Clemency

Summary

The President and state governors possess the power of executive clemency, allowing them to pardon offenses or commute the sentences of people with federal or state criminal convictions. They can grant clemency to show mercy to an individual, address a specific injustice, or correct disproportionate punishment of an entire class of offender. President Obama carried out a concerted effort to commute the sentences of federal drug offenders who met certain criteria which resulted in about 1700 commutations in the last couple of years of his Administration. Because so many laws carry excessively long penalties, and excessively long sentences are being imposed for many classes of crimes, especially drug offenses, CJPF advocates for the President and state governors to grant clemency to all offenders who are serving unjust sentences.

Types of Clemency

There are two types of executive clemency: a pardon and a commutation of sentence. Typically, a pardon officially forgives an offender for a crime. It usually erases the criminal record and restores civil rights, including voting rights. Depending on their order of pardon, "ex-offenders" or returning citizens may sometimes truthfully be able to answer the question whether they have ever been convicted of a crime, "no."  Restoring the right to bear arms may involve additional procedures.

A commutation of sentence is granted to an individual serving time in federal or state prison. It shortens their sentence to allow for early or immediate release. In most of the orders of commutation of sentence issued by President Obama, he shortened the sentence, and in many cases release followed months after the order was signed. This was in contrast to the commutations signed by President Bill Clinton in 2000 and 2001. President Trump's commutation of sentence of Alice Marie Johnson in June 2018 was effective immediately.  As of September, 2018, this has been the case of all four of the commutations of sentence ordered by President Trump. 

In some situations, a returning citizen may petition a court to seal or expunge a record of an arrest for which there was no conviction, or a conviction after some years after the completion of a sentence with no further offenses. This is not historically a form of clemency, but is an important tool to aid the re-entry of persons returning from incarceration. In 2017-2018, Federal and state legislation known as the REDEEM Act would establish programs to simplify expungement, for example, S. 827, introduced by Senators Paul (R-KY) and Booker (D-NJ), or in the Maryland General Assembly in 2018, H.B. 1383 and S.B. 1212.  

How many people could benefit from Clemency or expungement?

The FBI master database of criminal records had 77.7 million names in 2014, according to the Wall Street Journal, but a Bureau of Justice Statistics study of state criminal justice records found that over 100 million individual names were in such records at the end of 2012. Significantly, a great many of those records do not indicate a disposition, so whether there was a conviction or not is not known.  One factor limiting the ability to make an accurate estimate is that many offenders have multiple convictions. The National Employment Law Project estimated that in 2008 (footnote 2), 64.6 million American adults (about 27.8 percent of the population) had a criminal record, including arrests for which there is no conviction. A decade later that number is easily 70.3 million persons who have criminal records. It is plausible that 40 million Americans have a conviction for a felony or misdemeanor, including 20 million Americans with a felony conviction, but these are estimates that rely upon crude assumptions.  

While the number of persons who have a federal felony conviction is not known, in September 2018, the Federal Bureau of Prisons had custody of over 183,000 persons in a variety of custody situations.

A widely repeated estimate of the impact of felony disenfranchisement laws is that they prevent nearly 6 million Americans from voting.

The Restoration of Rights Project

The Restoration of Rights Project (RRP) is a state-by-state analysis of the law and practice in each U.S. jurisdiction relating to restoration of rights and status following arrest or conviction.  The RRP was created by the staff of the Collateral Consequences Resource Center, and launched in June 2017 in partnership with NACDL, NLADA and the National HIRE Network.   Its jurisdictional “profiles” cover areas such as loss and restoration of civil rights and firearms rights, judicial and executive mechanisms for avoiding or mitigating collateral consequences, and provisions addressing non-discrimination in employment and licensing. Some of the state profiles include excellent descriptions of the state's clemency laws. Links to many original sources are included.  In addition to its jurisdictional profiles, the RRP includes a set of 50-state comparison charts that make it possible to see national patterns in restoration laws and policies.

Clemency Project 2014

The Department of Justice, in cooperation with the American Bar Association, the National Association of Criminal Defense Lawyers, FAMM - Families Against Mandatory Minimums, and other groups, in the spring of 2014, launched an initiative, Clemency Project 2014, to solicit clemency petitions from nonviolent federal offenders who would have received a shorter sentence if sentenced under current law or revised sentencing guidelines. It received petitions from 34,000 prisoners, out of a prison population of about 200,000. Clemency Project 2014 began coordinating with New York University’s Clemency Resource Center and pro-bono attorneys nationwide to process the petitions. Lawyers screened the petitions according to a strict list of requirements created by the Department of Justice, which bars applicants who have served fewer than ten years in prison or have any history of violence, gang affiliation, or misconduct while incarcerated. Reportedly, Clemency Project 2014 screened out half of the petitions for failing to meet the DoJ requirements. Approximately 24,000 petitions were submitted to the President. With the support of that project, President Barack Obama, by the time he left office in January 20, 2017, had commuted the sentences of between 1,696 and  1,715 prisoners. 894 of the prisoners had petitions for commutation supported by Clemency Project 2014.

A detailed review of the Clemency Project 2014 effort and a critique of the response by the U.S Department of Justice and the Obama White House was prepared by the NYU Law School's Center on the Administration of Criminal Law. 

President Donald Trump has begun to use clemency on an ad hoc basis. Less than one month after being convicted by a U.S. District Court Judge, President Trump pardoned former Maricopa County, Arizona Sheriff Joe Arpaio for his conviction for criminal contempt of court in August 2017. He did not consult the U.S. Department of Justice or the Office of the Pardon Attorney.

In a very different kind of case, in June 2018, President Trump commuted the life sentence of Alice Marie Johnson, convicted of trafficking in cocaine in 1996 after being approached by celebrity Kim Kardashian West. Ms. Kardashian West heard about the case because it was being promoted by the American Civil Liberties Union. 

Clemency and CJPF

For over 18 years, CJPF has made information about clemency accessible to the public. Our state and federal clemency guides explain clemency eligibility and application procedures for all 50 states, the District of Columbia and the federal justice system.

In 2000, CJPF created the Coalition for Jubilee Clemency of over 800 clergy to promote Pope John Paul II's call for governments around the world to free prisoners in celebration of the "Jubilee" year (Leviticus 25:10, "And you shall hallow the fiftieth year, and proclaim liberty throughout the land to all its inhabitants; it shall be a jubilee for you, when each of you shall return to his property and each of you shall return to his family."), and to encourage President Bill Clinton to commute sentences of non-violent drug offenders before he left office.