Federal Capital Clemency

Federal Capital Clemency Memo

The Power Defined

Article II, Section 2, Clause 1 of the United States Constitution vests the president of the United States with the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.” Alexander Hamilton defended inclusion of the clemency power in the Constitution in Federalist No. 74, stating, “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”

The president’s clemency power can be exercised through a pardon, commutation of sentence, remission of fine or restitution, or reprieve.

A pardon is “an expression of the [p]resident’s forgiveness and ordinarily is 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.” A commutation of sentence, however, “reduces a sentence, either totally or partially, that is then being served, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction.” The president can commute a sentence to time served or reduce a sentence to achieve the petitioner’s release after a specified period of time.

The president’s clemency power extends only to federal criminal offenses; not state criminal offenses.

Prior to August 2, 2000, federal regulations did not proscribe procedures unique to the consideration of clemency in capital cases. With the addition of 28 C.F.R. § 1.10, the Department of Justice (DOJ) promulgated specific procedures in capital cases “intended to supplement the already existing clemency procedures for non-capital cases.”

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The Decision Maker(s)

The federal clemency power is available only to the president of the United States. However, the Office of the Pardon Attorney (OPA), within the DOJ, aids the president in the exercise of their clemency power.

Requests for executive clemency are reviewed and investigated by the pardon attorney, and the DOJ makes a recommendation to the president, signed by the deputy attorney general. The OPA further prepares the documents the president signs when granting clemency and notifies the petitioner of the president’s decision. The OPA also “acts as a liaison with the public during the pendency of a clemency petition, responding to correspondence and answering inquiries about clemency cases and issues.” The OPA has assisted the president in clemency decisions since 1894.

Although the DOJ provides clemency recommendations to the president, recommendations and regulations relating to clemency are merely advisory and therefore, do not restrict the authority granted to the president under the Constitution.

If a president leaves office without acting on a particular clemency petition, such petition remains open and active until the incoming president makes a decision.

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How to Bring a Petition

When specifically seeking commutation of a death sentence imposed by a United States District Court, clemency must be requested by the petitioner or their attorney with the petitioner’s written and signed authorization.

To be considered for any kind of commutation of sentence, the petitioner must complete the following steps:

1. Complete, certify, and sign the Petition for Commutation of Sentence
   form by “type or print in ink;”
2.  Attach additional pages and documents as needed to support petition
   responses without stapling, gluing, binding or taping any portion of the
   petition or supplemental document[;
3.  On their petition, disclose all additional arrests or charges at any level
   occurring before or after the offense for which the petitioner is seeking
   commutation; and
4. Submit the Petition to their case manager for their submission to the
   Warden of the petitioner’s prison for “expedited consideration.”

Petitions may also be submitted by e-mail to the OPA at , or by mail to:

U.S. Department of Justice Office of the Pardon Attorney
950 Pennsylvania Avenue, Washington, D.C., 20530

A petitioner applying for clemency “is free to send any documentation or other written information” they believe has bearing on their “suitability for clemency so that it may be considered in connection with the application.” Petitioners are “free to solicit letters in support of their clemency applications from any and all sources, and any such letters will be considered as part of the clemency process.” However, “letters from elected officials do not carry any special significance in the evaluation of the merits of a clemency application by the Pardon Attorney.”

There is no fee for applying for any form of executive clemency.

If the pardon attorney needs additional information, a request will be sent directly to the warden of the institution housing the petitioner, with a copy to the assistant director, correctional programs division, Central Office, Washington D.C. In these cases, the warden must ensure the requested documents are forwarded to the pardon attorney within 15 working days and a copy of the transmittal memorandum provided to the assistant director, correctional programs division.

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Hearing Practice

No hearing is held on an ordinary (non-capital) commutation application by either the DOJ or the White House, as the executive clemency process is typically an entirely written process.

However, specific to capital cases, petitioner’s counsel may request to make an oral presentation to the OPA in support of the clemency petition. The presentation should be requested when the petition is filed and is one of “reasonable duration.” In response, the victim’s family, with the assistance of the prosecuting office, may also request to make an oral presentation to the OPA.

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Responding to a Petition

After reviewing each petition for clemency, the pardon attorney prepares, in writing, a proposed recommendation that is submitted to the deputy attorney general, who then makes the final determination of the DOJ’s recommendation to the president. The deputy attorney general then signs the recommendation, which is sent to the White House, and acted upon by the president when they feel appropriate to do so. There is no requirement that the president affirmatively act on a clemency petition or a DOJ recommendation.

In forming a recommendation, the OPA may consider some of the following factors:

1.  Disparity or undue severity of sentence;
2. Critical illness or old age;
3. Meritorious service to the government that has not been
   adequately rewarded by other official actions;
4. Seriousness of the offense of conviction;
5. Overall criminal record;
6. Nature of adjustment to prison supervision;
7. Length of time already served;
8. Availability of other remedies; and
9. Candor in the commutation application.

Often, especially in cases that appear to have merit, the pardon attorney will request the United States attorney in the district of conviction or a particular DOJ assistant attorney general, to provide comments and recommendations on whether clemency is warranted. The pardon attorney usually seeks a response within 30 days. Comments and recommendations made by the United States attorney or assistant attorney general are “given considerable weight” and are included in the report and recommendation presented to the president.

The pardon attorney may also request that the director of the Bureau of Prisons submit a recommendation on the petition for clemency. Prior to making their recommendation, the director may request comments from the warden of the institution where the petitioner is confined.

After the president acts on the petition, if granted, the petitioner will be notified of such action, in writing, and mailed or sent a warrant of pardon or commutation. The written notification is sent to the last address the petitioner provides to the pardon attorney. Therefore, the petitioner should notify the pardon attorney if their address changes while the petition is under consideration. The pardon attorney will also forward the original, signed and sealed warrant of clemency to the warden, with a copy to the director of the Bureau of Prisons. The warden then must deliver the original warrant to the petitioner, and obtain a signed receipt for return to the pardon attorney.

If the petition is denied, the petitioner will be notified and the case will be closed. The pardon attorney “ordinarily notifies the Warden, requesting that the Warden notify the petitioner of the denial.”

“As a general matter, Presidents in recent times have rarely announced their reasons for granting or denying clemency, although the [p]resident may choose to do so in a given case. Consistent with long-standing policy, if the [p]resident does not issue a public statement concerning his action in a clemency matter, no explanation is provided by the [DOJ].” The president also is not required to respond to a petition, and in the case of the 13 federal executions carried out in the Trump administration, the pardon attorney has not provided statistics suggesting that President Trump responded to any corresponding clemency petitions.

A petitioner denied a commutation of sentence request may reapply any time after one year from the date the president denied the request. To reapply, the petitioner must complete and submit a new petition as “[r]esubmitting the prior application form that was previously denied is not an acceptable form of reapplication.” However, “only one request for commutation of a death sentence will be processed to completion, absent a clear showing of exceptional circumstances.” This restriction is “designed to encourage the petitioner to raise all claims in a single request and to contribute to a swifter resolution of the case.” But “if changed circumstances make it impossible to have raised all claims previously, additional petitions should be permitted.” There is no appeal from the president’s decision to deny a clemency request.

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Current Clemency Decision Maker(s)

President Biden

President Joe Biden was elected to the presidency in 2020 after having previously served as the 47th Vice President to President Obama from 2008 to 2016. Biden began his career as an attorney in Wilmington, Delaware. He was elected to the Senate in 1972 and served as Delaware’s senator for 36 years until he became Vice President. After leaving the White House, Biden focused on his philanthropic initiatives until launching his campaign for president in 2019. 

In the past, Biden supported the death penalty and helped author the 1994 crime law that created dozens of new death-penalty-eligible federal crimes. In 2000, Biden again stated his support for the death penalty in a Senate Judiciary Committee hearing. Biden officially reversed his position during the 2020 presidential campaign, tweeting “Because we can’t ensure that we get these cases right every time, we must eliminate the death penalty.” After winning the presidency, Biden reaffirmed his opposition to the death penalty and vowed to work to end capital punishment.

Pardon Attorney 

The current acting pardon attorney is Rosalind Sargent-Burns. Ms. Sargent-Burns has worked in the Office since 2008, when she joined as an attorney advisor. She has held positions of increasing authority, the latest being the deputy pardon attorney. She has served as acting pardon attorney since 2019.

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Federal Capital Clemency Decisions

Grants

As of January 2020, the Office of the Pardon Attorney received 11,611 petitions for non-capital clemency during the Trump administration (1,854 petitions for pardon; 9,757 petitions for commutation of sentence). President Trump granted clemency in 206 cases (117 pardons; 89 commutations).

Since the resumption of federal executions in 2019, the Office of the Pardon Attorney received twelve capital clemency applications for a commutation of sentence. None were granted. Of the thirteen death-row prisoners executed since July 2019, only Keith Dwayne Nelson failed to submit a formal clemency petition to the Office of the Pardon Attorney.

Only three petitions for federal capital clemency have been granted since 2001, out of dozens filed. In each case, the respective president granted the clemency petitions in his final hours in office. Presidents have commonly issued a significant number of pardons and commutations just prior to completing their terms.

• David Ronald Chandler (Commuted)

In 2001, President Bill Clinton issued his sole death penalty commutation to David Ronald Chandler on recommendation of the Office of the Pardon Attorney, citing doubt concerning Lucas’ guilt in the crime for which he was set to be executed. Chandler was convicted in 1991 of running a drug ring that trafficked marijuana from the foothills of northeast Alabama and was condemned to death for ordering the shooting murder of an associate-turned-informant. But the principle evidence tying him to the murder was the confession of one witness, who later recanted his testimony and stated that he had in fact shot the victim. Two hours before President Clinton left office, he commuted Chandler’s sentence to life in prison.

• Abelardo Arboleda Ortiz (Commuted)

President Barack Obama issued the first of two death penalty commutations during his presidency in the case of Abelardo Ortiz, who was convicted along with two others of killing a drug dealer in 1998. Ortiz’s clemency lawyers sought clemency on a variety of grounds, including that Ortiz is intellectually disabled, but his trial lawyer did not investigate that disability; that Ortiz, a Colombian national, sought, but did not receive access to, assistance from the Colombian consulate, which is required under the Vienna Convention on Consular Rights; and that two of Ortiz’s co-defendants did not receive death sentences, even though Ortiz was not in the room when the victim was killed. On January 17, 2017, President Obama commuted Ortiz’s death sentence to life without parole. While President Obama did not announce a reason for granting clemency, Ortiz’s petition centered on the intellectual disability claim, pointing to IQ scores ranging from 44 to 70 and the fact that Ortiz could not read or write in either Spanish or English.

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Denials

As noted, of the thirteen death-row prisoners executed since the resumption of the federal death penalty in July 2019, eleven of the thirteen submitted a formal clemency petition to the Office of the Pardon Attorney. None received a response indicating an affirmative denial from either the White House or the Department of Justice. A few examples of the cases in which clemency petitions were not acted upon are included below.

• Daniel Lee Lewis (2020)

Daniel Lee Lewis was sentenced to death in connection with the 1996 murder of a husband, wife, and daughter. The prosecution’s case rested predominantly on the actions of codefendant Chevie Kehoe whom the government described as the ringleader in the case and the one responsible for the child’s death. When Mr. Lee’s execution date was set, Mrs. Earlene Branch Peterson, the mother of the deceased wife and grandmother of her child, made a plea to President Trump seeking commutation of Lee’s sentence to life in prison. Also seeking clemency along with the victim’s family with the lead prosecutor trial as well as the trial judge—an unusual, if unprecedented coalition in a death penalty case. Mrs. Peterson stated, “I can’t see how executing Daniel Lee will honor my daughter in any way. In fact, it’s kind of like it dirties her name, because she wouldn’t want it and I don’t want it. That’s not the way it should be.” Notwithstanding these statements from the victims’ family and other evidence that may have changed the outcome of the trial had it been known and disclosed at the time, the clemency petition was  never ruled on, and Lewis was executed on July 14, 2020. Lewis’s execution marked the first federal death penalty execution since 2003.

• Orlando Hall (2020)

Orlando Hall was sentenced to death in November 1995. Hall first petitioned for clemency in December 2016, though he voluntarily withdrew the petition in January 2017. On October 30, 2020, after Hall received an execution date for 50 days’ later that fall, Hall’s counsel contacted the Office of the Pardon Attorney regarding their inability to effectively prepare and present a petition for executive clemency in light of the ongoing COVID-19 pandemic. Hall’s counsel maintained that they were unable to file a new formal petition for clemency or provide an oral presentation to the Office of the Pardon Attorney, given the unprecedentedly short notice Hall was given of his execution date, and the fact that the COVID-19 pandemic prevented Hall’s attorneys from traveling to visit him or do any of the necessary investigative work needed to supplement his petition.

In November 2020, Hall filed an emergency motion raising, among others, a due process claim, asserting his inability to effectively prepare and present a clemency application under the circumstances compromising effective representation created by the pandemic. The D.C. District Court denied the motion, and the D.C. Circuit Court of Appeals affirmed. Hall sought certiorari review of the denial and petitioned the Supreme Court for an emergency stay of execution. On November 19, 2020, the Supreme Court denied the stay application and petition for certiorari.

On November 19, 2020, Hall was executed by lethal injection at the U.S. Penitentiary in Terre Haute, Indiana. His execution marked the first under a lame-duck president for over a century. Eight members of the Bureau of Prisons execution team and a religious advisor subsequently tested positive for the coronavirus after participating in his execution. The COVID-19 infections, which federal authorities had not previously revealed, came to light in documents produced in a lawsuit two non-death-row prisoners filed to halt the remaining federal executions scheduled at Terre Haute. Notwithstanding these revelations, each of the Bureau of Prisons’ originally scheduled executions through January 2021 were carried out amidst the pandemic.

• Brandon Bernard (2020)

Brandon Bernard was sentenced to death in 1999 for a death that occurred as a part of a robbery plot he was involved in at age eighteen. On November 10, 2020, he submitted a clemency petition to President Trump. In his petition, Bernard noted his youth at the time of the crime, the ineffectiveness of his trial counsel for failing to challenge unfounded evidence that he would be a future danger, and his lack of culpability compared to his co-defendants. Bernard also pointed to evidence that was never reviewed on the merits by any court that prosecutors suppressed information that Bernard played a low-level role in the gang involved in the robbery, despite claiming the opposite at trial. Bernard’s clemency petition stressed his background role in the crime, arguing that he was “neither the shooter nor the ringleader in the carjacking and murder.” Although Bernard was convicted of murder after prosecutors convinced the jury that one of the victims, Stacie Bagley, died of smoke inhalation after Bernard set her car on fire, an expert later testified that at that point, Bagley would have already been dead. The petition further described Bernard’s standout conduct in prison, such as the fact that he had never had a disciplinary infraction and counseled others to help them avoid choices that would lead to incarceration. Massive public support accompanied Bernard’s campaign for clemency. Five of the jurors who sentenced him to death and the prosecutor who defended his death sentence on appeal spoke out publicly against his execution, citing his young age and the fact that he was not the “ringleader” of the crime. Kim Kardashian West and Cory Booker were among the celebrities that came out in support of clemency. Supporters sent tens of thousands of letters advocating for a commutation to President Trump. It was further speculated that the DOJ recommended that Bernard be granted clemency. However, President Trump took no action on the petition, and Bernard was executed on December 10, 2020. Bernard, who was 40 years old at the time of his death, is the youngest person to be executed by the federal government in almost 70 years.

• Lisa Montgomery (2021)

Lisa Montgomery was sentenced to death in 2008, following her conviction for the murder of a pregnant woman and the kidnapping of the mother’s unborn child. At the time of sentencing, she became the third woman on federal death row. Although none of this information was presented at trial, later investigation by her attorneys revealed that Montgomery suffered repeated physical and sexual trauma as a child, as her mother forced her to “pay the bills” through sexual acts with various repairmen, and her stepfather regularly subjected her to sexual abuse, according to a clinical psychologist. Once an execution date was set, Montgomery’s counsel claimed she was incompetent for execution, citing mental illness, neurological impairment, and complex trauma. Montgomery’s lawyers also argued that by granting clemency and commuting her sentence to life imprisonment, President Trump could affirm the experiences of abuse survivors and their resulting trauma. However, President Trump did not grant the petition, and Montgomery was executed on January 12, 2021. By the time of her execution, Montgomery was the sole female on death row, and her execution marked the first federal execution of a woman in nearly 70 years.

• Dustin Higgs (2021)

Dustin Higgs marked the thirteenth and final execution under the federal death penalty in the Trump administration. Higgs was sentenced to death in 2000 in connection with a triple murder in 1996. Higgs submitted an initial clemency petition, which the Bureau of Pardons administratively closed in 2017. In 2020, Higgs submitted an additional clemency petition, seeking commutation of sentence on the assertion that he was not the actual killer, and also in light of the fact that his co-defendant, Willis Haynes, was tried separately and sentenced to life in prison without parole. Higgs’ lawyers asserted that it was “arbitrary and inequitable” that Higgs should receive a death sentence while the man who pulled the trigger got life. The petition also asserted that Higgs had contracted the coronavirus less than a month prior to his execution date, which would force Higgs to spend his remaining time alive battling a disease and potentially complicate the execution. President Trump again declined to take action on the petition, and Higgs was executed on January 15, 2021. Higgs maintained his claim of innocence through the execution, stating, “I’d like to say I am an innocent man,” mentioning the three victims by name, and stating that he did not order the murders.

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