Practice Area

Pardons and commutations handled with expertise and discretion

Article II, Section 2 of the Constitution, provides, in part that the President has the power to grant “Pardons for Offenses Against the United States.”  Often called the “Clemency Clause,” this means that the President can grant pardons only for or federal offenses – not for state convictions. Equally important it means that the President’s pardon power is unfettered.   It is not subject to review by Congress, or the courts, and can be exercised with or without consultation with any particular individual or government agency.  But Presidents have long relied on the Justice Department and the Pardon Attorney to receive and review almost all pardon applications.

A pardon is forgiveness for the offense, although in the rare situations where one is granted while a person is still in prison or still has to pay a monetary penalty, such as a fine or restitution, it eliminates any remaining portion of the sentence. 

While a Presidential pardon does not expunge the record of the conviction, it usually eliminates disabilities resulting from the conviction.  For example, state licensing statutes may include a provision that a person convicted of a crime is not eligible to receive the license.   These provisions often include a statement or are interpreted as meaning that a pardon overcomes the disability to getting the license or benefit. 

Under federal law, it is illegal for anyone convicted of a crime punishable by imprisonment for a term exceeding one year (regardless of the sentence actually imposed) to possess a firearm. A Presidential pardon is the only way for a person convicted in federal court of such an offense to obtain relief from this provision and legally possess a firearm.

A specific need for a pardon is not required to apply for or receive one.  Many persons simply, and commendably, want the forgiveness signified by a pardon, and they seek no, or at least minimal, public attention if they receive one.

Commutations of federal sentences

The Clemency Clause has long been interpreted as including the power to grant commutations (reductions) of federal sentences.  With the elimination of federal parole and very limited situations that allow a court to reduce a sentence once imposed, a commutation is the principal way federal prisoners can ask for reductions of their sentences.  As with pardons, the President can grant a commutation without consulting with anyone, but the vast majority of prisoners hoping for a commutation apply through the Pardon Attorney at the Department of Justice.

Role of the Justice Department

A portion of the Code of Federal Regulations (28 CFR §§1.1 – 1.11, sets out the responsibilities of the Justice Department.  They provide that petitions for pardons and commutations are to be filed with the Pardon Attorney and that, after an appropriate investigation, the Justice Department will submit a written recommendation to the White House.  The Pardon Attorney determines the scope of the needed investigation and supervises the preparation of the recommendation in each case.

Significance of the U.S. Pardon Attorney

If a case for clemency is successful, the case will usually have been considered by several parts of the Justice Department, such as the FBI, a United States Attorney’s Office, and the Deputy Attorney General’s Office, in addition to the Pardon Attorney.  It will also have been reviewed by the White House Counsel’s Office. The Pardon Attorney works with all these Offices and Bureaus throughout the process.  There is never a guarantee that even a fully deserving applicant will get a pardon or a commutation.  The President can always do what he or she wants.  But, especially with pardons, if the Justice Department recommends a pardon to the White House, or even if the Pardon Attorney recommends one to the Deputy Attorney General, a person’s chances of a favorable decision become fairly good.  That is why maximizing the chances the Justice Department will support a clemency application is crucial.

Legal representation matters

The regulations that set out the role of the Justice Department are concise on their face, and the application forms are detailed but straightforward.  In fact, information long provided by the Office of the Pardon Attorney states specifically that the clemency process is intended to be accessible to all eligible applicants and that counsel is not required.  Some persons applying for a pardon or commutation are not represented by counsel and they sometimes succeed.  But there are many areas where a person fully deserving of clemency can make an innocent mistake — either in completing the application form or in responding to questions from the Pardon Attorney – and get an adverse decision.

Managing privacy matters

Filing the application is just the start. Applicants and their attorneys often consider further contact with the Justice Department or the White House and sometimes deliberately generate publicity about their cases.  These tactics may help in some cases, but they may also hurt in others.  Their use and timing must be carefully considered. 

Roger Adams understands these subtleties and advises applicants and their attorneys on how best to communicate with the Justice Department and the White House throughout the process.  His assistance is particularly important with high-profile applicants where media commentary is readily available.  Such media interest cannot be avoided, but high-profile persons, along with all other applicants, deserve to have their cases decided on their individual merits.  

In these cases, it is particularly important to carefully manage any interaction with the Justice Department and the White House to ensure that the applicant’s words and information from his or her supporters drive the decision.