Pardon v. Expungement

Governor Ed Rendell will be leaving the Governor’s Mansion next month to make way for Governor Elect Tom Corbett.  One of the Governor’s powers is to grant pardons of convicted criminals.   Usually a change in the executive administration brings with it a rash of pardons as there may be little or no political consequence for granting such a pardon at the end of a gubernatorial term.   Virtually every previous administration has made numerous pardons at the end of its term, thus do not be surprised if this administration does the same.

Pardons may only be granted by governors and the President of the United States.  Receiving a pardon frees a person from the conditions of his or her sentence.  A pardon will not necessarily erase a conviction from a criminal record; it may only release a convicted criminal from the terms of his or her sentence and restore that person’s civil rights.

There is no doubt that the vast majority of convicted criminals should not be pardoned. Indeed, the deterrent component of a criminal conviction is based on the fact that a conviction stains an individual’s reputation for life. There are times when a pardon may be appropriate.

While the Governor in Pennsylvania grants pardons, the process is administered by the Lieutenant Governor’s office. Applications for a pardon must be filed with the Board of Pardons. Once an application for a pardon is filed, an investigation is conducted by the Pennsylvania Board of Probation and Parole. The purpose of the investigation is to determine whether there are circumstances justifying the exercise of mercy by the state. There is no “right” to a pardon.

Although a hearing is not required, most pardons granted in Pennsylvania are done so only after a public hearing in Harrisburg.  Since a pardon is a matter of grace, and not a matter of right, there is no time limit within which the Governor must act on a pardon application. The process may take six months to a year or longer.

While a pardon may not erase a conviction from one’s criminal record, an expungement is designed to remove a criminal record from the public access.  Pardons can only be granted by a governor or the President, while an expungement is granted by a judge upon a petition.  If after a hearing on the petition, an expungement is granted, the person whose record has been expunged is permitted to deny the existence of the prior conviction.  The record should not appear if a criminal background check is run.  Most police departments and courts physically destroy all evidence of a criminal record, however; certain law enforcement agencies, immigration officials, and other public departments may retain or still have access to the criminal record even if that record has been officially expunged.  Expungement is often helpful for people who are looking for a job, seeking a loan, applying for housing, or engaging in any other action where a criminal background check is usually completed.

In Pennsylvania, people convicted of certain “minor” criminal offenses, including driving under the influence and retail theft, may be eligible for a pretrial diversion program known as Accelerated Rehabilitative Disposition (“ARD”).  The purpose of ARD is to allow a first-time offender to have the criminal charges dismissed if he or she successfully completes the terms of the program. This avoids a criminal conviction and the damage that causes on one’s permanent record.   Under ARD a successful applicant is entitled to have his or her record expunged following the completion of the program.

The best candidate for a pardon or an expungement is a person who has a single minor criminal offense which has prevented that person from securing suitable employment or has caused loss of employment upon discovery by his or her employer.

New Years often brings with it a sense of renewal or a fresh start.  For some this may include the desire to have a conviction pardoned or expunged.   Consulting a lawyer is the best way to find out if one is eligible for a pardon to have records expunged.   It is important to note that there may be a waiting period before a person can be eligible for expungement.  Call us if you have any questions regarding a pardon or the related topic of expungement of criminal records.

— J. Ken Butera


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