The president’s authority to pardon rests in the U.S. Constitution, which gives presidents nearly unfettered power to forgive federal crimes or shorten sentences for those crimes.
What is the difference between a presidential commutation and a pardon? Here’s a look at commutations, pardons and reprieves.
What is a commutation of a sentence?
A commutation of sentence reduces a sentence, either totally or partially, according to the Department of Justice’s Office of the Pardon Attorney.
A commutation can also release a person from a fine imposed at sentencing – at least the part of the fine that has not already been paid.
However, it does not erase a conviction, imply the person is innocent, or remove “civil disabilities,” such as a ban on voting or running for office, that apply to a person convicted of a federal crime.
A person can only get a commutation if they are already serving their sentence and are not appealing their conviction.
What is a pardon?
A pardon means that the president has forgiven a person of the crime of which they were convicted. It is generally granted “in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence,” according to the DOJ.
While a president pardons someone of a crime, it does not mean that the person is innocent of the crime. A pardon does remove the civil disabilities that are imposed when a person is convicted of a federal crime, including the ban on voting, the ability to sit on a jury and the right to own a firearm.
According to the Office of Pardon Attorney, “a person is not eligible to apply for a presidential pardon until a minimum of five years has elapsed since his release from any form of confinement imposed upon him as part of a sentence for his most recent criminal conviction, whether or not that is the conviction for which he is seeking the pardon.”
How does the president have the right to pardon someone?
Under Article II, Section 2 of the U.S. Constitution, the president "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
Through the years, the U.S. Supreme Court has interpreted that part of the Constitution to mean that presidents have the power to grant pardons, commutations of sentences, partial and conditional pardons, and commutations and suspension of fines.
The president can only pardon or commute the sentence of people who have been convicted of federal crimes, someone who has been court-martialed or the convictions of people in the Superior Court of the District of Columbia.
What is the procedure for granting pardons?
Requests for pardons are referred to the Office of the Pardon Attorney. There, the applications are reviewed, an FBI background investigation is initiated and comments are requested from the prosecutors and the judge in the case.
After the review of the case, a nonbinding recommendation is made to the White House.
However, because the Constitution gives the president the power to pardon, the president does not have to wait for the recommendation. He can bypass that process and grant a pardon on his own.
What else does the Constitution say about pardons?
Article 2, Section 2 grants the power not only of pardons but also of “reprieves." A reprieve means there is a delay in the imposition of a sentence.
Can the president pardon someone before they are charged with a crime or prior to sentencing?
The short answer is yes, a president can pardon someone before they are charged with a crime. One example is President Gerald Ford’s pardon of President Richard Nixon. Nixon resigned from office but had not been charged with a crime.
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