law