Commutation of Sentence

Commutation is a form of executive clemency (or mercy) that reduces the punishment for a crime. It usually takes the form of a reduced ("commuted") prison term, but can also reduce court-ordered fines, restitution, or other court-ordered obligations. Other types of executive clemency include pardons and reprieves.

What Does It Mean to Commute a Sentence?

Commuting a sentence refers to the power of the president or a state governor to reduce a prisoner's sentence. Most commonly, the executive branch uses commutations to reduce a death sentence to a life sentence. But other commutations are possible. For instance, a governor could reduce the sentence term or supervised release time, reduce or eliminate a criminal fine, or convert a consecutive sentence to a concurrent sentence.

Authority for Commutation of a Sentence

Only the president may commute federal sentences. In most states, only the governor can commute a state sentence. These clemency powers come from the federal and state constitutions.

A few states don't provide their governors with unilateral clemency power. In these states, the authority to pardon or commute a sentence often rests with an executive board of pardons or requires a recommendation from the board.

Clemency powers are largely unrestricted. Grants of clemency cannot (for the most part) be overridden, even if it's believed the president or a governor misused their authority (such as granting a commutation to a friend, relative, or political donor). Only constitutional violations might bring an act of clemency before the courts.

What Is the Purpose of Commuting a Sentence?

How the president or a governor uses their clemency power is up to them.

Commonly cited reasons for commuting a sentence include:

• sparing a life from execution
• rebuking the death penalty as a form of punishment
• reducing a sentence that is viewed as excessive, unfair, or unjust
• righting a "judicial or legal wrong"
• showing mercy to a person who shows considerable remorse, works diligently at rehabilitation, and has served a long portion of their sentence, and
• showing compassion to an inmate with a terminal illness.

For example, a governor might commute a sentence they felt was unduly harsh as a consequence of a state's three-strikes law, mandatory minimums, or felony-murder rule. Or the governor or president might commute a sentence if they feel a person did not receive a fair trial.

Some states allow a sentence to be commuted without the prisoner's consent; others require acceptance before the commutation takes effect. When conditions are attached, typically, the prisoner must accept the conditions.

What Are the Requirements for Commutation of Sentence?

The law and procedures for sentence commutation vary from state to state and from state to federal government. The rules, procedures, and standards can also change when a new administration takes over.

Generally speaking, state statutes outline the basics of commutation, but the board of pardons or other executive board will establish eligibility requirements. For example, a state law might authorize the governor to commute any prison sentence, except those for treason or a crime of violence. The board of pardon rules might then establish additional eligibility requirements, such as serving a minimum amount of time, not having recent disciplinary actions, and not having any pending appeals.

How to Apply for Commutation of a Sentence

Each jurisdiction has its own application process for commutation and other types of clemency.

Federal Commutation of Sentence

Applications for commutation of a federal sentence can be found on the U.S. Department of Justice website under the Office of the Pardon Attorney. A person currently serving a federal prison sentence or under federal supervision (supervised release, parole, or probation) can apply.

State Commutation of Sentence

Many state commutation applications can be found on the website for the governor, the department of corrections, or the board of pardons or clemency. Run a search for your state name and keywords such as clemency, commutation, pardons, and application. This resource from FAMM provides briefs outlining "Clemency Laws by State," which include the state websites for the decision-making authority.

Application Review and Deadlines

In most applications, the applicant must show that they meet eligibility requirements for commutation and explain why they deserve a commutation of sentence. Some boards or governors' offices only review clemency applications a few times a year, so it's important to check out deadlines and other timing requirements (especially if an election is coming up).

Are There Disadvantages to Commutated Sentences?

There can be. It will depend on the person's original sentence and the terms of the commuted sentence.

Sometimes, a commuted sentence results in an inmate's release from prison without any conditions hanging over their head. Other times, the inmate will remain in prison under the commuted sentence and often be subject to conditions set by the president or governor. These conditions can be consequential.

Conditional Commutations

For instance, a conditional commutation might require an inmate to give up their eligibility for future parole or waive their right to file future legal challenges. It's also common for a commuted sentence to require a person to remain law abiding. Any disciplinary violation in prison or crime committed while on release can result in the revocation of the commuted sentence and reinstatement of the original sentence. These conditions generally last only through the end of the sentence, but can last indefinitely in some cases.

The executive branch can attach almost any condition to commuted sentences, provided it's not illegal, unconstitutional, immoral, or impossible to perform. As long as the conditions don't fall into these categories, the courts typically can't invalidate them. Some states consider any "reasonable" condition to be a lawful one.

Loss of Credits

A person under a commuted sentence might also lose certain benefits provided by state law. For example, a state statute might prohibit an inmate under a commuted sentence from receiving good-time credits while incarcerated. Or, if a commuted sentence is revoked, either state law or the commutation order might prevent the prisoner from receiving credit against their original sentence for any time spent on release under the commuted sentence.

Commutations vs. Pardons

Like the pardoning power, the power to commute sentences is in the executive's discretion; neither the legislative nor judicial branch can interfere with or override that power. Although commutation is considered part of the pardoning power, there are significant differences between commutations and pardons.

Forgiveness vs. reduction. Pardons forgive the defendant for the crime, while commutation only reduces the sentence.

Conviction. A commutation doesn't wipe out or affect a criminal conviction, whereas a pardon relieves one from the consequences of a conviction. (This is different from expungement.)

No restoration of civil rights. Unlike pardons, commutations don't restore the civil rights lost with the criminal conviction (such as the right to vote).

Timing. Commutations happen while a person is serving a sentence. Pardons usually occur after a person has served their sentence. (But, read about preemptive federal pardons.)

Acceptance. Prisoners must accept pardons, but some states allow commuted sentences without the prisoner's consent.

Both pardons and commutations can be conditional. They can also be issued to individuals or groups of people.

Getting Legal Help

You can fill out an application for a commutation on your own. But you can benefit from the help of an attorney, if you choose. An attorney can help you present arguments on why you're sentence was unfair, why you deserve a shortened sentence, or how circumstances have changed. If there's a hearing, the attorney can present the arguments to the board.