Commutation of Sentence

California is known for its extremely long prison sentences. However, under the California Constitution, Article VV, § 8, an inmate has the right to seek a Commutation of Sentence. If you or a loved one were convicted of a criminal offense in California and you believe the sentence was overly punitive, it is possible to ask for the sentence to be commuted. Commutation is a post-conviction remedy where the Governor has the authority to reduce the sentence of a prisoner, a power which even extends to those sentenced to life imprisonment without parole. This makes it among the most powerful post-conviction remedies.

In this article, California Criminal Appeals lawyer, Matthew Barhoma, founder of Power Trial Lawyers outlines:

1. What is a Commutation of Sentence?
2. The Criteria Required to Apply.
3. The Procedure of a Successful Commutation of Sentence
4. How a California Appeals Lawyer can Help

Anyone who has been convicted of a crime in California State court and is currently serving their sentence in California may apply for a commutation by properly filing and serving an Application for Commutation of Sentence. A commutation is a type executive clemency where the Governor may review a prisoner’s sentence and reduce it or make a prisoner immediately eligible for parole. When the Governor commutes a sentence, the new sentence replaces the original court-ordered sentence. A commutation does not affect the finding of guilt or restore a prisoner’s civil rights. There are many different factors the Governor may consider when deciding whether to exercise discretion and grant a commutation. Commuted sentences generally are a reward for good behavior in prison and used to reduce extremely harsh sentences. A lot of times, the most successful of applications include good character behavior and outstanding character references from loved ones, those with personal knowledge, such as previous employers, coaches, life mentors, etc., and could even come from a CDCR prison guard.

When the Governor reviews a commutation application, the application is considered from numerous angles. The Governor will consider:

• The severity of the underlying office
• The extent of harm as occurred to the victims
• The prisoner’s age at the time of the convicted offense
• The amount of time the prisoner has served
• Whether the prisoner can be re-integrated into society
• Whether the prisoner expresses remorse for the convicted offense
• Whether the prisoner has been rehabilitated or shows signs of rehabilitation for the underlying convicted offense
• Education and certificates the prisoner received while incarcerated
• The prisoner’s conduct as an inmate or while in custody
• Evidence of victim restitution or resolution to help remedy any and all impact on victims
• Whether the applicant shows signs of low-level risk to everyday society if sentence is commuted
• Any other relevant factors the Governor’s office may rely on

The impact of the commutation on the community, namely whether releasing you early will negatively affect public safety and if the commutation is in the interests of justice. If there was a victim, the extent of harm they suffered will be considered. The Governor will also consider the age and circumstances of the offense, the severity of the offense and sentence, as well as your age at the time of the offense.

Of great important to an application is your personal development since the offense. This includes whether you have committed any rules violations or new crimes while in prison and also whether you utilized available rehabilitative and educational programs. If you suffered from an addiction or mental illness at the time of the offense and have since received successful treatment, this too is an important consideration for the Governor. The Governor may also take into account things like evidence of remorse for the offense and whether restitution was paid to the victim(s). Finally, the Governor will consider your personal need for a commutation, such as the need to be released from prison for health reasons, and your plan for reintegration into the community in the event you are released from custody.

In addition to all of these criteria, the Governor will consult outside agencies to both investigate and provide recommendations on whether a commutation should be granted. This is discussed in detail in the next section.

Step One: Notice to the Appropriate District Attorney’s Office

To apply for a commutation, the first thing you must do is serve a completed notice of intent to apply for clemency on the district attorney in the county where the you were convicted. The district attorney will send an acknowledgment of receipt to the Governor and may send a written recommendation on the application. The district attorney must make reasonable efforts to notify the victim(s) of the offense or their family members. The victim(s) and their family members may submit a recommendation to the Governor also.

Step Two: Correctly Submitting the Application for Commutation of Service to the California

To apply for a commutation of sentence for the first time, or the first time in a period of three years, you must complete an application and submit it to the Governor’s Office. The form requires a list of all convictions, the circumstances of the offense, a description of your rehabilitation and self-development since being sentenced, insight into the offense, the reason for seeking commutation, and a statement why you believe commutation should be granted. However, from our experience, merely filling out the form may be insufficient to get your sentence commuted.

Although it is not required, you should also submit additional information and documents in support of the application. Documents which should be submitted include letters of support and evidence of your post-conviction rehabilitation and achievements. If your application for commutation is based on a chronic or terminal illness, you must also submit an authorization to release medical information. The application must be notarized and sent in the mail to the Governor.

If you were unsuccessful previously, how to submit an Application for Commutation of Service successfully:

If you have applied for commutation in the past three years and that application was denied, you can reapply for a commutation by submitting a reapplication for clemency form. Again, if your application for commutation is based on a chronic or terminal illness, you must also submit an authorization to release medical information.

When the Governor’s Office decides an application for commutation has potential merit, it will refer the application for investigation. Applications for commutation are investigated by The Board of Parole Hearings, which is part of the California Department of Corrections and Rehabilitation. During the investigation, the Board will review your criminal history, court records, and prison records, among other records you provided. The Board may also take testimony from witnesses and review a summarized statement of the facts prepared by the trial court. If the Board is investigating and considering your application, they will notify you. You will be permitted to provide additional information if you choose to do so. The Board will then hold a public meeting where your application will be considered. After the meeting, the Board will make a recommendation to the Governor as to whether the application should be approved. The Governor may also choose to submit an application to law enforcement or other agencies to investigate or provide a recommendation.

If you have been convicted of two or more felonies, the Governor does not have the authority to commute your sentence unless a majority of the California Supreme Court justices recommend the commutation. The application and review procedures are essentially the same as other applications, with the exception that after the investigation by the Board, the Governor must forward the application, its supporting documents, and any other pertinent information to the California Supreme Court. Then, if after a review the majority of the justices recommend your sentence be commuted, the Governor may act.

When an application for commutation is granted, the Governor’s Office will file the commutation with the California Secretary of State and it will be reported to the California Legislature. The commutation will also be added to your criminal record.

Applying for a commutation requires a deep understanding of the law and the process. There is no specific set of factors that the Governor will consider when deciding an application for commutation of sentence. The Governor is not obligated to consider any application for commutation, and there is no specified timeframe for the review and investigation if the application proceeds.

A skilled lawyer can ensure the commutation application provides the detail and support necessary for a successful application, such as an “Advocacy Narrative”. Strict compliance with the procedural aspects of the process are also required, and a lawyer can ensure these requirements are met.

If you or a loved one are serving a prison sentence in California State prison and would like to apply for a commutation of sentence, do not hesitate to reach out to Power Trial Lawyers We assist clients will all aspects of post-conviction representation, including applications for commutation of sentence. You can contact us at (213) 800-7664 or on this website for a free consultation.