Thinking Of Asking For A Pardon? Make Sure That You Understand Who Can Grant One

Posted on: 18 January 2016

There's a strange legal saga attracting the attention of the nation: the story of twice-convicted, once-exonerated Steven Avery, who is currently serving a life sentence in the death of photographer Teresa Halbach. A multi-episode documentary has brought attention to the case and a lot of sympathetic reactions by observers. Petitions have been circulated both online and off for his official pardon by President Obama. Unfortunately, those are destined to fail, because the people circulating and signing don't understand the laws regarding pardons. If you hope to seek a pardon for someone's criminal conviction, this is what you should know.

What Is A Pardon?

A pardon is an executive order that legally forgives a person of a crime. Pardons have an ancient history. For example, there's a Biblical story where the Pharaoh of Egypt pardons Joseph. Historically, many kings and queens of different nations have used pardons to forgive people of serious crimes and most modern nations have some form of pardon available that can be granted under limited circumstances.  

Pardons do not, as many people believe, have anything to do with innocence or wrongful convictions. Someone can be guilty of a crime and even confess to it, and still receive a pardon. Pardons are often granted when someone has made a significant post-conviction contribution to society that outweighs their crime or seems to have accepted responsibility for his or her actions and demonstrated good conduct for a significant period of time.

What Power Does The President's Have To Pardon?

The President's power to grant a pardon is controlled by Article Two, Section Two of the U.S. Constitution. The U.S. President only has the power to pardon people who have been convicted of a federal offense and those prosecuted inside the District of Columbia's Superior Court. That's because federal offenses are considered to be crimes against the United States as a whole.

In cases like Steven Avery's, the President has no power to issue a pardon–which means that the efforts directed that way are futile. Steven Avery, like many others, was convicted under state laws, not federal ones.

Who Can Help In Cases Prosecuted Under State laws?

If someone is convicted in a state court, instead of a federal one, the laws of that particular state determine who has the ability to issue a pardon. In some states, the authority rests solely with the governor. In others, pardons may be under the control of a group of people, like a parole board. There are also usually specific criteria that have to be met in order to qualify. In some states, such as Utah, a pardon can't even be applied for until after the criminal sentence has been served and are usually sought to restore certain civil rights, like the ability to vote or carry a weapon.

In Steven Avery's case, Wisconsin law requires the governor to issue pardons. Unfortunately, no amount of public outcry nor signatures on a petition can actually force the governor to issue a pardon if he or she doesn't want to do so, and Wisconsin's current governor has a long-standing policy against them.

An alternative that may be available for many people who don't qualify for pardons in their state is a commutation. A commutation of sentence doesn't forgive the original crime but it does change the sentence being imposed for that crime. In some cases, a prisoner might be able to get his or her sentence commuted to "time served" instead of getting a pardon.

If you want more information on how to obtain a pardon for a crime, or want to know what alternatives are available, contact a criminal law attorney in your state.