Since Bill Clinton left office the subject of pardons has been in the news almost daily, due largely to the pardon granted Marc Rich. As a result, the idea of granting a pardon to a convicted criminal may be getting a bad rap.
Without question the vast majority of criminal defendants should not be pardoned. Indeed, the deterrent effect of a criminal conviction is rooted partly in the fact that, once branded a criminal, an individual carries that tarnish for life. But there are times when a pardon may be appropriate.
Under current law, persons 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”), which ultimately allows 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 a major “black mark” on one’s record. However, ARD is a relatively recent innovation, and prior to the availability of an ARD disposition, many offenders simply pled guilty to these relatively minor infractions. Unfortunately, many years later, these convictions can come back to haunt them.
It is arguably unfair that recent offenders can avoid a criminal conviction for a minor offense while those whose offenses predated the ARD program are stuck with a criminal conviction on their record. They do have some recourse, however. This is where the pardon power might be exercised properly by the chief executive.
In Pennsylvania, pardons are granted by the Governor through a program administered by the Lieutenant Governor. 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.)
While it is not required, most pardons are granted 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 can take six months to a year or longer.
The best candidate for a pardon 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. Jobs involving security and financial institutions usually require a spotless criminal record. A pardon, if granted, can make the difference when it comes to getting and retaining such employment.
Call us if you have any questions in this area and the related topic of expungement of criminal records.
— Kevin Palmer