About that "accepting a pardon means confession of guilt" thing -- yeah, not so much.

[unblock]

Yes, I am aware of a Supreme Court decision from 1915. This was not a general case about that broad use of pardons. This was a specific case where someone was pardoned in an effort to force him to testify, under the argument that the 5th amendment provision against self-incrimination didn't apply to someone who had been pardoned.

While the court did say that acceptance of a pardon was an admission of guilt (and therefore the 5th amendment wouldn't apply), the main finding in that case was that a pardon couldn't be forced on someone; in that case, burdick refused the pardon.


I'm not a lawyer, but I do know that the pardon is used in many circumstances, and at least in some, it makes absolutely no sense to say that acceptance implies an admission of guilt.

Most notably, pardons have been used to avert a travesty of justice where an innocent person was convicted. Most dramatically, death row inmates have been cleared by DNA evidence not available at the time of trial, and in some cases after all appeals were exhausted.

Scalia infamously declared such people were entitled to "due process", not a "correct result" and gleefully signed off on executing demonstrably innocent people.

In such cases, only a pardon can do justice.

Yet it makes zero sense to tell such a person that accepting the pardon means admitting guilt for the crime they didn't commit. It especially makes not sense to then make them civilly liable for the crime they didn't commit.

It sets up a dynamic reminiscent of the Salem witch trials in which people could avoid death only by confessing to being a witch. This can't be right.


Not saying this applies to the particulars of the arpaio case, just saying that it's not an automatic admission of guilt to accept a
pardon.

Here's an article on the topic.

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/26/is-accepting-a-pardon-an-admission-of-guilt/?utm_term=.b4401c5ac893

[kcr]

1. Well, it does seem to me that it is indeed so much.

The courts ruled that it is an admission of guilt. End of story. The fact that a person does not have to accept a pardon doesn't change that. Nor does Eugene Volokh's opinion. ETA that doesn't mean I'm going to hold my breath.

[unblock]

2. Do you really think

that if the Supreme Court heard a case where someone pardoned after being proven innocent by DNA evidence was then sued in civil court and made to pay damages based on the "admission of guilt" implied by the pardon, the court would let it stand?

That forces an innocent person to either pay damages for a tort they didn't commit or accept continued imprisonmemt or even death for a crime they didn't commit.

I suppose with the current makeup of the court one never knows, but you can't say this is settled law.

[kcr]

3. Why would I think that?

Is it not possible to overturn a conviction after an admission of guilt? I wasn't aware of that.

[unblock]

4. Not talking about the conviction

The pardon wipes that out in this scenario.

The question is, if accepting the pardon constitutes an admission of guilt, can that "admission of guilt" be then used in a civil case?

[Generic Brad]

5. The shameless don't feel gullt

Especially when they have a get out of jail free card

[sharedvalues]

6. This is complex constitutional law

Here we should defer to constitutional lawyers.

Larry Tribe (top constitutional lawyer) says

Link to tweet

"So 5th Amendment privilege might remain wrt state incrimination, but it might be wiped out by the admission of guilt in accepting a pardon."

And Volokh is a good source, an academic expert though not someone who has argued many cases before SCOTUS.
"fourth-most cited legal scholar by appellate courts between 2010-2014, Volokh teaches free speech law, tort law, religious freedom law, church-state relations law and a First Amendment amicus brief clinic. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit."

This question will be decided by SCOTUS.

[unblock]

7. This is my real point, there remain questions that are not settled law

Personally, I think the "accepting a pardon is an admission of guilt" finding is an unfortunate finding in that it lends itself to application in cases where it makes not sense.

It may have been helpful in deciding burdick, an may have general application regarding 5th amendment issues. However, I think it absolutely should *not* inherently constitute an admission of guilt for purposes of civil cases or other criminal cases. That seriously undermines the value of a pardon and in many cases could prevent a deserving person from accepting one. More constitutionally speaking, it could prevent a president from using a pardon in its intended purpose.

[sharedvalues]

9. I believe however pardons prevent use of the 5th Amendment.

In either case it seems likely that Arpaio cannot refuse to testify citing the 5th. (As Oliver North did, however, he can say he 'doesn't remember')

[former9thward]

11. Two "might"s in one sentence.

Why would you think this question will be decided by SCOTUS? The Arpaio case is over.

[Ms. Toad]

8. For not being a lawyer,

you're a lot closer than most of what I've read.

Essentially that case was about whether someone could be forced to accept the pardon (and the implicit admission of guilt) and thus forced to testify in an incriminating matter. The court said no. That has been twisted into a general principle that accepting a pardon being a admssion of guilt. It's not. Courts don't rule on matters that aren't before them. This was a narrow quesiton of attempting to force a pardon on someone who wanted to avoid testifying.

[unblock]

10. That's what I think. It's been over-generalized .

I suspect that it might have been better if burdick had based its conclusion on the idea that the pardon provides a shield against incrimination (not an implicit admission of guilt) and that's why accepting a pardon could mean you coukd then be compelled to testify. Not because you've already admitted guilt, but because your testimony wouldn't be self-incriminating.

Don't know if that would have worked for burdick but makes more sense to me.