Presidential pardons have been in the news, which has led to an onslaught of questions about just how far a president's pardoning powers extend—and what would happen if the person being offered the pardon declined it altogether? Is such a thing even possible, or does the pardoned individual in question have no choice in the matter? Believe it or not, it's an issue that has come up a few times over the past two centuries—and the answer isn't exactly a clear-cut one.
To fully answer the question, first an important distinction has to be made between commutation and pardoning. Both are part of the pardoning powers given to the president, but differ in levels. Speaking to ABC News, Randy Barnett, a professor at Georgetown University, explained that "Pardon is an 'executive forgiveness of crime'; commutation is an ‘executive lowering of the penalty.'" And the answer to the question depends on that distinction.
UNITED STATES V. WILSON
In 1833 the Supreme Court heard the case of the United States v. George Wilson. On May 27, 1830, Wilson and co-conspirator James Porter were both sentenced to death after being convicted of robbing a U.S. postal worker and putting the carrier’s life in jeopardy. While Porter was executed just over a month later, on July 2, 1830, Wilson managed to escape the sentence. President Andrew Jackson decided to pardon Wilson for the death penalty charge on the understanding that he had yet to be sentenced for other crimes (for which he was looking at a minimum of 20 years). For some reason Wilson waived the pardon, possibly because of confusion about what case he was being tried for at the time and what cases the pardon was for.
In 1833, the Supreme Court ultimately weighed in on the issue, ruling “A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered, and if it be rejected, we have discovered no power in a court to force it on him.” (Strangely, the details of whether or not Wilson was ever executed are lost to time.)
BURDICK V. UNITED STATES
This right of refusal was affirmed in 1915. George Burdick, city editor of the New York Tribune, refused to testify regarding sources for articles on alleged custom fraud by invoking his Fifth Amendment rights [PDF]. President Woodrow Wilson then gave a pardon to Burdick, protecting him from any charge he may incriminate himself of during his testimony. The idea behind the pardon was to force Burdick to testify, under the theory that he could no longer be convicted for any acts he may reveal. But Burdick rejected the pardon, continued to invoke his rights, and was found guilty of contempt.
The Supreme Court ruled that Burdick was within his rights to refuse the pardon and as such he did not lose his Fifth Amendment rights.
BIDDLE V. PEROVICH
A 1927 ruling added a new wrinkle to the pardoning issue. In 1905, Vuco Perovich was sentenced to hang for murder, which President Taft commuted to life imprisonment a few years later. Perovich was then transferred from Alaska to Washington, and later to Leavenworth. Perovich eventually filed an application for writ of habeas corpus, claiming that his commutation was done without his consent. The Supreme Court ultimately ruled that "the convict’s consent is not required."
This ruling has led decades of legal scholars to wonder if the Perovich ruling overturned these earlier cases, with Supreme Court Justice Oliver Wendell Holmes Jr. arguing “Whether these words sound the death knell of the acceptance doctrine is perhaps doubtful. They seem clearly to indicate that by substantiating a commutation order for a deed of pardon, a President can always have his way in such matters, provided the substituted penalty is authorized by law and does not in common understanding exceed the original penalty" [PDF].
In other words: You may be able to refuse a pardon, but you would not be able to refuse a commutation.
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