Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Rather than obviating punishment in its entirety, as pardon and amnesty may do, commutation substitutes the punishment imposed by a federal court for a less severe punishment, such as by reducing a sentence of imprisonment.1 Similarly, remission operates to reduce or discharge criminal “fines, penalties, and forfeitures of every description arising under the laws of [C]ongress.” 2 As discussed elsewhere, however, money paid into the treasury or property in which the rights of a third party have vested are beyond the reach of the President’s authority.3

As with other forms of clemency, commutation or remission may be conditional. In Schick v. Reed, the Court addressed a challenge to the validity of a condition attached to a commutation of the petitioner’s death sentence to life imprisonment that prohibited the petitioner from ever being eligible for parole.4 The petitioner argued that the condition exceeded the President’s authority because it was not authorized by statute and, had the commutation not been granted, the petitioner’s death sentence would have been set aside by an intervening Supreme Court decision regardless.5 The Court rejected these arguments, holding that the conditional commutation “was lawful,” as “the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution, but which are not specifically provided for by statute.” 6

Despite the explicit inclusion of reprieve in the constitutional text, Supreme Court discussion of its contours is scant. In Ex parte Wells, the Court described reprieve in dicta as “delay [of] a judicial sentence when the President shall think the merits of the case, or some cause connected with the offender, may require it,” as well as cases of legal necessity (with the two examples given being pregnancy and the onset of “insan[ity]” ).7 Historical practice has been consistent with the understanding that the President’s power includes authority to temporarily delay execution of a criminal sentence. For example, President Bill Clinton issued reprieves delaying twice the execution date of Juan Raul Garza, who had been convicted of capital homicide offenses, so that the Department of Justice could conduct a study of certain disparities in imposition of the federal death penalty.8

Footnotes

1

See Biddle v. Perovich, 274 U.S. 480, 486–87 (1927) (approving commutation of death sentence to life imprisonment, writing, “No one doubts that a reduction of the term of an imprisonment or the amount of a fine would limit the sentence effectively on the one side and on the other would leave the reduced term or fine valid and to be enforced” ); Ex parte Wells, 59 U.S. 307, 315 (1856) (affirming President’s power to conditionally pardon where clemency granted was, in practice, a commutation of death sentence to life imprisonment, substituting “a lesser punishment than the law has imposed upon him” ). For a discussion of Biddle in the context of acceptance of commutation or remission, see ArtII.S2.C1.3.6 Rejection of a Pardon.

2

The Laura, 114 U.S. 411, 413–14 (1885); see Osborn v. United States, 91 U.S. 474, 478 (1875) ( “[T]he constitutional grant to the President of the power to pardon offences must be held to carry with it, as an incident, the power to release penalties and forfeitures which accrue from the offences.” ).

3

Knote, 95 U.S. at 154 ( “Neither does the pardon affect any rights which have vested in others . . . . If, for example, by the judgment a sale of the offender’s property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. . . . So, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress.” ); Illinois Cent. R.R. v. Bosworth, 133 U.S. 92, 103 (1890) (quoting extensively from Knote and recognizing that “a pardon does not affect vested interests” ).

4

419 U.S. 256, 257 (1974).

5

Id. at 259–60.

6

Id. at 264, 268.

7

59 U.S. 307, 314 (1856).

8

See Commutations Granted by President William J. Clinton (1993–2001), U.S. DOJ: Off. of the Pardon Att’y, https://www.justice.gov/pardon/commutations-granted-president-william-j-clinton-1993–;2001 (last updated Apr. 28, 2021).