Eligibility

Any person incarcerated for a criminal offense is eligible to apply for a commutation of his or her sentence, even those sentenced to death or life in prison.

  1. Eligibility
  2. Applications and Recommendations for Commutation
  3. Procedure
  4. Recommendation to the Governor
  5. Assistance in Filling Out an Application for Commutation

Applications and Recommendations for Commutation

In California, whether to grant or deny a commutation is in the hands of the Governor. A person must apply to the Governor through the Governor’s Office for a commutation by means of an Application for a Commutation of Sentence prescribed by the Governor’s Office and found on the Governor’s Office’s website. The application itself is short, asking for information about the crime for which the offender was convicted and about previous crimes. The most important information the applicant provides is:

  • a statement of how a commutation would affect the offender’s life, and
  • a description of the offender’s efforts in self-development, such as treatment for conditions that may have contributed to commission of the crime; professional and educational achievement; any setbacks such as misconduct while incarcerated; new convictions; the offender’s insight into his or her past conduct; and his or her future goals.

An applicant may include with the application records demonstrating treatment or other self-development and letters of support, or, when the application is based on a claim of a terminal illness or severe disability, medical records, and physicians’ statements.

These records, statements, and letters of support are critical to the success of the commutation application. As indicated below, the California Department of Corrections and Rehabilitation’s Board of Parole Hearings investigates the application, looking at the offender’s criminal history, recommendations by the judge or district attorney who tried the case regarding whether commutation should be granted, and even statements by the victim of the crime. Without evidence in the applicant’s favor, the decision may be based solely on the recommendations of those who oppose the commutation.

In some cases, the Board may recommend on its own that a person be considered for commutation. Such a recommendation may be based on the offender’s good conduct, an unusual term of sentence, or other causes, such as evidence of intimate partner battering if it appears that the offender’s criminal behavior was the result of that victimization. Evidence of intimate partner battering carries great weight in the decision on the commutation of a sentence.

An offender may file an original application for commutation once every three years. During the three-year period following an application, the offender may request the Governor to reconsider his or her decision to deny or ignore the application by filing a Reapplication for Clemency. The Reapplication does not allow an offender to resubmit supporting documentation that was included in the first application; rather, it is a request that the Governor take a second look at the original application.

  1. Eligibility
  2. Applications and Recommendations for Commutation
  3. Procedure
  4. Recommendation to the Governor
  5. Assistance in Filling Out an Application for Commutation

Procedure

Before filing an application for a commutation of sentence, an offender must give the district attorney in the county in which he or she was convicted ten days’ notice of the intent to file unless the offender is in danger of imminent death or within ten days of the end of his or her incarceration.

After the ten days, the applicant may submit his or her application and supporting documentation. There is no charge for filing an application for commutation.

The Governor may ignore or deny the application without further investigation and without stating the reasons therefore. The Governor may also grant an application without investigation but must report the reasons for the commutation to the Legislature at the beginning of the next regular Legislative session.

No time limits exist for the Governor to act on an application. However, applications by persons subject to deportation or those who have some other urgent need usually receive expedited consideration.

Investigation of the Application

If the applicant has two or more felonies and the Governor wishes to consider the application, he or she must refer the application and supporting and opposing documents to the Board, which investigates and provides a recommendation to the Governor to either grant or deny the commutation. If the Governor wants to commute the sentence, he or she must obtain the recommendation of at least four of the judges on the California Supreme Court.

If the applicant has fewer than two felony convictions and the Governor decides to consider the application, he or she ordinarily requests the Board to investigate the application. The Board may do “all things necessary” to fully and completely investigate the application, including examining all transcripts of judicial proceedings and affidavits and documents submitted in the trial proceeding. The Board may also hold a hearing and take testimony of witnesses under oath. It obtains summary statements from the judge or district attorney who tried the case establishing the facts proven at trial as well as the judge’s or district attorney’s recommendations on commutation. Victims’ statements are also relevant to the Board’s review of the application.

The Board’s investigation includes review of official records such as the applicant’s criminal history records and court and police records. This includes the Department of Corrections and Rehabilitation’s C-file. The Board may consider reports, evaluations, and correspondence concerning an offender’s time in incarceration, including information received from the courts, probation officers, sheriffs, police departments, district attorneys, the California Department of Justice, the FBI, and any other interested agency or person. Additionally, a record of diagnostic findings, considerations, actions, and dispositions with respect to classification, treatment, employment, training, and discipline during incarceration may be part of the investigation.

As stated above, evidence in the applicant’s favor is vital to a successful application. The applicant must provide positive evidence demonstrating entitlement. Such evidence may include statements corroborating the applicant’s rehabilitation and the applicant’s statement of how the commutation would affect his or her life. Letters and other evidence showing that the applicant plans to enroll in classes after release or that the applicant would have a job once the sentence is commuted are powerful factors in showing that commutation should be granted. Demonstrating that the applicant has improved himself or herself through education, training, or other activities during incarceration can be influential as well.

  1. Eligibility
  2. Applications and Recommendations for Commutation
  3. Procedure
  4. Recommendation to the Governor
  5. Assistance in Filling Out an Application for Commutation

Recommendation to the Governor

After its investigation, the Board communicates its recommendation to the Governor. The Board is not required to notify the applicant of its reasons for the recommendation. The Governor considers the Board’s investigation and recommendation and may grant or deny the application. Again, the Governor is not required to state a reason for a denial but must report a grant of a commutation to the Legislature.

Factors Considered

In deciding whether to commute a sentence, the Governor considers the following factors as evidenced in the Board’s investigation and the applicant’s information:

  • the impact of a commutation on the community and whether granting commutation is consistent with public safety,
  • the interests of justice,
  • the circumstances of the offense, including how long ago it was committed,
  • the sentence imposed,
  • the age of the applicant at the time of the offense,
  • the applicant’s self-development and conduct since the offense, including whether the applicant has made use of available rehabilitative programs and has identified and addressed treatment needs,
  • the applicant’s need for a commutation,
  • the applicant’s plans upon release from custody, and
  • evidence of intimate partner battering if the nature and effects of such physical, emotional, or mental abuse affected the beliefs, perceptions, or behavior of the victim and it appears that the offender’s criminal behavior was the result of his or her victimization. This evidence is given great weight in the consideration of the suitability of commutation.

If the application is based on an offender’s terminal illness or severe and chronic disability, the Governor’s Office may also consider whether a release from incarceration would substantially mitigate the illness or disability.

  1. Eligibility
  2. Applications and Recommendations for Commutation
  3. Procedure
  4. Recommendation to the Governor
  5. Assistance in Filling Out an Application for Commutation

Assistance in Filling Out an Application for Commutation

An offender is permitted to have assistance in filling out the application for commutation but must disclose whether he or she paid for such assistance. Because of the importance of the initial application and the difficulty in obtaining all the records and statements necessary to support the application, many offenders hire an attorney experienced in commutations to help them complete the application.

Such an attorney will be well-versed in the information that will sway the Governor’s consideration of the application and can present the applicant’s case in the best light. He or she can guide witnesses through their testimony before the Board. An attorney will be able to obtain statements from friends, relatives, neighbors, past employers, clergy, and others to support the applicant’s claim of rehabilitation and to corroborate the applicant’s statement of the effect that the commutation will have on his or her life.

Because commutations are difficult to obtain, assistance in completing the application is crucial, and applicants should seek experienced representation before filing with the Governor’s Office.