Last updated on: 8/26/2008 | Author:

What Is Clemency?

General Reference (not clearly pro or con)

The American Heritage Dictionary (2006 fourth edition) defined clemency as:

“1. A disposition to show mercy, especially toward an offender or enemy. 2. A merciful, kind, or lenient act. 3. Mildness, especially of weather.”

2006 - American Heritage Dictionary of the English Language (fourth edition)

Andrew B. Whitford, PhD, Associate Professor of Public Administration and Policy at the University of Georgia School of Public and International Affairs, and Holona LeAnne Ochs, PhD, Assistant Professor in the Department of Political Science at Howard University Graduate School, in their Nov. 2006 American Politics Research article “The Political Roots of Executive Clemency,” wrote:

“Specifically, executive clemency is a central mechanism to afford relief from undue harshness or evident mistake in the operation of the legal system or enforcement of criminal law. It is therefore effectively a check on the power of the judiciary. Clemency provisions are broadly found to be fundamental aspects of major criminal justice systems worldwide, with the exception of China. In the United States, executive clemency may take the form of a pardon, commutation of sentence, remission of fine or restitution, or reprieve. A pardon may reduce or set aside a sentence, even before formal charges or conviction is acquired, but generally a pardon only restores a person’s reputation or reinstates a citizen’s civil liberties; commutation of a sentence substitutes a milder sentence without relieving the criminal stigma of the crime committed; and a reprieve postpones a scheduled execution.”

Nov. 2006 - Andrew B. Whitford, PhD Holona LeAnne Ochs, PhD

Michigan Battered Women’s Clemency Project, a project of the Justice Committee of the Washtenaw County, Michigan American Civil Liberties Union (ACLU), in its manual “Clemency for Battered Women in Michigan: A Manual for Attorneys, Law Students and Social Workers” posted on its website (accessed Aug. 18, 2008), wrote:

“Clemency is a general term for the power of an executive to intervene in the sentencing of a criminal defendant to prevent injustice from occurring. It is a relief imparted after the justice system has run its course. Clemency provisions exist in every judicial system in the world except China. The U.S. Constitution gives the President the power to grant clemency. In 35 states, the governor can make clemency decisions directly, or exercise this power in conjunction with an advisory board. In five states, boards make clemency decisions, and in 16 states, the power to grant clemency is shared between the governor and an advisory board…

Types of clemency include amnesty, pardon, commutation, and reprieve. Amnesty is granted to a group of people who committed political offenses. A pardon may lessen a defendant’s sentence or set it aside altogether. One may be pardoned even before being formally accused or convicted.

While a pardon attempts to restore a person’s reputation, a commutation of sentence is a more limited form of clemency. It does not remove the criminal stigma associated with the crime; it merely substitutes a milder sentence. A reprieve postpones a scheduled execution.”

Aug. 18, 2008 - Michigan Battered Women's Clemency Project

Roger C. Adams, JD, former US Pardon Attorney at the US Department of Justice, in his July 11, 2007 prepared statement “Statement of Roger C. Adams Pardon Attorney Department of Justice Before the Committee on Judiciary United States House of Representatives,” stated:

“Executive clemency petitions usually request either a pardon after a completion of sentence or a commutation–reduction of sentence–currently being served.

A presidential pardon serves as an official statement of forgiveness for the commission of a federal crime and restores basic civil rights. It does not connote innocence. Under the provisions of 28 C.F.R. § 1.2, a person does not become eligible to file a pardon request with the Department until the expiration of a five-year waiting period that commences upon the date of the individual’s release from confinement (including home or community confinement) for his most recent conviction or, if no condition of confinement was imposed as part of that sentence, the date of conviction. Typically, the waiting period is triggered by the sentence imposed for the offense for which the pardon is sought, but any subsequent conviction begins the waiting period anew. Moreover, the same regulation stipulates that no petition for pardon should be filed by an individual who is then on probation, parole, or supervised release. In contrast to a pardon, a commutation is not an act of forgiveness, but rather simply remits some portion of the punishment being served. An inmate is eligible to apply for commutation so long as he has reported to prison to begin serving his sentence and is not concurrently challenging his conviction through an appeal or other court proceeding.”

July 11, 2007 - Roger C. Adams

Paul J. Haase, JD, Associate in the Litigation Department of Cooley Godward Kronish LLP, in his Summer 2002 American Criminal Law Review article “‘Oh My Darling Clemency’: Existing or Possible Limitations on the Use of the Presidential Pardon Power,” wrote:

“Executive clemency exists to serve the public welfare. Presidential pardons afford relief from overly harsh judgments or prejudice in the operation or enforcement of criminal law. The pardon power also operates as a check on the judicial branch of the government, just as the presidential veto is a check on the Congress. At its root, the clemency power is based on fundamental notions of mercy and justice…

While the concept of clemency has its origins in ancient Roman law, the Framers of the U.S. Constitution borrowed directly the fundamentals of the executive pardon power from the British legal tradition…

The United States Constitution states that that ‘[t]he President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.’ …Vesting the power in one person affords the President broad discretion and the ability to take quick action. Broad discretion allows the President to dispense governmental mercy while the ability to act quickly allows the President to deal swiftly with situations involving political upheaval or other emergencies. Further, allowing only the President the power to confer pardons ensures the transparency of his actions.

Once granted, a presidential pardon ‘relieves the offender of all punishments, penalties, and disabilities that flow directly from the conviction, provided that no rights have vested in a third party.’ There are three common uses of a presidential pardon. First, the pardon power acts as a check on the judicial system, allowing the President to commute a prison term based on any perceived injustice or prejudice in the prisoner’s conviction. Second, the President may grant pardons ‘to restore civil rights’ to rehabilitated criminals who have served their sentences and now lead productive lives. Third, ‘in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.’ Thus, the power to grant a pardon can be a vital tool in the hands of a President.

There are two limitations on the pardon power deriving solely from the language of the Constitution. The first restriction is that the pardon power is vested solely in the President. Textually, the Constitution vests executive power in the President alone; however, the President traditionally delegates aspects of his executive authority to other executive agencies. With regard to the pardon power, while the Office of the Pardon Attorney has the power to investigate and to oversee the administration of pardons, it is the President alone who may grant or deny pardons…

The second text-based limitation in the Constitution bars pardons in the case of impeachment. This limitation, borrowed from the British, seems to be the only situation in which a presidential pardon may not be granted…[O]nce impeachment charges are brought against a federal official, no reprieve can be granted.”

Summer 2002 - Paul J. Haase, JD