How the President Decides
The President has the unreviewable discretion to grant clemency to anyone who has violated a federal criminal law. In practical terms, however, the President cannot personally evaluate the large volume of applications that are submitted every year.
In the late nineteenth century, the Department of Justice formally established the Office of the Pardon Attorney (OPA) to advise and assist the President in granting or denying clemency requests. In the vast majority of cases, the President follows the recommendation of the OPA.
The OPA follows a set of internal guidelines to determine the merit of a clemency petition—guidelines that are not explicit or obvious in the application form. Their evaluation also includes an extensive investigation into your background and current circumstances.
Investigative Process for Pardons
The principal questions the OPA asks when evaluating your pardon application are—
⦁ How serious was your offense and how long ago did it happen?
⦁ Have you accepted responsibility, expressed remorse, and tried to make amends?
⦁ How have you behaved since your conviction? What sort of character and reputation do you have now in the community?
⦁ Do you have a practical need for relief?
⦁ What do judges, prosecutors, probation officers, or other officials involved in the original prosecution recommend?
As part of its evaluation, the OPA may refer your petition to the Federal Bureau of Investigation (FBI) to conduct a comprehensive, detailed background investigation. Every aspect of your life is potentially subject to scrutiny, including—
⦁ Criminal history
⦁ Credit scores
⦁ Financial stability
⦁ Family life
⦁ Employment history
Sometimes FBI investigators interview you, your family members, neighbors, employers, or character references. If necessary, the OPA also requests information from other government agencies, including the Internal Revenue Service or Immigration and Customs Enforcement. Finally, if your offense had identifiable victims, they or their families are given an opportunity to comment on your petition.
Investigative Process for Commutations
The application form and investigation for commutation petitions are similar to those for pardons, but they are not as far-reaching. Typically, you are already serving your sentence in federal prison and have exhausted all appeals or legal challenges to your conviction.
As part of its investigation, the OPA contacts the prison warden where you are incarcerated to obtain copies of your judgment, presentence report, and most recent prison progress report. In addition, the OPA will collect other court documents related to your conviction. They may also consider judicial opinions about the underlying offense, published media reports, and correspondence from persons who support or oppose your petition.
In some cases, the OPA will compare your sentence to the sentences imposed on other people who committed similar crimes. In 2016, for example, President Obama commuted the sentences of nonviolent drug offenders who had received disproportionately harsh punishments under federal mandatory minimum guidelines.