Federal Guidelines for a Presidential Pardon
[All emphasis added is mine]
What is amazing to me is how everything gets lumped into the "Well everyone else did it" as if all things are equal. They simply aren't, especially in this instance.
For the record, all Presidents have given Pardons. It is a Constitutional Power of the President.
While Article II, Section 2 of the Constitution places no limitations on the president's power to grant or deny pardons, the Justice Department's U.S. Pardon Attorney prepares a recommendation for the president on each application for presidential "clemency," including pardons, commutations of sentences, remissions of fines, and reprieves.
The Pardon Attorney is required to review each application according to the following guidelines: (The president is not obliged to follow, or even consider the recommendations of the Pardon Attorney. See: Sec. 1.10)
FTR, pardons and commutations are different.
Sec. 1.2 Eligibility for filing petition for pardon.
No petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner. Generally, no petition should be submitted by a person who is on probation, parole, or supervised release.
Pardons have been traditionally given at least 5 years after the conviction. I could only find an exception with Ford's pardon of Nixon, but that was a weird case, because Nixon was never convicted of anything. The Pardon came before the conviction. But, in most instances, Presidents pardon, a significant amount of time, after a conviction and/or prison time.
And as I stated before, there is a presumption of guilt with a pardon. There was a debate over the Nixon Pardon regarding whether or not in taking the pardon Nixon was admitting guilt. Nixon is reported to have never admitted guilt. There is also traditionally a sense of regret for the crime at the time of the pardon and contrition.
It is a Presidential gift to those who have committed crimes and are sorry for their crimes. It's not at all about a redress of some perceived Judicial error. That is the Judicial Branch's Constitutional power.
Previous pardons by Presidents have certainly not been like this one. Additionally it wasn't a pardon at all, it was a commutation of a sentence.
Again, this is the power of the President, but there are guidelines on commutations too. [and yes, I know that no President has to follow the guidelines, but in this case, the claim has been made that "They all do it "this" way. They, in fact, don't and haven't. ]
This commutation is not like all the others.
Sec. 1.3 Eligibility for filing petition for commutation of sentence.
No petition for commutation of sentence, including remission of fine, should be filed if other forms of judicial or administrative relief are available, except upon a showing of exceptional circumstances.
Executive clemency, whether a pardon or a commutation, is given as an act of mercy and grace. In this context, all Presidents have the power to grant clemency , and all have used it.
However, the reasoning given, was that judge's sentence was unduly harsh. That is not the job of the President. He can grant a pardon or commutation, but not decide that the court was in error. That's the job of the Judiciary.
I heard that Bush did not consult with Justice or his attorneys before he released the press announcement. It was worded badly. He really overstepped if that was his real rationale. Not in the commutation, that was IMHO entirely within his Constitutional Powers, but his reasoning is really flawed as I understand Separation of Powers.
Anyway, instead of us all getting off on the "They all do it", I wanted to point out that they all don't do "this". Maybe some Presidents, have not used the guidelines, that is their right as well, but certainly most have used the guidelines. Additionally, past presidents, didn't have the hubris to correct the jury, the court, and an appeals court. They just gave the damn pardon.
Maybe you are all OK with the President telling the court they are wrong in sentencing. But, the truth is the court just upheld advisory sentencing guidelines. That's what the court does, and so according to the courts, the sentence was NOT excessive.
Maybe you are all OK with the President telling Congress what they should make into law. If you all feel the sentencing was too excessive, write your Congressman, that is his or her job--to make the law--not the presidents.
The Executive can grant clemency. That is what he does.
I'd prefer everyone keep to their own side of the street and let the other Branches do their job.
So, in short, it simply is not all the same.