Applying for a Presidential pardon or commutation of a sentence is often the last opportunity someone has to get relief from a federal conviction. The pardon process is often confusing and without many concrete rules. Recently, however sources inside the Biden administration have been signaling a coming change to the process for federal pardons and commutations. The president may begin to issue clemency grants sooner, rather than waiting until the end of his term as has been common practice, and the focus may be on providing systemic relief to groups of similarly situated people rather than to specific individuals.
Additionally, though the previous administration took an informal approach to clemency requests, the White House is now suggesting that it will return to the official screening process managed by the Office of the Pardon Attorney within the Department of Justice (DOJ).
Not everyone is eligible for executive clemency under this process. Current regulations impose a number of requirements and limitations for people seeking relief:
- The conviction in question must be federal. The President only has the authority to affect federal criminal convictions. To apply for a pardon or commutation of a conviction under state law, the appropriate person in the convicting state must be petitioned instead.
- There is a five-year waiting period for a pardon. Before a person can apply for a pardon, their sentence must have been fully served, and a minimum of five years must have elapsed since the latest of either their release from confinement or their date of sentencing.
- For a commutation, the sentence must have started. A sentence that a person is not yet serving is generally ineligible to be commuted, as is a sentence that is still in the process of being appealed.
- “Special assessment” fees will not be cancelled. These fees are set by Congress and are not considered “fines,” so while other amounts owed as part of a sentence can be subject to commutation, special assessments will not be.
For those who are eligible, the DOJ process begins with the submission of a detailed application for either a pardon or a commutation. For either of these petitions, the applicant must gather and present enough information to give the DOJ a thorough understanding of their case, history, and life circumstances.
In addition to basic biographical data, a person seeking a commutation must include:
- A detailed account of the facts that led to the conviction and sentence
- Information about any other criminal history
- An explanation of the reasons for which clemency is sought
For an application to pardon a conviction, that same information must be additionally supplemented with:
- A full residential history, with dates and addresses included
- A full history of employment and military service
- Information about any mental health or substance abuse challenges
- A credit check and related financial disclosures
- A description of the applicant’s charitable work and other contributions to their community
- At least three notarized affidavits from non-family-members that attest to the applicant’s character
This information can be difficult and time-consuming to assemble, and the making a mistake could ruin your chances. If a clemency application is determined to be inaccurate or incomplete, it will be denied, and the DOJ may choose to prosecute the applicant for a new charge of fraud. An experienced attorney can help avoid these pitfalls, however, while also making sure that the information in the petition is as compelling and persuasive as possible.
If you or someone you know is considering applying for a presidential pardon or commutation, contact our seasoned team of federal criminal defense attorneys for more information.
