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A closer look at the president's power to grant clemency

With his second term in the Oval Office just over two months from ending, many in the legal community have had questions about whether President Obama would continue his heretofore remarkable efforts under his administration's clemency initiative, giving those convicted of nonviolent drug crimes and effectively sent to federal prison for life under draconian mandatory-minimum sentencing schemes a second chance.

As evidenced by events last week, it would appear as if President Obama is committed to continuing with his efforts. Indeed, he granted 72 additional commutations last Friday, bringing his yearly total to 170 and his eight-year total to a record 944.

In recognition of this historic achievement and the fact that President Obama will likely grant more commutations before leaving the White House in January, today's post will provide some basic background information on this important topic.

What is executive clemency?  

In general, the term executive clemency is used to refer to the president's constitutional authority to grant leniency to those convicted of federal offenses.

Where in the Constitution does it set forth this executive clemency power and what does it enable the president to do?   

Article II, Section 2, Clause 1 sets forth the executive clemency power, and essentially dictates that the president is able to exercise leniency for federal crimes and crimes prosecuted by the U.S. Attorney for the District of Columbia in the D.C. Superior Court.

Does this mean the executive clemency power does not cover convictions at the state level?

The president cannot exercise leniency for those convicted at the state level. This power is usually reserved for either governors or state boards of paroles/pardons.

What exactly is a commutation?

A commutation is a total or partial shortening of a prison sentence without changing the conviction or implying innocence, and with the other consequences of the conviction, referred to as civil disabilities, remaining in place.

Indeed, a prisoner granted a "time-served" commutation by the president would essentially be eligible for almost immediate release from federal prison, but likely still be subject to restrictions on their right to vote, sit on a jury, own a firearm, hold office, etc.

Please remember to consider speaking with a skilled legal professional as soon as possible if you have been arrested or are under investigation by state or federal law enforcement for possible drug-related activities.

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Darryl A. Goldberg
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