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Blogs from July, 2020

  • The Last Line of Defense for Service Members Convicted of a Military Crime

    The presidential pardon is the last line of defense for service members convicted at general or special court-martial. After all legal appeals are final, only the presidential pardon can provide a convicted service member with meaningful relief.

    MJA is dedicated to fighting for service members facing court-martial, appealing their conviction, or seeking final relief in the form of a presidential pardon. Contact one of our military defense lawyers today to learn more.

    Pardon Clause

    Article II, Section 2, Clause 1 of the Constitution, known as the Pardon Clause, empowers the President of the United States “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The President’s power to pardon or grant clemency, while broad, extends only extends to federal criminal convictions, which includes military courts-martial. Pardons cannot be given for impeachment convictions by the United States Congress or for state criminal convictions.

    Eligibility for a Pardon

    To be eligible for a presidential pardon, a petitioner must usually wait at least five years after their federal conviction before applying. This waiting period is designed to give the petitioner a reasonable period of time to demonstrate that they can be a responsible, productive, and law-abiding citizen. The waiting period begins on the date the petitioner is released from confinement or, if no confinement was awarded, from the date of sentencing.

    Petitioners must have also fully satisfied whatever sentence was imposed, including all probation, parole, or supervised release, before applying for a pardon. It is important to note that the waiting period begins after the petitioner is released from confinement for their most recent conviction, whether or not that is the offense for which pardon is sought. Petitioners may request a waiver of this waiting period requirement, though such waivers are rarely granted.

    Requesting a Pardon

    The pardon process differs for military and non-military convictions. For non-military offenses, a petitioner must submit a formal application to the Officer of the Pardon Attorney. In contrast, veterans seeking pardon of a court-martial conviction must submit their petition directly to the Secretary of the military department that had original jurisdiction over their case.

    In evaluating the merit of each request, the Office of the Pardon Attorney considers numerous factors including the nature and seriousness of the offense, how recently the offense occurred, the service member’s overall criminal record, the service member’s conduct following conviction including community service, whether the service member accepted responsibility for the crime, and any specific hardships that the petitioner is suffering because of the conviction.

    Petitioners should be prepared for pardon officials to conduct a detailed and extremely thorough background check into their personal lives, job history, criminal record, and current activities, to name a few. Petitioners are required to disclose any additional arrest or charge by civilian or military authorities, delinquent credit obligations (whether disputed or not), any civil lawsuits in which they were named as a party including bankruptcy actions, and any unpaid tax obligations.

    Effect of a Pardon

    A presidential pardon generally relieves the offender of all punishments, penalties, and disabilities that flow directly from the conviction and restores important rights lost including the right to vote and possess firearms. In fact, a presidential pardon is currently the only way in which a person convicted of a federal felony offense may obtain relief from federal firearms prohibitions.

    A presidential pardon does not, however, erase or expunge the record of a military conviction. Expungement is a judicial remedy, rarely granted by courts, and cannot be granted by the Department of Justice or by the President. Instead, both the federal conviction as well as the pardon would both appear on your record. Even if you are granted a pardon, you still have to disclose that you were convicted at court-martial but may also state that you were later pardoned for the offense.

    Additionally, the pardon of a military court-martial conviction will not change the character of a military discharge (e.g. dishonorable or bad conduct). To request a change in their characterization of service, a veteran must still submit a petition to their respective board for correction of military/naval records.

    Length of Process

    The executive clemency process can be lengthy, and the Office of the Pardon Attorney is not able to estimate for any particular applicant when he or she may expect to receive a decision on their application. After the President decides to grant or deny a particular clemency request, the Office of the Pardon Attorney notifies the applicant of the decision in writing. Because the written notification is sent to the last address the applicant has provided to the Office of the Pardon Attorney , it is important that an applicant notify that office if their address changes while the application is under consideration.

    Decision Making Authority

    The final decision on whether to grant a pardon rests with the President alone. No hearing is held on the pardon application by either the Department of Justice or the White House. A petitioner cannot appeal the President’s decision to deny a clemency request.

    Likelihood of Success

    While grant of a presidential pardon is an extraordinary remedy, they are far from impossible. Over 800 presidential pardons and almost 1,800 sentence commutations have been granted over the past four presidential administrations.

    Additionally, service members convicted at court-martial may be uniquely positioned for a pardon depending on the specific offense. Since taking office, President Trump has already granted full and unconditional pardons to three members of the United States military convicted at general court-martial for violations of Articles 80, 118, 128, and 134.

    The Department of Justice maintains over 100 years of statistics showing the number of clemency petitions granted and denied by presidents:

    Contact MJA Today

    Even if you were unsuccessful in appealing your court-martial conviction, you may still be eligible for a presidential pardon. Call us today at (843) 773-5501 for a free consultation.

    The post Presidential Pardon: The Last Line of Defense appeared first on Military Justice Attorneys.

    Presidential Pardon: The Last Line of Defense