Pardon vs. Commutation: What’s the difference?

So, what can you do if you've been convicted of a crime and are seeking leniency? After a criminal conviction, clemency or leniency can be granted to an individual by the federal or state government. The most common types of clemencies are pardons and commutations, which lessen or completely absolve a person of responsibility.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 15, 2022

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Overview

  • A pardon is a full or partial forgiveness of a person convicted of a crime in the U.S.
  • A commutation is the lessening of a conviction to a shorter sentence or severity
  • Both the power to pardon and commute, along with other clemencies, are given to the president and state government

The United States legal system can be tricky for anyone that doesn’t work in it. So it’s easy to mix up legal terms and their meanings. You might not know that if someone commits a crime and the court convicts them, it’s possible to get a lighter sentence, or even be completely forgiven. This is a type of mercy or leniency that can be given in the court of law called clemency. There are two major classifications of clemency — a pardon and a commutation. It’s easy to get confused between a pardon vs. a commutation. Let’s take a look at each of them, along with some other divisions of clemency.

What’s a pardon?

You’ve probably heard of a pardon before. In the eyes of the court, a pardon is the partial or complete forgiveness of a person by the government of all legal consequences from a criminal conviction. When found guilty, a person is stripped of certain rights, like voting. But after a pardon, those rights are restored and the person is granted full citizenship once again.

In other words, a pardon is basically a clean slate, as the conviction is wiped from a person’s official record. Pardons are usually offered to someone who was wrongfully convicted — or claims that they were wrongfully convicted of a crime — or who have “paid” their debt to society.

Here are some examples of pardons:

  • George Washington issued the first pardon in U.S. history when he pardoned two men from Pennsylvania that had participated in The Whiskey Rebellion. Both men were facing the death penalty until Washington stepped in and kept them from getting punished to the fullest extent of the law.
  • Franklin D. Roosevelt issued the most pardons in history — a total of 2,819 out of 3,796 acts of clemency — most of which were related to convictions during the prohibition.
  • On Christmas Day in 1868, Andrew Johnson gave full pardons to soldiers that fought for the Confederates during the American Civil War.

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What’s a commutation?

While a pardon is a full forgiveness for a crime, a commutation is a little bit different. Commutation is the lessening of a sentence to a shorter period of time. Although it may be a lesser sentence, the conviction still stays on the individual’s record. It may mean that the person’s penalty is lessened in severity, duration, or both. For example, someone found guilty of capital murder may have a sentence of death commuted to life in prison.

Depending on the jurisdiction, a commutation may be given under specified conditions. If the person violates those conditions, then the court can revoke the commutation. The following are some reasons a convicted felon may earn a commuted sentence:

  • Illness
  • Good behavior
  • Old age
  • If the sentence is unreasonably harsh in relation to similar cases

Who has the power to issue a pardon or commutation?

According to Article II, Section 2 of the United States Constitution, the President is granted the power to pardon individuals convicted of a crime against the country. It states that the President “shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The president is also allowed to commute a sentence if they see fit. But this is only on a federal level.

For crimes that fall under state criminal law, pardons and commutations are decided by the state government. Governors in most states can give out pardons and commutations. In other states, that power lies with an appointed board or agency. Yet, there are more clemency powers than just pardons and commutations. There is also amnesty, remission, reprieve, respite, expungement, prosecution immunity, and other immunities.

What are other types of clemency?

Amnesty is basically the same concept as a pardon but is granted by the government to a group of people as opposed to an individual. These people have typically committed political offenses and are facing trial. Amnesty effectively erases all legal existence of the case and allows the group to go free. The purpose of this is to bring them into accordance with the law instead of punishing them for past behavior.

Remission is a type of clemency that provides relief of financial burdens that may come with hefty court fines. It’s a full or partial cancellation of the penalty, but the individual is still considered guilty of whatever crime the legal system convicted them of.

Reprieve is a temporary alleviation from punishment or a postponement of the punishment for someone convicted of a crime. This is only a temporary delay after a judge issues a sentence and remains in place for a certain period of time.

Respite is a delay in imposing a sentence. It in no way changes the sentence itself. Respites usually last from 30 to 90 days and can be due to delay executions, awaiting appeal outcomes, or allowing additional time for clemency applications.

Expungement is the complete destruction of a criminal conviction. This means that the case no longer exists in the eyes of the state or federal government. The individual who had their record expunged can treat the event as if it never happened. An expungement can only be granted by a judge.

Prosecution Immunity is when a prosecutor grants immunity from criminal conviction to someone, almost always a witness, in exchange for testimony or other evidence. Then, the court cannot charge the witness for a crime they may have committed while witnessing the defendant commit the crime they are testifying against.

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How does someone get a presidential pardon?

The United States Department of Justice explains how to request a presidential pardon on their website, but one will need to meet certain requirements for consideration. Only a federal crime can be pardoned by the president. First, the request will have to be submitted to the Office of the Pardon Attorney. There is a five-year waiting period required that begins at the applicant’s sentencing. You will not be considered for pardoning if this is not met. Character references are also necessary. The president is the sole person responsible for pardoning decisions.

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