FREQUENTLY ASKED QUESTIONS CONCERNING EXECUTIVE CLEMENCY
Does the President have authority to grant clemency for a state conviction?
Does the President have authority to grant clemency for a state conviction?
No. The President’s clemency power is conferred by Article II, Section 2, Clause 1 of the Constitution of the United States, which provides: “The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Thus, the President’s authority to grant clemency is limited to federal offenses and offenses prosecuted by the United States Attorney for the District of Columbia in the name of the United States in the D.C. Superior Court. An offense that violates a state law is not an offense against the United States. A person who wishes to seek a pardon or a commutation of sentence for a state offense should contact the authorities of the state in which the conviction occurred. Such state authorities are typically the Governor or a state board of pardons and/or paroles, if the state government has created such a board.
What is the difference between a commutation of sentence and a pardon?
In the federal system, commutation of sentence and pardon are different forms of executive clemency, which is a broad term that applies to the President’s constitutional power to exercise leniency toward persons who have committed federal crimes.
A commutation of sentence reduces a sentence, either totally or partially, that is then being served, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction. A commutation may include remission (release) of the financial obligations that are imposed as part of a sentence, such as payment of a fine or restitution. A remission applies only to the part of the financial obligation that has not already been paid. A commutation of sentence has no effect on a person’s immigration status and will not prevent removal or deportation from the United States. To be eligible to apply for commutation of sentence, a person must have reported to prison to begin serving his sentence and may not be challenging his conviction in the courts.
A pardon is an expression of the President’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence. It does not signify innocence. It does, however, remove civil disabilities – e.g., restrictions on the right to vote, hold state or local office, or sit on a jury – imposed because of the conviction for which pardon is sought, and should lessen the stigma arising from the conviction. It may also be helpful in obtaining licenses, bonding, or employment. Under some – but not all – circumstances, a pardon will eliminate the legal basis for removal or deportation from the United States. Pursuant to the Rules Governing Petitions for Executive Clemency, which are available on this website, a person is not eligible to apply for a presidential pardon until a minimum of five years has elapsed since his release from any form of confinement imposed upon him as part of a sentence for his most recent criminal conviction, whether or not that is the conviction for which he is seeking the pardon.
Is a presidential pardon the only way a person convicted of a federal felony offense can regain his civil rights?
Not necessarily. Some, but not all, states have instituted procedures for restoring to their citizens certain basic civil rights, such as the rights to vote, hold office, or sit on a jury, even if the disqualifying felony conviction was incurred in federal court. A person who is considering applying for a presidential pardon solely to restore such rights may wish to contact the appropriate clemency authorities within the state of his residence to ascertain whether such a procedure exists in that state.
Is a presidential pardon the only way a person convicted of a federal felony offense may regain his right to bear arms?
Yes. At present, a presidential pardon is the only means by which a person convicted of a federal felony offense may obtain relief from federal firearms disabilities. Under Supreme Court case law interpreting federal firearms laws, a state restoration of civil rights does not remove the federal firearm disability that arises from a federal felony conviction. That relief can only be provided through action under federal law. Although 18 U.S.C. § 925(c) provides that the Attorney General may grant relief from federal firearms disabilities “if it is established to his satisfaction that . . . the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest,” there currently is no means to obtain relief through this mechanism. Since Fiscal Year 1992, Congress has prohibited the Bureau of Alcohol, Tobacco, Firearms and Explosives, the agency responsible for processing such requests, from spending any appropriated funds to investigate or act upon applications for such relief. Accordingly, at this time a presidential pardon is the only means by which a person convicted of a federal felony may obtain this relief.
Is there a simpler or expedited pardon process for applicants who wish only to regain their rights to bear arms?
No. Notwithstanding the limited purpose for which such an applicant may desire a pardon, there are no special or truncated procedures for applying for pardon to remove federal firearms disabilities. The applicant will be expected to meet the same high standards of character and reputation generally required of all pardon applicants, which are determined by means of a thorough investigation into an applicant’s background and activities since the conviction.
Do you have to pay a fee to file an application for pardon or commutation of sentence with the Office of the Pardon Attorney (OPA)?
No. There is no fee for applying for any form of executive clemency.
Do you have to hire a lawyer to apply for a pardon or a commutation of sentence?
No. The executive clemency process is intended to be accessible to all eligible applicants, whether or not they are represented by counsel, and is begun by filing the appropriate clemency application. In fact, most clemency applications are submitted by persons who are not represented by counsel. Application forms are available on this website. If you have questions about the application as you are completing it or helping someone else to complete it, you may contact OPA at USPardon.Attorney@usdoj.gov
to ask for clarification. If a pardon applicant submits an application that is incomplete or does not sufficiently answer the questions posed, OPA will contact the applicant by mail and explain what additional information is required.
Do you have to include a letter of recommendation from a public official in order to apply successfully for pardon or commutation?
No. Because executive clemency is a matter reserved by the Constitution to the President alone, recommendations from other elected officials are in no way binding on the President. Applicants are free to solicit letters in support of their clemency applications from any and all sources, and any such letters will be considered as part of the clemency process. Letters from elected officials do not carry any special significance in the evaluation of the merits of a clemency application by OPA.
Does an applicant’s political affiliation have any bearing on the likelihood of success when applying for clemency?
OPA does not request or consider information concerning an applicant’s political affiliation in the processing of a clemency application. Similarly, no clemency applicant has any right to have his clemency application decided by a particular President. If a change of presidential administration occurs while a clemency application is pending, the undecided application remains active for consideration by the new President. There is no need to reapply for clemency in these circumstances. A clemency applicant is free, of course, to withdraw his application from consideration at any time and for any reason before the President has made his decision on the matter.
Since the pardon application is available at the OPA website, can an applicant submit his application on-line, by electronic mail, or by facsimile?
No. Because the pardon applicant must execute before a notary public the personal oath at the end of the pardon application and must also provide three notarized character affidavits in support of the clemency request, OPA requires that the pardon applicant submit the original, signed, and notarized paper application form. An applicant may type information into the pardon application form available on this website, but it must then be printed and submitted by regular mail.
Why is the pardon application so detailed?
Because the issue of an applicant’s post-conviction rehabilitation is central to the consideration of a pardon request, the pardon application is designed to elicit the broad range of information required to allow the President to make an informed judgment of the applicant’s suitability for pardon.
Why must the pardon application form be notarized and include three notarized character affidavits and an authorization for release of information form?
The candor of the applicant is crucial to the pardon process, and the requirement that the application be executed under oath before a notary public is intended to ensure the applicant’s understanding of this fact. The execution of the authorization for release of information form and submission of the three notarized character affidavits are required to assist the necessary investigation into the applicant’s post-conviction conduct and activities. Unless a submitted pardon application meets all of these requirements, OPA will be unable to conduct the appropriate investigation of the applicant’s background. In that event, OPA will not process the clemency request.
Is a hearing held on an application for pardon or commutation of sentence?
No. The executive clemency process is a written process. There is no hearing held by OPA on any commutation or pardon application. However, in the processing of a pardon application, a thorough investigation is made of the applicant’s post-conviction life, which may include a background investigation conducted by the Federal Bureau of Investigation. As a general matter, if an applicant wishes to have specific information considered in connection with his clemency request, he should submit that information in writing to OPA. He may do this at any time while the application is pending.
Is there any limit to the kinds of information an applicant may submit in support of his clemency application?
A clemency applicant – or any third party – is free to send any documentation or other written information he believes has a bearing on the applicant’s suitability for clemency so that it may be considered in connection with the application. We recommend that a person desiring to submit a document to OPA send a copy of the record rather than the original document, since the record will be made part of the applicant’s executive clemency file. Because of the nature of its case tracking system, OPA cannot make information recorded on digital media part of an applicant’s file. The office therefore does not accept information presented in such formats.
How are applications for presidential pardon evaluated?
At every stage in the processing of a pardon case, the merit of the petitioner’s application is assessed by considering the standards described in Section 1-2.112 of the United States Attorneys’ Manual, which is available on this website. These standards include the applicant’s post-conviction conduct, character, and reputation; the seriousness and relative recentness of the offense; the applicant’s acceptance of responsibility, remorse, and atonement; and the applicant’s need for relief. Morever, official recommendations from knowledgeable officials involved in the case, particularly the United States Attorney for the district of conviction and the sentencing judge, are carefully considered. Finally, as is noted above and indicated in the pardon application itself, the applicant’s candor throughout the pardon process is of great importance in evaluating the merits of the clemency request.
How are applications for commutation of sentence evaluated?
As a general matter, commutation of sentence has long been considered to be an extraordinary remedy that is rarely granted. The merit of a commutation request is evaluated by considering the standards contained in Section 1-2.113 of the United States Attorneys’ Manual, which is available on this website. Appropriate standards for considering commutation relief traditionally have included such factors as disparity or undue severity of sentence, critical illness or old age, and meritorious service to the government by the applicant that has not been adequately rewarded by other official actions, as well as other equitable factors that may be present in a given case. The seriousness of the offense of conviction, the applicant’s overall criminal record, the nature of the applicant’s adjustment to prison supervision, the length of time the applicant has already served, and the availability of other remedies are also considered in evaluating the merit of an application. Finally, as with a pardon request, the applicant’s candor in the commutation application is an important consideration.
How long does it take for a clemency application to be decided?
The executive clemency process can be lengthy, and OPA is not able to estimate for any particular applicant when he may expect to receive a decision on his application. OPA reviews each application and conducts the appropriate investigation of the case. In many instances, this process requires OPA to obtain information or comments from other agencies, which in turn may have to obtain records from off-site storage in order to respond to OPA’s inquiry. After all relevant information has been received, OPA prepares a proposed recommendation for disposition of the case that is submitted to the Deputy Attorney General, who makes the final determination of the Justice Department’s recommendation to the President. The Deputy Attorney General’s signed recommendation is then transmitted to the White House, and the President acts on each case when he believes it is appropriate to do so. As a matter of long-standing policy, OPA does not disclose to applicants or third parties the stage at which a clemency application is pending at any given time. After the President decides to grant or deny a particular clemency request, OPA notifies the applicant of the decision in writing. Because the written notification is sent to the last address an applicant has provided to OPA, it is important that an applicant notify OPA if his address changes while the application is under consideration.
Is the decision on every clemency application made by the President?
Yes. Except for situations in which an application must be closed administratively because an applicant withdraws the application from consideration, repeatedly fails to respond to a request by the Pardon Attorney for required information, dies during processing of the application, or is released from prison during the processing of a commutation application that seeks only the reduction of his prison sentence, every clemency application submitted to OPA follows the process described above and is decided by the President.
Does a presidential pardon expunge or erase the conviction for which the pardon was granted?
No. A presidential pardon does not erase or expunge the records of a conviction. When a pardon is granted, however, OPA notifies the United States Probation Office and other officials in the district of conviction of the President’s action. In addition, OPA notifies the Federal Bureau of Investigation so that the pardoned individual’s criminal history record may be to reflect the grant of pardon. Thereafter, the criminal history record will list both the conviction and the pardon. Accordingly, a presidential pardon does not relieve the recipient from the obligation of disclosing his conviction in any circumstance where he is required to report that information. However, the pardoned person may include the information that a pardon has been granted and may present the warrant of pardon he has received as evidence of the pardon.
If the President denies a clemency request, is the applicant told why?
As a general matter, Presidents in recent times have rarely announced their reasons for granting or denying clemency, although the President may choose to do so in a given case. Consistent with long-standing policy, if the President does not issue a public statement concerning his action in a clemency matter, no explanation is provided. Moreover, deliberative communications pertaining to agency and presidential decision-making are confidential and not available under existing case law interpreting the Freedom of Information Act and Privacy Act.
If I apply for executive clemency from the President and my request is denied, may I reapply?
Yes. A person whose request for a commutation of sentence is turned down may reapply anytime after one year from the date of the President’s denial of the request. A person whose request for a pardon is denied may reapply anytime after two years from the date of the President’s denial of the request. To reapply for a pardon or commutation, a person must complete and submit a new application form that contains current information in response to all questions. Resubmitting the prior application form that was previously denied is not an acceptable form of reapplication.
If I apply for any form of executive clemency, what information about me will be released publicly upon grant or denial of my request by the President?
Presidential grants are a matter of public record, so immediately after Presidential action, the name of each person granted a pardon or commutation, along with the district they were convicted, year of sentencing, offence, and the date the President granted their request is publicly listed on the Office of the Pardon Attorney website. This information may also be posted on The White House website and included in press releases issued by the Department or The White House.
Moreover, in accordance with the ruling by the federal court of the District of Columbia in Lardner v. Department of Justice, 638 F.Supp.2d 14 (D.D.C. 2009), affirmed, Lardner v. United States Department of Justice, No. 09-5337, 2010 WL 4366062 (D.C. Cir. Oct. 28, 2010) (unpublished), the Office of the Pardon Attorney is obliged to release existing lists of the names of persons who have been denied executive clemency by the President to anyone who requests such records pursuant to the Freedom of Information Act. Given the frequency of such requests, the Office of the Pardon Attorney has started to proactively disclose the names of persons who have been denied executive clemency by the President on our website, in accordance with our Freedom of Information Act obligations.
https://www.justice.gov/pardon/frequently-asked-questions-concerning-executive-clemency