One of the so-called Cuban Five recently completed his sentence in U.S. prison and is now on probation in the U.S. and not permitted by the court to return to Cuba.
We now learn that the U.S. offered to allow this individual with dual U.S.-Cuban citizenship to return to Cuba in exchange for his renouncing his U.S. citizenship and Cuba’s release of imprisoned U.S. citizen, Alan Gross. Another part of the offer was U.S. stated willingness after the exchange of these two individuals to discuss certain other issues between the two countries, including removal of Cuba from the U.S. list of state sponsors of terrorism; reducing spending on Cuban democracy promotion programs like the one that led to the U.S.’ hiring of Gross; authorizing U.S. companies to help Cuba clean up oil spills from Cuba’s planned offshore drilling; improving postal exchanges; ending a program that makes it easier for Cuban medical personnel to move to the U.S.; and licensing the French company Pernod Ricard to sell Havana Club rum in the United States.
This is a positive development.
Cuba, however, rejected this offer on the ground that the Cuban now on probation had already served his prison sentence. Instead Cuba is reported to have counter-offered to release Gross in exchange for the U.S. pardoning some or all of the Cuban Five.
This too is a positive development in keeping open the possibility of further negotiations between the two countries on the many accumulated issues burdening their relationship.
However, if the reports are correct that Cuba was seeking “pardons,” then it was asking for something that is not legally or politically possible. Federal pardons are theoretically available only to federal felons who have completed their sentences and are rarely granted as they involve collateral benefits under U.S. law. As the other four Cubans have not completed their sentences, they are not eligible for pardons. A commutation of sentence, on the other hand, reduces the period of incarceration; it does not imply forgiveness of the underlying offense, but simply remits a portion of the punishment. It has no effect upon the underlying conviction and does not necessarily reflect upon the fairness of the sentence originally imposed.The other four Cubans are eligible for clemency or commutations. 
I hope the U.S. and Cuba continue these preliminary discussions and reach an agreement on commuting the sentences of the Cuban Five and Alan Gross and allowing all of them to return to their home countries.
 See Post: Commutation and Release of Convicted “Spies” (Sept. 24, 2011); Post: Roots of Hope for U.S.-Cuba Relations (Sept. 27, 2011); Comment: Cuban Foreign Minister Attacks U.S. Policies (Sept. 28, 2011)(Comment to prior Post); Post: President Obama Is Wrong on Cuba (Sept. 29, 2011).
 See Post: The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism” (May 20, 2011); Post: U.S. Repeats Its Ridiculous Designation of Cuba as a “State Sponsor of Terrorism” (Aug. 21, 2011).
 Assoc. Press, AP Sources–US Offered Cuba Swap for American, N.Y. Times (Oct. 14, 2011).
 See Post: The U.S. Should Pursue Reconciliation with Cuba (May 21, 2011).
 See n.3.