What is a Pardon?
As criminal defense lawyers who handle a lot of post-conviction matters, we sometimes receive inquiries into applying for a pardon. In many such cases, these people are looking for some form of clemency, or a means to reduce the penalties of a crime, but they are not sure what all the options are.
If you are considering a pardon, you should be aware of what it is and how it compares to other methods for providing clemency. In this article we will explore pardons and other methods to help you understand what approach would be worth a shot.
Clemency vs. Pardon
With clemency being the catch-all term for reducing penalties of a crime and providing relief, a pardon is one way a person can receive clemency. This means that if you receive clemency, you are not necessarily getting a pardon, but if you get a pardon, you have received a form of clemency.
A pardon is perhaps the most special and rare form of clemency as it can only be granted by the Governor for state crimes, or by the President for federal crimes. While the government’s power to grant pardons has very few regulations, it’s statistically very rare. Most pardon cases we have seen either involved acts that are no longer considered criminal, or high-profile cases involving egregious misconduct from law enforcement or prosecutors that have resulted in innocent individuals facing serious penalties.
Types of Pardons in North Carolina
In North Carolina there are three types of pardons:
Pardon of Forgiveness
As the name suggests, this pardon states that the individual has been forgiven of their criminal conviction. This form of pardon is the most commonly applied for, but offers the lease relief as it claims the crime was indeed committed.
This type of pardon does come with “certain conditions” that are not very clear about how it can impact the person granted it. One thing a pardon of forgiveness can appear to do is bar use of that conviction in subsequent criminal proceedings. Courts have also upheld that it can remove state bans on possession of a firearm by a person convicted of a felony. It may also help with seeking employment. One thing it does not authorize is a follow-up expunction of the crime from the person’s criminal record.
Pardon of Innocence
This pardon is granted to an individual who has been convicted of a criminal charge but had it dismissed later. Essentially, the individual had been convicted and imprisoned but later determined to be innocent.
This form of pardon has greater and more clear opportunities for relief than a pardon of forgiveness. First, anybody granted such pardon will have the opportunity to seek compensation from the state for wrongful arrest and imprisonment. Also, since the charges are dismissed, the person can the relevant crimes expunged from their criminal record.
This form of pardon solely exists to restore an individual’s rights to own or possess a firearm, without having to label that person as forgiven or innocent. However, ever since courts have ruled that a pardon of innocence can grant firearm rights back, this pardon may no longer be necessary to restore those rights.
Eligibility for a Pardon
The governor’s power to pardon somebody of state crimes is practically unlimited, with regulations only applying to the manner in which somebody could apply for a pardon. The only limitations are:
- All applications must be submitted to the governor in writing, accompanied by a statement of reasons and a copy of the indictment, verdict, and judgement
- The Governor is required to retain a register of all applications for pardon, with a list of the official signatures and recommendations in favor of such applications.
- There is a five-year waiting period after release from supervision to submit a letter for pardon, though it may be reduced if specific need is shown. If a pardon is denied, there is a three-year wait to reapply.
With all that said, unlike expungement and various other forms of clemency, a lot of people with criminal histories can be eligible for a pardon. The reason why pardons are rare are less to do with a matter of eligibility and largely a matter of the interests politics of the sitting Governor.
The Pardon Process
To apply for a pardon, applications must be submitted to the Governor’s office in writing, accompanied by a statement of reasons and a copy of the indictment, verdict, and judgement.
In North Carolina, the Office of Executive Clemency (OEC) processes the request and coordinates investigations by the Parole Commission, and prepares reports. These applications are made publicly available on the OEC’s website.
If the crime involves a victim, the OEC notifies them that they are considering a grant of clemency, and that victim has the right to present a written statement that the OEC will take into account to make the decision. Additionally, the District Attorney in the county of conviction must also be notified, and given the opportunity to offer a comment on the application for clemency.
The OEC can then present the application to the Governor, who has the final say on whether to offer the individual a pardon.