The Justice Department tells a crime victim about a federal clemency petition only after the Attorney General concludes that contact is warranted. That step is in the rule for a commutation of a sentence, and for a pardon after the person has served a sentence, when the offense is a felony and there was a victim.
When the rule applies
The rule is 28 C.F.R. § 1.6(b). It applies to clemency cases filed on or after September 28, 2000. These regulations advise Department of Justice staff. They create no enforceable right to clemency, and they do not limit the President (28 C.F.R. § 1.11).
Contact follows a conclusion, drawn from the clemency file, that reaching the victim is warranted. The rule lists what to weigh:
- how serious the offense was, and how recent it was;
- the nature and extent of the harm to the victim;
- the person's overall criminal history and any history of violent behavior; and
- the likelihood that clemency could be recommended.
The Office of the Pardon Attorney receives the petition and prepares the Department's report. The Attorney General reviews the petition and the investigation, then sends the President a written recommendation to grant or deny (28 C.F.R. § 1.6(a), (c)). The President decides.
Who counts as the victim
For this rule, a victim is an individual who suffered direct or threatened physical, emotional, or pecuniary harm from the crime for which clemency is sought. Pecuniary harm means a money loss. If that person died, or was rendered incompetent, as a direct and proximate result of the crime, the rule names one relative, in this order: the spouse, then an adult offspring, then a parent. Rendered incompetent means the person cannot act for themselves. An adult offspring is an adult son or daughter.
The harmed person, or that relative, must also have a request on file with the Federal Bureau of Prisons to be notified of the offender's release under 28 C.F.R. § 551.152.
That Bureau rule is about release notice. A victim or witness of a serious crime who wants notice of a specific inmate's release asks the United States Attorney in the district where the prosecution occurred. A request sent straight to the Bureau is referred to that United States Attorney for approval. Institution staff then confirm that the request was received, and they tell the person to report any later change of address or telephone number.
"Reasonable effort" under the clemency rule is satisfied by mailing to the last-known address the victim reported to the Bureau under § 551.152.
What the notice covers
When contact is made, the rule calls for notice of three things:
- that a clemency petition has been filed;
- that the victim may submit comments regarding clemency; and
- whether the President grants or denies the request.
An ordinary pardon or commutation is a written process. The Pardon Attorney's FAQ says there is no hearing. Anyone may send written material, and copies go into the file. A pardon is forgiveness and can remove civil disabilities that flow from that conviction. A commutation reduces a sentence that is still being served and leaves the conviction in place. The side-by-side is on pardon versus commutation.
For a pardon, the Justice Manual also treats victim impact as something the Department may weigh, along with conduct after the conviction, the seriousness of the offense, acceptance of responsibility, and the views of the prosecutor and the sentencing judge (Justice Manual 9-140.112).
Death-sentence cases
A person under a federal death sentence is under a separate section, 28 C.F.R. § 1.10. Counsel may ask to make an oral presentation to the Office of the Pardon Attorney, and should request it when the petition is filed. The family of a victim of that offense may, with the help of the prosecuting office, request an oral presentation of reasonable duration as well. What a reprieve is covers the filing windows in that section.
Section 1.8(b) also treats a death sentence differently. In other cases, if the Attorney General recommends denial and the President does not disapprove or take other action within 30 days, the President is presumed to agree, and the Department notifies the petitioner and closes the case. That presumption is written to except a sentence of death (28 C.F.R. § 1.8(b)).
While a petition is open
Updated information goes to the open file. The clemency case search shows whether the case is still pending, and how to check clemency status explains the labels. If you have not received a denial notice, the FAQ says you may treat the petition as still pending.
Request a consultation and tell us what happened. We'll listen, tell you whether we can help, and explain what comes next.