An inmate with a commuted sentence will sometimes collaterally attack his already commuted sentence. This raises the question: Does an act of executive clemency divest the courts of authority to hear the collateral attack? In other words, does clemency moot the issues involved in the collateral attack? While multiple circuit courts have weighed in on this question, the Fourth and Sixth Circuits have developed the most robust discussions, disagreeing about whether federal courts may hear these cases. The Fourth Circuit has held that a collateral attack postcommutation is moot as the “President’s commutation order simply closes the judicial door.” In contrast, the Sixth Circuit has held that a commutation does not moot a collateral attack.

This Note argues that the Sixth Circuit reached the correct result but has erred in focusing primarily on mootness. Specifically, this Note argues that separation of powers considerations, not mootness, should determine this issue. Part I provides an overview of the split between the Fourth and Sixth Circuits. Part II provides an overview of the justifications for, and development of, presidential commutations. It discusses how the justifications for commutations—and clemency more generally—have shifted from executive mercy to a political gamble. Part III provides an overview of the mootness doctrine and how it is relevant to this issue. Part III also explains the separation of powers and issues involving judicial autonomy and executive authority in the clemency context. Part IV argues that although a collateral attack postcommutation is almost never moot, the federal courts should focus their analysis of whether commutations foreclose judicial review on other separation of powers considerations, including preserving the sanctity of their role in reviewing unconstitutional convictions. Finally, Part IV also argues that the politicization of the pardon power in the modern era necessitates the court’s involvement in postcommutation collateral attacks in order to (1) effectuate the ideals of mercy and justice and (2) protect the power of judicial review.



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