The short answer: Clemency is mercy from the President for someone convicted of a federal crime. For a person still in prison, it usually means a commutation, which shortens the sentence. For a person who has finished the sentence, it usually means a pardon, which forgives the crime.
Except for a few notable instances, clemency primarily lies under the radar. It is often thought of a power reserved for the lame-duck period of a president’s term, but clemency has been and is invoked regularly, most recently by President Donald Trump. Beyond its few controversial uses, it remains a mysterious concept of executive authority. Often, it is seen as a means to pardon people with close government ties, but that’s not its purpose. The foundation of the clemency definition, and its overwhelming application, is humanitarian. Wrongful convictions, excessive punishments, and successful rehabilitation are the primary reasons the clemency power exists; however, the misconceptions about the practice of clemency, its limitations, and even the clemency definition still remain. This article serves to clear up these misinterpretations of clemency and its application.
The Clemency Definition – Meaning of Clemency
Generally, Clemency can be defined as act of mercy and leniency afforded another. To define clemency legally, it is the power to forgive a crime or to reduce its punishment. It may not be clear in the language, but mercy and leniency are the foundation for the legal clemency definition. Clemency reprieves improper convictions and recognizes the rehabilitative effect of the judicial system. This is achieved through what is known as pardons and commutations.
Pardon vs Commutation
Pardons and commutations are the methods of mercy adopted in the legal clemency definition. Under Justice Department rules, a pardon petition generally should not be filed until five years after release from confinement, or five years after conviction if there was no prison sentence (28 C.F.R. § 1.2). Being pardoned has three main effects:
- Restores certain rights, such as federal firearms rights, and can help with others, like voting, that depend partly on state law;
- Removes any unserved or unpaid part of the sentence; and
- Formally forgives convicted persons without expunging their record.
Commutations, on the other hand, simply reduce the length of a sentence, amount of restitution, or can even reduce a death-row inmate’s penalty to life in prison. Prior to the 2014 Clemency Initiative, commutations were much more difficult than pardons to obtain. Since the 2014 Clemency Initiative, however, the federal government increased efforts to release non-violent criminals serving extensive sentences and used commutation as the primary means to achieve this goal.
Federal Clemency Only
The President may only grant clemency for federal crimes. A state conviction is outside the President’s power.
Define Clemency at Federal Level :
Clemency’s definition and grant of authority originate from Article II, Section 2 of the United States Constitution. It reads, the President “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Other than that, this power is virtually unfettered; there exists no judicial or legislative means to overrule a presidential pardon. The ability to request a presidential pardon or commutation, however, is much more laborious and time-consuming as it is governed by specific eligibility requirements and processes.
First, individuals seeking clemency must submit a formal petition to the Pardon Attorney’s Office in the Department of Justice. The Pardon Attorney’s Office then reviews the petition in light of various factors to determine whether a person should be recommended to the President for clemency; different standards are used depending on whether the petitioner requests a pardon or commutation of sentence. After the president receives a recommendation and grants clemency to an individual, that exercise of power cannot be checked or altered by another government official. It should be noted that only a small fraction of clemency requests are granted. President Obama, for example, granted 1,927 of the more than 36,000 petitions he received (Justice Department clemency statistics).
Presidential Pardons
Under Justice Department rules, an individual generally should wait five years after release from confinement (or after conviction, if there was no prison sentence) before applying for a presidential pardon (28 C.F.R. § 1.2). After a period of five years has lapsed the Pardon Attorney’s Office primarily looks at demonstrated good behavior and conduct. Additionally, the Pardon Attorney considers the following factors in deciding whether to recommend an individual for a pardon.1. Post-Conviction Conduct, Character, and Reputation
2. Seriousness and Relative Recentness of the Offense
3. Acceptance of Responsibility, Remorse, and Atonement
4. Need for Relief
5. Official Recommendation and Reports
Presidential Commutation
Before the Clemency Initiative (2014) , commutation approvals were much more uncommon than pardons at the federal level. Reasons for granting commutation, despite its rarity, included “disparity or undue severity of sentence, critical illness or old age, and meritorious service…to the government by the petitioner.” (Justice Manual 9-140.113). The Clemency Initiative, however, established new factors and prioritized individuals who met them. These factors are:
- They are currently serving a federal sentence in prison and likely would have received a substantially lower sentence if convicted of the same offense today;
- They are non-violent, low-level offenders without significant ties to large-scale criminal organizations;
- They have served at least 10 years of their prison sentence;
- They do not have a significant criminal history;
- They have demonstrated good conduct in prison; and
- They have no history of violence prior to or during their current term of imprisonment.
Request A Consultation
If you or a loved one is looking for help with requesting clemency or a pardon, book a consultation with Brandon Sample, Esq.