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Accepting Pardon Doesn't Admit Guilt

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Eugene Volokh | 9.24.2021 2:22 PM

An interesting Tenth Circuit decision yesterday in U.S. v. Lorance, by Judge David Ebel, joined by Judges Robert Bacharach and Gregory Phillips. The analysis is long and detailed (and much worth reading, if you're interested in the topic); I think it's basically correct, for the reasons I discussed in 2017:

1. In 1915, the Supreme Court indeed said, of pardons, that "acceptance" carries "a confession of" guilt. Burdick v. United States (1915). Other courts have echoed that since. [The Tenth Circuit decision concludes that, in context, this refers to how some people might see the acceptance, rather than to how the legal system should view it.]

2. On the other hand, a pardon has historically been seen as serving several different functions, one of which is protecting people who were convicted even though they were legally innocent. In the words of Justice Joseph Story, the most respected early commentator on the Constitution (writing in 1833),

There are not only various gradations of guilt in the commission of the same crime, which are not susceptible of any previous enumeration and definition; but the proofs must, in many cases, be imperfect in their own nature, not only as to the actual commission of the offence, but also, as to the aggravating or mitigating circumstances. In many cases, convictions must be founded upon presumpions and probabilities.

Would it not be at once unjust and unreasonable to exclude all means of mitigating punishment, when subsequent inquiries should demonstrate, that the accusation was wholly unfounded, or the crime greatly diminished in point of........

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