The Trump administration has had no shortage of controversy and speculation, and some of the latest is whether (and when) Mr. Trump would use his powers to pardon anyone associated with his camp who might be convicted of crimes, particularly as they relate to Russia. The Obama administration in its last days pardoned dozens of non-violent offenders. Many ‘regular’ criminal defendants also frequently ask attorneys how they can go about removing their crimes, and request a criminal expungement if they do not receive a pardon. The two methods are different, although similar in their aims.
A pardon, generally speaking, can only be granted by either the Governor of each state, or of course, the President. In states, a recommendation has to come from the state Board of Pardons, and can actually apply to any range of crimes, from misdemeanors to felonies – even someone’s entire criminal history can be pardoned. The power of Presidential pardons comes straight from Article II, Section 2 of the Constitution. A pardon is the complete reversal of a conviction, and can occur at any time during the legal process (as seen with Ford’s pardon of Nixon). Sometimes the pardon is used when the inmate can show they are fully rehabilitated. Sometimes – and more tragically – it is used when it can be shown they are exonerated from actually committing the crime, such as with DNA evidence.
Some states require certain things before a pardon can be granted, such as a finding of innocence. In Texas, Anthony Graves was convicted of assisting one man with committing multiple murders in 1992 and sentenced to death. The conviction was based largely on his accomplice’s testimony, who – two weeks before Graves was due to be executed – retracted his testimony. The Fifth Circuit overturned the conviction and ordered a new trial. When the prosecution began compiling evidence, they determined that there was no credible evidence linking Anthony Graves to capital murder; however, because there has been no official finding of innocence, he cannot be exonerated or pardoned. This is critical because Texas is one of the states who leads in exoneration packages: those found innocent are awarded $80,000.00 for each year spent behind bars, plus annuity payments. Another prisoner, James Woodard spent 27 years in prison for a murder he did not commit – he received $2.2 million after being officially pardoned by the Governor – a year and a half after he was released. Sadly, he passed away in 2012 after a seizure.
Expungement is a more readily available option that seals court records regarding a conviction – essentially making it like the crime never occurred. Expungement almost always is limited to minor crimes, such as misdemeanors. The law varies state by state, and usually the expungement is granted by a judge, often the same one who issued the conviction the first time around. Usually, expungements will be granted as long as you ‘tick the boxes’ required in each state’s statute. Expungements have to happen after the conviction, unlike pardons. Twenty states have a process for expungement, but most other states have some kind of record sealing process, although each state has various requirement and looks at the type of crime committed, time passed since the conviction, and whether or not the defendant still has outstanding duties to the state (such as fees, fines or probationary restrictions). Most often, expungements will only be available to those who have only a one-time offense, the offense was not violent or non a sex crime, and you have shown yourself to be rehabilitated. This process is paperwork heavy, so hiring an attorney who knows what to do is well worth the investment, since a conviction will no longer show up on employment background checks, credit checks or the like. However, the cost varies – depending on the crime and the court, it can be anywhere from $500 to $5,000.00 to get an expungement, not including attorney’s fees.
Therefore, it seems true that the old adage ‘it’s not what you know, it’s who you know,’ is in full force with expungements and pardons: if you’re friends with the governor or the President, you’re more likely to get a pardon. Just ask Roger Clinton.
