Commutation is a form of clemency 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.
A commuted sentence replaces the original, court-ordered sentence. A controversial example is ex-President Bush’s 2007 decision to commute Scooter Libby’s 30-month prison sentence.
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.
Commutation is part of the pardoning power, so the person (or board) with the pardoning power usually also exercises the power to commute sentences. Only the President may commute federal sentences; in most states, only the governor can commute a sentence. (See “Pardons” for a discussion of “pardon boards.”)
Commuted sentences are usually a reward for good behavior, but they can also have other purposes, such as to reduce an unreasonably harsh sentence or to address a judge’s refusal to give a prisoner credit for time served.
Some states allow a sentence to be commuted without the prisoner’s consent; others require acceptance before the commutation takes effect. In most states, the government can’t revoke a commuted sentence unless the former offender obtained it fraudulently or the factual basis for granting it turns out to be inaccurate. (But see the discussion of conditional commutations below.)
A number of states have laws that give prisoners time off their sentences for good behavior in prison, which is akin to commutation.
In general, all sentences can be commuted, except those related to impeachment and treason. Each state and its governor can choose to limit or restrict eligibility for commutation. As long as the government exercises the power in good faith, there are no limits on commuting sentences—other than those made by the state and its chief executive.
Governors can convert consecutive sentences into concurrent sentences. A few states prohibit the governor from commuting a death sentence, but most allow him or her to commute it to life without the possibility of parole. Some states go further and allow the governor to further commute that life sentence to a definite term.
Because rehabilitation is the object of commutation, governments grant most commutations with conditions attached. Most, if not all, commutations are conditioned on being a law-abiding citizen. Unless the order says otherwise, the conditions last only until the end of the commuted sentence.
Governors can attach other conditions to commuted sentences, provided the conditions aren’t 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.
Most commuted sentences require acceptance, but some commutations don’t. For example, death sentences have been commuted without the prisoner’s consent.
Violating any of the conditions of a commutation typically voids the commuted sentence and authorizes the governor to reinstate the original sentence. It may also mean the prisoner has to serve the maximum term of the original sentence.
A prisoner is entitled to due process before the government revokes a commuted sentence, but the required procedures vary from state to state. If the commutation order authorizes it, someone who violates a condition can be summarily arrested and sent back to prison to serve the original sentence—without a hearing or even an explanation of how he violated the condition. Unless the order authorizes the governor to decide whether the former offender violated the condition, a court makes that decision.
If the violation is the commission of another crime, the new crime’s sentence usually won’t start until after the offender completes the original sentence. Either state law or the commutation order’s language may prevent the prisoner from receiving credit against his original sentence for the time that he was on release.
The law and procedures for sentence commutation vary from state to state and from state to federal government. The preceding information is therefore only an overview. Consulting with an attorney experienced in commutation and related matters is an excellent way to get a fuller explanation of the law and guidance.