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Jo Jorgensen, the Libertarian Party candidate for US president in 2020, has said that if elected, she would pardon anyone convicted of a victimless crime.

Ignoring the fact that Congress would impeach her, that she might be lying, and that her chances of getting elected are less than 0.1%,

  1. Could Jo Jorgensen theoretically/practically pardon hundreds of thousands of people?
  2. Is there some kind of theoretical/practical limit on how many people president can pardon at once or per day?
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    "the fact that congress would impeach her" On what basis? Commented Jul 16, 2020 at 9:29
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    @AsteroidsWithWings: on the basis that impeachment votes are highly partisan, and her party would have an approximately 0% share of both houses? ;-) Commented Jul 16, 2020 at 9:40
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    @Polygorial For example possession or manufacture of something that is illegal or requires a permit to be legal. E.g. an open-bolt SMG.
    – user31389
    Commented Jul 16, 2020 at 12:48
  • @Polygorial Nonviolent drug offenses would be the biggest category. Also: various "crimes" involving minors where the same person is both the perpetrator and the victim. Voluntary sex work, although this is usually legal at the federal level. Possession of various types of contraband. Illegal immigration. Since it's a generalized campaign statement, it's hard to know exactly what would be included, but Libertarians typically have an expansive view of this sort of thing. Commented Jul 17, 2020 at 10:23

3 Answers 3

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She does not assume a power to pardon for state crimes. The main impediment is the practical one, since a vague order regarding victimless crimes may not be enforceable. POTUS has historically granted general amnesties, such as Lincoln's Proclamation of Amnesty and Reconstruction which did not specify particular laws that were violated or individuals who violated the laws. Some degree of resistance to such an order (by prison officials and the judiciary) is to be expected, to the extent that the scope of an amnesty is ambiguous. The Lincoln proclamation is clear enough in its scope (it was triggered by taking an oath of allegiance and the persons to whom this remedy was not available are clearly-enough described).

There are on the order of 70,000 federal criminal convictions with sentencing every year, so probably over a million cases would be subject to review. She would need to sharpen the criteria, presumably by enumerating the applicable statutes. This may include or exclude convictions for perjury or lying to a federal officer. In an individual case, it could be argued that in this case, lying did not violate the rights of another person, but in that case it did – case by case review could be required. Violation of 18 USC 228 (Failure to pay legal child support obligations) might be considered to have a victim, or not, so just saying "non-violent victimless crimes" leaves open the question whether interstate refusal to pay child support is in the pardoned set. Targeted amnesties such as violation of the Controlled Substances Act could be specific enough that they could be enforced.

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    "She would need to sharpen the criteria, presumably by enumerating the applicable statues." Yes, I've always assumed from her statements that that was the plan.
    – reirab
    Commented Jul 15, 2020 at 15:27
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    It's too small for an edit, but "applicable statues" should be "applicable statutes".
    – IMSoP
    Commented Jul 16, 2020 at 8:03
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    @IMSoP Are you sure? Right and wrong seem to be defined by statues these days ;) Commented Jul 16, 2020 at 9:29
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Legally, the biggest hurdle is that the President can only pardon those convicted of federal crimes, in their position as the Federal Executive.

Depending what is meant by "victimless crime", I would imagine many crimes are actually prosecuted and convicted under state law (e.g. drug possession, prostitution, etc.), and so are out of reach for a Presidential pardon.

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    Also, I doubt there is a legal definition of victimless. Perhaps some crimes have no direct and immediate third-party victim, but the law isn't only about protecting such persons. It also protects society at large and offenders from themself. So drug use, for example, could be considered a crime whose victim is the drug-taker - the offender. Similarly, the victims of tax evasion are all the people who might've benefited from those taxes, and the honest tax-payers who will have to pay to make up the difference. Hence, you could argue that there is no such thing as a victimless crime. Commented Jul 15, 2020 at 8:49
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    @Oscar: well, you could argue that, but presumably Jo Jorgensen doesn't accept that argument. A campaign promise like, "I will pardon anyone convicted of a victimless (federal) crime" doesn't mean "I will sign an executive order stating, in its entirety, 'anyone conviced of a victimless crime is hereby pardoned'". It means, "I know roughly what I mean by a victimless crime, and subject to a bunch of work by lawyers on the details that's what I'll do". It's like "build a wall" doesn't just mean "sign an order literally three words long, and that's job done". Commented Jul 15, 2020 at 11:42
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    @paul23 it means that if elected she would pardon people whose federal crimes she considers victimless, like drug possession or prostitution. Her definition for victimless crimes is something like: crimes where no violence occurred and no wronged 3rd party. Campaign promises are extremely rarely fully ironed out (and E. Warren was a great example of why that is [it makes it really easy to attack you]), so it's no surprise a slogan won't go into the minutia. Successful candidates never ever do that.
    – eps
    Commented Jul 15, 2020 at 16:52
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    Again considering "build a wall": for most voters a fence would satisfy that campaign promise despite not literally being a wall. Then the candidate might be criticised by opponents for saying "wall", when his plan clearly was not detailed enough to be that specific, but not on the existence of the barrier. Conversely, not building anything would be seen by all but the most blinkered as a lack of execution (perhaps not dishonest, perhaps not the candidate's fault, but still). The fact you can be fired for lying on your CV doesn't mean there's no ambiguity anywhere, ever. Commented Jul 15, 2020 at 17:13
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    I mean, if your quibble is that Jo Jorgensen allows it to go without saying that she means Federal crimes (that is, those for which the President has power of pardon), then I suppose some voters might be in for a shock. Then it's a question of how far you're willing to blame the candidate for the population's ignorance of basic constitutional principles. I don't know for sure, but I doubt that she seriously expects to sweep into power on a landslide of people who think the President can pardon crimes prosecuted by the states, or for that matter by foreign countries. Commented Jul 15, 2020 at 20:59
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There's no limit but there are practical considerations

Here's the relevant part of the Constitution:

"[The president] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

So from a Constitutional point of view, there's nothing stopping the president from pardoning a ton of people at once. There are only two restrictions: the president can't pardon state offenses and the president can't override an impeachment. That second category is very small but state offenses comprise a lot of non-violent crimes.

user6726 is correct in saying that the real challenge is practical. Issuing one sweeping pardon would be really really hard. Defining a "victimless crime" would require a large team of attorneys to choose which laws are truly "victimless", and each case would have to be reviewed to determine if the situation really fit the definition. In the real world, the Justice Department Office of the Pardon Attorney reviews applications and offers opinions to the White House. If Jorgensen wanted to pardon that many people, she could create specific guidelines and then have the Pardon Attorney review the resulting hundreds of thousands of applications (the office would have to hire a lot more people). Then she could issue pardons based on their reviews.

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  • Would there be other practical limitations? For instance would the president have to personally sign each pardon?
    – stannius
    Commented Jul 15, 2020 at 15:20
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    @stannius the president can put as many people as she wants on one pardon. There are a lot of traditions around presidential actions, but as the current administration has demonstrated, these norms can be broken. Commented Jul 15, 2020 at 15:25
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    @stannius There's no requirement that the people to be pardoned have to be specifically named and, as other answers have pointed out, there is precedent for very broad pardons.
    – reirab
    Commented Jul 15, 2020 at 15:33

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