At the federal level, clemency refers to the United States President's constitutional authority to grant leniency to those who've been convicted of federal crimes.
In recent years, presidents have received more petitions for clemency than ever. According to data released by the Department of Justice (DOJ), former President Harry S. Truman received 5,030 clemency petitions between 1945 and 1953. He granted 2,031 in total. In contrast, former President Barak H. Obama received over 36 thousand petitions from 2009 to 2017. He granted just under two thousand of the petitions. Ultimately, a president may have a tendency to grant more or fewer clemency petitions.
While it may seem like the odds of receiving federal clemency are stacked against you, a decision by the sitting president of the United States remains the only means by which someone convicted of a federal felony can regain certain rights, like the right to bear arms.
The Difference Between Executive Pardon and Executive Commutation
Clemency is a term that includes both pardons and commutations. Pardons differ from commutations, however, and it should be noted that commutations are more widely granted. This is because a commutation is a lesser form of leniency than a pardon; however, that doesn't mean you wouldn't want one. In some circumstances, you may only be eligible for a commutation.
Commutation generally reduces your imprisonment term, as outlined by the DOJ, it is described as follows:
- “A commutation of sentence reduces a sentence, either totally or partially, that is then being served, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction.”
- “A commutation may include remission (release) of the financial obligations that are imposed as part of a sentence, such as payment of a fine or restitution.”
- “A remission applies only to the part of the financial obligation that has not already been paid.”
- “A commutation of sentence has no effect on a person's immigration status and will not prevent removal or deportation from the United States.”
To summarize, a federal commutation will lessen the severity of your federal sentence, but it will not clear your record. A pardon, on the other hand, constitutes forgiveness of your conviction. Importantly, a pardon does not mean you're considered innocent, but it will restore certain rights that were taken away from you as a result of your federal felony conviction.
The DOJ provides the following regarding a pardon:
- “A pardon is an expression of the President's forgiveness and ordinarily is granted in recognition of the applicant's acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence.”
- “[A pardon does] remove civil disabilities – e.g., restrictions on the right to vote, hold state or local office, or sit on a jury – imposed because of the conviction for which pardon is sought, and should lessen the stigma arising from the conviction. It may also be helpful in obtaining licenses, bonding, or employment.”
- “Under some – but not all – circumstances, a pardon will eliminate the legal basis for removal or deportation from the United States.”
If you'd like to explore your federal clemency options, you should speak to an attorney who understands the process. While the DOJ insists the clemency process is suitable as a “Do It Yourself” application, it's important you assert all the relevant facts of your case without error, omission, or even unintentional falsification. False statements could lead to additional criminal prosecution. An attorney will help you avoid these pitfalls.
Understanding when or if you're eligible for federal commutation of your prison sentence can be nuanced. First and foremost, you can only apply for federal commutation if you're convicted of a federal crime. State commutations would be granted by the state governor. Additionally, the DOJ provides that in order “to be eligible to apply for commutation of sentence, a person must have reported to prison to begin serving his sentence and may not be challenging his conviction in the courts.”
Federal commutation eligibility begins when the following conditions are each met:
- You are convicted of a federal crime
- You are already serving your prison sentence
- You are not actively challenging your conviction in court
Those seeking a presidential pardon will not be eligible to apply for the pardon until they have been out of prison for at least five years. Importantly, this five-year clock doesn't apply only to the conviction and sentence for which you are seeking the pardon. If you were sentenced to any imprisonment for a subsequent crime, then the clock does not start running until five years have passed since your release from your most recent imprisonment.
Who Makes for a Good Federal Pardon Candidate?
The sitting president makes their clemency decisions based on recommendations received from the DOJ and the Office of the Pardon Attorney. When selecting candidates who may be suitable for a presidential pardon, the Pardon Attorney will weigh the following criteria:
- The applicant's demonstration of good character after their conviction
- The severity of the offense for which the applicant is requesting to be pardoned
- How recently the offense at issue occurred
- The degree to which the applicant is remorseful for the offense, with preference placed on individuals who are truly sorry rather than those who believe they were unfairly convicted
- The applicant's need for a pardon so they may regain certain liberties that were taken away because of the felony conviction, such as professional licenses
- Whether the applicant has secured official recommendations from parties such as the U.S. Attorney's Office or the Assistant Attorney General
When preparing a Pardon Petition, it's important you accurately demonstrate each component of the criteria in a manner that appropriately shows you deserve the pardon. A skilled Presidential Pardon attorney will help you draft a petition that gives you the best chance possible at finding favor with the Pardon Attorney.
Who Makes for a Good Federal Commutation Candidate?
The Pardon Attorney and the DOJ also advise the president on commutation petitions. The Office of the Pardon Attorney describes grounds for moving a commutation petition forward as including:
- Disparity or undue severity in the sentence
- Critical illness
- Old age
- Not having been appropriately rewarded for acting cooperatively with investigators or prosecutors
In addition to any of the traditionally considered circumstances above, the Pardon Attorney may take additional factors under advisement, such as the petitioner's demonstration of rehabilitation during their imprisonment.
What If My Clemency Petition Is Denied?
If your Clemency Petition is denied, you may reapply. Those who've applied for a commutation of their sentence may reapply after one year from the date of the decision to deny. If your pardon petition is denied, you will have to wait two years.
Importantly, when you reapply, you may not reuse your old petition, and you'll need to prepare a new one with current information. This is actually a good thing, as it gives the applicant an opportunity to bolster their application through demonstration of rehabilitation and contribution to society while they wait to reapply.
Seeking Clemency After an Offense by Military Courts Martial
The process for executive clemency for an offense by military courts martial is different from those convictions handed down in federal court. For example, if you are currently incarcerated for an offense by military courts martial, you cannot apply for a commutation of your sentence through the Office of the Pardon Attorney. Instead, your commutation application will be handled by the military branch of the federal government.
Similarly, if you'd like to request a pardon from a conviction handed down by military courts martial, your petition for executive pardon would be sent to either the U.S. Army, the U.S. Navy, the U.S. Marine Corps, or the U.S. Air Force, depending on which department had original jurisdiction in your case.
Those seeking a pardon after a military courts martial should understand that the pardon, if granted, won't change the nature of your discharge from the military. Still, a pardon can be worth pursuing as it will help you move forward in achieving professional goals.
How Long Does the Federal Clemency Process Take?
While the Office of the Pardon Attorney and the DOJ work to streamline the application process by presenting only qualified applicants to the sitting president, it can still take time. Under the CARES Act, the Biden Administration has instituted an expedited clemency process for non-violent drug offenders on home confinement and who have between 18 months to 48 months left on their sentence.
Ultimately, the amount of time it may take for your petition to be granted or denied could depend on the sitting president and whether they intend to prioritize such issues.
Finding an Experienced Federal Clemency Attorney Help You
If you or someone you love is seeking federal clemency, you should work with a knowledgeable attorney. Joseph D. Lento, along with his dedicated team at the Lento Law Firm, understand how important clemency petitions are to those wishing to move forward in life. To learn how Mr. Lento can help you, call 888-535-3686 today.