Executive Clemency

The U.S. President has the constitutional ability to issue various forms of clemency including presidential pardons and commutations of sentences. 

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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.

Under Article II, Section 2 of the U.S. Constitution, the president can grant pardons to offenders for crimes against the United States. Importantly, he president can give these pardons in all cases, except in cases of impeachment. Also notably, the president can grant a pardon before or after a person is convicted of a federal crime. However, conditions might apply.

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. Sometimes, the public views a pardon as controversial. In these cases, the person seeking clemency must have community support, including from victims, prosecutors, and the sentencing judge.

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.

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The Process

A person desiring clemency must submit an application to the Office of the Pardon Attorney. Because of the thorough nature of such requests, we recommend doing this through an attorney. 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. Although pardons rely on presidential discretion, the president usually grants them or these reasons:

  • Legal: For example, irregularities at trial, insufficient evidence, or disclosure of new evidence

  • Reformation of Character: Usually used if a person can show that they have changed their life significantly

If you or your loved one would like to seek executive clemency, reach out to our office to discuss your options.