Pardons should be how mercy complements justice – but what happens when pardons undermine justice?

26th November 2020

There is a distinction – no doubt one of the oldest distinctions in the history of human societies – between justice and mercy.

The model is as follows:

– justice is (in part) about the appropriate application of general rules to particular cases;

– the application of justice in a particular case may result in an onerous sanction against an individual;

– there may be special circumstances where this onerous sanction should not be imposed on that. individual, even though this is what justice provides;

– and so an exercise of mercy will release that person from that sanction.

As such, mercy is a complement to justice, not a replacement for it.

A person may have done wrong, but they need not suffer for it.

The sin is still hated, but there is love for the sinner.

This, at least, is the model.


The usual and best known means of exercising mercy is by way of a pardon.

The sovereign – or other head of the executive – makes a decree that in a particular case an individual should not suffer a punishment for their crime.

In the United Kingdom, the power to grant pardons is part of the royal prerogative (and is exercised rarely), and in the United States there is the constitutional power of the President to pardon in respect of federal crimes (and is exercised quite a lot).


Pardons are curious things.

Let’s look at the word: to pardon someone is to forgive them and to receive a pardon means that you have been forgiven – and so to say ‘I beg your pardon’ is literally to ask for forgiveness.

(Only by usage and habit has it come to mean ‘say again’ – which is in effect an abbreviation of ‘I beg your pardon but can you please repeat that’.)

When applied to legal matters, a pardon is about forgiveness.

It is (or should be) about the sentence, not the offence.

As such it is (or should be) about mercy rather than justice.

And so here we come to a conceptual issue about pardons.

A pardon presupposes guilt.


A pardon means (or should mean) that it is accepted or admitted that an offence has been committed – else there would not be a thing to forgive.

A pardon does not (or should not) expunge the offence.

This is why it possible for a convict to refuse a pardon (or to refuse to plead the pardon as a bar to any proceedings), if it is not accepted an offence has actually been committed.

To accept a pardon is to mean (or should mean) that the person accepts or admits that they committed an offence and that they accept official forgiveness. 

And so to offer a pardon is to, implicitly, accept that the conviction is sound but that the punishment should be forgiven. 

So should there be pardons for convictions when the law itself is wrong or unjust?

Would it not be conceptually neater for the convictions themselves to be expunged, rather than merely having the sentences forgiven?

(In 2013, I wrote about this at the New Statesman in respect of the posthumous pardon for Alan Turing.)

And there is also, of course, a more obvious problem with posthumous pardons: they are practically meaningless, as a dead person cannot be relieved of the sanction.

Posthumous pardons are mere gestures with no legal or practical effect, other than to make people still alive feel better.


Pardons are topical because of the pardon granted by President Trump to Michael Flynn (the text of which can be read here).

But only those with short political memories will consider it exceptional that a President of the United States uses the power of pardon in a wrongful or controversial way.

Wrongful, controversial presidential pardons did not start with President Trump.

For example, on his last day of office in 2001, President Clinton granted 140 pardons, some of which seemed rather questionable.

And in 1974 President Ford pardoned President Nixon even before any criminal proceedings had been commenced, and without Nixon admitting any criminal offence.

The Nixon pardon was an odd thing from a legal perspective – you can read the text here.

The key text was that the pardon was ‘for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974’.

The ‘may have committed’ is remarkable: it in effect created retrospective immunity.

Nixon was, in effect, being given immunity from any prosecution for any federal offence for his presidency.

No specific offences were mentioned.

No guilt was admitted.

The Nixon pardon is an extraordinary legal document.

And it can barely be called a ‘pardon’ in any meaningful way.


The classic model of pardons as only going to sentence, and not to criminal culpability is therefore an ideal which has sometimes not been matched in practice.

And so it is not unexpected that Trump seems to see pardons as not about forgiveness of offences but as, in effect, grants of criminal immunity.

Trump seems to want to use pardons as devices to place specific people above or beyond the law.

There is even the prospect that he will seek to (purport to) grant himself a pardon and in doing so, as with Nixon, he may not admit any criminal guilt.

(But there are limits to pardons: in the United States, a presidential pardon only protects against federal prosecutions, and so any State prosecutions would be unaffected.)


The issue of the use and abuse of pardons is no doubt as old as the distinction between justice and mercy itself.

One problem will always be that there is a point where showing mercy to any significant degree defeats the purpose of law itself.

As such mercy ceases to complement justice but subverts justice instead.

Mercy will then not alleviate the excesses of the rule of law, but instead may undermine the rule of law.

And we may about to see this in action with Trump in the United States.

What Trump now does with his power to pardon before 20 January 2020 may exceed in scale what was done with the Clinton last-day pardons, and surpass in jurisdictional reach what was done with the pardon for Nixon.

Trump may be about to use the power of mercy to assault justice itself.


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14 thoughts on “Pardons should be how mercy complements justice – but what happens when pardons undermine justice?”

  1. The text of the Flynn pardon reads more like a President who wants to put himself above the law rather than someone “granting clemency”… “I the President deem / ordain he was never guilty.” We should not be surprised if this President tries to act further in ways that seem above the law.

  2. Did Boris Johnson in effect issue a pardon to Priti Patel with regard to the findings of the Cabinet Office inquiry into her bullying behaviour.

  3. You refer to the pardon or executive grant of clemency for Michael Flynn. The link you supply (thanks!) is to a press statement about this. This is not a neutral document; it reads as a political presentation and refers to events said to have happened at the 2016 election.

    I’ve searched but cannot find the actual wording on this executive grant

  4. Great post David. I hope you don’t mind me adding a bit of historic context from the Nixon era.

    The Nixon pardon was not litigated because the Special Prosecutor Leon Jaworski carefully looked at it and came to the conclusion that it was lawful and not open to attack. As Jaworski wrote to the then Attorney General when justifying his decision not to indict Nixon:

    “The provision in the Constitution investing the President with the right to grant pardons, and the recognition by the United States Supreme Court that a pardon may be granted prior to the filing of charges are so clear, in my opinion, as not to admit of doubt…

    “Thus, in light of these conclusions, for me to procure an indictment of Richard M. Nixon for the sole purpose of generating a purported court test on the legality of the pardon would constitute a spurious proceeding in which I had no faith; in fact, it would be tantamount to unprofessional conduct and violative of my responsibility as a prosecutor and officer of the court.”

    (From Jaworski’s book “The Right and the Power, the Prosecution of Watergate”)

    It’s also worth noting that the US Department of Justice’s Office of Legal Counsel considered whether a self-pardon would be possible in an opinion written shortly before Nixon’s resignation and concluded that it would not be on the grounds that no one may be a judge in his own case, albeit with very limited legal analysis. However, the OLC opinion (which remains in force) is only binding on the Department of Justice and could be rescinded at any time.

  5. A wonderful summary of the ongoing US circus. More pardons will undoubtedly follow!

    The wording of the pardon looks appears it was written by Trump as it is more about him than about Flynn.

    A comment of the possibility of Trump temporally stepping aside and empowering the Pence with the power of office to grant a pardon, in order to get beyond the judge and jury situation would be appreciated.

    P.S. Please delete the earlier draft erroneously sent.

  6. I suppose this goes back to your previous post about Trump being transactional in his dealings with everything. It isn’t about justice or mercy or guilt or innocence or anything else. It’s about having a magic button which stops your friend from going to jail.

    It’s the same as his thinking about the court cases. He has appointed 3 of the supreme court judges and 3 further are seen as being ‘on side’. They could all hypothetically join an opinion which simply declares his victory because MAGA. There is nothing practically stopping them doing that besides boring abstract things like facts and law and precedent and judicial oaths.

    I think he has a hard time understanding things on any level beyond immediate personal and partisan interest and he struggles to see why anyone else would.

  7. As ever, I continue to learn from these sharp essays, characteristically marked with great clarity.

    In this case, however, I was confused by this statement: “When applied to legal matters, a pardon is about forgiveness.”

    Even with the specific legal setting, it’s difficult to see how release from punishment (pardon) is about restoration of relationship (forgiveness), and all the moreso when the pardon is issued by a third-party, not by the one who has suffered from the offence (the “victim”)—surely the only one in a position to forgive.

    There is a very good chance I’m missing something here, though. My thoughts on this, such as they are, owe most to Jeffrie Murphy and Jean Hampton’s Forgiveness and Mercy (CUP, 1988), and the article on forgiveness in the Stanford Encyclopedia of Philosophy:

    1. It is a fair question

      Criminal prosecutions are in the name of the state, not in the name of the victim. The state prosecutes and, if found guilty, convicts and punishes the person.

  8. I do not profess to understand even my own belief. However, the Christian belief appears to be that sins that are pardoned cease to exist. The thought has some logical difficulty; perhaps a pardon cancels the sentence and annuls the mens rea of the act and thus negates the offence.

  9. Thanks. I found this interesting. I would like to repost it for free on the Rebel Breeze wordpress blog — may I?

    I would add as a comment (under my own name) that Nicky Kelly here in Ireland received a Presidential Pardon for a crime which he had not committed and of which he should not have been convicted, facts established with regard to his co-accused, who had their convictions overturned amid widely-discussed allegations of admissions obtained by torture, police perjury etc. However, Nicky Kelly had absconded the jurisdiction the day before sentence and had fled to the USA. Upon the release of his co-accused he returned to Ireland, where he was met at the airport by the political police (Special Branch) and taken straight to prison, where he remained for four years before being released on “humanitarian grounds” (i.e because of the scandal and a very energetic campaign including well-known public figures). Eight years later he received his “pardon”.

    On the other hand? Neither the police nor the judiciary have ever been investigated. They won’t need a pardon though certainly there are those who will be unable to forgive them.

  10. Good Morning David,

    You are a wonderful example of the Reithian Principles.

    I came across an interesting point made by a US Constitutional lawyer. He is of the view that the answer to the question whether a president can pardon himself is contained in the very words themselves “The President shall have power to grant …. pardons….”. The use of the words “to grant” means that it must be given to someone else (since one cannot “grant” something to oneself). He prays in aid other uses of the word “grant” in the Constitution to the same effect.

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