Presidential clemency, or the issuance of relief from criminal punishment, is a power of the executive branch that has been recognized in the American legal system for over 200 years.[1] “The President shall…have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” [2] The U.S. Supreme Court has explained that the President has “plenary” constitutional authority under the pardon provision “to ‘forgive’ the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable.”[3]
However, what is not quite as recognized is what presidential clemency means for the judicial branch’s ability to grant writs of habeas corpus. A writ of habeas corpus allows a prisoner to have their case reviewed by a court to determine the legality of their detention and is usually invoked after conviction and the exhaustion of the ordinary means of appeal.[4] If the habeas court finds that the prisoner is entitled to relief, it must grant the writ, “ordinarily ordering the government to release the prisoner unless [they are] retried within a certain period.”[5]
Taking into account the power of these two branches, the question becomes the following: Does presidential clemency discard a judicial judgment, leaving the recipient bound only by an executive judgment? Or does it merely reduce the effect of the judiciary’s ruling on the matter?
In United States v. Surratt, the Fourth Circuit held that the president’s pardon of an appellant’s life sentence stripped the court of its power to review the case, making the appeal moot.[6] Although the holding constitutes only a two-sentence opinion, the concurring opinion by Judge Wilkinson underscores the court’s rationale.[7] Stating that Surratt is no longer serving a judicially imposed sentence, but rather a presidentially commuted one, Wilkinson explains that the Court, in turn, “may not readjust or rescind what the President . . . has done.”[8] In this view, because Surratt accepted the commutation offered by the President, his case had achieved final judgment, and, as a result, the court was barred from taking matters any further.[9]
In contrast, in Dennis v. Terris, the Sixth Circuit interpreted its authority more expansively, holding that the president’s pardon power does not abolish or diminish the judiciary’s power to review a writ of habeas corpus.[10] For one, a commuted sentence is not necessarily moot.[11] Indeed, the court says, given that a prisoner may be able to obtain a term less than their current commuted sentence if they challenge their original sentence and obtain the requested relief, they accordingly have a concrete interest in the dispute.[12] Therefore, a live case or controversy may be at play.[13] Furthermore, the court asserts that the judiciary retains its power of habeas review following a presidential pardon by virtue of the executive branch’s authority over sentencing being “readily distinguishable.”[14] According to Judge Sutton, the author of the opinion, “[t]o render judgment is a judicial function,” while “[t]o carry the judgment into effect is an executive function.”[15]
Operating under this line of reasoning, the Dennis court concludes that a prisoner who receives a presidential commutation nevertheless continues to be bound by a judicial sentence.[16] “The commutation changes only how the sentence is carried out by switching out a greater punishment for a lesser one.”[17] This conclusion, the court says, is supported by conditional clemency.[18] For instance, if a prisoner’s life sentence is commuted on the condition that they maintain good behavior and that condition is violated, the commutation would be revoked.[19] Thus, “absent more executive grace,” the original judicial sentence would once again take full effect.[20]
So, why does this circuit split matter? Well, not only do these two cases raise valid separation-of-powers and criminal justice concerns, but among all the reasons the U.S. Supreme Court considers when it is deciding whether to grant certiorari, the most determinative is arguably whether “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.”[21] In other words, lawyers and laymen alike should be on the lookout for the Nine in Washington to resolve the issue presented in Surratt and Dennis. Until then, though, we must continue to grapple with the reality that when it comes to presidential clemency, current precedent raises more questions than it answers, and that is something everyone can agree on.
[1] See MICHAEL A. FOSTER, CONG. RESEARCH SERV., R46179, PRESIDENTIAL PARDONS: OVERVIEW AND SELECTED LEGAL ISSUES 1 (2020).
[2] U.S. CONST. art. II, § 2.
[3] Schick v. Reed, 419 U.S. 256, 266 (1974).
[4] See CHARLES DOYLE, CONG. RESEARCH SERV., RL33391, FEDERAL HABEAS CORPUS: A BRIEF LEGAL OVERVIEW 1 (2006).
[5] Habeas Corpus: The Process of the Writ, LEGAL INFO. INST., https://www.law.cornell.edu/constitution-conan/article-3/section-1/habeas-corpus-the-process-of-the-writ (last visited Aug. 4, 2020); see 28 U.S.C. § 2244(b); Whiteley v. Warden, 401 U.S. 560, 569 (1971); Irvin v. Dowd, 366 U.S. 717, 729 (1961).
[6] United States v. Surratt, 855 F.3d 218, 219 (4th Cir. 2017).
[7] See id. (Wilkinson, J., concurring).
[8] Id.
[9] See id. at 219-220.
[10] See Dennis v. Terris, 927 F.3d 955, 958 (6th Cir. 2019) (quoting United States v. Benz, 282 U.S. 304, 311 (1931)).
[11] Id. at 960-961.
[12] See id.
[13] Id. at 958.
[14] Id.
[15] Id.
[16] See id.
[17] Id.
[18] Id.
[19] See id.
[20] Id.
[21] SUP. CT. R. 10(A).
Image is credited to Vinnie Neuberg.