To grant clemency is to give mercy, to forgive. When we speak of an executive’s official power to grant clemency, be it a president or governor, the core of that executive power is to allow the executive to show leniency or mercy. Indeed, it is said to be an act of grace that is based on fairness, justice, and forgiveness.
Clemency is not a right. It is a privilege. It comes typically as a result of rigorous vetting of a petition. Also, giving someone clemency does not mean that the crime is forgotten or that the perpetrator is innocent of the crime. Rather, it is an act to typically acknowledge that the perpetrator has taken responsibility for the offense in some way. It also signifies that some type of relief is merited for a punishment that he or she has faced or is about to face.
Types of Executive Clemency
When answering the question “what’s clemency?,” we must begin with the five essential types of executive clemency:
- Pardon – This forgives someone for a crime he or she committed. Pardons typically are granted after the recipient has completed his or her sentence. However, pardons have been granted during or before punishment is imposed in certain extraordinary cases. One recent example is President Trump’s decision to pardon Joe Arpaio in 2017.
- Commutation – This replaces a less severe punishment for the original sentence imposed on someone. An example of a recent high profile presidential pardon is President George W. Bush’s commutation of I. Lewis “Scooter” Libby in 2007.
- Reprieve – This gives temporary relief from a punishment. Typically, this is authorized to give a person an opportunity to find a means or reason for reducing a sentence imposed.
- Remission – This is a reduction or cancellation of court-ordered fines imposed against a person.
- Amnesty – This is typically a pardon extended to a group or class of people, usually for a political offense. Unlike a pardon, amnesty removes all legal memory of the offense.
History of Executive Clemency
Any discussion of “what’s clemency?” should begin with the question “where does clemency come from?” The presidential power to grant clemency is found in Article II, Section 2, Clause 1 of the U.S. Constitution, which provides that “The President… shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Significantly, the clemency power did not garner significant debate at the time the Constitution was written. That is most likely because the drafters of the Constitution were well aware, in 1787, of the English Crown’s authority to change and reduce punishments.
Indeed, the history of the clemency power is centuries old. Over time, changes and limits were made to ensure that it was not abused. Yet, the limits were few and specifically defined. When the Constitution was drafted, it was considered a given that the English Crown could extend its mercy on virtually whatever terms it pleased. Alexander Hamilton in his Federalist No. 69 even summarized the clemency power as “resembl[ing] equally that of the King of Great Britain and the Governor of New York.”
As a consequence, the history of the executive clemency power in the U.S. demonstrates a consistent adherence to the English common law practice. Early decisions of the United States Supreme Court prove that pattern, such as the case of Ex parte Wells, 18 How. 307 (1856), which upheld President Fillmore’s pardon based on tenets of English common law. Supreme Court cases follow those precedents to this day. In sum, the president’s clemency power has been viewed over the centuries as a prerogative with few limits on whom the president may pardon and what conditions to attach to a grant of clemency.
Federal vs. State Clemency
Although there are few limits to a U.S. president’s clemency power, the one limit that is expressly stated in the Constitution is that the president can only give clemency for “Offenses against the United States.” That means that the president cannot grant clemency for state crimes, only federal ones.
Accordingly, state governments are vested with the power to grant clemency in cases of people convicted of state crimes. The vast majority of states in the U.S. place the power to grant state clemency in the hands of their governor. However, a handful of states have a special pardon/clemency board that administers and makes decisions on the applications.
In April 2014, President Obama asked the U.S. Department of Justice’s Office of the Pardon Attorney to commence an initiative encouraging qualified federal inmates to petition for commutation of their sentences. The highest priority inmates were to be those who:
- Would have received a lesser sentence for the same crime based on a change in the law subsequent to their sentencing;
- Are non-violent, low-level offenders;
- Have served at least 10 years of their prison sentence;
- Do not have a significant criminal history;
- Have demonstrated good conduct in prison; and
- Have no history of violence.
Another feature of the Clemency Initiative was that the Office of the Pardon Attorney arranged for qualifying federal inmates to have pro bono representation, to ensure that the petitions were researched and drafted at no cost to the inmates.
The Clemency Initiative was a success. It sparked an influx of petitions much greater than in previous administrations, and the Office of the Pardon Attorney carefully vetted the petitions to narrow them down to only those that fit the criteria above. As of his last day in office, President Obama granted commutation of sentence to 1,715 people. It is unclear whether the Initiative will continue under the current administration.
Clemency is an act of forgiveness by the executive in the federal government or in a state government. It comes in five forms – pardon, commutation of sentence, reprieve, remission, and amnesty. The notion of clemency granted by a king or other ruler is a vestige of a centuries-old history and tradition. The U.S. founding fathers most likely carried that tradition from the prerogative given to the English Crown and carried it forward in Article II, Section 2, Clause 1 of the U.S. Constitution. It is allowed at both the federal and state level, whereby a state governor will typically grant it for state-level crimes. Finally, the U.S. Office of Pardon Attorney exists to assist the president with clemency requests, and just completed a successful Clemency Initiative under President Obama.
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