How To Pardon A Criminal History

The Manhattan district attorney’s office is preparing for a legal prosecution of campaign chairman Paul Manafort. Because this is a state level prosecution, a presidential pardon will not clear Manafort of charges. Courtesy of The New York Times.Courtesy of The New York Times

A criminal history is something that can potentially stay with an offender for the rest of their life. It’s a serious problem facing Americans, as some reports put nearly one-third of United States citizens as having a criminal history. According to independent reports, over 1.5 million persons are incarcerated in the U.S. as of 2023, and 80 million adults have criminal records or records of some criminal activity in their lifetime.

How Does a Criminal Record Affect a Person's Life?

A criminal history, or “rap sheet” can affect employment to such a degree that prominent politicians, such as New York Governor Andrew Cuomo, spoke out against employer’s tendency to penalize applicants with a criminal history after performing a criminal background check. In 2017, Cuomo launched the Work for Success Pledge, an initiative designed to encourage businesses to disregard prior criminal convictions when evaluating new hires on the grounds that these individuals had paid their dues, and deserve a chance to reenter the workplace. In 2015, Iowa Governor Terry Branstad signed into law a measure that would allow for the expunging of public records as long as the charge was dismissed or acquitted. The supporters of the law claimed that those with arrests that were cleared of charges still face public scrutiny in the workplace or housing market. The law went into effect in 2016.

While initiatives are arriving, the process is slow. It is one that the country, states, counties, and municipalities have sought to stymie. Hawaii, for example, passed the Fair Chance Law in 1998 to help combat this problem. On a national level, President Barack Obama and his administration called for employers to use less scrutiny when hiring those with criminal records. He cited the Equal Employment Opportunity Commission and the initiatives it had already passed as justification for this call. To reinforce this, at the end of his presidency, several Obama pardons were directed at drug dealers serving long sentences.

It is important to understand the process of eliminating arrest records from someone’s criminal history. Sealing and expunging records is one option, but for felonies, applying for a pardon is often the best option.

What is a Pardon?

When most people hear about a criminal record pardon for criminal behavior, they think of presidential pardons. These are the top level of this act, and are usually done as a way of expanding on the beliefs of the administration. For example, Obama pardoned many who were serving time for drug related charges or for whistleblowing, as that was the political climate of the time. The George W Bush pardons did not focus his pardons on any one ideal, but instead took a generalized approach.In essence, an executive, federal or presidential pardon is an action performed by the President of United States that lessens the punishment for a federal crime. For this reason, most presidential pardons are directed at felons.

State Pardons

There are pardons available outside of the executive branch of the federal government. In Maryland, the pardon applications are available online, and can be turned into the Maryland Parole Commission’s office located in Baltimore. The department specifically states that pardons are meant for individuals that have “lost civil liberties as a result of a conviction” or convictions. They note that it is not the same as an expungement.

In Alabama, the right is specified under the Alabama Constitution. The process begins with an open meeting in the Board of Pardons and Paroles. From there, the board will call on the district attorney, prosecutor, and judge who handled the case in question. They will can also call on the chief of law enforcement in the area where the arrest in question was made. Once hearing from these parties, the board will make a decision as to offer clemency or not.

In New York, the Governor holds the power to grant clemency, but an application or juvenile application is still needed before any process can begin. Applicants should also include a letter describing the need for the pardon, provide proof of accomplishments, and include letters of support and recommendation from family, friends, and community leaders.

The requirements for pardons are wide, and vary between states. Searching for the state requirements can help interested petitioner understand the requirements before setting out to seek clemency.

Requirements of Presidential Pardons

A presidential pardon is one of the highest forms of crime forgiveness in the nation, but also one of the most difficult to obtain. There are several requirements to keep in mind when applying.

• All petitions must be sent to the Office of the Pardon Attorney

  After filling out the appropriate forms, interested parties must either email or mail the form to USPardon.Attorney@usdoj.gov or to The U.S. Department of Justice, Office of the Pardon Attorney, 950 Pennsylvania Avenue, Washington, D.C. 20530. The petition and all its forms must be legible and written in ink. Print is prefered over cursive for this reason. The forms must also be notarized to be considered. Any documents that supplement your request can be attached, but without staples, glue, or any other kind of binding material. If emailed, the forms must be in PDF format. If mailed, only scans of documents will be accepted.

• Only federal convictions will be considered

  The President can only pardon federal convictions, and the office’s power extends to convictions settled in the “Superior Court of Washington D.C. and military court martial proceedings.” This means any state criminal offense is outside the ability of the President to pardon. State criminal pardons must be handled on a state level in the corresponding State Board of Pardons and Paroles.

• A reason for seeking a pardon must be included

  Pardon seekers must include a specific reason or purpose for why they are seeking a criminal pardon. This is area to attach or include any relevant evidence that indicates how a pardon will help achieve a goal or the reason a pardon is sought. Such additions can include copies of letters of recommendation from community leaders, or signed letters of achievement. Because a presidential pardon is an indication of nationwide forgiveness, letters of achievement are strongly recommended, though they are not required. Pardon officials also take into account the petitioner’s acceptance of “responsibility, remorse and atonement.

Most states offer pardons outside of the federal pardon system, and California is no exception. This is legal recommendation when seeking pardon in The Golden State. Courtesy of the SHouse California.

• Five-year-waiting period

  Under rule 28 C.F.R. §§ 1.1 et seq, a five year waiting period is imposed on any felon seeking clemency. A pardon seeker must wait five years from the point of release from incarceration or, if no incineration was imposed, from the date of sentencing. This period of time was created to offer petitioners a substantial enough time to gather the necessary materials for pardon seeking. It also grants enough time for the petitioner to reintegrate into society and to seek atonement.

• Character references

  Outside of the previously mentioned letters of achievement and recommendation, at least three character affidavits must accompany a petition. When submitting more than three, be sure to note which three are the primary affidavits. Use of provided affidavit forms are prefered, and must contain a petitioner’s full name, address, and telephone number. They must indicate which offense is submitted for pardon, and be notarized. Family members related by blood or marriage are not applicable for character references.

• Privacy Policy

  The decision to pardon is the President’s alone to make. No hearing is held, and no information about the Office of the Pardon Attorney’s investigation is released to the public. There is no appeal process, and the decision to deny a pardon is final. The reasons behind the President’s decision are not generally released by either the White House or by the Department of Justice. Communications between any office involved and the President are confidential and not subject to the Freedom of Information Act. Denied pardons may be resubmitted after two years from the date of denial.

Most of the pardoning process can take place online. When ready, visit the clemency forms and instructions page to begin the process by selecting the appropriate category.

Pardons are a part of the justice system as much as any legal repercussion. The purpose of an incarceration, punishment, or other sentence passed in response to an offense is to rehabilitate first, punish second. When a convicted person proves they are ready and willing to reintegrate into society as a reformed person, the United States has systems in place to welcome them back. Pardons are difficult, but powerful method for this. Because of the Freedom of Information Act, finding out what charges are applicable for pardon is a process available to every American, and sites like StateRecords.org can simplify this process. The StateRecords homepage can offer further assistance in locating pardonable charges.

What's the Difference Between a Pardon and an Expungement?

A pardon and an expungement are both legal means of alleviating the consequences of a criminal conviction, but they operate in fundamentally different ways and have different effects.

A pardon is an act of clemency that forgives a criminal offense but does not erase the conviction from the record. It symbolizes forgiveness from the state but does not deny that the crime occurred. In addition, it can restore civil rights, such as the right to vote or bear arms, that may have been lost due to a conviction. However, the criminal record itself remains, and the conviction may still be considered in certain legal contexts, such as sentencing for future convictions.

Pardons are generally granted by the President (for federal crimes) or a governor (for state crimes), often with input from a parole or pardon board.

On the other hand, an expungement is a legal process that removes or seals a criminal conviction from public view. Unlike a pardon, it effectively erases or hides the conviction as if it never happened. Expungments make the criminal record inaccessible to the general public, including potential employers, landlords, and others who might conduct a background check. The conviction may still be accessible to law enforcement or used in specific legal situations, depending on state laws.

The process of expungement typically involves a court petition and varies by jurisdiction and the nature of the crime. Eligibility criteria and legal procedures must be followed, often requiring legal representation.

In summary, while a pardon forgives the crime and may restore certain rights, it does not erase the conviction. An expungement, on the other hand, conceals or erases the conviction from public view. The choice between seeking a pardon or an expungement would depend on individual circumstances, the nature of the conviction, and the specific goals of the person seeking relief. Legal counsel can provide tailored advice on the most appropriate path for a given situation.

Can a Pardon Ever Be Revoked?

A pardon is typically considered a final action, and once granted, it is rarely revoked. However, there are some exceptions and nuances to this rule.

• Presidential Pardons: In the U.S. federal system, a presidential pardon is generally irrevocable once it has been delivered and accepted. If a pardon has been offered but not yet accepted, it may be possible for the President to revoke it. This area of law is complex, and the issue has rarely been tested in courts, so definitive answers may be elusive.
• State Pardons: The ability to revoke a pardon at the state level can vary based on individual state laws and constitutions. Some states may have provisions that allow for the revocation of a pardon under specific circumstances, such as if it was obtained through fraud or misrepresentation.
• Conditional Pardons: In some cases, a pardon may be granted on specific conditions, and if those conditions are violated, the pardon could potentially be revoked. The rules governing this would depend on the specific terms of the pardon and the laws of the jurisdiction granting it.

How Long Does a Pardon Take in the US?

The process and time required for obtaining a pardon in the United States can vary widely, depending on several factors, including the jurisdiction (federal or state), the complexity of the case, the backlog of applications, and the specific circumstances of the individual seeking the pardon.

Federal Pardons:

The process for obtaining a presidential pardon for a federal conviction can be lengthy, often taking several years. After the required waiting period of five years following the conviction or release from incarceration, the application undergoes a thorough review by the Office of the Pardon Attorney and potentially other agencies.

State Pardons:

The timeline for state pardons varies by state and can range from several months to several years. Each state has its unique process, requirements, and board or authority responsible for reviewing pardon applications.

Factors such as state laws, the nature of the conviction, the governor's stance on pardons, and the caseload of the review board can influence how long the process takes.

Common Reasons for Denying a Pardon

While the granting of a pardon is a discretionary act and varies widely depending on individual circumstances and the jurisdiction, there are some common reasons why a pardon may be denied:

• Insufficient Time Since Conviction or Release: If the applicant applies for a pardon before meeting the required waiting period (such as the five-year federal requirement), the application may be denied.
• Lack of Remorse or Acceptance of Responsibility: Pardon authorities often consider the applicant's acknowledgment of the offense, remorse, and efforts towards atonement. Lack of genuine remorse can be a ground for denial.
• Inadequate Rehabilitation: Evidence of successful rehabilitation, such as maintaining stable employment, participating in community service, and leading a law-abiding life, is typically required. A failure to demonstrate these can result in denial.
• Seriousness of the Offense: Certain types of convictions, such as violent or sexual offenses, may be viewed more unfavorably and could lead to a denial.
• Opposition from Victims or Law Enforcement: Strong opposition from victims of the crime, law enforcement officials, or other involved parties may influence the decision.
• Incomplete or Inaccurate Application: Errors, omissions, or misrepresentations in the application can result in denial.
• Political Considerations: Depending on the jurisdiction and the nature of the crime, political considerations and public opinion may play a role in the decision-making process.
• Other Outstanding Legal Issues: Pending charges, ongoing investigations, or other legal entanglements can negatively affect the decision.
• Failure to Meet Specific Criteria: Each jurisdiction may have specific criteria that must be met for a pardon to be granted. Failing to meet these criteria can result in denial.