Sunday, September 6, 2015

The Pardon Process Explained

On February 14, 2001, U.S. Pardon Attorney Roger Adams appeared in a hearing before the U.S. Senate Committee on the Judiciary and explained the pardoned process as follows (emphasis added):

Executive clemency petitions most commonly request relief in the form of pardon or commutation of sentence. The Department of Justice processes requests for executive clemency in accordance with regulations promulgated by the President and set forth at 28 C.F.R. Sec. Sec. 1.1 to 1.11. These regulations provide internal guidance for Department of Justice personnel who advise and assist the President in carrying out the pardon function, but they create no enforceable rights in persons applying for executive clemency and do not restrict in any way the plenary clemency authority granted to the President under Article II, Section 2 of the Constitution. While the regulations thus govern the process for clemency requests submitted to the Department, they do not govern requests submitted directly to the President.

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. Sec. 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. As the foregoing indicates, a person who has not yet been convicted or has not fully served the sentence for the federal crime for which pardon is sought is ineligible for pardon under the regulations that guide the Department of Justice's processing of pardon requests. However, these rules do not bind the President. The President retains the authority under the Constitution to consider a pardon request from an individual who is ineligible to apply under the regulations or who has not applied at all, and to grant clemency to such a person if he believes such action to be appropriate.

A pardon request is typically processed in the following manner. The pardon applicant files his clemency petition, addressed to the President, with the Office of the Pardon Attorney. He is free to utilize the services of an attorney or to act on his own behalf in seeking pardon. The standard form utilized for this process requests information about the offense, the petitioner's other criminal record, his employment and residence history since the conviction and other biographical information, and his reasons for seeking pardon. The application must be signed and notarized, and the applicant must also submit three notarized affidavits from character references who are unrelated to him, know of his conviction, and support his pardon request. When my office receives a pardon petition, it is screened to ensure that the applicant is in fact eligible to seek a pardon (i.e., that the crime for which pardon is sought is a federal offense and that the waiting period has been satisfied), to determine whether any necessary information has been omitted from the application or whether the applicant's responses to the questions require further elaboration, and to ascertain whether the petitioner has described his efforts at rehabilitation. If the petitioner is ineligible to apply for pardon under the regulations, he is so informed.

If the application is incomplete, further information is sought from the petitioner.

As an initial investigative step in a pardon case, the Office of the Pardon Attorney contacts the United States Probation Office for the federal district in which the petitioner was prosecuted to obtain copies of the presentence report and the judgment of conviction, as well as information regarding the petitioner's compliance with court supervision, and to ascertain the Probation Office's views regarding the merits of the pardon request. If review of the pardon petition and the data obtained from the Probation Office reveals information that clearly excludes the case from further favorable consideration, my office prepares a report to the President for the signature of the Deputy Attorney General recommending that pardon be denied. Alternatively, if the initial review indicates that the case may have some merit, it is referred to the FBI so that a background investigation can be conducted. The FBI does not make a recommendation to support or deny a pardon request. Rather, the Bureau provides the Office of the Pardon Attorney with factual information about the petitioner including such matters as his criminal history, records concerning the offense for which pardon is sought, his employment and residence history, and his reputation in the community. The FBI report is reviewed by my staff to ascertain whether favorable consideration of the case may be warranted. If the investigation reveals derogatory information of a type that would render pardon inappropriate and warrant denial of the request, my office prepares a report to the President through the Deputy Attorney General recommending such a result.

If the FBI report suggests that favorable treatment may be warranted, or in cases which are of particular importance or in which significant factual questions exist, the Office of the Pardon Attorney requests input from the prosecuting authority (e.g., a United States Attorney, a Division of the Department of Justice, or in some cases, an Independent Counsel) and the sentencing judge concerning the merits of the pardon request.

If the individual case warrants, other government agencies, such as the Internal Revenue Service or the Immigration and Naturalization Service, may be contacted as well. In appropriate cases in which the offense involved a victim, the prosecuting authority is asked to notify the victim of the pendency of the clemency petition and advise him that he may submit comments concerning the pardon request. Upon receipt of the responses to these inquiries, my office prepares a report and a proposed recommendation for action upon the case. The report is drafted for the signature of the Deputy Attorney General and is submitted for his review. If the Deputy Attorney General concurs with my office's assessment, he signs the recommendation and returns the report to my office for transmittal to the Counsel to the President. If the Deputy Attorney General disagrees with the disposition proposed by the Office of the Pardon Attorney, he may direct the Pardon Attorney to modify the Department's recommendation. After the recommendation is signed by the Deputy Attorney General, the report is transmitted to the Counsel to the President for the President's action on the pardon request whenever he deems it appropriate.

Similarly, a federal inmate seeking a presidential commutation (reduction) of his sentence files a petition for such relief with the Office of the Pardon Attorney. 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. The petitioner is free to append to the commutation application--or to submit separately at a later date-- any additional documentation he believes will provide support for his request. In completing the petition, the inmate--or his attorney, if he is represented by counsel--explains the circumstances underlying his conviction; provides information regarding his sentence, his criminal record, and any appeals or other court challenges he has filed regarding the conviction for which he seeks commutation; and states the grounds upon which he bases his request for relief.

When my office receives a commutation petition, we review it to ensure that the applicant is eligible to apply for clemency, and we commence an investigation of the merits of the request. The initial investigative step involves contacting the warden of the petitioner's correctional institution to obtain copies of the presentence report and judgment of conviction for the petitioner's offense, as well as the most recent prison progress report that has been prepared detailing his adjustment to incarceration, including his participation in work, educational, vocational, counseling, and financial responsibility programs; his medical status; and his disciplinary history. We also check automated legal databases for any court opinions relating to the petitioner's conviction. In most cases, this information is sufficient to enable my office to prepare a report to the President through the Deputy Attorney General recommending that commutation be denied.

In a minority of cases, however, if our review of this information raises questions of material fact or suggests that the commutation application may have some merit, or because the case presents significant issues, my office contacts the United States Attorney for the federal district of conviction or the prosecuting section of the Department of Justice for comments and recommendations regarding the commutation request. We also contact the sentencing judge, either through the United States Attorney or directly, to solicit the judge's views and recommendation on the clemency application. As with pardon requests, if the individual case warrants, other government agencies may be contacted as well.

In appropriate cases in which the offense involved a victim, the prosecuting authority is asked to notify the victim of the pendency of the commutation petition and advise him that he may submit comments concerning the clemency request. 

Following an evaluation of all of the material gathered in the course of the investigation, the Pardon Attorney's Office drafts a report and recommendation for action on the merits of the commutation request which is transmitted to the Deputy Attorney General. Following his review, the Deputy Attorney General may either sign the report and recommendation or return it to my office for revision. Once the Deputy Attorney General determines that the report and recommendation satisfactorily reflects his views on the merits of the clemency request, he signs the document, which is then forwarded to the Counsel to the President for consideration by the President. Thereafter, when he deems it appropriate, the President acts on the commutation petition and grants or denies clemency, as he sees fit.

When the President decides to grant clemency, whether in the form of pardon or commutation of sentence, the Counsel to the President informs the Office of the Pardon Attorney to prepare the appropriate clemency warrant. Typically, if the President intends to pardon a number of applicants, a master warrant of pardon will be prepared for his signature. The signed warrant bears the seal of the Department of Justice, lists the names of all of the individuals to whom the President grants pardon, and directs the Pardon Attorney to prepare and sign individual warrants of pardon reflecting President's action to be delivered to each pardon recipient. The preparation of the individual warrants by the Pardon Attorney is therefore a ministerial act which simply sets forth the decision that the President has already made. The individual warrant likewise bears the seal of the Department of Justice and reflects that it has been prepared at the direction of the President. When the individual pardon warrant has ' been prepared, it is sent to the applicant, or his attorney if he is represented by counsel, along with an acknowledgment form that the pardon recipient completes and returns to the Pardon Attorney's Office to reflect receipt of the warrant.

If the President decides to commute a prisoner's sentence, the Pardon Attorney's Office likewise prepares the warrant of commutation for the President's signature. Depending upon how many sentences are to be commuted, either a master warrant detailing all of the commuted sentences or individual commutation warrants may be prepared. After the President has signed the commutation warrant, which bears the seal of the Department of Justice, the Pardon Attorney's Office transmits a certified copy of the document to the Bureau of Prisons to effect the inmate's release. A copy of the warrant is also sent to the petitioner's attorney if he is represented by counsel. Whenever the President grants a pardon or commutation, the Pardon Attorney's Office notifies the prosecuting authority (United States Attorney or Division of the Justice Department), the sentencing judge, the relevant United States Probation Office, the FBI, and any other government agencies whose views were solicited, of the final decision in the matter.

When the President denies clemency, the Counsel to the President typically notifies the Deputy Attorney General and the Pardon Attorney's Office by memorandum that the affected cases have been decided adversely. The Pardon Attorney's office then notifies the pardon or commutation applicant, or his attorney, of the decision. In addition, the Pardon Attorney's Office notifies the prosecuting authority, the sentencing judge, other government agencies whose views were solicited, and, in the case of a commutation, the Federal Bureau of Prisons, of the outcome of the request. No reasons for the President's action are given in the notice of denial.

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