On the heels of the prior administration’s pardoning of Hunter Biden, a decision that itself provoked criticism from across the political and legal spectrums, the Trump administration has only intensified the widespread use of the executive clemency power for questionable purposes.
On January 20, 2025, his first day in office, the President took the deeply controversial step of issuing pardons and commutations to over 1,500 people convicted in connection with the riots at the United States Capitol, including members of the Proud Boys and Oath Keepers who had been sentenced to substantial terms of imprisonment for seditious conspiracy. From that unprecedented starting point, the administration has gone on to pardon or commute the sentences of, among others, political allies (including 77 individuals associated with the “fake electors” scheme); politicians convicted of other corruption-related charges (Rod Blagojevich, George Santos, Henry Cuellar); businessmen convicted of substantial frauds (Trevor Milton, Carlos Watson, Philip Esformes); and defendants convicted on substantial drug-related charges (including Juan Orlando Hernández, the former president of Honduras).
Moreover, rather than shy away from publicizing these presidential pardons and commutations, the Department of Justice maintains a regularly updated webpage that identifies every person who has benefitted from a pardon or commutation in the president’s second term.
The Consequences of Extensive Executive Pardons
Although the current administration’s aggressive use of the executive pardon power is no longer a new topic, recent news articles have underscored the manifold consequences of the president’s actions. For example, just within the past several months:
- The New York Times Editorial Board published an opinion piece entitled “The People Trump Pardoned Are on a Crime Spree,” referring to the “mayhem that the Jan. 6 pardons have unleashed,” and noting that “[a]t least 12 of the pardoned [January 6] rioters have since been charged with other serious crimes, including child molestation, assault, harassment, murder plots, and charges related to a vicious dog attack.”
- In The New Yorker magazine, journalist Ruth Marcus wrote a story entitled “Donald Trump’s Pardon Economy,” detailing how “Trump’s brazen use of the pardon power has generated a Washington growth industry—pardon lobbyists and lawyers, who tout their connections with Trump Administration officials” and often secure substantial payments from clients who hope to receive a presidential pardon.
- The Washington Post journalist Perry Stein published an article based in part on her interviews of “more than half a dozen experienced prosecutors” – including those who built complex and successful cases against now-pardoned defendants such as former Culpeper County, Virginia sheriff Scott Jenkins (convicted of bribery), nursing home owner Joseph Schwartz (pleaded guilty to employment tax fraud), and the aforementioned Representative George Santos. Based on her reporting, Stein noted the inevitable impact Trump’s pardons have had on prosecutor morale, with “Trump clemency acts hav[ing] eroded faith among current and former Justice Department employees that the cases they devote years to prosecuting will lead to accountability.”
- The Guardian published an opinion piece illuminating the impact of Trump’s executive clemency decisions on victims of violent crimes, including through the erasure of “at least $113m in fines and penalties that would otherwise have supported a fund for violent crime victims, along with domestic violence shelters, rape crisis centers and child abuse treatment programs.”
Undoubtedly, not all politicians or citizens agree that the Trump administration’s executive clemency decisions constitute abuses, or that they reflect or are causing such fundamental deficiencies in the clemency system that reform measures are needed. In fact, some might observe that the above articles are from media outlets which, according to “The AllSides Media Bias Chart,” uniformly skew left.
On the other hand, the pardons of the January 6 defendants, as well as those of George Santos and Henry Cuellar, among others, generated meaningful criticisms from Republican lawmakers. Recent pushback from within the president’s own party against the newly adopted $1.776 billion “Anti-Weaponization Fund” reflects not only a growing unease at the conflicts of interest inherent in the fund’s creation, but also an apparent concern that the administration’s measures to benefit former criminal defendants whom the administration perceives as victims will extract a significant price at the ballot box.
Assuming, then, that this or future administrations would be willing to adopt modest measures to reverse the harm the Trump pardon decisions have caused – and assuming, simultaneously, that fundamental reform of the executive clemency powers enshrined in the Constitution is unrealistic – is there a measured step that this administration, or a future one, could adopt to reverse some of the damage and restore legitimacy to the pardon system?
Supreme Court Decisions Addressing Conditional Pardons
The potential answer (or at least one among several potential answers) lies in the concept of conditional pardons, which have a well-accepted history that dates back at least as far as 1855.
In Ex Parte Wells, 59 U.S. 307 (1855), the Supreme Court assessed whether, in connection with a murder case, President Millard Fillmore had the authority to commute a defendant’s death sentence to a sentence of life without parole, subject to the condition that the defendant agree to the terms of the offer and not challenge the life sentence. In Wells, after accepting the commutation, the defendant-petitioner argued that the president possessed the authority to issue only absolute pardons, not conditional ones, and that the petitioner’s acceptance of the conditional pardon was made under duress. In rejecting both aspects of petitioner’s argument, Supreme Court Justice James M. Wayne traced the understood scope and meaning of the pardon power in England and the United States at the time that power was adopted in the United States Constitution, and further analyzed state court interpretations of the pardon power assigned to governors. In both parts of his analysis, Justice Wayne held that the executive clemency authority undoubtedly includes the ability to issue conditional pardons, and then tersely rejected the petitioner’s secondary argument, stating that “a man condemned to be hung cannot be permitted to escape the punishment altogether, by pleading that he had accepted his life by duress…”
Over a hundred years after the decision in Wells, the Supreme Court again addressed whether the executive clemency power included the ability to issue conditional pardons. In Schick v. Reed, 419 U.S. 256 (1974), the circumstances were not distinctly different from those in Wells. The defendant in Schickhad been court-martialed and sentenced to death in 1954 for murdering a young girl while he was stationed with the U.S. Army in Japan. Using the pardon power afforded him under the Constitution, President Eisenhower commuted the defendant-petitioner’s sentence from death to life imprisonment, subject to the condition that the defendant would not be eligible for parole. Analyzing the history of the pardon power through English common law and its adoption in the Constitution, and considering also the decision in Wells, Chief Justice Warren Burger reached the unequivocal conclusion that “the President has constitutional power to attach conditions to his commutation of any sentence.”
The Potential Benefits of Conditional Pardons
How, then, can the president’s ability to issue conditional pardons or commutations serve to mitigate the most notable downsides of this country’s growing pardon debacle? Stated differently, can conditional pardons allow the presidential exercise of the delineated pardon authority under the Constitution, but at the same time (a) lessen the negative impact of such pardons on public safety, (b) prevent (or aim to prevent) recidivism by pardoned defendants, (c) avoid disincentivizing prosecutors whose obligation to investigate and prosecute cases may inevitably be undermined when a wide swath of matters are abruptly ended through pardons and (d) avoid the extent to which pardons wipe out criminal financial penalties that in turn are used to protect victims and further the interests of the criminal justice system?
The conditional pardon carries the potential to achieve all of these ends, and has pre-existing analogues in the federal criminal justice system. Were the president to condition a pardon or commutation on the requirement that a defendant not commit additional crimes within a specified period of time, as is already effectively required under the federal system of supervised release, pardoned defendants would be strongly incentivized to follow the law, because doing otherwise could result in the restoration of their conviction and sentence, the return to prison, and the loss of the benefits the executive clemency decision had given them in the first place. Non-prosecution agreements operate similarly, and could readily be applied to the executive clemency context. Specifically, a defendant who receives a pardon or commutation, like those who enter into non-prosecution agreements, could be required to agree that if they do not conform their behavior to the law for a set period of time, the government may prosecute them (or, in the case of pardons, reinstate their conviction) and pursue appropriate punishment.
Further, although the exchange of payments for pardons carries inherently problematic associations, defendants seeking a pardon or commutation could agree that such clemency will be afforded to them only if they agree to pay the fines, forfeiture, or restitution that were imposed as a result of the underlying offense. In fact, sentencing commutations already can require a defendant to pay existing financial penalties while reducing or eliminating other aspects of a sentence, such as prison time. Applying the same concept in the pardon context by conditioning a pardon on the agreement to pay financial penalties is thus not a substantial leap, and can achieve many of the underlying goals of a pardon while at the same time avoiding the erasure of fines and other such recoveries that are used to fund victim assistance funds and pay for programs intended to prevent offenses in the first place.
Practical Considerations and Takeaways
To be clear, although there are substantial benefits available through the use of pardons conditioned on the payment of financial penalties or future conformity to the law, it would be naïve to think that such measures are likely to be adopted.
If the goal of pardons is to allow supporters, political allies, or family members and friends to walk away from the consequences of their actions, conditional pardons will not be adopted. Likewise, if the purpose of specific pardon or sentence commutation decisions is to address a concern that the pardoned individual was victimized by an overly-aggressive prosecution, to effectively vacate a conviction arising from conduct that the executive branch does not believe should have been a crime in the first place, or to eliminate the collateral consequences of a conviction, there will be little incentive for the executive branch to utilize anything other than its absolute and unconditional pardon power.
On the other hand, if the continued aggressive use of pardons begins to take a toll in the court of public opinion, and by extension, at the ballot box, then conditional pardons may provide a path back to normalcy that is not only modest and reasonable, but also consistent with existing constitutional principles and the scope of the pardon power as it already exists today.
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