Every individual who desires clemency must petition either the President or the governor of their state through the vehicle of a clemency letter. This letter can be the most important document these individuals will ever write.
The Clemency Letter
The clemency letter is more than a letter. Petitioning clemency to either the President or a state governor now requires an individual to fill out a form. These forms are relatively short in length, depending on what the petitioner is seeking. The President of the United States can only grant clemency for federal crimes while state governors handle state crimes.
Federal crimes follow a specific process that can all be found relatively easy on the Department of Justice website. The Office of the Pardon Attorney handles all clemency petitions (which are also known as clemency letters). The website is easily laid out and contains instructions for petitioners. Many times, a person petitioning for clemency is either a person currently incarcerated or does not possess the funds for an attorney to assist them through the process. These instructions lay out the requirements for commutations of sentences and pardons for federal crimes.
A person asking for a commutation of a sentence of a federal crime must fill out a six-page application form. Often this application is also known as a clemency letter. The petitioner must specify what conviction they are seeking a commutation for if they have more than one. The petitioner must state if any appeals are outstanding. A commutation of a sentence will not be rendered if an individual is still working through the appeals process. The form asks for a detailed account of the offense and the involvement of the individual. The application then requires the individual to list their full criminal record. Finally, the application asks why the individual is seeking clemency.
Opportunities Presented by the Clemency Letter
The most important aspect of the clemency letter, or application, is where the petitioner gets to explain why they are seeking clemecy. Here, the petitioner has the chance to explain their circumstance and why they deserve a commutation of a sentence. It is helpful to read clemency letter examples to see how this section can sway whether or not the Office of the Pardon Attorney refers the case for clemency to the President.
One example is that of Jason Hernandez. Hernandez was facing life in prison for dealing drugs. He filled out a clemency application form for commutation of sentence from President Obama. Hernandez was not an average inmate. He studied law during his incarceration through the vehicle of paralegal courses. He read judges’ opinions and understood the controversy over skewed sentencing guidelines for drug crimes. Hernandez wrote his application for clemency by focusing that he was a nonviolent offender. His crime did not involve gangs or guns. He was directly affected by the historical tendency for those who dealt powder cocaine, not crack cocaine, to receive much lighter sentences. It is widely agreed that these past drug sentencing guidelines affected minorities disproportionately.
A form for commutation allows for supplemental documents to be attached to the clemency application to bolster one’s case. Hernandez utilized this. He attached letters of support, including those from police officers. He attached examples of his rehabilitative and educational programs that he took while in prison. He described the mentorship program he was in and the good marks he received during prisoner reviews. He addressed his clemency form directly to President Obama.
Hernandez was one of the individuals who received a commuted sentence from President Obama. While the clemency process is not easy and nothing is guaranteed, Hernandez was able to do all this from prison with limited resources. His clemency letter clearly played a significant part in his successful outcome.
The Pardon Process
An application for a pardon is measurably different. The reason lies in the type of clemency that an individual is seeking. Commutation is a reduction of a sentence of someone who is already in prison. A pardon is requested by someone who has already served their time. It is not an act of mercy, but of forgiveness. A pardon holds the connotation that the original sentence was inherently wrong to begin with or substantially unfair under the circumstances.
The pardon application for a federal crime is 28 pages, which also includes the instructions for the form. Much of the information is similar to the application for commutation. The form asks for the offenses one wants pardoned, the factual circumstances and the involvement of the petitioner, and if the petitioner retained an attorney.
The pardon application however is a bit more in-depth than the commutation. The form wants biographical information including whether or not the petitioner is married, has children, schools attended, employment history, residential history, mental health information and substance abuse history, and financial information.
There is a waiting period for pardons. A person seeking a pardon must wait five years from the day the petitioner was released from confinement. This is to ensure, according to the Justice Department website, that the petitioner has a reasonable time to show their ability to live a responsible and law-abiding life.
The most important part is the narrative section asking why a person is seeking a pardon. This is very similar to the clemency letter’s personal discussion section. The instructions indicate a reminder that a pardon is a sign of forgiveness, not vindication. Therefore, the narrative should be more about what a person has done that contrasts the crime for which they were convicted The pardon application is in-depth. It wants to know less about the circumstances of the crime, like a commutation, but more about the petitioner and what their character reflects. This is why the pardon application also requires three character affidavits from individuals who know the petitioner well and will be able to attest to their character.
Clemency Protocols Differ by Jurisdiction
Each state has its own requirements for petitioning for clemency. All clemency letters are directed towards the governor of the respective state, but each state is different on the procedures required for the letter. Kansas requires that a copy of the petitioner’s Notice of Clemency Application-Sentencing Form be sent to the judge, prosecuting attorney, sheriff, and police chief located within the county of the petitioner’s conviction. A petitioner must also fill out a Request for Publication Form and an Application for Clemency. Clemency is granted by the governor, but petitioners are reviewed by the Prisoner Review Board who gives a recommendation to the governor.
Colorado provides another example. There, a petitioner must fill out an Executive Clemency Application. A case manager is assigned and assists the petitioner through the Executive Clemency Advisory Board Eligibility Criteria and offers guidance for filling out the application and obtaining the appropriate documents. The Colorado Department of Offender Services reviews the petition and then sends it to the Director of Executive Clemency. This Director heads the Executive Clemency Advisory Board and forwards recommendations to the governor if they deem them to be worthy.
Clemency letters are essential in providing the decision-makers the ability to determine if the petitioner should receive clemency. While the process is fairly simple, the letter holds enormous power and should be undertaken seriously.