What is executive clemency and what is the procedure to file for it?

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UPDATED: Jul 15, 2021

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Written By: Jeffrey JohnsonUPDATED: Jul 15, 2021Fact Checked

Executive clemency is a power given to the executive branch to essentially forgive or show mercy on those who have been convicted or accused of crimes. Clemency can be in the form of a pardon or a commutation of sentence. The type of clemency you receive will determine which of your legal rights will be restored and the long term effect of your conviction. The procedures for applying for executive clemency vary by state, but generally include the submission of an application and approval by the executive branch of government in your state.

Types of Clemency
The types of clemency vary by state. The two main types of clemency are pardon and commutation. Pardon forgives defendants for the commission of their crime or crimes. Sometimes states will offer different types of pardons. A full pardon will completely forgive your crime and restore all of your legal rights, like the right to vote and carry a firearm. Some states offer a partial pardon, which forgives your crime, but does not restore all of your rights. In Louisiana, a person convicted for the first time of a drug offense can receive an automatic “first pardon” if they successfully complete their sentence. Even though the conviction is “pardoned,” the conviction can still be used against you if you are later convicted of another crime. Despite the pardon, you will be considered a repeat offender. A commutation does not completely forgive a crime, but rather reduces the sentence a person currently incarcerated must serve. Commutation does not usually result in a restoration of your rights because the crime is not forgiven; only the sentence is reduced. Commutation can be based on a plea of mercy because a person is getting older or because a person has a serious ailment.

Procedures for Obtaining Clemency
As noted, the procedures for obtaining executive clemency vary by state. The exact procedures will be set out in your state’s criminal law or administrative codes. The first step is to obtain a copy of your conviction. You will have to demonstrate exactly which decision you are seeking clemency for. You must apply for clemency in the state where you were convicted. If you were convicted in federal court, you must make your application to the President of the United States. Most states give the governor the power of executive clemency. However, a few states give the power of clemency to an executive board. If the power of executive clemency vests with your governor, then state laws generally require the governor to consult with a board who will review your application. So your next step is to submit an application to the board for review. Most states now have websites where you can obtain the required forms. Once the board receives your application, they will review and possibly investigate your application for clemency. Part of the review will include contacting the victim and original jurisdiction of where you were convicted. The board will allow them a set amount of time to file a response or a complaint. After the board has reviewed your application they will submit your request to the governor with a recommendation. The governor will then make a final decision on whether or not to grant you clemency.

Clemency and Expungement
If the governor does grant your request for clemency, you may still need to complete additional steps. Even though you are granted clemency, many states do not automatically expunge your records. This means that you will have to file a separate motion to expunge in the county of your conviction to get the case off of your record completely.

The process and procedures are fairly straight forward. However, the decision to grant clemency often is not. The quality of the packet of information that you submit to the board will greatly influence their decision. Before you submit your application, you may want to consult with a criminal lawyer that can advise you on the clemency laws in your state and also to help you decide which type of clemency is best for your situation.

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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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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

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