The Pardon Power in Federal and Texas Criminal Cases

Pardons are part of the constitutional authority of an executive, such as the President of the United States or the Governor of Texas, in criminal cases. Late last year, the presidential pardon power was in the news after the president pardoned an Arizona sheriff who had been convicted of criminal contempt of court. This led to debates, both in and out of the courtroom, over the extent of the pardon power. In Texas criminal cases, the governor’s pardon power is specifically limited by the Texas Constitution, requiring the prior recommendation of a board appointed by the Texas Legislature.The U.S. Constitution grants the president the “Power to grant Reprieves and Pardons for Offences against the United States,” with impeachment as the only specified exception. U.S. Const. Art. II, § 2, cl. 1. The Office of the Pardon Attorney (OPA), part of the U.S. Department of Justice, accepts petitions for clemency for convictions in federal district courts, the Superior Court of the District of Columbia, and military courts-martial. See 28 C.F.R. § 1.1 et seq. The president may decide to issue a pardon, however, without the recommendation of the OPA, or even without a petition for clemency. Presidents may issue a pardon at any time during their term. Recent presidents have often issued multiple pardons shortly before leaving office.

The Texas governor has authority to grant full pardons “upon the recommendation and advice of a majority of the” Board of Pardons and Paroles (BPP). Tex. Const. Art. 4, § 11(b); 37 Tex. Admin. Code § 143.1. The governor can grant a temporary reprieve of up to thirty days in capital cases without going through the BPP. Recently, the governor of Texas has issued a small number of pardons at the end of each calendar year.

The effect of a pardon includes the removal of any penalties associated with a conviction, but not necessarily the fact of the conviction itself. After a pardon for a felony conviction, any civil rights lost as a result of the conviction, such as voting or holding office, may be restored. A pardon does not immediately expunge arrest or conviction records. A pardon is not complete until it is accepted by the individual being pardoned, who is not obligated to do so. United States v. Wilson, 32 U.S. 150 (1833). Acceptance of a pardon, the Supreme Court has held, “carries an imputation of guilt” of the underlying offense. Burdick v. United States, 236 U.S. 79, 94 (1915).

In August 2017, the president pardoned an Arizona sheriff for a criminal contempt-of-court conviction under 18 U.S.C. § 401(3) in relation to the civil case Melendres v. Arpaio, No. 2:07-cv-02513, order re: criminal contempt (D. Ariz., Aug. 19, 2016). The sheriff accepted the pardon—possibly without knowledge of the associated imputation of guilt—and then sought to have the guilty verdict voided.

The judge denied this motion, noting that a pardon “does not erase a judgment of conviction, or its underlying legal and factual findings. United States v. Arpaio, No. 2:16-cr-01012, order at 2 (D. Ariz., Oct. 19, 2017). While some critics have suggested the pardon itself is unconstitutional, the judge noted that criminal contempt is a pardonable offense. Id., citing Ex Parte Grossman, 267 U.S. 87, 121-22 (1925).

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Board-certified criminal defense attorney Michael J. Brown has defended people in West Texas against alleged state and federal charges for over twenty years. To schedule a confidential consultation with a knowledgeable and skilled criminal justice advocate, please contact us today online or at (432) 687-5157.

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Even After Receiving Clemency, an Inmate Remains in Prison Because of a Conflict Between State and Federal Laws, Texas Criminal Lawyer Blog, June 13, 2017

Intended to Assist Reentry Into Society, Halfway Houses Can Sometimes Seem Like Additional Punishment, Texas Criminal Lawyer Blog, May 25, 2017

After Criminal Statute Ruled Unconstitutional, People Seek Expunctions of Criminal Records, Texas Criminal Lawyer Blog, May 25, 2017