Effects of a Presidential Pardon ( 1995 )

Effects o f a Presidential Pardon
A full and unconditional presidential pardon precludes the exercise of the authority to deport a con­
victed alien under 8 U.S.C. § 1251(a)(2).
A full and unconditional presidential pardon removes a state firearm disability arising as a result of
a conviction o f a federal crime.
A full and unconditional presidential pardon extends to the remission of restitution ordered by a court
pursuant to 18 U.S.C. § 3551 (b)-(c) as a “ sanction” authorized in addition to imprisonment, proba­
tion, or a fine until such time as the restitution award is paid to the victim.
June 19, 1995
M em o ra n d u m for t h e P a rd o n A tto r n ey
This memorandum responds to your request for our opinion concerning whether
a full and unconditional presidential pardon precludes the exercise of the authority
to deport a convicted alien under 8 U.S.C. § 1251(a)(2),* removes a state firearm
disability arising as a result of conviction of a federal crime, or extends to the
remission of court-ordered criminal restitution not yet received by the victim of
the pardoned offender. We answer all three questions in the affirmative.
I.
A.
Your first question requires us to examine the effect of a presidential pardon
on the deportability of an alien on the ground that he or she has been convicted
of certain crimes. Section 1251(a) of title 8 describes the classes of aliens who
“ shall, upon order of the Attorney General, be deported.” The various criminal
convictions that make an alien deportable are set forth in subsections (A)-(D) of
§ 1251(a)(2). Subsection 1251(a)(2)(A)(iv) waives the application of subsection
(A) (involving crimes of “ moral turpitude” and “ aggravated felonies” ) for any
offender who “ has been granted a full and unconditional pardon by the President
of the United States or by the Governor of any of the several States.” The statute
is silent, however, as to the effect of such a pardon on the convictions listed
in subsections (B)-(D), which include offenses involving controlled substances,
firearms, and miscellaneous crimes.
The Immigration and Naturalization Service takes the position that a pardon
only removes the authority to deport an alien whose conviction falls within sub-
♦ E ditor’s note: At the tim e this memorandum was issued, section 1251 o f title 8, United States Code, codified
section 241 o f title II o f the Immigration and Naturalization Act (“ IN A ” )* Subsequently, on September 30, 1996,
that section was redesignated as section 237 o f the INA, and was thereafter recodified as 8 U.S.C. § 1227. See
Pub. L. No. 104-208, § 305(a)(2), 110Stat. 3009,3009-598 (1996).
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section (A). Although the statute only addresses the effect of a pardon with respect
to crimes involving moral turpitude and aggravated felonies, that conclusion does
not end the analysis of this issue, because congressional legislation cannot define
or limit the effect of a presidential pardon. As Acting Attorney General John W.
Davis opined in a similar context:
The fact that by the act of August 22, 1912, Congress expressly
recognized the right of the President to remit such penalties “ where
the offense was committed in time of peace and where the exercise
of such clemency will not be prejudicial to the public interest”
can not affect the power of the President, which exists independ­
ently of legislative recognition, to remit such penalties by pardon,
whether the offense [was] committed in time of peace or in time
of war.
Naval Service — Desertion— Pardon , 31 Op. Att’y Gen. 225, 232 (1918); see also
Ex Parte Garland , 71 U.S. (4 Wall.) 333, 380 (1866) (“ This power of the Presi­
dent [i.e., the pardon power] is not subject to legislative control. Congress can
neither limit the effect of his pardon, nor exclude from its exercise any class
of offenders. The benign prerogative of mercy reposed in him cannot be fettered
by any legislative restrictions.” ). Thus, the question raised by your request is not
a matter of statutory interpretation, but instead entails consideration of the scope
of the President’s pardon authority under the Constitution.
Article II, section 2 of the Constitution authorizes the President “ to grant
Reprieves and Pardons for Offenses against the United States, except in Cases
of Impeachment” (the “ Pardon Clause” ). In Ex Parte Garland, the Supreme
Court summarized the reach of a presidential pardon as follows:
A pardon reaches both the punishment prescribed for the offence
and the guilt of the offender; and when the pardon is full, it releases
the punishment and blots out of existence the guilt, so that in the
eye of the law the offender is as innocent as if he had never com­
mitted the offence. If granted before conviction, it prevents . . .
the penalties and disabilities consequent upon conviction from
attaching; if granted after conviction, it removes the penalties and
disabilities, and restores him to all his civil rights; it makes him,
as it were, a new man, and gives him a new credit and capacity.
Garland, 71 U.S. at 380-81. This broad interpretation of the effect of a pardon
was affirmed in Knote v. United States, 95 U.S. 149 (1877), in which the court
stated:
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A pardon is an act of grace by which an offender is released from
the consequences of his offense, so far as such release is practicable
and within control o f the pardoning power, or of officers under
its direction. It releases the offender from all disabilities imposed
by the offense, and restores to him all his civil rights. In contempla­
tion of law, it so far blots out the offence, that afterwards it cannot
be imputed to him to prevent the assertion of his legal rights.
Id. at 153.
A presidential pardon relieves the offender of all punishments, penalties, and
disabilities that flow directly from the conviction, provided that no rights have
vested in a third party as a consequence of the judgment. In Boyd v. United States,
142 U.S. 450 (1892), for example, the defense objected to the testimony of a
witness who had been convicted of larceny. In response, the prosecution presented
a full and unconditional pardon issued by President Harrison. The Court held that
the pardon restored the competency of the witness to testify. “ The disability to
testify being a consequence, according to the principles of the common law, of
the judgment of conviction, the pardon obliterated that effect.” Id. at 453-54.
This conclusion is supported by the English common law from which the
framers drew their understanding of the scope of the power being granted the
Chief Executive. The Pardon Clause of the Constitution was derived from the
pardon power held by the King of England at the adoption of the Constitution.
Accordingly, the Supreme Court has repeatedly looked to English cases for guid­
ance in interpreting the effect of a pardon. See, e.g., Schick v. Reed, 419 U.S.
256, 262-63 (1974); Ex Parte Wells, 59 U.S. (18 How.) 307, 310-11 (1855).
At common law it was well settled that a pardon by the king removed not only
the punishment that flowed from the offense, but also “ all the legal disabilities
consequent on the crime.” 7 Matthew Bacon, A New Abridgment o f the Law 416
(1852); see, e.g., Cuddington v. Wilkins, 80 Eng. Rep. 231, 232 (K.B. 1614)
(“ [T]he King’s pardon doth not only clear the offence it self, but all the depend­
encies, penalties, and disabilities incident unto it.” ).
Based on the foregoing analysis, we believe that a deportation order authorized
by § 1251(a)(2) is a consequence of a conviction that is precluded by a full and
unconditional presidential pardon. Section 1251(a)(2) does not render a person
deportable based on the conduct in which he or she engaged. Rather, this provision
establishes an additional penalty that attaches solely because of the conviction.
Thus, a person who engaged in the conduct prohibited by the relevant criminal
statutes but was never convicted of the crime would not be deportable on the
basis of this provision; the authority to deport hinges completely on the fact of
conviction. Therefore, a presidential pardon would preclude the imposition of the
penalty.
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We have considered the possible argument that deportation pursuant to
§ 1251(a)(2) is not precluded by a pardon because the statute does not impose
a penalty or disability based on an offense but rather only implements a decision
regarding conduct Congress has deemed inconsistent with the qualifications aliens
must have to remain in the country. Although in interpreting the pardon power
the Supreme Court has never expressly adopted a distinction between penalties
that a pardon can remove and qualifications that a pardon does not affect, the
Attorneys General and lower courts have invoked it.
For example, in 1898, Attorney General Griggs was asked to consider the effect
of a presidential pardon on the administration of a statute that prohibited the
reenlistment of any soldier ‘“ whose service during his last preceding term of
enlistment ha[d] not been honest and faithful.’ ” Army— Enlistment— Pardonk,
22 Op. Att’y Gen. 36, 37 (1898) (quoting Act of Aug. 1, 1894, ch. 179, §2,
28 Stat. 215, 216). The soldier in question had been discharged after being con­
victed of desertion from military service. Subsequently, he was pardoned by the
President and sought reenlistment. Because Congress may prescribe qualifications
and conditions for military service, Attorney General Griggs sought to determine
whether the statute in question set such a qualification or attempted to impose
additional disabilities on the offender because of the conviction. He concluded
that application of the statute to a pardoned soldier was permissible because it
did not seek to prevent reenlistment because of the commission of a criminal
offense. Rather, he found that the statute’s prohibition related to “ previous con­
duct in service and affectfed] the personal rather than the criminal character of
the applicant.” Id. at 39. Where a statute “ is properly to be regarded as a rule
relating to qualification^] for office,” a later opinion concluded, and “ does not
impose a penalty as such on individual offenders . . . the incidental disabilities
which they may suffer by reason of the statute are not removed by a pardon.”
31 Op. Att’y Gen. at 230; accord Effect of Pardon on Statute Making Persons
Convicted o f Felonies Ineligible for Enlistment in the Army, 39 Op. Att’y Gen.
132 (1938). In contrast, “ where a statute although purporting to prescribe quali­
fications for office has no real relation to that end but is obviously intended to
inflict punishment for a past act,” a presidential pardon will abate that punish­
ment. 31 Op. Att’y Gen. at 229.1
1 The decision o f the Supreme Court in Garland illustrates this distinction. In Garland', at issue was an act o f
Congress that attempted to exclude from the practice o f law all persons who had participated in the Rebellion.
The Court determined that this exclusion was a punishment for the offense of treason. In other words, the Court
concluded that, despite C ongress's attempt to present its Act as setting qualifications for a profession, it was actually
an attempt to exact additional punishment for an offense. The Court held that the Act could not be applied to
Garland because the President’s pardon prohibited the plaintiff from being punished for the offense of treason.
To hold that he could be punished under this new law would subvert the President’s clemency power. As the Court
stated, “ [i]f such exclusion can be effected by the exaction of an expurgatory oath covering the offense, the pardon
may be avoided, and that accomplished indirectly which cannot be reached by direct legislation. It is not within
the constitutional power o f Congress thus to inflict punishment beyond the reach o f executive c le m e n c y /' Garland,
71 U.S. at 381; see also United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). Accordingly, any punishment Congress
attempted to prescribe for guilt for the offense was not applicable to the plaintiff.
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Professor Samuel Williston drew essentially the same distinction in an early
and seminal article, reasoning that:
[I]f the mere conviction involves certain disqualifications which
would not follow from the commission of the crime without convic­
tion, the pardon removes such disqualifications. On the other hand,
if character is a necessary qualification and the commission of [the]
crime would disqualify even though there had been no criminal
prosecution for the crime, the fact that the criminal has been con­
victed and pardoned does not make him any more eligible.
Samuel Williston, Does a Pardon Blot Out Guilt?, 28 Harv. L. Rev. 647, 653
(1915). In recent decades, several federal courts of appeals have endorsed
Williston’s view. See, e.g.. United States v. Noonan, 906 F.2d 952, 958-59 (3d
Cir. 1990); Bjerkan v. United States, 529 F.2d 125, 128 n.2 (7th Cir. 1975).
It is clear that deportation based on § 1251(a)(2) operates solely on the basis
of the conviction of crime and therefore falls within the type of consequence that
is removed by a pardon under the Williston distinction. The provision creates
a “ disqualificationf ] which would not follow from the commission of the crime
without conviction.” 28 Harv. L. Rev. at 653. A person who engaged in the con­
duct prohibited by the relevant criminal statutes but was never convicted of the
crime would not be deportable on the basis of this provision. Rather, § 1251(a)(2)
excludes only those aliens who have been convicted. As such, its application to
a pardoned alien is impermissible.2
B.
You have asked us to address specifically whether a pardon removes only the
consequences of a conviction or whether it also removes the consequences of an
offense even where there has not yet been a conviction. Throughout the Nation’s
history, Presidents have asserted the power to issue pardons prior to conviction,
and the consistent view of the Attorneys General has been that such pardons have
as full an effect as pardons issued after conviction. See, e.g., Pardoning Power
o f the President, 6 Op. Att’y Gen. 20 (1853); Pardons, 1 Op. Att’y Gen. 341
(1820). Indeed, in two of the best-known exercises of the pardon power (President
2 It might also be argued that because deportation is not punishment, it is not precluded by a presidential pardon.
This argument has been suggested in dicta in tw o court opinions. Kwai Chiu Yuen v. INS, 406 F.2d 499 (9th Cir.)
cert, denied , 395 U.S. 908 (1969); United States ex rel. Brazier v. Commissioner o f Immigration, 5 F.2d 162 (2d
Cir. 1924); In each instance, the court relied on the Supreme C ourt's statement in Mahler v. Eby, 264 U.S. 32,
39 (1924), that deportation 4,is not punishment” for purposes o f the Ex Post Facto Clause o f the Constitution (art.
I, § 9 ), to suggest that a presidential pardon does not preclude deportation. Kwai Chiu Yuen, 406 F.2d at 502; Brazier,
5 F.2d at 164. W e disagree with this argument because we believe that a presidential pardon removes all adverse
consequences o f conviction that can be view ed as punishments, penalties, or disabilities that attach by reason of
the conviction, regardless o f whether they are viewed as “ punishm ent" for purposes of invoking other constitutional
provisions.
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Andrew Johnson’s offer of pardons to persons involved in secession but willing
to take an oath of loyalty, and President Jimmy Carter’s pardon of persons who
avoided military service during the Vietnam War), the vast majority of those par­
doned had not been convicted of any crime.
The language of the Court’s opinion in Garland is instructive on this issue:
A pardon reaches both the punishment prescribed for the offence
and the guilt of the offender; and when the pardon is full, it releases
the punishment and blots out of existence the guilt [for the offense],
so that in the eye of the law the offender is as innocent as if he
had never committed the offence.
Garland, 71 U.S. at 380 (emphasis added). We understand this passage to mean
that a pardon removes or prevents the attachment of all consequences that are
based on guilt for the offense. In the great majority of cases, a pardon comes
after a conviction; thus, there has already been a finding of guilt in the criminal
justice process. It is important to understand, however, that the pardon is for the
guilt for an offense, not just the conviction of the offense. Thus, a pardon for
an offense that is issued prior to a conviction has the same effect as one that
is issued after a conviction. Any consequences that would have attached had there
been a conviction are precluded.3
The foregoing analysis does not mean that a pardoned person cannot be held
accountable for the conduct underlying the offense by a governmental entity
seeking to determine suitability for a position of confidence or trust, adherence
to a code of conduct, or eligibility for a benefit. In Garland the Court stated
that a pardon makes “ the offender . . . as innocent as if he had never committed
the offense.” Id. (emphasis added). We do not interpret this to mean that the
pardon creates the fiction that the conduct never took place. Rather, a pardon
represents the Executive’s determination that the offender should not be penalized
or punished for the offense. There may be instances where an individual’s conduct
constitutes not only a federal offense, but also a violation of a separate code of
conduct or ethics that the individual is obligated to comply with by virtue of
3 Consequences that attach simply by reason o f an indictment for an offense generally are not precluded by a
pardon. Although the consequence is identified with reference to an offense, it generally is not based on guilt for
the offense. For example, in In re North, 62 F.3d 1434 (D.C. Cir. 1994), the court considered the application to
a pardoned individual o f the provision o f the Independent Counsel Act, 28 U.S.C. §§591-599, that authorizes the
payment o f attorneys’ fees to any person who is investigated by an Independent Counsel, see 28 U.S.C. § 593(f)(1).
The petitioner claimed that, by virtue o f a presidential pardon, he was entitled to be reimbursed for attorneys’ fees
since those fees would have been paid by the government had he not been indicted for the offense. In concluding
that the pardon did not restore his right to attorneys’ fees, the court relied on the rule enunciated in Knote, 95
U.S. at 154: the President’s exercise o f the pardon power is subject to the constitutional requirement that money
may not be withdrawn from the Treasury in the absence o f a congressional appropriation. The court could also
have reached the same conclusion by the reasoning we suggest here. The petitioner would not have been entitled
to reimbursement o f his attorneys’ fees even if he had been found not guilty o f the offense at trial. The pardon,
therefore, had no effect on his entitlement to payment o f attorneys’ fees because the refusal to pay attorneys’ fees
was not a consequence o f his guilt for the offense.
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his or her professional license. Discipline associated with the breach of the condi­
tions of a professional license, where the disciplinary action is not triggered merely
by the fact of commission or conviction of a federal offense, generally would
not be barred by a pardon.
For example, an attorney charged with a criminal offense for which he or she
is later pardoned by the President would be relieved of all consequences that
attached solely by reason of his commission of the offense. However, the pardon
would not necessarily prevent a local or state bar from disciplining the attorney,
if it independently determined that the underlying conduct, or some portion of
it, violated one of its canons of ethics. In those instances, the bar would not have
based its decision to disbar or sanction the attorney on the fact that the attorney
had violated the criminal laws of the United States, but rather would have con­
ducted an inquiry into the conduct and determined that an ethical violation had
occurred. Several state courts have taken this approach when considering the effect
of a gubernatorial pardon on state disbarment proceedings. See e.g., In re Bozarth,
63 P.2d 726 (Okla. 1936); In re Lavine, 41 P.2d. 161 (Cal. 1935); Nelson v.
Commonwealth, 109 S.W. 337 (Ky. 1908).
II.
Your second question requires us to determine whether a full and unconditional
pardon removes firearms disabilities imposed by a state as a result of a conviction
of a federal crime. The materials submitted with your opinion request suggest
that the typical disability statute makes it an offense for a person convicted of
a state or federal offense to own, possess, or have custody or control of a firearm.5
See Office of the Pardon Att’y, U.S. Dept, of Justice, Civil Disabilities of Con­
victed Felons: A State-By-State Survey (1992).
Our conclusion in section I that a presidential pardon removes all punishments,
penalties, and disabilities that attach solely by reason of a federal offense nec­
essarily requires the conclusion that a pardon removes state firearms disabilities
based solely on a federal offense, so long as we can answer affirmatively the
question whether the President’s pardon power extends beyond federal con­
sequences to include consequences imposed by a state. This question was
addressed by the Supreme Court in Carlesi v. New York, 233 U.S. 51 (1914).
In Carlesi, the Court was asked to determine whether the fact that the plaintiff
had received a presidential pardon for a federal offense prevented a state from
treating the plaintiff as a “ second offender” for the purposes of punishment for
a subsequent state offense. Writing for a unanimous Court, Chief Justice White
stated:
5 For exam ple, a C olorado statute provides that any person convicted under the laws o f a state, or o f the United
States, o f certain crimes within the past ten years or within ten years o f release from confinement, may not possess,
use or carry on his person a firearm or o th er weapon prohibited by the firearms laws. Colo. Rev. Stat. Ann. § 18-
12-108.
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It may not be questioned that the States are without right directly
or indirectly to restrict the National Government in the execution
of its legitimate powers. It is therefore to be conceded that if the
act of the State in taking into consideration a prior conviction of
an offense committed by the same offender against the laws of the
United States despite a pardon was in any just sense a punishment
for such prior crime, that the act of the State would be void because
destroying or circumscribing the effect of the pardon granted under
the Constitution and [the] laws of the United States.
Id. at 57. Ultimately, the Court concluded that the state was not seeking to impose
additional punishment for the pardoned offense, but rather had made the conduct
underlying that offense an aggravating circumstance for purposes of determining
the punishment for the second offense. See id. at 59. However, it is clear from
the above-quoted passage that if the Court had determined that the state was
attempting to punish or penalize the offender for the pardoned offense, the state’s
action would have been a violation of the Constitution. At least one federal court
of appeals has expressly adopted this position. In Bjerkan, the Seventh Circuit,
relying on the Court’s dicta in Carlesi, held that “ a presidential pardon restores
state as well as federal civil rights.” 529 F.2d at 129. The court stated that once
a federal offense has been pardoned, any “ attempted punishment [by a state]
would constitute a restriction on the legitimate, constitutional power of the Presi­
dent to pardon an offense against the United States and would be void as circum­
scribing and nullifying that power.” Id. at 128.
The conclusion that a presidential pardon relieves a federal offender of state
firearms disabilities that attach solely by reason of a federal conviction is sup­
ported by federal supremacy principles based on the Supremacy Clause of the
Constitution. U.S. Const, art. VI, cl. 2. The Pardon Clause gives the President
exclusive jurisdiction in the issuance of pardons and reprieves for offenses against
the United States. See Schick, 419 U.S. at 266-67. Accordingly, the Supreme
Court has held repeatedly that Congress may not act in any manner that would
limit the full legal effect of a presidential pardon. See, e.g., Klein, 80 U.S. at
148; Garland, 71 U.S. at 380. The same conclusion is required with respect to
acts of a state that would limit or destroy the effect of a presidential pardon.
When the President issues a pardon pursuant to this constitutional authorization,
the pardon preempts any inconsistent state laws, regulations, or actions. In its
sphere— offenses against the United States— the President’s pardon power “ must
be supreme. It cannot be hindered by the operation of the subordinate govern­
ments. The pardon power would be ineffective if it could only restore a convict’s
federal civil rights.” Bjerkan, 526 F.2d at 129; see also Harbert v. Deukmejian,
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173 Cal. Rptr. 89 (Cal. Ct. App. 1981) (state firearm disability does not apply
to a person who has received a full and unconditional presidential pardon).5
III.
Your third question concerns whether a full and unconditional presidential
pardon extends to the remission of restitution ordered by a court pursuant to 18
U.S.C. §3551(b)-(c) as a “ sanction” authorized in addition to imprisonment,
probation, or a fine.6 This question, to our knowledge, has not been decided by
any court, but we conclude, based upon existing precedent, that a pardon does
reach such restitution where the victim has not yet received the restitution award,
provided the pardon does not contain an express limitation to the contrary.7
Although a pardon is a full forgiveness of punishment, there is a limitation
on this power. As the Supreme Court explained in Osborn v. United States, 91
U.S. 474, A ll (1875):
If in the proceedings to establish [the offender’s] culpability and
enforce the penalty, and before the grant of the pardon, the rights
of others than the government have vested, those rights cannot be
impaired by the pardon. The government having parted with its
power over such rights, they necessarily remain as they existed pre­
viously to the grant of the pardon. The government can only release
what it holds.
See also Knote, 95 U.S. at 153-55; Garland, 71 U.S. at 381; cf. Hodges v. Snyder,
261 U.S. 600, 603 (1923) (holding that the private rights of a party that have
been vested by the judgment o f a court cannot be taken away by subsequent legis­
lation); Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421,
431 (1855) (same). Thus, whether the restitution order is remitted by the pardon
depends on whether the order creates a vested right for the victim.
5 An 1856 opinion o f Attorney General Cushing concludes that a presidential pardon does not extend to legal
or political disabilities imposed by one o f the states. Pardons, 7 Op. A tt’y Gen. 760 (1856). However, we decline
to follow that opinion because we disagree with the approach it takes on a number o f issues. First o f all, without
any discussion o f the scope o f the pardon power, the opinion simply accepts the petitioner’s assumption that a
presidential pardon does not by itself rem ove a disability imposed by a state on the basis o f a federal conviction.
More fundamentally, the opinion is inconsistent with the subsequent Supreme Court opinion in Carlesi, modem
concepts o f federalism, and our analysis o f th e effect o f a presidential pardon.
6 Subsections (b) and (c) o f §3551 perm it a “ [s]anction authorized by [18 U.S.C. §} 3556.” Section 3556, in
turn, permits a sentence requiring “ the defendant [to] make restitution to any victim o f the offense in accordance
w ith the provisions o f . . . [18 U.S.C. §§] 3663 and 3664.” The latter sections impose an elaborate set o f procedural
and substantive requirements upon the sentencing court concerning the imposition o f restitution. Thus, 18 U.S.C.
§ 3551(b)-(c) effectively incorporate by reference the requirements of 18 U.S.C. §§ 3663 and 3664.
7 Clearly, the President may grant a pardon on the condition that the offender pay any court-ordered restitution
imposed before the pardon was issued. H ow ever, the President must expressly state any limitation or condition that
he wishes to im pose because a pardon is presum ed to reach all punishment resulting from an offense. Indeed, even
when a limitation is expressly stated, any ambiguity must be construed in favor of the beneficiary o f the pardon.
See Knote, 95 U.S. at 151.
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A vested right is one the conferral of which is complete and consummated.
See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162 (1803). With respect
to rights affected by a presidential pardon, the Court has stated:
Where . . . property condemned, or its proceeds, have not . . .
vested, but remain under control of the Executive, or of officers
subject to his orders, or are in the custody of the judicial tribunals,
the property will be restored or its proceeds delivered to the original
owner, upon his full pardon. The property and the proceeds are
not considered as so absolutely vesting in third parties or in the
United States as to be unaffected by the pardon until they have
passed out of the jurisdiction of the officer or tribunal. The proceeds
have thus [vested] when paid over to the individual entitled to them,
in the one case, or are covered into the treasury, in the other.
Knote, 95 U.S. at 154. Thus, we do not believe that restitution orders issued pursu­
ant to 18 U.S.C. § 3551 (b)-(c) create vested rights in victims until the victims
actually receive the award. Prior to that time, the victim does not exercise the
complete control over the property required for a right to be vested.
Although 18 U.S.C. § 3663(h) provides victims with civil remedies to collect
restitution, it does not make restitution a civil judgment that a court may not
revoke. To the contrary, a restitution order results from a criminal proceeding
that adjudicates guilt and it is issued as part of the offender’s sentence. Its char­
acter is undeniably penal rather than compensatory. As the Court reasoned in Kelly
v. Robinson, 479 U.S. 36 (1986):
Although restitution does resemble a judgment “ for the benefit of”
the victim, the context in which it is imposed undermines that
conclusion. The victim has no control over the amount of restitution
awarded or over the decision to award restitution. Moreover, the
decision to impose restitution generally does not turn on the vic­
tim’s injury, but on the penal goals of the State and the situation
of the defendant.
Id. at 52. Thus, the Eleventh Circuit has held that a victim does not have Article
III standing to challenge the revocation of a restitution order. United States v.
Johnson, 983 F.2d 216 (11th Cir. 1993). Other courts have relied on similar rea­
soning to deny alleged victims standing to challenge the terms of a restitution
order under both the Constitution and 18 U.S.C. §§3663-3664. See United States
v. Kelley, 997 F.2d 806 (10th Cir. 1993); United States v. Grundhoefer, 916 F.2d
788 (2d Cir. 1990).
Based on these decisions, it is clear that a victim does not have complete control
over a restitution award prior to receiving it. Rather, he or she is allowed to collect
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only pursuant to the terms set forth by the court. Thus, no rights or interests
vest in the victim upon the issuance of a restitution order. Because a pardon elimi­
nates all penalties that do not create vested rights in a third party, we conclude
that a full and unconditional presidential pardon has the effect of remitting court-
ordered criminal restitution that has not yet been received by the victim.
Of course, as should already be clear from the foregoing discussion, the pardon
cannot remit a restitution award that the victim has received. Once the victim
takes possession, the Executive no longer has control over the award. As the Court
stated in Knote, “ if the proceeds of the sale have been paid to a party to whom
the law has assigned them, they cannot be subsequently reached and recovered
by the offender. The rights of the parties have become vested, and are as complete
as if they were acquired in any other legal way.” 95 U.S. at 154. Therefore,
any restitution awards that have been received by the victim prior to the granting
of the pardon are not recoverable by the offender.
IV.
For the foregoing reasons, we conclude that a full and unconditional pardon
precludes the exercise of the authority to deport a person pursuant to 8 U.S.C.
§ 1251(a)(2), removes firearms disabilities imposed by a state solely by reason
of a federal conviction, and remits restitution awarded pursuant to 18 U.S.C.
§3551(b)-(c) where the victim has not yet received the award. We note, however,
that the President can leave undisturbed any of these consequences by expressly
stating that their continued existence is a condition of the pardon.
WALTER DELLINGER
Assistant Attorney General
Office of Legal Counsel
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