Accepting a Pardon Means Admission of Guilt
When told that President Trump was seriously considering issuing a pardon, former Maricopa County Sheriff Joe Arpaio, who is due to be sentenced for criminal contempt of court for ignoring a judge's order to stop detaining people he suspected of being undocumented immigrants, is reported to have said "I would accept the pardon because I am 100 percent not guilty."
August 29, 2017 at 12:27 AM
3 minute read
When told that President Trump was seriously considering issuing a pardon, former Maricopa County Sheriff Joe Arpaio, who is due to be sentenced for criminal contempt of court for ignoring a judge's order to stop detaining people he suspected of being undocumented immigrants, is reported to have said “I would accept the pardon because I am 100 percent not guilty.”
Before he actually accepts the pardon, Mr. Arpaio might wish to review the Supreme Court's decision in Burdick v. United States, 236 U.S. 79 (1915), in which the Court explained the implications of acceptance. A pardon, the Court found, “carries an imputation of guilt; acceptance a confession of it.” Indeed, President Gerald Ford cited Burdick extensively in explaining his pardon of Richard Nixon, and at President Ford's instruction, President Nixon was briefed about the Burdick decision and the implications of accepting the pardon. The defendant “may accept it or not, as he pleases,” and thus the “escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy.” Burdick thus states repeatedly that acceptance of a pardon amounts to a confession, which would not be consistent with Arpaio's assertion that he is “100 percent not guilty.”
History contains several examples of persons refusing to accept a pardon in order to avoid the admission of guilt that accompanies it, in circumstances more compelling than Arpaio's. Confederate President Jefferson Davis famously declined to seek a congressionally bestowed pardon under Section 3 of the Fourteenth Amendment, stating that “repentance must precede the right of pardon, and I have not repented.” In United States v. Wilson, 32 U.S. 150 (1833), the defendant was convicted of robbing the U.S. Mail in Pennsylvania and sentenced to death. Due to his friends' influence, Wilson was pardoned by President Andrew Jackson. Wilson, however, refused the pardon. Attorney General (later Chief Justice) Roger Taney argued that “unless he [the defendant] pleads it, or in some way claims its benefit, thereby denoting his acceptance of the proffered grace, the court cannot notice it, nor allow it to prevent them from passing sentence.” The Supreme Court agreed, noting that “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 is rejected, we have discovered no power in this court to force it upon him.” Having refused the pardon, Wilson thereafter was hanged.
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