Article II, Section 2, Clause 1 of the Constitution of the United States grants the President the power to grant clemency to persons who have committed federal crimes. Specifically, the clause states that “The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” However, in terms of pardon vs commutation, what really is the difference?
The President’s clemency power is rather broad, allowing the President to “forgive” a convicted person in part or entirely. Also, in the few U.S. Supreme Court cases that have dealt with executive clemency, the Court has concluded that the power flows from the Constitution alone and cannot be modified, abridged, or diminished by Congress. The President’s exercise of the clemency power comes in five forms: reprieves, pardons, amnesties, remissions, and commutations.
Pardon vs Commutation - What is a Commutation of Sentence?
A commutation of sentence is a reduction, either totally or partially, of a sentence currently being served. A President’s decision to commute a sentence does not eliminate a federal conviction. It also does not imply that the person was innocent of the crime for which he or she was convicted, nor does it remove the ramifications of a criminal conviction, such as losing the right to vote or inability to hold elected office.
While a commutation typically includes a reduction in the sentence that a prisoner must serve, it also may include a release from any financial penalties imposed by the sentencing court that have yet to be paid. A commutation does not have any effect on a person’s immigration status, nor will it prevent a person from being deported if because of a conviction. In short, a commutation does not make any change to the fact of conviction or its consequences, except for any reduction in sentence or fine as directed by the President.
Some examples will help give context to the notion of a commutation of sentence.
Schick v. Reed
In the 1974 U.S. Supreme Court case Schick v. Reed, the petitioner, Schick, was sentenced to death by a court-martial for murder. President Eisenhower commuted his sentence to life imprisonment with no possibility of parole. Thus, the President partially reduced Schick’s sentence by changing it from a death sentence to life in prison without parole. In the face of a challenge to the commutation, whereby Schick asked to remove the “no parole” condition based on recent case law, the Supreme Court upheld the commutation with the “no parole” condition. The Court reasoned that the commutation power cannot be modified, and that the “no parole” condition did not otherwise offend the Constitution.
President Bush’s Commutation of Scooter Libby’s Prison Sentence
Another, more famous example, is President George W. Bush’s commutation of I. Lewis “Scooter” Libby’s prison sentence in 2007. Scooter Libby, who was Chief of Staff to then-Vice President Cheney, was convicted in federal court of perjury, obstruction of justice, and lying to investigators in the investigation involving the leak of a CIA operative’s name to the public. Libby was sentenced to two and a half years in prison. Just weeks before he was to report to prison, President Bush commuted the prison term portion of his sentence in what was largely seen as an improper move to help a friend. Libby still had to pay $250,000 in fines, and serve a two-year term of probation. As with the commutation of Schick’s sentence, Libby’s conviction was not altered, nor was there any indication that Libby was innocent of the crimes he committed. Rather, Libby was just allowed to avoid serving the prison portion of his sentence.
Pardon vs Commutation – What is a Pardon?
Unlike a commutation of sentence, a presidential pardon is normally granted after a person has served his or her sentence. A pardon is an expression of the President’s forgiveness and typically is granted in recognition of the pardon applicant’s acceptance of responsibility for the crime he or she committed. It is also a recognition of established good conduct for a significant period of time after conviction and completion of the sentence.
While a pardon does not signify innocence of the crime charged, it does remove lasting consequences of the conviction such as loss of the right to vote, or inability to run for office. In some circumstances, a pardon may remove the basis upon which someone could be deported from the U.S. Under the Rules Governing Petitions for Executive Clemency, a person may not apply for a pardon until five years have elapsed since the release from a criminal sentence. However, these rules are only advisory and do not restrict the President’s virtually unfettered authority to issue executive clemency.
A president may also grant a pardon before a person is even charged with a crime. Famous examples include President Gerald Ford’s pardon of President Nixon following the Watergate scandal, and President Jimmy Carter’s pardon of draft dodgers during the Vietnam War.
Here are three examples of recent presidential pardons.
In a highly controversial pardon, President Bill Clinton pardoned Marc Rich, who had been convicted of 65 counts of tax evasion and fled to Switzerland. The pardon occurred hours before President Clinton left office. It was believed that Rich’s generous donations to Clinton’s political campaigns were the reason for the pardon. Many criticized the pardon, and even President Clinton later expressed regret for the pardon.
Oscar Lopez Rivera
President Barack Obama pardoned Oscar Lopez Rivera at the end of President Obama’s time in office. Rivera was part of a militant group that fought for Puerto Rican independence. Between 1974 and 1983 the group claimed responsibility for more than 70 bombings in the U.S. Rivera was not charged in the bombings, but for his role in the militant group. The 74-year-old Rivera was in custody for seditious conspiracy since 1981 – more than 36 years.
Sheriff Joe Arpaio
On August 25, 2017, President Trump pardoned one of his staunchest political allies, Arizona sheriff Joe Arpaio. Just one of many controversial decisions for this President, the pardon of Arpaio erased any consequences for his contempt of court conviction. Specifically, Arpaio had a checkered history of detaining people with no cause other than a suspicion that they were illegal immigrants. A federal judge ordered Arpaio to stop such profiling tactics, yet Arpaio continued to engage in the improper profiling and was ultimately convicted for failing to follow the court’s order. Arpaio was pardoned before he was sentenced.
Pardon vs Commutation – At The State Level
While the President of the United States has the power to grant clemency for federal offenses, the President does not have authority to grant clemency for state crimes. A person seeking a pardon or commutation for a state offense must apply to the Governor, or state board of pardons, if any. For example, in the State of New York, the Governor has the power to grant clemency in the form of reprieves, commutations, and pardons. There is also an Executive Clemency Bureau that assists the New York Governor with clemency determinations.
Pardon vs Commutation – In Conclusion
In sum, the difference between a commutation and pardon is generally simple: commutation is a reduction (either total or partial) of a criminal sentence while the person is still serving the sentence, and a pardon is generally granted after someone has already served their time. But as you can see above, there are exceptions, and there is never a shortage of interesting, and often controversial, stories behind every exercise of executive clemency.