The Limits of the Clemency Power: On Pardons, Retributivists, and the United States Constitution

Abstract

This article discusses the President's pardon power, examining its modest constitutional limitations and different theories about whether and when its use should be limited. Included are discussions of whether the Due Process and Equal Protections Clauses provide any protection for would-be pardonees as well as whether a pardon challenge would even be justiciable. The Article concludes that limiting the pardon power through constitutional amendment would be neither necessary nor wise. Potential abuses are either already subject to sanction or sufficiently unlikely to occur that the costs implicated in framing and passing an amendment would more than outweigh any benefits likely to be accrued through such an amendment.