Once a person has been convicted of a criminal offense and sentenced to a term of incarceration, they have numerous possible legal avenues to avoid serving the entire length of the sentence. The most common methods, aside from appeals and habeas corpus petitions, are parole and other forms of early release. Clemency, which occurs when the president or governor either commutes the sentence or pardons the offense, is a far less common outcome, but it has many interesting legal ramifications. In the last few months of his second term in office, President Obama commuted the sentences of several hundred nonviolent drug offenders. While this resulted in many early releases, at least one person has remained in prison because of a conflict between federal and state jurisdiction.
Clemency can take two main forms. A “pardon” essentially absolves a person of guilt for a particular offense, or in connection with a particular act or incident. If no prosecution has occurred, a pardon prevents it from occurring at any point in the future. If a prosecution is already underway, or a person has already been convicted, a pardon either halts the prosecution or wipes out the conviction. A “commutation” merely shortens a person’s term of incarceration without wiping out the conviction.
The power to grant clemency in federal criminal cases is vested in the President of the United States. This power only extends to criminal cases under the jurisdiction of the federal court system. State governors have sole authority over clemency in state criminal cases. In cases that involve both federal and state charges, this could mean that clemency by one executive, such as the President, does not resolve the entire case. Intersections between state and federal law are particularly likely in drug-related criminal cases, since both federal and state law enforcement take an active interest in enforcing drug laws.