When presidents pardon their way past accountability, justice takes a back seat. Recent examples of executive overreach underscore the urgent need for presidential pardon reform. On his first day in office last month, U.S. President Donald Trump blanketly pardoned over 1,500 individuals involved in the Jan. 6 insurrection, including those convicted of violent crimes. In addition, he commuted the sentences of members of the Proud Boys and Oath Keepers — far-right militant groups convicted of seditious conspiracy related to the violence on Jan. 6, 2021.
In his final hours in office, former U.S. President Joe Biden faced criticism for granting pardons to several family members, including his son Hunter Biden, who had been convicted of multiple felonies. Biden also issued pardons to five other family members, reportedly to protect them from potential political prosecution. Such extensive and non-discretionary use of the pardon sets a dangerous precedent of using the pardon to preempt accountability and evade justice. The unprecedented misuse of pardons highlights the need for reforms, such as the establishment of pardon boards. Safeguards like these are critical to ensuring that nobody — not even the president — is above the law.
The power to pardon, outlined in Article II of the Constitution, grants the president unilateral authority to forgive federal offenses without having to provide a timeframe, scope or rationale for its use. Moreover, pardons cannot be challenged, which allows presidents to pardon individuals without offering any justification, potentially permitting them to exploit this power for personal agendas.
The abuse of presidential pardon power, especially for family and political allies, is not uncommon in this political era. For instance, during his first term, Trump pardoned his daughter’s father-in-law Charles Kushner, his former chief strategist Steve Bannon and his former campaign chairman Paul Manafort. These instances show how presidents have normalized the use of pardoning power to shield those closest to them, further eroding accountability at the highest levels of government.
While presidents have exploited pardons for personal and political gain, they have also used them as a vital mechanism for addressing miscarriages of justice. Notably, Biden pardoned over 2,500 people convicted of nonviolent drug offenses on Jan. 17. Former U.S. President Jimmy Carter pardoned thousands of Americans for refusing the draft during the Vietnam War. These actions illustrate how pardons can provide redress for systemic judicial overreach.
Still, while the sweeping power of the pardon is designed to combat the justice system's fallibility, pardons also demand scrutiny due to the extraordinary and dangerous power they consolidate within the executive branch. Trump’s blanket pardons of Jan. 6 rioters represent a blatant abuse of this power. In this case, Trump pardoned individuals who were not victims of injustice but perpetrators of chaos, attacking the U.S. Capitol in an attempt to subvert the will of the people. By absolving these rioters, Trump signaled his willingness to condone future acts of violence for the sake of political gain, undermining accountability for those who threaten our democracy.
Compounding this troubling precedent is a recent U.S. Supreme Court ruling that broadens the scope of executive power: Trump v. United States grants the president and their inner circle immunity from prosecution for “official acts.” Clearly, American political elites consolidate power in ways that undermine the checks and balances upholding our democracy. The presidential pardon, once intended to act as a check against injustices, now functions as a tool to perpetuate them.
While the federal pardon system has unmistakable flaws, some states have created better alternatives by employing the checks and balances that are lacking at the federal level. In Georgia, the State Board of Pardons and Paroles has the sole discretion to grant pardons, eliminating the complete pardoning power the executive authority may hold in other states and in the federal government. Composed of five members appointed by Georgia governors, this board creates a judicial scaffolding to prevent the misuse the federal system permits. Some states like Nebraska and Nevada have similar judicial systems, while others such as Delaware, Florida, Louisiana, Oklahoma, Pennsylvania and Texas require the board to recommend a grant of clemency for the governor to exercise pardoning power.
These boards, whose sole responsibility is to evaluate pardons and paroles, prevent executives in power from unilaterally misusing pardoning power. In Georgia, the State Board of Pardons and Paroles reviews about 1,000 clemency applications annually, granting nearly half. Notably, Georgia, Nebraska and Nevada — states with parole processes independent of the governor — are among the states that grant pardon applications most frequently. States using independent or board-recommended clemency processes not only maintain stronger safeguards against abuses of power but also demonstrate a greater commitment to comprehensive and expedient justice.
Following the lead of states utilizing pardon regulation boards would be a positive development in judicial fairness for all states and a challenging, but necessary, constitutional reform for the federal government. We urge Emory University students to learn about the pardon processes in their home states — judicial equity may be lacking there, and it can only be reformed if someone starts advocating for it. Advocating for penalties and pardons boards on both a statewide and federal level could represent a step toward ensuring that justice can truly be blind.
