Federal Clemency
What is Clemency?
Clemency is an executive power assigned to the president of the United States to intervene in specific criminal cases. For example, a president can issue a presidential pardon or commutation of sentence.
A presidential pardon forgives someone for committing a federal crime and restores their rights.
The Presidential Power of Clemency
Article II, Section 2 of the Constitution gives the President pardon power. The relevant text of that section states as follows:
“…he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
The President’s Clemency power includes both commutations, where a person who is actively serving their sentence has said sentence or fine reduced in any amount (from one day off all the way down to no days left), and pardons, which is a form of executive form of forgiveness for a conviction and sentence, usually one that has already been completed, and serves as the only way a person can receive certain rights again (such as voting or the ability to carry a firearm).
The Pardon Attorney’s website states that the Pardon Attorney has assisted the President in the exercise of the executive clemency power for the past 125 years. Important to note is that the Pardon Attorney is a part of the Department of Justice, which also presides over the United States Attorneys who are involved in the prosecution of alleged defendants. This allows those two agencies to share information, such as police reports or victim statements (when applicable).
Usually, the decision on whether to grant someone clemency is based on a showing that the person has become a contributing member of society, has paid for their crime, and is unlikely to repeat criminal behavior.
Federal Pardons vs. Commutations
Although pardons and commutations both constitute clemency issued by the sitting president, they allow for different things.
A commutation of sentence can be awarded to a currently incarcerated person. Primarily, it serves to reduce their sentence. Alternatively, a presidential pardon is an official show of forgiveness for a crime. Dissimilarly to a commutation, it does not only apply to currently incarcerated people. However, with a pardon, the president can restore a person’s civil liberties, including voting rights, the right to hold public office, and gun ownership among others.
Both pardons and commutations are for federal crimes only.
Applying for a Federal Commutation
Where Can I send my Commutation Petition?
A person desiring a commutation must submit an application to the Office of the Pardon Attorney. Commutations can be sent online or by mail. Although the process seems very simple and the documents to apply for a pardon are online, we suggest hiring an attorney as the pardon application process is detailed and thorough.
What Information Should I Include on my Federal Commutation Application?
We have found that it is important to be truthful concerning the facts of the case. We have also found that it is important to accept responsibility in order for your commutation application to be in the best light for the President. We have also found that the following evidence and items are also helpful:
- Letters of support from family and friends, including things that have shown how your sentence has impacted them.
- A “personal statement” where you accept responsibility and apologize.
- Copies of the classes that you have taken and any certificates that you have received.
- Letters from individual that indicate that they are willing to help you reacclimatize into society
Making claims about the validity of the evidence or minimizing conduct is NOT recommended.
What makes for a good commutation petition?
The office of the Pardon attorney’s website indicate that the following are reasons for a commutation:
- disparity or undue severity of sentence,
- critical illness or old age,
- meritorious service rendered to the government by the petitioner, e.g., cooperation with investigative or prosecutive efforts that has not been adequately rewarded by other official action.
In addition, prior administrations looked for the following characteristics in commutation candidates:
- Low-level offenders (as opposed to leader-organizers)
- Non-violent offenders
- Individuals with no/little prison disciplinary history
- Persons with substantial rehabilitation in the form of classes taken and certificates received.
- First-time offenders
- Persons who would not have received the same sentence if they were sentenced today (see generally, the FIRST STEP Act)
Can I continue to fight my case while seeking a commutation?
No. The Department of Justice’s regulations indicate that they will not consider a clemency petition where the person is challenging their case or their sentence in the courts:
"Nor are commutation requests generally accepted from persons who are presently challenging their convictions or sentences through appeal or other court proceeding. "
Source: SECTION 9-140.113 – STANDARDS FOR CONSIDERING COMMUTATION PETITIONS. If a person is engaged in litigation of any kind then the pardon attorney’s office can administratively close their petition. This can happen at any time during the commutation case or the other litigation. The best way to protect your rights in this situation would be to reach out to a lawyer in order to make sure your rights are protected.
What steps does the government take in reviewing a commutation petition?
An application also includes a thorough background investigation conducted by the Federal Bureau of Investigation (FBI), a consultation between the Office of the Pardon Attorney and all relevant parties involved (e.g. sentencing judges, the prosecuting attorney, probation officers, employers, and friends), and an examination of all relevant documents and records.
Afterwards, the Pardon Attorney will submit a recommendation to the President through the Attorney General and White House Counsel. Usually, the Attorney General’s opinion about whether an individual should receive a pardon carries great weight with the President.
How Can I monitor the progress of my commutation petition?
Loved ones on the outside can monitor the progress of a clemency by going to the pardon attorney’s tracker.
How to Apply for a Federal Pardon
An application for a federal pardon is very detailed and the government does a significant investigation when considering and deciding a pardon.
Where Can I send my Pardon Petition?
Just like a commutation petition, a pardon petition can go to the office of the pardon attorney at the address listed on their website. If you submit your pardon application and you find supplemental information then you can send it to the same address.
What Information Should I Include on my Pardon Application?
We have found that it is important to be truthful concerning the facts of the case. We have also found that it is important to accept responsibility, show remorse and atone in order for your pardon application to be in the best light for the President. We have also found that the following evidence and items are also helpful:
- Letters of support from family and friends, including things that have shown how your continued issues after incarceration has impacted them.
- A “personal statement” where you accept responsibility and apologize.
- Information about what you have done in the community since you have been released
- Letters from individual that indicate that they are willing to help you reacclimatize into society
In addition, the Department of Justice’s pardon information page indicates that you must include:
- any additional arrest records,
- any “delinquent credit obligations,”
- any civil lawsuits filed against you,
- any unpaid tax obligations,
- at least three character affidavits from with notarized signatures. These cannot be from persons related to you by blood or marriage.
What makes for a good Pardon petition?
The office of the pardon attorney indicates that they will engage in an investigation and make a detailed inquiry into your background and current activities. as part of this the pardon attorney will investigate into the following:
- The nature and seriousness of the offense
- your overall criminal record
- any hardship you might be suffering because of your conviction
- the nature and extent of your post conviction involvement in community service or other charitable activities and community contributions
What Steps does the government take in reviewing a pardon petition?
The pardon attorney will engage in an investigation. This may include those that submitted character affidavits or letters of reference on your behalf. The investigators may also reach out to neighbors, associates and other individuals.
A clemency file is compiled and maintained in order to assist the President with exercising pardon power. The ultimate decision on who to grant a pardon to lies with the president.
A pardon can only be sought five years after the applicant finishes their sentence. If a sentence does not include any confinement the waiting period starts the day of sentencing. The pardon attorney’s website indicates that a person should also have completed any supervised release or parole before seeking a pardon.
If a person is denied a pardon then they may submit a new petition for reconsideration two years after their denial. The President’s reasoning is not included in the denial.