Pardon – balancing justice or arbitrary act?

The right to pardon usually leads a discreet existence in today’s constitutional states, but thanks to the American presidential election, it has recently hit the headlines. First, the outgoing incumbent Joe Biden aroused attention with a wave of pardons, among which the one for his son, Hunter Biden, was particularly irritating to the public. However, the last-minute preemptive pardons for other family members, former civil servants, and participants in the congressional committee that had investigated the storming of the US Capitol on 6 January 2021 also created a stir. This peculiar act was intended to protect them from the possibility of vengeful prosecution under the subsequent Trump administration. The fact that the outgoing president also pardoned a record number of ordinary delinquents, either fully or partially by reducing their sentences, has gone relatively unnoticed in comparison to these politically explosive cases.

Then, immediately following his inauguration on 20 January 2025, Biden’s predecessor and successor Donald Trump caused a sensation when, as one of his first official acts, he pardoned all the individuals who had been convicted of crimes related to that very same Capitol storming and moreover halted all still pending legal proceedings with the stroke of a pen. The mass pardon in favour of around 1,500 of his radical supporters was linked to a demonstrative reinterpretation of the events of 6 January 2021, which Trump himself had incited by not recognising his election defeat at the time. The pardon, the new president proclaimed, would put an end to a “grave national injustice that has been perpetrated upon the American people over the last four years”, i.e. an injustice perpetrated by prosecution under the Biden administration. As a candidate, Trump had flirted with the idea that he would be a dictator (only) on ‘day one’ after his re-entry into the White House, and the piles of decrees he signed that first day, including the revisionist pardon proclamation, fit this picture: Like an autocrat, Trump ignored constitutional checks and balances in order to implement his agenda at breakneck speed.

As worrying as the current developments in the US may be, for me, the pardon battle surrounding the American presidential change came at just the right time. It arrived just at the start of my fellowship at the Käte Hamburger Kolleg “Legal Unity and Pluralism”, where I am studying the history of the power to grant pardon, which is now on everyone’s lips thanks to Biden and Trump. While the dimensions in which the outgoing and the newly inaugurated presidents have strategically used pardons may be unusual, as may be their mutual accusations of abusing this tool, most heads of state in the world actually have a legal right to pardon. The recent commotion in the US thus sheds light on the strange persistence of an almost universal and at the same time notoriously controversial phenomenon.

Why does the right to pardon even exist in today’s constitutional states? Doesn’t it fit more with the repertoire of rule of early modern absolutist monarchs who, by invoking their divine right, were able to claim the power to allow mercy to prevail over law? Does it not represent a blatant violation of the basic pillars of the modern legal order, which promise equality for all before the law and the independence of the judiciary in the system of separation of powers? Why can a democratically elected head of state still act like the Sun King in this specific respect? This is not a given.

Unsurprisingly, the princely power to pardon had already come under massive fire during the Enlightenment. Legal scholars and philosophers of the 18th century castigated it as an expression of arbitrary rule. The Italian Jurist Cesare Beccaria (1738-1794), for example, argued in his influential work Dei delitti e delle pene (1764) that pardons represented the flip side of brutal penal laws. In a reasonable legal system, he argued, the law must be lenient but its application must be uniform, leaving no room for erratic acts of mercy. Revolutionary France drew the same conclusion and abolished the royal right of pardon in 1791. However, this step was short-lived. In 1802 it was again bestowed on the head of state, now the First Consul. In most other European countries, it was never seriously up for discussion, and the USA, born out of a revolution, likewise fixed the presidential right of pardon in the Federal Constitution of 1787.

Instead of disappearing, perhaps the greatest period of the power to pardon began after the epochal threshold of 1800. In the face of protracted legal reforms, it played a remarkably progressive role in the anticipatory mitigation of penal norms that were now perceived as outmodedly harsh – to the chagrin of some conservative-authoritarian-minded contemporaries who lamented the erosion of the law through excessive mercy. In England and Wales, for example, where bizarre legislation had made the death penalty possible and mostly mandatory for over 200 offences, the courts passed more than 9,300 death sentences between 1825 and 1831, a staggering figure; however, no fewer than 96 percent were commuted through mercy. The royal power to pardon also served to mitigate punishments systematically in Prussia, especially in the newly acquired Rhine Province, where the Napoleonic penal code, which was much severer than the Prussian General State Laws, was still in force until the middle of the 19th century: Here, mercy accelerated the de facto harmonisation of the law. But even in Republican Prussia in the late 1920s, around 4,000 acts of mercy were issued annually, not including several tens of thousands of “conditional pardons” (suspended sentences), which the courts were now able to grant on their own decision. In England, on the other hand, the use of the Royal Prerogative of Mercy declined sharply from the middle of the 19th century, and a “free pardon”, i.e. a complete pardon, was henceforth almost only available to convicted persons who turned out to be innocent. Although rare, such cases point to another essential function of the right of pardon in legal systems with a lack of judicial appeal options – petitions for clemency often offered the only opportunity to denounce miscarriages of justice.

Strictly speaking, pardons must be distinguished from amnesties that address entire categories of offences without examining each individual case. In the 19th century, amnesties were often proclaimed by monarchs on ceremonial occasions such as coronations or anniversaries, but they were increasingly removed from the head of state’s right of pardon and shifted to the competence of the legislature, as was the case in the Third French Republic in 1875. Yet the separation is not clear-cut everywhere, as Trump’s general pardon for all those involved in the storming of the Capitol has lately shown again. Amnesty laws are also often highly controversial: Is the blanket pardon a noble gesture that serves social reconciliation, or does it deepen divisions through new injustices? In recent decades, there has been particularly intense discussion about amnesties in the wake of oppressive regimes and human rights violations since the Second World War. But the contexts were not always so bleak: collective pardons played an important role as well after the popular riots and social protests that were so common in the 19th and early 20th centuries.

Meanwhile, the right to pardon individuals rests with heads of state (or the authorities appointed by them) to this day, and although it only sporadically makes headlines, prominent singular cases in Europe, too, occasionally remind us of its continued relevance as a focal point for societal debates about justice. One such example is the posthumous free pardon granted to Alan Turing in 2013 in the name of the British Queen Elizabeth II. The brilliant mathematician had become a hero in World War II when he cracked the Enigma code, but in 1952 he was convicted of homosexual activity and was driven to suicide. A broad public campaign later called for his rehabilitation, yet it remained disputed whether a pardon was the appropriate means of acknowledging the previous criminalisation of homosexuality as an injustice. In 2016, an even broader solidarity campaign urged French President François Hollande to pardon Jacqueline Sauvage, a woman who had been sentenced to ten years in prison for murdering her violent husband. The presidential decision sparked controversy, among other things, because it ignored strong concerns from the judiciary. Such cases illustrate the complex field of tension in which the right of pardon still operates today, between changeable laws, symbolic representations of rulership, public expectations, and tragic individual fates. The line between arbitrariness and balancing justice remains thin.

However, there are still large gaps in the historical research on the practices of petitioning for and granting pardon, especially with regard to the 19th and early 20th centuries, i.e. the era in which the modern legal system with its basic principles of legal equality and separation of powers developed. My research project at the Käte Hamburger Kolleg aims to help close these gaps.

Cite as:
Althammer, Beate, Pardon – balancing justice or arbitrary act?, EViR Blog, 18.02.2025, https://www.evir.uni-muenster.blog/en/pardon-balancing-justice-or-arbitrary-act/.

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