Clemency is leniency or mercy. It is usually referred to as executive clemency. Executive clemency is the power of the governor in state convictions or the president in federal criminal cases to pardon, grant commutation, reprieve, or amnesty to someone found guilty of a criminal offense.
There are several reasons for exercising executive clemency, including actual doubts regarding the offender's guilt, humanitarian reasons like the illness of an aged inmate, an evident excessive sentence, to clear the criminal record of somebody who has proved public service or rehabilitation, or because the offender is the governor's or president's personal or political friend.
In California, any convicted offender can request executive clemency from the governor, even those sentenced to life imprisonment or death.
How Executive Clemency Works
When all other avenues to appeal a case have been pursued and have not yielded any fruit, applying for executive clemency might be an ideal option for a convicted offender who seeks post-conviction relief. When seeking executive clemency, the convicted person petitions the president for a federal violation or the governor for a state crime to request partial or full forgiveness of their criminal actions.
There are five kinds of clemency requests: restoration of civil rights, reprieves, sentence commutations, amnesty, and legal pardons.
- A commutation of a sentence does not grant the petitioner full forgiveness. Instead, it reduces the severity or length of their legal punishment. With commutations of sentences, the president or governor can also make an offender qualify for parole.
- A reprieve also does not cancel a convicted offender's sentence. Instead, it postpones it. A reprieve is granted mainly in cases that involve capital punishment.
- Legal pardons grant the convicted person full forgiveness for the offenses they committed and the accompanying lawful punishment. But pardons, like reprieves and sentence commutations, do not delete the offender's conviction but simply void or alter their sentence.
- Amnesty differs from the abovementioned clemency types in that it is a request to remove all legal records of the petitioner's crime.
- Restoration of civil rights is another type of executive clemency that, if awarded, restores the civil rights the applicant lost when they were found guilty. These rights include, among others, the legal right to own or possess a gun, vote, hold government office, serve on a jury, et cetera.
How To Obtain Executive Clemency in California
To obtain executive clemency, you must apply for it, and to apply, you must:
- Inform the prosecutor of the state county (or counties if you seek clemency for multiple violations and were convicted in different counties) where you were prosecuted and convicted and sign an affidavit declaring you did so.
- Fill out and send a signed, notarized application of clemency to the governor’s office.
You can download both forms from the state governor's website.
Notifying The D.A.
Before you apply for executive clemency, you must serve the D.A. with notice of intent to apply for executive clemency. You should send the notice to the district attorneys of all the counties where you were convicted. The notice form is provided alongside a downloadable executive clemency application form. You must use this form since it has a section for the district attorney to acknowledge receiving the notice.
You must send the notice to the D.A. before submitting your clemency application to the governor’s office. You must swear a notarized affidavit that the district attorney was informed of your intent to apply for clemency. You must submit the affidavit to the governor’s office and, with it, your executive clemency application. You must sign the affidavit in a notary’s presence.
You can find qualified notaries on the webpage of the Secretary of State. The district attorney will mail an acknowledgment of receipt of the notice to the Office of the Governor.
The governor must give the district attorney at least ten days' notice before they can decide on your executive clemency application. One exception is when there is immediate danger of your death or your imprisonment term is within ten days of its expiration.
Even though it is unnecessary, it is recommended that you send the notice via a channel that provides evidence of receipt, for example, certified mail.
Once you have notified the prosecutor, they might submit a recommendation in writing to the state governor against or for executive clemency. The district attorney will additionally make reasonable attempts to inform the victim or victims of the violation or violations related to your application. The victim or victims and their families might also submit their recommendations to the state governor.
Applying for Clemency
Requesting executive clemency is a straightforward process. But you have to provide the following:
- The reason or reasons why you seek executive clemency.
- A listing of all of your convictions and circumstances.
- A statement on why you believe the governor should grant executive clemency.
- A statement of the reimbursement, if any, you paid to anyone for helping with obtaining executive clemency.
It is worth repeating that your application should be notarized. You should then send it via certified or regular mail to:
Governor's Office
Attn: Legal Affairs
State Capitol Sacramento, CA 95814
You can notarize the application simultaneously with your affidavit of notice to the district attorney.
Not that no fee applies when applying for executive clemency. You may have to pay attorney's fees if you hire an attorney to help obtain executive clemency, but you will not pay any application fee. And if you paid attorney’s fees, you must disclose them during your application.
What Happens Once the State Governor Receives Your Application for Executive Clemency?
Once you have applied for executive mercy or leniency, the state governor is entitled not to agree to or even consider your request. But if they do, they will likely refer the request to the BPH (Board of Parole Hearings). The BPH’s role is to evaluate the circumstances surrounding the application and suggest the ideal course of action. It will conduct a comprehensive probe and present its recommendations to the state governor regarding whether they should grant the request. The recommendations often include a summary of the crime, usually prepared by the district attorney.
During the board's investigations, it may interview witnesses and victims (sometimes with help from local law enforcement from the area where the crime occurred) and take testimony under oath. Additionally, it may review a brief statement regarding the facts surrounding your case. The statement is usually given by the criminal court that convicted you.
The governor could also give the clemency application to the police and other relevant agencies for recommendations and investigations. They may also request more information from you based on what the Board of Parole Hearings recommends and reports.
Remember, the governor does not need to ask for the Board of Parole's review or the reviews of other agencies.
The Board of Parole Meeting
If the state governor asks for a review of your application, the Board of Parole will perform a comprehensive investigation. When it completes its investigation, it will present its case to the Executive Board during a public meeting. You will be told when the Executive Board will decide on your case. You will be allowed to submit more information, although you will not be allowed to be present at the meeting.
The public, for example, victims, their families, and the community, will be allowed to air their opinions for five minutes each. Once the meeting ends, the Board of Parole will present its investigation findings and recommendations to the state governor. It will also inform you about the meeting's outcome.
Note that if you have two or several past convictions for felony offenses, the governor must have the support of a majority of the supreme court justices before extending clemency. Therefore, in this case, if the state governor is willing to grant clemency, they must refer your request to the Supreme Court. However, the governor does not have to solicit the court's permission and might ignore or decline the petition.
If the governor sends your application to the Supreme Court, it is considered a court proceeding. For the judge to grant clemency, at least four justices must agree to your petition. The president of the Supreme Court will write to the governor regarding the court's recommendations.
When Is Executive Clemency Granted and When Is It Denied?
No stipulated factors are required for granting clemency under California law. The California Constitution grants absolute powers to the governor to exercise this power. The only restriction is the need for the approval of a majority of the justices of the California Supreme Court where an applicant has more than one conviction for felony offenses.
The factors the governor will consider once they have received your application for executive clemency include:
- The reasons for asking for clemency.
- The type of criminal offense for which you were convicted—the governor cannot grant you executive mercy if your crime is a military offense, a violation under the criminal statutes of another country or state, or a violation of federal law. As mentioned, you will petition the president for executive clemency if you violated federal law.
- The seriousness of your criminal conviction; for example, was the victim injured?
- The sentence imposed.
- Your age when you committed the violation and at the time of applying for executive clemency.
- The number of years of your sentence you have served.
- Your rehabilitation record.
- Any gang memberships.
- The fairness of the conviction.
- Your behavior while in prison or jail.
- The education you acquired while in incarceration, including teaching a class or being a tutor for others.
- The impact that granting executive clemency will have on the community or victim. That is, whether you pose any danger to the victim or community.
- A show of remorse for your crime.
- Public opinion about your crime.
- Evidence of victim restitution or efforts to right the wrongs.
- The D.A.'s and victim's opinions regarding changing, shortening, or ending the sentence, which often includes an assessment of community safety if you are released.
- Whether you were subject to intimate partner violence.
- Whether you will have a place to live and a job if you are released.
- Any other elements that may be relevant, like criminal history or the likelihood of reoffending.
How Intimate Partner Violence Affects a Clemency Application
California law permits the Board of Parole to look at whether a convicted offender faced intimate partner violence and its impacts, which are described as evidence of the effects and nature of mental, emotional, or physical abuse against the behavior, perceptions, or beliefs of intimate partner violence victims if it seems that the criminal conduct was the consequence of the victimization.
For executive clemency purposes, an intimate or romantic partner refers to a former or current spouse, fiance, fiancee, cohabitant, domestic partner, girlfriend, boyfriend, or the father or mother of the convicted offender's child.
Reasons you may be deemed subject to intimate violence include, among others, that you were a victim of an offense under these state domestic violence statutes:
- 273.5 PC, corporal injury to a cohabitant or spouse, or
- 243e1 PC, domestic battery.
Obtaining Clemency Is Not Easy
Executive clemency is rarely awarded. It is often granted in cases where there are actual doubts regarding the offender's guilt, for humanitarian reasons like the illness of an aged inmate, an apparent excessive sentence, to clear the criminal record of somebody who has proved public service or rehabilitation, or because the offense is the governor's or president's personal or political friend.
Some forms of clemency, like sentence commutation, are granted only when it is evident that even though the offender was criminally liable for an offense, the imposed punishment was too severe, generally due to:
- Evidence of romantic or intimate partner abuse, such as battering.
- The offender's young age during the commission of the crime.
- Statutes that were highly strict during sentence.
What Happens Next After Your Application Is Granted?
Since it is unnecessary that the governor even looks into an executive clemency application, stating how long it will take to grant clemency is impossible.
But after the governor grants your application, the parole board or prison, whichever is applicable, starts executing the new sentencing terms. The disposition and application are filed in the secretary of state's office and then reported to the legislature before becoming public records. Particular details, for example, the contact address, are edited before publicizing the information.
The Office of the Governor will inform the Department of Justice (DOJ) that you have been granted executive clemency. The DOJ then notifies the FBI. These agencies then update their databases to reflect that you have been granted executive clemency for your conviction.
How a Lawyer Can Help You Obtain Clemency
If you are applying for executive clemency, you want to do so with a lawyer in your corner. There are several ways in which an experienced lawyer can assist you with your application. The following are only some of them:
- Conducting a preliminary background check on you. Conducting a preliminary background check can be challenging if you are not in contact with an attorney. Having a lawyer do a preliminary background check means you will know what to expect before applying for clemency.
- Having a lawyer search for your convictions in counties and the date they occurred—committing an error regarding this information may lead to the governor not considering your application. Lawyers understand how to conduct legal research and where to find the necessary details.
- Help complete your clemency petition. When you retain a lawyer, they can complete a clemency application on your behalf. For example, they can send out questionnaires to some clients to help them collect information, which they use to complete the application for you. Questionnaires may include questions regarding pending charges, incarceration, victims, and demographic details about yourself that can help complete the questions and categories on the application form. The questionnaire provides a straightforward way of answering questions about yourself and enables you to fill out the complicated application.
- With a lawyer representing you, you will have somebody in your corner who can communicate with victims, state lawyers, and the parole board on your behalf. You will not need to worry about understanding the legal process or talking to people.
- A lawyer will help you with any relevant proceedings. With a lawyer by your side, you can assure yourself that you have the best chance of being granted executive clemency. Clemency lawyers understand the system and process more comprehensively than anything or anyone else and will make you feel at ease when navigating these two aspects.
Find a Post-Conviction Relief Lawyer Near Me Experienced In Executive Clemency Matters
When you apply for executive clemency, your initial request may be your only opportunity. If the application is denied, you may have no legal right to file an appeal, and there may be no legal remedy once the denial happens because executive clemency is not a constitutional right but an act of mercy. We at Leah Legal can assist you in preparing and collecting all the documents and evidence necessary to develop a compelling case for executive clemency during your application.
Remember that, in the end; executive clemency is an act of compassion by the California governor and not a legal right to which you are entitled. Make your request stand out from others by hiring a reputable, skilled, and knowledgeable lawyer to assist you in seeking that second chance. If you are applying for executive clemency in Van Nuys, call us at 818-484-1100 for a complimentary consultation and evaluation of your eligibility to do so.