Clemency Application Process.

Under Article II, Section 2 of the United States Constitution, the President’s power to grant clemency is limited to offenses against the United States. This means that the President has the authority to grant clemency for crimes committed in D.C. that were prosecuted as federal crimes (or the like). But this also means that for “ordinary” crimes committed in D.C., the President does not have the authority to grant clemency, and clemency must be sought through the District of Columbia’s governing authorities. This is the same for any crime committed in any of the fifty states.

For example, if you were convicted of a robbery under New York law, you cannot request presidential clemency. In fact, the President cannot grant clemency for a state-law conviction regardless of what you did, how long ago you did it, or why you did it. Instead, you (or your representatives) need to seek clemency through New York’s governing authorities.

This is also the case for federal crimes, where clemency cannot be sought directly from the President. Instead, for federal offenses, clemency must be sought through the federal pardon application process. This process requires you to draft a formal petition for a pardon or a request for a commutation of sentence, along with various supporting materials, and then submit your petition to the U.S. Department of Justice’s Office of the Pardon Attorney. Your petition will then be sent to the Office of the Pardon Attorney, which will then forward your petition to the President with a recommendation. The President will then determine whether to grant your clemency application.

What can a federal pardon, commutation, or reprieve actually change?

The key distinctions among pardons, commutations, and reprieves are the circumstances under which they are typically available and the relief they are available to provide. As explained in detail below, a presidential pardon is primarily available to those who have served their full federal sentences, or who are serving federal prison time but are eligible for a pardon from the President. A presidential commutation is available to those who are currently serving a federal prison sentence or are about to begin serving their federal prison sentence. A presidential reprieve is available to individuals who are facing a federal prison sentence or are currently facing a federal death sentence. As explained below, each of these offers various types of relief.

Federal Pardon

A federal pardon, generally, is only available to individuals who have completed their full federal sentence (including any parole or supervised release). As a result, a federal pardon does not, typically, serve to reduce a term of imprisonment. Instead, a federal pardon serves to formally recognize the individual’s repentance, rehabilitation, and reform. It is a formal grant of forgiveness by the President of the United States, and it recognizes that the person who committed the offense is a changed person who is no longer a risk to society.

Federal Commutation

A federal commutation can be available to individuals who are currently serving a federal prison sentence or who are about to begin serving a federal prison sentence. A federal commutation can result in several different types of outcomes, including:

• The commutation of a prison sentence to “time served” (i.e., release), though other terms of the sentence may still remain in effect;
• The reduction of a prison sentence, with the individual remaining incarcerated;
• The reduction of a prison sentence, with the individual then being eligible for supervised release; or
• The commutation of a death sentence to a sentence of life without parole in prison.

A federal commutation does not overturn a conviction or a sentence. Nor does it erase a criminal conviction or criminal record. Instead, it merely shortens a prison sentence.

Federal Reprieve

A federal reprieve is most commonly available to those who are facing a federal prison sentence or are currently facing a federal death sentence. A federal reprieve allows the individual’s lawyers additional time to try to prevent execution or other court-ordered sentence before the sentence is carried out.

What must a federal clemency applicant disclose and document?

To apply for clemency at the federal level, whether the goal is a presidential pardon, a sentence commutation, or a sentence reprieve, applicants must be prepared to provide the DOJ Office of the Pardon Attorney with comprehensive disclosures documenting their personal, legal, and financial histories. These applications are designed to help the Office of the Pardon Attorney get a complete picture of the applicant’s life, and this means that it is in the applicant’s best interests to be prepared to disclose as much as possible. But, while this can prove difficult to do, it can also prove helpful to identify information that appears unfavorable and then mitigate its effects.

While federal clemency applications vary in content and scope, they all share several common requirements. These common requirements include disclosing:

Criminal History (Including Contacts with Law Enforcement)

While not all federal clemency applicants have prior criminal records, all federal clemency applicants must provide a full and accurate history of their criminal record. They must also provide a full and accurate history of all prior contacts they have had with law enforcement officers, prosecutors, judges, and other criminal justice system participants. This includes details about all arrests, investigations, citations, charges, questions, and anything else of the sort.

Unpaid Taxes and Other Delinquent Credit Obligations

These are only required for applicants seeking federal pardons. Federal pardon applicants must disclose any unpaid taxes, delinquent student loan payments, or other delinquent credit obligations.

Civil Litigation

Another federal pardon-specific requirement, federal pardon applicants must disclose any civil lawsuits filed against them. This includes civil lawsuits for fraud, breach of contract, theft, and other alleged wrongs.

Character Affidavits

Once again, these are only required for applicants seeking federal pardons. Pardon applicants must include at least three letters of support in their clemency application. These can be from people who know the applicant and can describe the applicant’s character and life since the conviction. This can include friends, acquaintances, colleagues, religious leaders, and other individuals. Primary references cannot be related to the applicant by blood or marriage and must be willing to be interviewed during a background investigation.

Spodek Law Group is a second generation New York firm. Todd Spodek practices out of the firm his father opened in 1976.

When can a federal applicant file, and how long can the answer take?

When applying for presidential clemency for a federal offense, the timing for filing and the duration of the review process depend on the specific type of clemency being sought. Applicants who have already completed their sentences and are eligible to file for presidential pardons under federal law must generally wait five years after completing their sentences. The five-year waiting period begins at the date of sentencing if no confinement was imposed, or at the date of release if imprisonment, parole, or supervised release was imposed.

How long are federal pardon applicants expected to wait?

This is a very common question among federal pardon applicants. And, as mentioned above, federal pardon applicants generally must wait five years after release from confinement, or, if no prison sentence was imposed, five years after conviction.

How long are federal commutation applicants expected to wait?

This is less of an issue for federal commutation applicants than it is for federal pardon applicants. Federal commutation applicants are generally eligible to file as soon as their case has reached a final judgment in a United States district court, or as soon as the commutation-eligible portion of their sentence has been imposed.

That said, federal commutation applicants are generally not eligible to petition for a sentence commutation while their case is on appeal, is on collateral attack, or is under review for other purposes.

What happens to federal commutation petitions while the applicant is appealing the sentence?

While a commutation petition is pending in the DOJ Office of the Pardon Attorney’s hands, an appeal or other litigation should generally have no effect. But if a federal commutation applicant files an appeal or other litigation after they have filed their commutation petition, this may trigger an administrative closure of their petition by the DOJ Office of the Pardon Attorney.

Once the appeal or other litigation has reached a final outcome, the commutation applicant may be eligible to request an unfreezing or reopening of their commutation petition with the DOJ Office of the Pardon Attorney.

How much do you have to pay to have a lawyer help with the clemency application process?

There is no “national standard” fee for this. Lawyers’ fees vary, and will depend on the lawyer’s experience and the individual’s case.

How do Florida clemency rules change the answer for state convictions?

Florida’s executive clemency system provides four potential forms of clemency relief for those seeking forgiveness for crimes committed under Florida law. These include full pardons, commutations, remissions, and rights restoration.

Florida clemency includes several distinct forms of relief: a full pardon restores firearm rights, but a separate Specific Authority to Own, Possess, or Use Firearms may also restore firearm rights for qualifying Florida convictions.

If an individual has lost their firearm authority due to a criminal conviction out-of-state, then they will need to pursue clemency through the executive branch of the state in which they were convicted. Even if they have regained their firearm authority under that other state’s laws and are eligible to lawfully possess a firearm in the state in which they were convicted, then they will still need to pursue clemency through the executive branch of the state in which they were convicted before they can consider themselves eligible to lawfully possess a firearm in Florida.

If you have lost your firearm rights because of a federal conviction, you may seek a presidential pardon or, where available, relief from disability from the Bureau of Alcohol, Tobacco, Firearms and Explosives. Even if the President denies your request for a presidential pardon, you may still be able to regain your firearm authority under other circumstances.

When does a person who was convicted of a state felony in Florida become eligible to seek a pardon? When does a person who was convicted of a federal crime become eligible for a presidential pardon? What else are you need to know about the process and the types of relief that are available?

Where to Go From Here

If any of this describes your situation, the next step is a conversation rather than more reading. Spodek Law Group runs a fully online client portal and represents clients coast to coast, with offices in New York, Brooklyn, Queens and Los Angeles. The number is 888 348 8028.