With the Trump pardons, the question came up, again, whether accepting a Presidential pardon is an acknowledgment of guilt.
For many, Burdick v. United States, 236 U.S. 79 (1925), answered the question in the affirmative. In Burdick, the appellant was offered but declined a pardon. He then refused to testify in a criminal trial. Several conclusions seem to follow from the opinion.
- A pardon can be given before conviction and sentence. If correct, this settles the discussion about several Trump pardons issued before the servicemember was tried.
- A pardon can be refused and there is “no power in a court to force it on [the person].” @90.
- Acceptance of a pardon “implies” acceptance of guilt. @91.
“This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.” @94.
It is from this language that people thought accepting a pardon was accepting guilt.
Now along comes Lorrance v. Commandant, USDB, a decision from the 10th Circuit. Here is the nub of it.
- Does acceptance of a pardon and release from custody equal a “confession?”
- Does acceptance of a pardon and release from custody waive or forfeit the right to petition for habeas corpus?
The Tenth concludes that there is no confession and Lorrance does not otherwise lose his right to petition for habeas corpus relief for his court-martial conviction and sentence. The case was remanded for further action not inconsistent with the court’s opinion.
“The writ of habeas corpus shall not extend to a prisoner unless” the prisoner is “in custody.” 28 U.S.C. § 2241(c). Notwithstanding that provision, a petitioner’s release from custody does not automatically moot a habeas petition. Carafas v. LaVallee, 391 U.S. 234, 237–38 (1968). Instead, a habeas petitioner can maintain his habeas action following his release from custody if he can identify “collateral consequences” constituting “disabilities or burdens [which] may flow from petitioner’s conviction.” Id. (quotations omitted).”
According to the court, there remained serious collateral consequences from the conviction.
- VA benefits.
- Retirement years credit.
- Expungement of the conviction.
In a historical review of the pardon power and its effect, the court finds that the implication in Burdick is dicta and has been taken out of context. Among other facts, the court honed in on this,
“The U.S. Pardon Attorney included a letter to Lorance with the presidential pardon. Among other things, the letter informed Lorance, “A presidential pardon is a sign of forgiveness. It does not erase or expunge the record of conviction and does not indicate innocence.” (Id. at 80 (emphasis added).) The letter does not state that acceptance of the pardon is a confession of guilt or a waiver of habeas rights.”
The Tenth Circuit is generally known as unwelcoming to military prisoners when a writ of habeas corpus is before the district and appellate court. While many can disagree with the issuance of pardons by President Trump, the issues discussed in Lorrance are important and appear proper.
Now we need to know if the DoJ will petition the Supreme Court.