Pardons for Federal Drug Convictions: The Actual Process.

Under Article II, Section 2, Clause 1 of the United States Constitution, the power to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment” is granted to the President of the United States. Accordingly, the President’s authority to issue pardons extends to all federal offenses, including all offenses prosecuted by the U.S. Department of Justice (DOJ), as well as federal court-martial offenses. This is true regardless of whether the federal offense at issue is a drug crime, white-collar offense, immigration violation, or otherwise.

The President, however, does not have authority to grant pardons for offenses prosecuted under state law. For state convictions, the relevant state law applies, and the appropriate authorities for seeking a pardon are to be found within the state of conviction. However, if a defendant is convicted of a crime in federal court, the President’s constitutional authority applies regardless of the nature of the offense.

The President’s constitutional authority to grant pardons also encompasses completed federal offenses, rather than merely sentences to be served in the future. This is a crucial distinction, and it is one that is often forgotten. For example, federal law recognizes another form of clemency called a “commutation,” which is a procedure that reduces punishment. However, importantly, in no case can a commutation serve as a pardon. As a result, a commutation can reduce a defendant’s sentence, but it cannot forgive the underlying conviction, nor can it forgive the consequences that stem from that conviction.

Applying these principles to drug offenses, we can clearly see that there are no federal drug offenses that categorically cannot be pardoned. A federal drug conviction is just like any other federal offense in that it falls within the President’s pardon authority.

When may someone with a federal drug conviction apply, and what must the petition prove?

The timing of the petition process is equally important to understand. If you have served a term of incarceration, you will generally be eligible to apply for a federal pardon five years after your release from confinement. If you did not serve a term of incarceration, you will generally be eligible to apply five years after the date of your sentencing judgment. For a sentence involving confinement, the five-year period generally begins upon release from confinement; if no form of confinement was imposed, it generally begins on the date of sentencing.

In addition to ensuring the timing of your application is correct, your petition must also contain all the pertinent information required by the Office of the Pardon Attorney. The information required to be included in your pardon petition generally includes detailed information about your federal conviction (and any other convictions as well), a description of the collateral consequences that you are facing, evidence of your conduct following your conviction, a personal statement explaining the reason(s) you are seeking clemency, and a demonstration of how you have lived a productive life and accepted responsibility for your conduct since your conviction. If the Office of the Pardon Attorney is not completely satisfied with the information contained in your pardon petition, your petition can be rejected or delayed.

If you are eligible to apply for a federal pardon and are prepared to complete the petition process, it is imperative that you begin working with a skilled federal pardon attorney as soon as possible. At Spodek Law Group, our attorneys can help ensure that you have all the information needed to complete the pardon application process, as well as any information that the Office of the Pardon Attorney may require in addition to the information described above. This includes any information about your federal conviction, the collateral consequences that you are facing, and your post-conviction conduct. We can also assist with drafting a persuasive personal statement, and gathering letters of support from your employers, community leaders, clergy, and others.

How does the Office of the Pardon Attorney move a petition to the President?

The Office of the Pardon Attorney is housed within the Department of Justice. The process generally begins by filing a petition with the Office of the Pardon Attorney, which reviews and investigates the application and makes a recommendation to the President; the President decides whether to grant or deny the petition. If you have already completed the pardon petition process with the Office of the Pardon Attorney, your petition will be on file and can be easily tracked and processed, provided that your application did not contain any deficiencies.

However, the fact that your application is in the hands of the Office of the Pardon Attorney does not necessarily mean that it will be forwarded to the President for clemency. The Office of the Pardon Attorney will review your application, and it will use the information contained in your petition to determine whether to recommend granting or denying your petition for a federal pardon. However, because the Office of the Pardon Attorney is only tasked with making a recommendation to the President, this recommendation is not binding. The President has the independent authority to act on a petition for a federal pardon as he deems appropriate, and the President can deny a petition for a pardon even if the Office of the Pardon Attorney recommends granting clemency.

The Office of the Pardon Attorney will also make an independent determination to refer you to the U.S. Attorney General. This will, again, be consistent with the constitutional authority to grant clemency that is held only by the President. In both cases, however, you should not expect to find out the status of your pardon petition until well after it is forwarded to the President or the U.S. Attorney General for decision.

Along with reviewing the information contained in the petition, the Office of the Pardon Attorney may also conduct its own investigation. If your application is a candidate for clemency, the Office will take various steps to fully evaluate the merits of your case.

Todd Spodek cross-examined Alec Baldwin at the 2013 stalking trial in Manhattan.

What will a federal pardon change on your record and in daily life?

Finally, to be fully informed about the benefits of seeking a federal pardon, you need to understand what you can and cannot expect after receiving a pardon. A federal pardon for a federal offense is a “But the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is '[a]n executive action that mitigates or sets aside punishment for a crime.'” As a result, a federal pardon will not automatically remove your federal conviction from your record, and it will not necessarily prevent your federal record from showing up in a background check. In many cases, your record will remain available to third parties, and your pardon will be noted as well. While this is a key point of a federal pardon, this is not necessarily a negative outcome, as it provides a detailed explanation to potential employers, licensing boards, and other parties. A pardon also does not serve as a substitute for an appeal to prove factual innocence or to correct errors committed during the trial and sentencing of a federal case.

Regarding federal pardons and the restoration of rights, here, too, there are both benefits and drawbacks. A federal pardon may remove certain civil disabilities imposed by the federal conviction, but it does not automatically restore every state-law right or benefit. However, as the pardon process is a separate process from the criminal conviction process, this is not automatic. A federal pardon may remove certain federal firearms disabilities, but restoration of a state-issued license or state firearm rights depends on the law and procedures of the relevant jurisdiction. In general, the pardon application process cannot be completed on its own, and it is critical for recipients to work with their counsel on next steps.

What can a pardon cost, and what other relief may fit better?

What is the “bottom line” for seeking a federal pardon? When it comes to the federal pardon process, you may find it difficult to find a clear and straightforward answer. One reason for this is that there is no guaranteed approval standard for eligible applicants, and certainly for ineligible applicants. The other reason is that not even a skilled federal pardon attorney or federal pardon consultant can provide a clear and straightforward answer about how much the pardon process will cost. The cost of the federal pardon process differs from person to person and case to case, and it differs by lawyer, pardon firm, and consultant. While a pardon attorney or pardon lawyer may provide their rates per hour, their rates for a flat fee, or their rates for various stages of the pardon process, the only way for you to know what the pardon process will cost for your specific circumstances is to consult with an experienced professional who can explain how their rate applies in your case. As a general rule, the more complex your case is and the more documentation it requires, the more you can expect your legal fees to cost. The more representation is required, the more your lawyer’s fees will be, and you may encounter additional costs for obtaining copies of documents, paying for transcripts, paying for notarization, paying for certificates of good conduct, paying for letters of recommendation, and other miscellaneous expenses.

Along with seeking a pardon, you may also need to seek additional forms of clemency from other authorities if you are hoping for other results. This may include seeking an expungement with the U.S. District Court that handles your case.

Along with seeking a pardon from the President, you may also need to seek a judicial remedy. In some cases, you may be eligible to pursue a post-conviction relief motion under 28 U.S.C. Section 2255, which can be filed with the U.S. District Court. If you have not filed a 2255, it may be in your best interests to examine your options for pursuing that as well.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 888 348 8028.