Pardon vs. Commutation: Which One Fits Your Situation?

The short answer: The difference comes down to where the person with the conviction is today. Someone still serving a federal sentence would ask for a commutation, which shortens the sentence. Someone who finished a sentence years ago would ask for a pardon, which forgives the crime. Both are forms of clemency, and neither erases the conviction.

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 Offences against the United States, except in Cases of Impeachment.” So what is the difference between a pardon, a commutation, and clemency?

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.

Clemency vs. pardon: what is the difference?

Clemency is the umbrella term, and a pardon is one kind of clemency. The Office of the Pardon Attorney calls executive clemency “a broad term” for the President’s constitutional power to give leniency to people who have committed federal crimes, and it treats a pardon and a commutation as different forms of it (Office of the Pardon Attorney FAQ). The Justice Department’s rules also list a reprieve and remission of a fine (28 C.F.R. § 1.1). So every pardon is clemency, but not all clemency is a pardon. For more, see what clemency means.

Pardon vs. commutation at a glance

• Who it is for. A commutation is for someone still serving a federal sentence. A pardon is usually for someone released from prison at least five years ago, or convicted at least five years ago if there was no prison sentence (28 C.F.R. § 1.2).
• What it does. A commutation reduces the sentence. A pardon forgives the crime and removes civil disabilities, such as limits on voting or jury service (Office of the Pardon Attorney FAQ).
• What neither does. Neither one erases the conviction or means the person was innocent (same source).
• Which form to use. The Office of the Pardon Attorney has separate application forms for each on its Apply for Clemency page.

Commutation vs. reprieve

A commutation reduces a sentence. A reprieve only postpones it, most often an execution. In federal death penalty cases, the Justice Department’s rules cover requests for either one (28 C.F.R. § 1.10).

Pardon vs. Commutation – The Commutation Side

A commutation shortens a federal sentence that someone is still serving, in whole or in part. It may also release unpaid fines or restitution. It does not change the conviction, imply innocence, or restore rights, and it has no effect on immigration status (Office of the Pardon Attorney FAQ). For the full definition, see what a commutation is.

Some examples show how commutations work in practice.

Schick v. Reed

In the 1974 U.S. Supreme Court case Schick v. Reed, 419 U.S. 256 (1974), 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 Lewis Libby’s Prison Sentence

Another example is President George W. Bush’s commutation of I. Lewis “Scooter” Libby’s prison sentence on July 2, 2007. Libby was convicted in federal court in the District of Columbia of obstruction of justice, false statements, and perjury, and was sentenced to 30 months in prison, two years of supervised release, and a $250,000 fine. The commutation ended the prison term immediately but left the supervised release and all other parts of the sentence in place (Office of the Pardon Attorney, Commutations Granted by President George W. Bush). As with Schick, Libby’s conviction was not changed.

Pardon vs. Commutation – The Pardon Side

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 Justice Department’s clemency rules, a person generally should not apply for a pardon until five years after release from confinement, or five years after conviction if there was no prison sentence (28 C.F.R. § 1.2). However, these rules are only advisory and do not restrict the President’s authority (28 C.F.R. § 1.11). For the full definition, see what a pardon is.

A president may also grant a pardon before a person is even charged with a crime. Well-known examples include President Gerald Ford’s September 8, 1974 pardon of former President Nixon, and President Jimmy Carter’s 1977 proclamation pardoning certain violations of the Military Selective Service Act (Proclamation 4483).

Here are three more examples of presidential clemency.

Marc Rich

On January 20, 2001, President Bill Clinton pardoned Marc Rich, who had been indicted in the Southern District of New York on charges including wire fraud, mail fraud, racketeering, and income tax evasion. The pardon came before any conviction (Office of the Pardon Attorney, Pardons Granted by President William J. Clinton).

Oscar Lopez Rivera

On January 17, 2017, President Barack Obama commuted the sentence of Oscar Lopez Rivera, so that his prison sentence would expire on May 17, 2017. (This was a commutation, not a pardon.) He had been convicted in the Northern District of Illinois of seditious conspiracy and other offenses and sentenced to 55 years in prison, plus a consecutive 15-year sentence for a later conspiracy conviction (Office of the Pardon Attorney, Commutations Granted by President Barack H. Obama).

Joe Arpaio

On August 25, 2017, President Trump pardoned former Arizona sheriff Joe Arpaio for contempt of court in the District of Arizona. The pardon came before Arpaio was sentenced (Office of the Pardon Attorney, Pardons Granted by President Donald J. Trump).

Pardon vs Commutation – Federal Crimes Only

The President has the power to grant clemency for federal offenses only, not state crimes (Office of the Pardon Attorney FAQ).

What is the difference between a pardon and a commutation? 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 the examples above show, there are exceptions. Both are forms of clemency, the umbrella term for the President’s power of mercy in federal cases.