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How Does the President Commute a Sentence?

The power of the President is enormous. He can push the button and end it all. He can negotiate and enter into treaties with foreign nations – even when it means giving them a button of their own (ahum, Iran).  Another very interesting power the President has, is the power to commute a criminal sentence.

President Obama exercised that power when he commuted the sentences of 46 drug offenders earlier this week.  But how does the President commute a sentence? What does it mean to “commute” a sentence? How common is it for a sentence to be commuted? Does a regular Joe inmate even have a chance?

 What does it mean when someone’s sentence is “Commuted”?

A commutation of sentence is nothing more than a reduction in sentence.  Unlike a pardon, clemency, or reprieve, commutation occurs when the Government cuts a person’s sentence short.  It does not mean the person is declared not guilty, it does not mean the conviction is overturned, or that there criminal record is dissolved.  All it means is that the sentence ends early.

In contrast, when a person is “pardoned” for a crime, the Government is actually speaking to the merits of the conviction and forgiving it.  In essence, when a person is pardoned, their conviction and criminal record is cancelled. Clemency is the same thing as being pardoned – in essence, your criminal conduct is forgiven.  The President of the United States is endowed with the power of executive clemency by Article II, Section 2 of the U.S. Constitution.

How does someone get their sentence commuted by the President?

Within the U.S. Department of Justice, there is a special office called the “Office of the Pardon Attorney”. Currently, this office is lead by an attorney named Deborah Leff.  The first step in getting a sentence commuted requires some self-analysis.  Before the Pardon Attorney will consider your application, you must have already exhausted all other legal remedies. This means all appeals, post-conviction challenges, habeus corpus, etc need to have been ruled upon or waived.  In other words, the person must be serving their sentence without any other possibility of being released other than completing it.

Second, a person must realize that the President will only commute a Federal sentence.  If you are serving time for a State crime, the President cannot help you.

The third step is the most important.  It requires one to fill out a Commutation Application and a Financial Statement.  I suggest that this stage of the process is most important because you communicate two essential things to the Pardon Attorney.  First, is that you qualify for a commuted sentence because your crime is a Federal offense and all other relief, such as appeal, has been exhausted. The Pardon Attorney receives thousands of these applications every year and the first thing they do to weed people out is to identify who even qualifies for consideration and who does not.

The second reason is due to the fact that this is where you make your argument for commutation.  You explain, in writing, why the President should exercise his power.  Why are you special? What is different about your case and your circumstances? Why should the President let you go free? Do you really deserve a second chance or are you just saying that because “thats what most people say” when asking for commutation or a pardon?

Needless to say, you MUST be persuasive or else your chances are greatly diminished.

Once received, the Pardon Attorney will review your application.  In making her recommendations to the President, she will consider the guidelines enumerated in 1-2.113 Standards for Considering Commutation Petitions of the U.S. Attorney’s Manual.

In this section of the manual, commutation of sentence is referred to as an “extraordinary remedy” that is rarely granted.  To give you an idea of what this means, the Office of the Pardon Attorney has published Clemency Statistics.  Since President Obama took office nearly eight years ago, he has received over 17,000 applications for commutation but has granted less than 100. That means, approximately 0.5% of all applicants are successful.

While there are no hard and fast rules that control commutation of sentence, as there are with other legal remedies, the following are undoubtedly things that will be considered:

  • type of crime at issue
  • applicant’s criminal history
  • disparity or undue severity of sentence
  • consideration of the amount of time already served
  • critical illness or old age
  • meritorious service rendered to the government by the petitioner, e.g., cooperation with investigative or prosecutive efforts that has not been adequately rewarded by other official action.
  • a combination of these and/or other equitable factors

Frankly, if you are a career criminal seeking commutation of a sentence for a violent or sexually motivated offenses, I doubt the President will help you. On the other hand, the 46 people that President Obama gave a second chance to yesterday were all drug offenders who were sentenced under old guidelines that were march harsher.  By today’s standards, these offenders would have already served their time and been released.

At the end of the day, even if you have little chance of being successful, a nearly impossible chance is still better than nothing. If you are considering an application for commutation your best bet is to begin by analyzing those cases where it was granted.  Using the Freedom of Information Act (FOIA), I would make a public records request on the U.S. Department of Justice for all documents and files pertaining to people who were recently pardoned and people who had their sentences commuted.  Armed with this information, you can determine what characteristics and qualities the President looks for when granting one of these requests.  Don’t do it blindly – intelligence always pays off.