What is Clemency?

Clemency occurs when a person from a governmental executive branch makes the decision to pardon a person who has been sentenced to prison time.

The President of the United States, or the governor of a state are the persons who grant clemency. However, the governor is only allowed to grant clemency on state-related crimes, while the President is only allowed to grant clemency on federal crimes.

In many state cases, those who are facing the death penalty are granted clemency by the governor when there is mounting evidence they are actually innocent of the crime. Although movies like to show a governor granting clemency just minutes before an execution is set to take place, it rarely happens in such a dramatic manner.

Federal cases which require clemency from the President are more likely to be for a non-violent crime, such as a drug crime. This is usually the result of the President being presented with compelling evidence that the person was sentenced to a sentence which was much too harsh. As an example, President Obama granted clemency to more than 300 people, largely because they were serving a life sentence for a non-violent drug crime.

There are three ways in which clemency can be granted:

Reprieve

A reprieve suspends the sentence in order to take another look at your case. In a death penalty case, a stay of execution (reprieve) could be granted to allow more time to prove your innocence—putting off punishment while the situation is analyzed further.

Commuting a Sentence

Commuting a sentence means the conviction remains valid, but credit is going to be given for time served, and the person will be released from prison.

In other words, there is no question that you were guilty of the crime, rather a commutation of your sentence basically says you have paid your debt to society, and you may now get out of prison and return to some semblance of a normal life.

Pardon

A pardon grants formal forgiveness from the government, and may restore certain liberties such as the right to own a firearm or the right to vote. A pardon does not necessarily imply innocence, neither does it expunge a person’s criminal record.

A conditional pardon comes with strings attached, such as serving a lesser sentence, and a pardon can even be granted in anticipation of a conviction (Gerald Ford pardoned President Nixon in 1974). If you are granted a pardon, your offense will remain on your criminal record, however you will not be subject to any further restrictions or criminal penalties.

When an application for a pardon is made, the person applying is not claiming to be innocent, rather they are admitting their guilt and asking for leniency due to extenuating circumstances.

For those who have struggled through years in prison, proclaiming their innocence, it is difficult to admit guilt in order to be granted clemency. A pardon is traditionally viewed as a last resort, used for those who have already exhausted the legal appeal process.

Is Clemency a Right?

No one has the right to clemency, rather it is considered an act of grace, and, once granted, cannot be overturned by a court, agency or official. The governor or President are not required to justify their decision of clemency, therefore it is difficult to know exactly why the decision was made.

If you believe you are entitled to clemency, it is important to speak to an experienced San Diego criminal lawyer who is knowledgeable regarding clemency and the various types of clemency. Your attorney can ensure your application for clemency is properly filled out and complete, and understands all the legal issues related to clemency and your application.

Law Office of Vikas Bajaj, APC
1230 Columbia Street Suite 565
San Diego, CA 92101

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