Commutation vs. Resentencing Hearings in Death Penalty Cases

By Reba Kennedy on January 28, 2021

Posted in Legal Issues - Death Penalty, On Death Row

As President Biden takes office, activists against the federal death penalty are hopeful that he will commute the death sentences of those who sit on the Federal Death Row. See, e.g., “Dems Squad members try to save the worst killers of all: Pressley and Bush demand Biden commutes sentences of all 49 federal prisoners on death row, including Charleston church shooter Dylan Roof and Boston Marathon bomber Dzhokhar Tsarnaev,” written by Martin Gould and published by the UK Daily Mail on January 26, 2021.

But what is commutation of a death sentence? And how does it differ from a resentencing hearing?

Commutation

Commutation is a form of clemency that stops the execution and ends the sentence of death. It does not change the underlying criminal conviction: the person is still considered guilty of the crimes for which he was tried and sentenced. It is not a pardon.

Commutation substitutes a lesser penalty or sentence for that of capital punishment. The power to commute a death sentence lies with different authorities, depending on the jurisdiction. Florida, for example, requires the governor to have a recommendation to commute a death sentence from the Florida Clemency Board before the governor can act.

Constitutionally, commutation is considered a part of the government’s power to pardon someone after they have been sentenced to death.

For more, read:

Joseph B. Schimmel, Commutation of the Death Sentence: Florida Steps Back from Justice and Mercy, 20 Fla. St. U. L. Rev. 253 (1992).
Schaefer, Laura, and Michael L. Radelet. “Have Mercy: New Opportunities for Commutations in Death Penalty Cases.” Rts.42 (2016): 18.
Death Penalty Information Center, Clemency Process by State.

Resentencing Hearing

A resentencing hearing is a full evidentiary hearing where both the state and the defense present arguments and authorities to the judge who will decide whether to change the death sentence. As with a commutation, the person is still considered guilty of the crimes for which he was tried and sentenced.

However, after the resentencing hearing the person may no longer face capital punishment. His sentence may be modified to remove the death penalty.

In Florida, decisions by both the Supreme Court of the United States as well as the Florida Supreme Court have resulted in court-ordered resentencing hearings for many of those residing on Florida’s Death Row.

Terence Lenamon is one of the Florida capital defense lawyers involved in these resentencing hearings. See, e.g.: Florida Supreme Court: How Victory of Lenamon Client Michael James Jackson Impacts Future Death Penalty Defense.

For more on resentencing hearings in Florida, see: “Florida Supreme Court Overturns Precedent Throughout 2020,” published by the American Bar Association Death Penalty Representation Project on January 26, 2021.

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