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Abstract

With few words, the Great Bard summarized the popular understanding of full and unconditional pardons as unrestrained acts of mercy which approximate, as best as humans can, the divine ability to forgive and forget. Perhaps in light of that sentiment, the common law held that a royal pardon blotted out any guilt or infamy resulting from commission of a crime, as well as the legal existence of the conviction itself. Following much discussion of the issue, the Supreme Court adopted the forgive-and-forget rule in a series of decisions following the Civil War. Yet, despite clear common law and Supreme Court precedent holding that full and unconditional pardons blot out both the legal existence of a conviction and any resulting guilt or infamy, state and lower federal courts, with notable exceptions, frequently take a rather tight-fisted view as to the operation and effect of full and unconditional pardons. In so doing, those courts overlook the fact that the pardon power involves the exercise of the executive's unlimited constitutional authority to convey the full measure of mercy that the people were capable of placing in the constitution. This Article argues that a full and unconditional pardon actually does blot out any guilt or infamy resulting from a criminal conviction, and that it restores the character and standing of the pardoned individual in the eyes of the law. State and lower federal courts rejecting the forgive-and-forget rule hold or imply that a full pardon does not "close the judicial eye" to an individual's past crime. That conclusion, however, ignores the following considerations which are analyzed in this Article: (1) the pardon power implicates the principle of separation of powers because the exercise of the executive's exclusive and unlimited constitutional authority to grant pardons serves as a check and balance on legislative and judicial errors and excesses; (2) the executive exercises judicial or quasi-judicial functions in evaluating the merits of individual pardon petitions and thus implicitly finds that the person pardoned is either innocent or rehabilitated; (3) the judiciary does not enjoy an exalted or exempt status as to the operation and effect of full pardons, and thus is not "immune" to all other acts of governmental mercy except its own; and (4) the executive does not suffer an inferior status in granting governmental mercy so that, as a result, the courts are required to honor full pardons at least to the same extent as legislative amnesties, especially since pardons involve a judicial-like sifting of the merits of individual cases while broad-based legislative amnesties do not. Whether expressly stated in a pardon warrant or not, the executive traditionally determines an individual's innocence or rehabilitation when deciding whether to grant a pardon. Furthermore, the executive's pardon-deliberation process is quasi-judicial in nature, much like an appellate court's review of a trial court's record for error or a judge's consideration of a defendant's present rehabilitation and plea for mercy in a sentencing hearing. The contempt with which many courts seem to hold full pardons may be traceable to an incorrect or incomplete understanding of the careful, quasi-judicial deliberation which precedes the executive's exercise of the pardon power, and such contempt is unwarranted as a matter of law. By treating full and unconditional pardons as having little, if any, legal significance beyond that of lesser forms of executive clemency such as restorations of civil rights and conditional or partial pardons, the judiciary has virtually eviscerated the distinction between full pardons and those lesser forms of executive clemency. Indeed, the traditional operation and effect of a full and unconditional pardon under the forgive-and-forget rule is the major and perhaps only real difference between it and lesser forms of executive clemency such as restorations of civil rights and conditional or partial pardons. This Article reviews the relevant case law and concludes that a full and unconditional pardon blots out both the legal existence of a conviction or crime and any resulting guilt or infamy, subject to four well-defined common law exceptions or limits to the operation and effect of full pardons. The Article also discusses the scope of the executive's nearly unlimited pardoning authority under the constitution and separation-of-powers doctrine. It concludes that since the executive has virtually unlimited power to convey every bit of mercy contained in the constitution itself by the mere act of issuing a full pardon without expressly stating that a conviction was erroneous or that an individual has been rehabilitated, legislative and judicial attempts to "regulate" or limit the exercise of that power such as Federal Rule of Evidence 609 may encroach on the executive's constitutional power.

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