Federal Clemency Lawyers

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

Who represents people seeking federal clemency, and what does the process involve?

Federal clemency petitions are prepared by counsel and filed with the Office of the Pardon Attorney, which investigates under 28 C.F.R. Part 1 and sends the Attorney General’s recommendation to the President. The two principal forms are a pardon — post-sentence forgiveness of a conviction — and a commutation, which shortens a sentence and leaves the conviction standing.

Key takeaways on federal clemency

• The power comes from U.S. Const. art. II, § 2, cl. 1 and covers “Offences against the United States, except in Cases of Impeachment.” Federal only.
• Congress cannot touch it. United States v. Klein, 80 U.S. (13 Wall.) 128 (1871): “Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.”
• The DOJ regulations “are advisory only,” “create no enforceable rights,” and do not “restrict the authority granted to the President.” 28 C.F.R. § 1.11.
• The five-year wait for a pardon is a regulation, not a constitutional rule. 28 C.F.R. § 1.2.
• A commutation is for people still serving; a pardon is for people who have finished.
• Grants are rare and vary enormously by administration — the numbers are below, with what they do and do not measure.
• Clemency decisions are “rarely, if ever, appropriate subjects for judicial review.” Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998).

What are the forms of federal clemency?

Four, and 28 C.F.R. § 1.1 names them in a single sentence: “A person seeking executive clemency by pardon, reprieve, commutation of sentence, or remission of fine shall execute a formal petition.”

Form	What it does	Who it is for	The conviction	Timing rule
Pardon	Forgives the offense and removes the penalties and disabilities flowing from the conviction	A person who has completed the sentence	Stays on the record. A pardon forgives; it does not erase the conviction from history	No petition “until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement,” or five years after conviction if no prison sentence was imposed. § 1.2
Commutation of sentence	Reduces a sentence — its length, or a fine — in whole or in part	A person currently serving a sentence	Stays, entirely. A commutation shortens punishment and leaves guilt and every collateral consequence in place	Should not be filed “if other forms of judicial or administrative relief are available, except upon a showing of exceptional circumstances.” § 1.3
Remission of fine or restitution	Cancels or reduces a financial penalty	Anyone owing a federal fine or restitution obligation	Stays	Treated as a form of commutation under § 1.3
Reprieve	Postpones a punishment; it does not cancel it	Most often a person facing an imminent execution date	Stays	§ 1.10 governs federal death-sentence procedures

Two distinctions inside that table decide which door a person should knock on.

Commutation is about the sentence; pardon is about the conviction. A commutation gets someone out earlier and leaves them a convicted person with every collateral consequence intact — the firearms bar, immigration exposure, licensing problems, the record itself. A pardon addresses the conviction’s consequences but does nothing for someone still in prison, because by regulation it is not even filed until five years after release.

Remission and reprieve are real and routinely forgotten. A person who cannot pay a six-figure restitution order does not need a pardon; they may need a remission. Both are covered in more depth at what does clemency mean, and the three-way comparison is at clemency vs pardon.

Where does the pardon power come from, and what limits it?

Article II, Section 2, Clause 1 provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

The Supreme Court has treated that grant as close to unreviewable, and the language it has used is unusually strong.

In Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867), the Court said the power is “unlimited” except for impeachment, “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” It added that the power “is not subject to legislative control” and that “Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.”

United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), applied that against a statute that tried to dictate what courts should make of a pardon, holding that Congress “has inadvertently passed the limit which separates the legislative from the judicial power.”

And in Schick v. Reed, 419 U.S. 256 (1974), the Court held that “the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself” — the power “flows from the Constitution alone, not from any legislative enactments, and . . . cannot be modified, abridged, or diminished by the Congress.” Schick also confirmed that the President may attach conditions to a commutation “which do not in themselves offend the Constitution,” while noting one real limit: “the President may not aggravate punishment.”

So the constraints on federal clemency are these, and only these:

Constraint	Source	What it means
Federal offenses only	Art. II, § 2, cl. 1 — “Offences against the United States”	No state conviction can be pardoned by the President, however sympathetic
Not in cases of impeachment	Art. II, § 2, cl. 1	The only express textual exception
Cannot aggravate punishment	Schick v. Reed, 419 U.S. 256 (1974)	A commutation must be a reduction
Cannot reach vested rights or Treasury funds	Knote v. United States, 95 U.S. 149 (1877)	Money paid into the Treasury “can only be secured to the former owner . . . through an act of Congress”
Cannot undo what was suffered	Knote	A pardon “does not make amends for the past” and “affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise”

What is not on that list is any statutory eligibility rule, any waiting period, or any offense category. Those come from DOJ regulations, and the regulations bind the Department’s staff rather than the President.

The regulations: what 28 C.F.R. Part 1 actually requires

The procedural scheme is short, and knowing which section says what is more useful than knowing that “DOJ has rules.”

Section	What it provides
§ 1.1	The petition is addressed to the President and submitted to the Pardon Attorney. Military-offense petitions go to the Secretary of the military department instead
§ 1.2	No pardon petition “should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement,” or five years after conviction if no prison sentence was imposed. “Generally, no petition should be submitted by a person who is on probation, parole, or supervised release”
§ 1.3	No commutation petition “should be filed if other forms of judicial or administrative relief are available, except upon a showing of exceptional circumstances”
§ 1.4	Petitions relate only to violations of the laws of the United States
§ 1.5	Clemency files are generally available only to the officials considering the petition
§ 1.6	The Attorney General “shall cause such investigation to be made . . . as he or she may deem necessary,” including through the FBI; provides for victim notification; and requires a written recommendation to the President
§ 1.7 / § 1.8	Notification of grant and of denial. Where the Attorney General recommends denial and the President does not act within 30 days, “it shall be presumed that the President concurs”
§ 1.9	Delegation of the Attorney General’s duties within the Department
§ 1.10	Special procedures for federal death-sentence cases
§ 1.11	The regulations “are advisory only and for the internal guidance of Department of Justice personnel,” “create no enforceable rights,” and do not “restrict the authority granted to the President”

Section 1.11 is the one to read twice. It means the five-year rule is a Departmental filing convention, not law — the President has granted clemency outside the regulatory pathway many times, and Schick and Klein explain why nothing in the C.F.R. could stop him. It also means that a petitioner has no legal claim arising from how the Department handles a petition.

Section 1.6’s victim-notification provision is worth flagging for anyone preparing a petition in a case with an identified victim: where the Attorney General concludes that contacting the victim is warranted, the regulation directs reasonable effort to notify them that a petition has been filed, that they may submit comments, and whether clemency was ultimately granted or denied.

How rare is federal clemency?

Rare, and rare in different ways depending on the administration and the form of relief. The Department publishes the counts, and stating them precisely is more useful than characterizing them.

The table below is from the Department’s own Clemency Statistics, updated January 23, 2025. It records what the Office of the Pardon Attorney counted in each fiscal year — not the outcome of any single group of petitioners, because petitions routinely carry over across fiscal years and across administrations. It does not cover the current administration.

Administration	Months	Pardon petitions received	Pardons granted	Commutation petitions received	Commutations granted
Joseph R. Biden	48	1,666	80	13,201	4,165
Donald J. Trump (first term)	47.5	1,969	144	10,109	94
Barack H. Obama	96	3,395	212	33,149	1,715
George W. Bush	96	2,498	189	8,576	11
William J. Clinton	96	2,001	396	5,488	61
George H.W. Bush	48	731	74	735	3
Ronald Reagan	96	2,099	393	1,305	13
Jimmy Carter	48	1,581	534	1,046	29

Source: U.S. Department of Justice, Office of the Pardon Attorney, Clemency Statistics (updated Jan. 23, 2025). Counts are by fiscal year. The Department’s own legend notes that grant counts come from its record of clemency warrants; that clemency granted to a person who did not file through the Office is counted as granted but not as received; and that class grants by proclamation — such as President Carter’s Vietnam-era proclamation — and cases handled by President Ford’s Presidential Clemency Board are excluded entirely, because the Office “does not maintain statistics on those categories of grants and has no documentation to support them.”

Three honest readings of that table.

Do not compute a grant rate from it. Received and granted in the same period describe different populations; a petition filed in 2019 may be granted in 2025. That is why this page reports counts rather than percentages.

Commutation practice is volatile in a way pardon practice is not. George W. Bush granted 11 commutations across eight years; Obama granted 1,715; Biden granted 4,165. Pardon grants over the same span moved within a much narrower band. Someone told that “clemency is basically never granted” is being told something that has been true in some administrations and false in others.

Volume overwhelms the office. Under Obama, more than 33,000 commutation petitions arrived. The scale is part of why the Department’s regulations discourage filing when other relief is available.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The numbers matter for expectation-setting, and they matter for sequencing. Section 1.3 says a commutation petition should not be filed where other judicial or administrative relief is available. For most people still in custody, that means the compassionate-release motion, the sentence-reduction motion, or the § 2255 comes first — not because clemency is worse, but because filing clemency while an available remedy sits unused invites a denial on the regulation rather than on the merits. The sequencing question is usually the first real question in the case.

What does the Department actually look for?

There is no legal test, but there is published guidance — and it is far more specific than most people expect. The Justice Manual sets out the factors the Department weighs before recommending for or against a petition, and reading them is the closest thing to reading the grading rubric.

For a pardon: five factors

The Justice Manual states the baseline plainly: “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.” It then names five principal factors (JM 9-140.112):

Factor	What the Department is looking for
1. 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.” The FBI investigation “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”
2. Seriousness and relative recentness of the offense	For a very serious offense — “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.” Conversely, “[w]hen an offense is very old and relatively minor, the equities may weigh more heavily in favor of forgiveness”
3. Acceptance of responsibility, remorse, and atonement	“A petitioner should be genuinely desirous of forgiveness rather than vindication,” and “a petitioner’s attempt to minimize or rationalize culpability does not advance the case for pardon.” Note the warning: “Persons seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion”
4. Need for relief	“[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.” But “the absence of a specific need should not be held against an otherwise deserving applicant”
5. Official recommendations and reports	The views of the U.S. Attorney who prosecuted the case and of the sentencing judge “are carefully considered”

One passage in that guidance deserves to be quoted rather than summarized, because it cuts against the assumption that clemency belongs to the accomplished: in assessing post-conviction achievements, “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.”

The same section also confirms something the regulations do not say: “The Department may grant a waiver of the five-year requirement.”

For a commutation: a different question entirely

The Justice Manual is blunt about what a commutation is and is not: “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.” And: “Commutation of sentence is an extraordinary remedy.”

The grounds it identifies as traditionally appropriate are disparity or undue severity of sentence, critical illness or old age, and meritorious service rendered to the government — the last including “cooperation with investigative or prosecutive efforts that has not been adequately rewarded by other official action.” The guidance adds that “demonstrated rehabilitation while in custody or exigent circumstances unforeseen by the court at the time of sentencing” may also support a recommendation.

It also states the screening rule that ends most commutation petitions before they begin: the Department weighs “[t]he 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. § 3573, or a request for compassionate reduction in sentence under 18 U.S.C. § 3582(c)(1).” Commutation requests are “generally” not accepted from someone who has not begun serving the sentence, or “from persons who are presently challenging their convictions or sentences through appeal or other court proceeding.”

Two process facts worth knowing

Your prosecutor and your sentencing judge are asked. The Pardon Attorney “routinely requests” the views of the United States Attorney in the district of conviction, and those views “are given considerable weight.” The office also “routinely requests” that the U.S. Attorney solicit “the views and recommendation of the sentencing judge.” A petition should be written in the knowledge that the people who prosecuted and sentenced you will read it.

A petition survives a change of administration. “Should a president leave office without acting on a particular clemency petition, that petition will remain open and active until the incoming president reaches a decision.” A pending petition is not extinguished by an inauguration.

Who decides, and can a court review it?

The President decides. The Department advises. Courts stay out.

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998), reaffirmed that “pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.” An inmate has “no constitutional or inherent right” to commutation, and a petition “is simply a unilateral hope.” Clemency proceedings, the Court explained, “are not part of the trial — or even of the adjudicatory process.”

Justice O’Connor, concurring, suggested that “some minimal procedural safeguards apply” — that intervention might be warranted “in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.” That is a concurrence, not the holding, and it describes an extreme.

Two practical consequences follow. There is no appeal from a denial. And 28 C.F.R. § 1.11’s statement that the regulations “create no enforceable rights” means a petitioner cannot sue over how the Department processed the file.

That is also the reason clemency remains valuable. As the Court put it in Herrera v. Collins, 506 U.S. 390 (1993), “[c]lemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted,” and “[e]xecutive clemency has provided the ‘fail safe’ in our criminal justice system.” A remedy that no rule constrains is a remedy available where every rule has run out.

What does a lawyer actually do on a clemency petition?

The honest division of labor, because the applicant does a great deal of it.

What counsel does.

• Decides whether clemency is the right instrument at all, and whether § 1.3 forecloses it because judicial or administrative relief remains available. This is the analysis that most often changes the plan.
• Chooses the form. Pardon, commutation, remission, or reprieve are different requests with different timing rules, and people frequently ask for the wrong one.
• Assembles and verifies the record — judgment, presentence report, disciplinary and programming records, restitution status, medical records where relevant.
• Writes the petition. There is no legal test to satisfy, which makes this harder rather than easier: the document has to give a decisionmaker a reason, and reasons have to be specific and documented.
• Manages the collateral pieces — support letters that say something concrete, the victim-notification reality under § 1.6, and the question of whether the offense conduct is described in a way the Department will find credible.
• Sequences it against everything else, including any post-conviction motion and, where firearms are the actual goal, the separate route under 18 U.S.C. § 925(c).

What the applicant does. Provides the whole truth about the offense and the record, including what is unflattering; supplies the personal history; identifies people who can speak from actual knowledge; and waits — often for years, with no status right and no deadline binding anyone.

What no one can do. Promise a result. There is no standard to satisfy, no burden that shifts, and no review. Anyone offering a predicted outcome on a clemency petition is offering something no lawyer is permitted to promise.

If firearm rights are what you actually want

A significant share of people who come to a clemency page want one specific thing back: the right to possess a firearm. Since August 2026 there is a second route to that, and it runs through this same office.

The Department of Justice reopened the application process under 18 U.S.C. § 925(c), and adjudication now sits with the Office of the Pardon Attorney rather than ATF. Public applications open November 4, 2026, capped at the first 5,000 applicants.

Which route fits depends on what is prohibiting you and what else you want. That analysis is at gun rights restoration, and the § 925(c) application itself is at federal firearm rights restoration.

Where to go next on clemency and pardons

• What clemency means, and its four forms — what does clemency mean
• Clemency, pardon, and commutation compared — clemency vs pardon
• What a presidential pardon is — what is a presidential pardon
• How to file a pardon petition — how to get a presidential pardon
• What a commutation does — what does it mean to commute a sentence
• Who qualifies for a commutation — commutation eligibility
• What a pardon does not do — what a pardon does not do
• Pardon compared to expungement — pardon vs expungement
• After a denial — clemency denied what next
• The scope of the power itself — pardon power

Related reading on clemency, pardons and commutation

Clemency is one process with three quite different outputs, and most of the wasted effort in this area comes from applying for the wrong one. What does clemency mean and clemency vs pardon vs commutation separate them; what is a presidential pardon and presidential pardon power cover the constitutional source and its limits.

On the mechanics: how to get a presidential pardon walks the application, commutation eligibility covers sentence reduction, federal pardons sets out how the petition is processed, and clemency denied, what next covers reapplication. If you are deciding whether to retain counsel at all, what a clemency lawyer actually does is the honest version of that assessment.

Two boundaries are worth knowing before you start. Clemency does not erase a conviction — see what a pardon does not do and pardon vs expungement. And if your objective is firearm rights, a pardon is no longer the only federal route: see gun rights restoration and firearm rights restoration by state.

Why work with Elizabeth Franklin-Best, P.C.

Elizabeth Franklin-Best, P.C. is a boutique federal criminal defense and appellate firm founded in 2019, running a national federal practice on an intentionally small caseload. Elizabeth Franklin-Best has more than 20 years of federal and appellate criminal defense experience and is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit. She has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record, and has been admitted pro hac vice in federal courts from Montana to Florida.

She is recognized by Best Lawyers in America 2026 for Appellate Practice and by Chambers USA 2026 for Litigation: White-Collar Crime & Government Investigations, was named South Carolina Public Defender of the Year in 2010, and is the author of Reversing Your Criminal Conviction: Develop Your Winning Strategy (2023). She serves as Board Chair of Justice 360 and as Co-Vice Chair of the NACDL Amicus Curiae Committee for the Fourth Circuit. Her practice includes presidential pardon and commutation petitions alongside federal appeals, § 2255 motions, and sentence reductions.

Christopher Zoukis, JD, MBA, the firm’s Managing Director, leads its federal prison consulting work — BOP designation, sentence computation, First Step Act time credits, RDAP, and reentry planning. He is the author of the Federal Prison Handbook, the Directory of Federal Prisons, Prison Education Guide, and College for Convicts, and serves as Chairman of the Board of the Human Rights Defense Center. Legal work on any matter is handled by the firm’s attorneys.

A clemency petition has no legal standard to satisfy, which means the document itself is the entire case. That is a writing and record-building problem, and it is the same discipline as an appellate brief.

Offices in Columbia and Mount Pleasant, South Carolina, serving clients nationwide. No outcome can be promised, and this page is general information rather than legal advice.

Schedule a consultation

To discuss whether federal clemency is the right instrument in your case — and whether another remedy should be pursued first — schedule a consultation or call (843) 620-1100.

Frequently Asked Questions About Federal Clemency

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026