What’s the difference between clemency and pardons?

Pardons are Clemency. Clemency refers to all punishment reduction for crimes, including commutation, expungement, and pardons. A pardon is a type of clemency that fully excuses a criminal from the consequences of a conviction. It is the executive (either president or governor) who has the power of clemency, including granting pardons.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Apr 6, 2022

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  • Clemency is a general term used for the mechanism of officially reducing the punishment for a crime.
  • Pardon is the official forgiveness of a crime and the most popular form of clemency.
  • Clemency power is granted to a jurisdiction’s chief executive — the U.S. president at the federal level, and the state’s governor at the state level
  • The U.S. Supreme Court has called clemency the judicial system’s “fail safe” since it allows the correction of injustices on a case-by-case basis

Pardons and clemency are two terms that are often confused. However, they are not the same. Clemency can involve any of a series of actions that shows mercy towards a convicted person. Pardons are a form of clemency.

When you receive a pardon, you have received clemency. You can be granted clemency, however, without receiving a pardon.  Read on to learn more about pardons, clemency, and the differences between them.

What is a pardon?

A pardon is the official forgiveness of a crime. When you receive a pardon, you are restored to the full rights of citizenship. You regain the right to vote, to own and use firearms, and to hold public office.

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Who can grant a pardon?

Under the United States Constitution (Article II, Section 2, Clause, the U.S. president is granted the power to pardon criminal convictions that were adjudicated (took place) in the U.S. District Courts, the Superior Court of the District of Columbia, or military court-martial proceedings.

Instead of a pardon, the president can commute a federally imposed sentence or reduce it to a lesser period if they believe the punishment is too severe for the circumstances of the crime. Whereas a pardon erases some effects of a conviction, a commutation does not. After a commutation, the crime remains part of the person’s record, and no rights are restored.

The record for presidential pardons in a single year is held by Franklin D. Roosevelt, who pardoned 424 people out of the 781 petitions for pardon that he received in 1944. The president who has pardoned the most people during his entire tenure is also FDR, who pardoned 2,819 people during his 12 years in office. The second was President Harry S. Truman, who pardoned 1,913 people during his eight-year tenure.

Who can grant a pardon at the state level?

The president cannot however pardon a state-level criminal offense. A state pardon has to be granted by the governor or, in some states, a state board of pardon and parole. All 50 states have some kind of mechanism in place to grant pardons, although processes can be irregular.

  • 17 states have a regular process for requesting a pardon, and they grant a significant number of petitions received on a regular basis: Alabama, Arkansas, California, Connecticut, Delaware, Georgia, Idaho, Illinois, Louisiana, Nebraska, Nevada, Oklahoma, Pennsylvania, South Carolina, South Dakota, Virginia, and Utah.
  • Six states have a regular process for requesting a pardon, but do not grant a large number: Florida, Iowa, Minnesota, Ohio, Texas, and Washington.
  • 12 states do not have a regular process to apply for a pardon, and the number and frequency of pardons granted basically depends on who the governor is: Colorado, Hawaii, Indiana, Kentucky, Maine, Maryland, Missouri, New Mexico, New York, Tennessee, Wisconsin, and Wyoming.
  • 15 states have rarely granted a pardon over the last 20 years: Alaska, Arizona, Kansas, Massachusetts, Michigan, Mississippi, Montana, New Hampshire, New Jersey, North Carolina, North Dakota, Oregon, Rhode Island, Vermont, and West Virginia.

What are the effects of a pardon?

A pardon indicates forgiveness of a specific crime. Reasons for a pardon often involve either wrongful conviction or punishment deemed too severe for the crime. A pardon does not, however, erase the conviction from the public record. In fact, many people consider the acceptance of a pardon tantamount to admitting that you are guilty.

To erase a criminal record, you have to have your criminal record expunged or sealed. Expunging a conviction is the same as if it had never happened. There is no need for a pardon or any other kind of clemency because the crime no longer exists on the person’s record. When a record is sealed, the crime remains on the record but no one can see any information about it.

An expungement is obviously the ideal situation for someone trying to dig out from under the burden of a felony conviction. Expungements happen more often than one might think, particularly for first offenses.

What is clemency?

Clemency is a general term used for the mechanism of reducing the penalties for a crime. Clemency is considered an act of mercy to show fairness, justice, and forgiveness. Clemency can temporarily stay a person’s sentence, shorten it, or end the sentence, and restore some or all of a person’s civil rights.

The federal government and all 50 states have a process for granting clemency to persons facing criminal charges.

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Who can grant clemency?

At the Federal level, only the U.S. President can grant clemency to persons convicted of felony crimes. Applications are submitted through the Department of Justice.

For state-level convictions, only the state’s governor can grant clemency except in states where a pardon and parole board has been given that power. The application process varies by state.

What are the effects of clemency?

Overall, the effects of clemency include all of the effects of pardons, since pardons are the most common form of clemency. Other forms of clemency have lesser effects. Major forms of clemency include:

  • Full pardon. Forgiveness of guilt for a felony crime and release from punishment
  • Commutation of a sentence. Reduces the punishment but does not restore any civil rights or firearm authority
  • Reprieve. A temporary suspension of the sentence

Clemency is especially important as a consideration for those who have been sentenced to the death penalty. Even after all standard appeals have been exhausted, an inmate’s life can still be spared by some form of clemency.

The U.S. Supreme Court has called clemency the judicial system’s “fail-safe” since it allows the correction of injustices on a case-by-case basis.

Are rates of clemency and pardon increasing or declining?

Clemency rates declined in the mid-80s thanks to the proliferation of tough-on-crime political platforms. In the 2000s, however, clemency has again started increasing due to the criminal justice reform movement. During the COVID-19 pandemic, clemency rose in many states in an attempt to reduce prison population density and slow the spread of the virus.

For example, Gov. Kevin Stitt (R-Oklahoma) granted clemency to more than 750 people in his first year in office in the form of pardons and commutations. In 2020, in response to the COVID-19 pandemic, he commuted 450 more.

Gov. Jay Inslee (D-Washington) commuted more than 1,100 sentences to contain the spread of COVID-19 in state correctional facilities. Gov. Andy Beshear (D-Kentucky) commuted the sentences of more than 900 inmates who were at high risk of serious complications or death if they contracted the coronavirus.

Between 1976 and 2021, a period of 45 years, only 295 clemencies were granted in capital cases (death penalty cases). By far the most active state for death row clemencies is Illinois, with 187. Next in line is Ohio, with 21, and then two states with 10 each, Virginia and Georgia. All other states that have granted at least one death row clemency in 45 years have single-digit totals. Twenty-four states have not granted a single clemency in a death penalty case since 1976.

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The last word on clemency and pardons

Clemency and pardons are not without controversy, much of which involves presidential pardons. The U.S. President’s authority to grant pardons (the most common form of clemency) for federal crimes is virtually unlimited. This raises some concerns regarding potential misuse of power. Presidents are often accused of using their clemency powers to benefit friends and political allies.

On the other end, academics and clemency advocates are concerned about how little clemency is used as a tool for sentencing relief. In particular, many governors have shied away from using their clemency powers to avoid political attacks.

Clemency remains, however, one of the few remaining ways to remedy an unjust sentence.

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