Clemency and Commutation for Federal Drug Sentences.

Under Article II, Section 2 of the United States Constitution, the President has the authority to grant pardons, reprieves, and commutations. This constitutional power is a matter of executive grace, and its exercise is subject to the President’s broad discretion. This authority is not limited to any particular type of criminal case or sentence. Congress cannot substantively limit the effect of a pardon through legislation, and it cannot be used in cases involving impeachment.

While the U.S. Constitution vest the power of clemency in the President alone, the U.S. Department of Justice’s Office of the Pardon Attorney performs several tasks to support the process. This includes screening applicants and ensuring that clemency is granted only where appropriate. However, the Pardon Attorney’s Office does not have the authority to grant pardons, reprieves, or commutations. Rather, the President takes the Pardon Attorney’s recommendations into account when making final decisions. The president is the only official with the authority to pardon, reprieve, or commute a sentence under federal law.

The scope of the presidential pardon power extends to all federal offenses, offenses brought by the United States, and court-martial convictions. However, it does not extend to state crimes. If you are convicted of a state crime, the President cannot grant a pardon for a state crime. A state pardon will have no effect on any federal conviction or sentence, and a presidential pardon will have no effect on a state court judgment.

A presidential pardon is an absolute grant of clemency that can address a federal conviction or sentence. It can be granted in a federal drug case as well as in any other federal cases, and it can take effect even if the individual has already completed their sentence or was facing a sentence at the time of the grant. A pardon can address the conviction itself or the underlying sentencing punishment, and it is an individualized presidential remedy that requires the applicant to demonstrate a need for clemency through documented rehabilitation.

Which drug-specific facts make a clemency petition plausible, and which do not?

Pardon petitions are generally most plausible when they are filed after the sentence being challenged has been fully served, and when they are accompanied by strong evidence of the individual’s documented post-conviction rehabilitation. As a general rule, Pardon Attorney guidance states that pardon applications will not be considered until at least five years after conviction or release from confinement, whichever is later. The Pardon Attorney also states that a pardon petition should generally include a record of supervised release or parole completion. The five-year pardon waiting period is not a stated commutation requirement, and Pardon Attorney guidance does not explicitly state that commutation applicants must also have a record of supervised release or parole completion.

What facts provide grounds for commutation?

Commutation petitions are generally most plausible in cases where the sentence is excessive, where the person convicted has a serious illness, is of advanced age, or where the person convicted has provided significant and unacknowledged assistance to the government. Pardons may be available, but they are typically not available when the convicted individual is in prison. While Pardon Attorney guidance does not specifically list nonviolent offenses as a justification for commutation, previous clemency initiatives have emphasized granting relief to nonviolent, low-level offenders who have demonstrated substantial rehabilitation.

Are the requirements for a pardon request different from those for a commutation request?

Yes, the requirements for a pardon request are different from those for a commutation request. The primary difference is that a pardon request is generally not plausible until after the person convicted has completed their sentence. An applicant seeking clemency through the Pardon Attorney’s Office must match their clemency grounds with either a pardon or a commutation request. If they qualify for a pardon, they will file a petition for executive clemency; and, if they qualify for a commutation request, they will also file a petition for executive clemency. It is essential to meet the Pardon Attorney’s substantive requirements in order for the individual seeking clemency to have a meaningful chance of success. To meet the Pardon Attorney’s requirements for commutation, an applicant must demonstrate that they have a legitimate grounds for seeking commutation and that they have been substantially rehabilitated. To meet the Pardon Attorney’s requirements for a pardon, an applicant must demonstrate that they have completed their sentence, they have waited the requisite five years, and that they have been substantially rehabilitated.

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How are federal drug clemency petitions filed and supported?

Individuals who are seeking to file a federal pardon or federal commutation petition must submit their applications to the U.S. Department of Justice’s Office of the Pardon Attorney. The Office of the Pardon Attorney will accept clemency applications that are submitted through the internet, by fax, or by mail, and the office publishes its specific instructions and filing procedures online.

The Office of the Pardon Attorney also provides guidance to applicants regarding legal representation. According to the Pardon Attorney’s Office:

Applicants do not need attorneys to submit clemency petitions, but they may hire counsel if they choose.

As with most matters handled by the Pardon Attorney, filing clemency petitions does not require a fee. While an individual may have to pay attorney’s fees for legal representation, applicants will not pay a government filing fee.

What is the pardon application process?

Pardon applications are filed on a standard form provided by the Office of the Pardon Attorney. The form includes sections requiring additional information. While commutation applications request information about the offense, other criminal history, reasons for seeking clemency, rehabilitation, and release plans, pardon applications request broader information about the applicant’s post-conviction life and history.

Additional supporting documentation is generally required in pardon applications. According to the Pardon Attorney’s Office:

The application requires at least three letters of support. Primary references cannot be related to the applicant by blood or marriage and must be willing to be interviewed during a background investigation.

While commutation applications generally do not require affidavits, pardon applications require applicants to be mindful of character affidavits. Applicants who have not yet obtained the three required character affidavits should allow sufficient time to obtain them before filing.

The guidance provided by the Pardon Attorney’s Office states that applicants seeking a pardon should demonstrate good conduct for a substantial period of time after conviction and service of sentence. This includes documenting the applicant’s good conduct and involvement in the community. Applicants who are able to provide documentation of their rehabilitation, community involvement, and post-conviction conduct can enhance their prospects of successfully obtaining a pardon.

What is the commutation application process?

Commutation applications are filed on a standard form as well. They generally do not require additional disclosures or character affidavits. They also do not require proof of outstanding community involvement and post-conviction rehabilitation. Applicants seeking clemency by way of commutation should focus on showing that their specific circumstances warrant executive grace. This includes evidence of an excessive sentence, a diagnosis for a serious illness, or a statement from the government.

When does the President decide a federal drug clemency petition?

The Office of the Pardon Attorney reviews each petition based on the information provided. If the information provided is not sufficient, it will undertake a request for information from other sources. According to the Office of the Pardon Attorney, “As an initial investigative step in a pardon case, the Office of the Pardon Attorney contacts the United States Probation Office for the federal district in which the petitioner was prosecuted to obtain copies of the presentence report and the judgment of conviction, as well as information regarding the petitioner's compliance with court supervision, and to ascertain the Probation Office's views regarding the merits of the pardon request. If review of the pardon petition and the data obtained from the Probation Office reveals information that clearly excludes the case from further favorable consideration, my office prepares a report to the President for the signature of the Deputy Attorney General recommending that pardon be denied. Alternatively, if the initial review indicates that the case may have some merit, it is referred to the FBI so that a background investigation can be conducted.”

“If the FBI report suggests that favorable treatment may be warranted, or in cases which are of particular importance or in which significant factual questions exist, the Office of the Pardon Attorney requests input from the prosecuting authority (e.g., a United States Attorney, a Division of the Department of Justice, or in some cases, an Independent Counsel) and the sentencing judge concerning the merits of the pardon request. If the individual case warrants, other government agencies, such as the Internal Revenue Service or the Immigration and Naturalization Service, may be contacted as well. In appropriate cases in which the offense involved a victim, the prosecuting authority is asked to notify the victim of the pendency of the clemency petition and advise him that he may submit comments concerning the pardon request.”

While Pardon Attorney guidance is very specific about how the Office will review and evaluate each petition, it is not nearly as specific about how it will forward recommendations to the President. The Pardon Attorney’s Office states that it forwards its recommendations through Justice Department and White House channels, and the president either accepts or rejects the Pardon Attorney’s recommendation. In the case of executive clemency, a rejected petition will be automatically denied.

How long can a federal drug clemency petition remain pending?

Federal drug clemency petitions may remain pending for considerable periods without an approval or denial. However, the Pardon Attorney’s guidance does not explicitly mention specific durations for how long clemency petitions may remain pending. The only guidance offered is a broad overview, stating, “While both the Department of Justice and the President make every effort to resolve clemency applications in a timely manner, there is no guarantee that an application submitted during an administration will be decided by that President.” The fact that the Pardon Attorney’s Office warns the public about these broad durations means that applicants should anticipate a protracted process when seeking a pardon or a commutation of a federal drug conviction or sentence.

Can a federal drug clemency petition remain pending during a court appeal or another court case?

Pardon petitions may remain pending while appeals are being considered. In pardon cases, if an individual is already in court, their petition will proceed separately. However, if a commutation applicant has a pending appeal or another court case involving a federal criminal conviction, their petition may be administratively closed. The Pardon Attorney’s Office explains, “You do not have any court challenges currently pending against your conviction or sentence, such as a direct appeal or motion under 28 U.S.C. § 2255. This requirement does not apply to capital cases.” Applicants must also have their appeals dismissed or be granted relief to proceed forward with a commutation petition.

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