1-2.010
Organization and Functions of the Department of Justice
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A current Organization Chart for the Department of Justice
is maintained at
http://www.justice.gov/dojorg.htm. For
information about the functions of the individual agencies, see
http://www.justice.gov/02organizations/02_1.html.
[updated August 2010]
1-2.110
Office of the Pardon Attorney
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The Pardon Attorney assists the President in the exercise
of his power under Article II, Section 2, clause 1 of the
Constitution (the pardon clause). See Executive Order dated
June 16, 1893 (transferring clemency petition processing and
advisory functions to the Justice Department), the Rules Governing
the Processing of Petitions for Executive Clemency (codified in 28
CFR Sections 1.1 et seq.), and 28 CFR Sections 0.35 and 0.36
(relating to the authority of the Pardon Attorney). The Pardon
Attorney, under the direction of the Deputy Attorney General,
receives and reviews all petitions for Executive Clemency (which
includes pardon after completion of sentence, commutation of
sentence, remission of fine and reprieve), initiates and directs
the necessary investigations, and prepares a report and
recommendation for submission to the President in every case. In
addition, the Office of the Pardon Attorney acts as a liaison with
the public during the pendency of a clemency petition, responding to
correspondence and answering inquiries about clemency cases and issues. The
following sets forth guidance on clemency matters.
[Cited in
Criminal Resource Manual 792]
1-2.111
Role of the United States Attorney in Clemency Matters
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The Pardon Attorney routinely requests the United States
Attorney in the district of conviction to provide comments and
recommendations on clemency cases that appear to have some merit,
as well as on cases that raise issues of fact about which the
United States Attorney may be in a position to provide information.
Occasionally, the United States Attorney in the district in which
a petitioner currently resides also may be contacted. In addition,
in cases in which the petitioner seeks clemency based on
cooperation with the government, the Pardon Attorney may solicit
the views of the United States Attorney in the district(s) in which
the petitioner cooperated, if different from the district of
conviction. While the decision to grant clemency generally is
driven by considerations that differ from those that dictate the
decision to prosecute, the United States Attorney's prosecutive
perspective lends valuable insights to the clemency process.
The views of the United States Attorney are given
considerable weight in determining what recommendations the
Department should make to the President. For this reason, and in
order to ensure consistency, it is important that each request sent
to the district receive the personal attention of the United States
Attorney. Each petition is presented for action to the President
with a report and recommendation from the Department, and the
recommendation by the United States Attorney is included in this
report.
The United States Attorney can contribute significantly to
the clemency process by providing factual information and
perspectives about the offense of conviction that may not be
reflected in the presentence or background investigation reports or
other sources, e.g., the extent of the petitioner's wrongdoing and
the attendant circumstances, the amount of money involved or losses
sustained, the petitioner's involvement in other criminal activity,
the petitioner's reputation in the community and, when appropriate,
the victim impact of the petitioner's crime. On occasion, the
Pardon Attorney may request information from prosecution records
that may not be readily available from other sources.
As a general matter, in clemency cases the correctness of
the underlying conviction is assumed, and the question of guilt or
innocence is not generally at issue. However, if a petitioner
refuses to accept guilt, minimizes culpability, or raises a claim
of innocence or miscarriage of justice, the United States Attorney
should address these issues.
In cases involving pardon after completion of sentence,
the United States Attorneys is expected to comment on the
petitioner's post-conviction rehabilitation, particularly any
actions that may evidence a desire to atone for the offense, in
light of the standards generally applicable in pardon cases as
discussed in the following section. Similarly, in commutation
cases, comments may be sought on developments after sentencing that
are relevant to the merits of a petitioner's request for mercy.
In pardon cases, the Pardon Attorney will forward to the
United States Attorney copies of the pardon petition and relevant
investigative reports. These records should be returned to the
Pardon Attorney along with the response. In cases involving
requests for other forms of executive clemency (i.e., commutation
of sentence or remission of fine), copies of the clemency petition
and such related records as may be useful (e.g., presentence
report, judgment of conviction, prison progress reports, and
completed statement of debtor forms) will be provided.
The Pardon Attorney also routinely requests the United
States Attorney to solicit the views and recommendation of the
sentencing judge. If the sentencing judge is retired, deceased, or
otherwise unavailable for comment, the United States Attorney's
report should so advise. In the event the United States Attorney
does not wish to contact the sentencing judge, the Pardon Attorney
should be advised accordingly so that the judge's views may be
solicited directly. Absent an express request for confidentiality,
the Pardon Attorney may share the comments of the United States
Attorney with the sentencing judge or other concerned officials
whose views are solicited.
The United States Attorney may support, oppose or take no
position on a pardon request. In this regard, it is helpful to
have a clear expression of the office's position. The Pardon
Attorney generally asks for a response within 30 days. If an
unusual delay is anticipated, the Pardon Attorney should be advised
when a response may be expected. If desired, the official views of
the United States Attorney may be supplemented by separate reports
from present or former officials involved in the prosecution of the
case. The United States Attorney may of course submit a
recommendation for or against clemency even if the Pardon Attorney
has not yet solicited comments from the district. The Pardon
Attorney informs the United States Attorney of the final
disposition of any clemency application on which he or she has
commented.
1-2.112
Standards for Considering Pardon Petitions
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In general, a pardon is granted on the basis of the
petitioner's demonstrated good conduct for a substantial period of
time after conviction and service of sentence. The Department's
regulations require a petitioner to wait a period of at least five
years after conviction or release from confinement (whichever is
later) before filing a pardon application (28 CFR Section 1.2). In
determining whether a particular petitioner should be recommended
for a pardon, the following are the principal factors taken into
account.
- Post-conviction conduct, character, and reputation.
An individual's demonstrated ability to lead a responsible and
productive life for a significant period after conviction or
release from confinement is strong evidence of rehabilitation and
worthiness for pardon. The background investigation customarily
conducted by the FBI in pardon cases focuses on the petitioner's
financial and employment stability, responsibility toward family,
reputation in the community, participation in community service,
charitable or other meritorious activities and, if applicable,
military record. In assessing post-conviction accomplishments,
each petitioner's life circumstances are considered in their
totality: it may not be appropriate or realistic to expect
"extraordinary" post-conviction achievements from individuals who
are less fortunately situated in terms of cultural, educational, or
economic background.
- Seriousness and relative recentness of the offense.
When an offense is very serious, (e.g., a violent crime, major drug
trafficking, breach of public trust, or white collar fraud
involving substantial sums of money), a suitable length of time
should have elapsed in order to avoid denigrating the seriousness
of the offense or undermining the deterrent effect of the
conviction. In the case of a prominent individual or notorious
crime, the likely effect of a pardon on law enforcement interests
or upon the general public should be taken into account. Victim
impact may also be a relevant consideration. When an offense is
very old and relatively minor, the equities may weigh more heavily
in favor of forgiveness, provided the petitioner is otherwise a
suitable candidate for pardon.
- Acceptance of responsibility, remorse, and atonement.
The extent to which a petitioner has accepted responsibility for
his or her criminal conduct and made restitution to its victims are
important considerations. A petitioner should be genuinely
desirous of forgiveness rather than vindication. While the absence
of expressions of remorse should not preclude favorable
consideration, a petitioner's attempt to minimize or rationalize
culpability does not advance the case for pardon. In this regard,
statements made in mitigation (e.g., "everybody was doing it," or
I didn't realize it was illegal") should be judged in context.
Persons seeking a pardon on grounds of innocence or miscarriage of
justice bear a formidable burden of persuasion.
- Need for Relief. The purpose for which pardon is
sought may influence disposition of the petition. A felony
conviction may result in a wide variety of legal disabilities under
state or federal law, some of which can provide persuasive grounds
for recommending a pardon. For example, a specific
employment-related need for pardon, such as removal of a bar to
licensure or bonding, may make an otherwise marginal case
sufficiently compelling to warrant a grant in aid of the
individual's continuing rehabilitation. On the other hand, the
absence of a specific need should not be held against an otherwise
deserving applicant, who may understandably be motivated solely by
a strong personal desire for a sign of forgiveness.
- Official recommendations and reports. The comments
and recommendations of concerned and knowledgeable officials,
particularly the United States Attorney whose office prosecuted the
case and the sentencing judge, are carefully considered. The
likely impact of favorable action in the district or nationally,
particularly on current law enforcement priorities, will always be
relevant to the President's decision. Apart from their
significance to the individuals who seek them, pardons can play an
important part in defining and furthering the rehabilitative goals
of the criminal justice system.
1-2.113
Standards for Considering Commutation Petitions
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A commutation of sentence reduces the period of
incarceration; it does not imply forgiveness of the underlying
offense, but simply remits a portion of the punishment. It has no
effect upon the underlying conviction and does not necessarily
reflect upon the fairness of the sentence originally imposed.
Requests for commutation generally are not accepted unless and
until a person has begun serving that sentence. Nor are
commutation requests generally accepted from persons who are
presently challenging their convictions or sentences through appeal
or other court proceeding.
The President may commute a sentence to time served or he
may reduce a sentence, either merely for the purpose of advancing
an inmate's parole eligibility or to achieve the inmate's release
after a specified period of time. Commutation may be granted upon
conditions similar to those imposed pursuant to parole or
supervised release or, in the case of an alien, upon condition of
deportation.
Generally, commutation of sentence is an extraordinary
remedy that is rarely granted. Appropriate grounds for considering
commutation have traditionally included disparity or undue severity
of sentence, critical illness or old age, and meritorious service
rendered to the government by the petitioner, e.g., cooperation
with investigative or prosecutive efforts that has not been
adequately rewarded by other official action. A combination of
these and/or other equitable factors may also provide a basis for
recommending commutation in the context of a particular case.
The amount of time already served and the availability of
other remedies (such as parole) are taken into account in deciding
whether to recommend clemency. The possibility that the Department
itself could accomplish the same result by petitioning the
sentencing court, through a motion to reward substantial assistance
under Rule 35 of the Federal Rules of Criminal Procedure, a motion
for modification or remission of fine under 18 U.S.C. Section 3573,
or a request for compassionate relief under 18 U.S.C. Section
3582(c)(1), will also bear on the decision whether to recommend
Presidential intervention in the form of clemency. When a
commutation request is based on the serious illness of the
petitioner, transmission of the United States Attorney's response
by facsimile in advance of mailing the original is always
appreciated.
When a petitioner seeks remission of fine or restitution,
the ability to pay and any good faith efforts to discharge the
obligation are important considerations. Petitioners for remission
also should demonstrate satisfactory post-conviction conduct.
On January 21, 1977, the President by Proclamation 4483
granted pardon to persons who committed nonviolent violations of
the Selective Service Act between August 4, 1964 and March 28, 1973
and who were not Selective Service employees. Although a person
who comes within the described class was immediately pardoned by
the proclamation, the Pardon Attorney issues certificates of pardon
to those within the class who were actually convicted of a draft
violation and who make written application to the Department on
official forms. When these applications are received by the Pardon
Attorney, they are forwarded to the United States Attorney for the
district in which the applicant was convicted to verify the facts
of the case. The verification should be returned to the Pardon
Attorney promptly.
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