The Pittsburgh Post-Gazette/Ipso Facto
December 14, 2012
Under Pennsylvania law, non-conviction diversion programs like Accelerated Rehabilitative Disposition (ARD) and certain summary offenses can be expunged from an offender’s criminal record.
Other convictions are only eligible for expungement after the offender has reached age 70 and has been arrest free for ten or more years or has been deceased for more than three years.
The only option for an offender who does not meet that narrow criteria is an executive pardon. Absent an expungement or pardon, a criminal record cannot be removed.
In 2008, Governor Ed Rendell expanded eligibility for expungement when he signed a new law that authorized people who have been crime free for a period of time to petition the court to clear their record of certain summary convictions. The law included minor traffic violations, harassment, simple trespassing, minor first-time retail theft and public drunkenness.
Earlier this year, state Senator Tim Solobay introduced S.B. 1220 that would have expanded eligibility for expungement to include offenders convicted of certain second and third degree misdemeanors after a waiting period of seven years for third degree misdemeanors and ten years for second degree misdemeanors. The legislation stalled in the senate.
What is the likelihood that the governor will wipe away an offender’s record? Over the last 14 years, dating back to the administration of Governor Tom Ridge, about 500 people a year have applied for clemency. Pennsylvania’s governors, collectively, grant less than one in four applications. During that time period, only six death penalties or life terms have been commuted.
Getting a pardon is not an easy task. The Board of Pardons is made up of five members, the Lt. Governor, Attorney General and three people appointed by the Governor.
Executive clemency is authorized under Article IV, section 9(a) of the Pennsylvania Constitution. In 1997, a constitutional amendment established the requirement for a unanimous, instead of merely a majority, vote by the Board of Pardons to recommend a commutation of a life or death sentence to the Governor. A majority vote is still required for all other offenses.
The constitutional amendment grew out of the case of Reginald McFadden. His life sentence was commuted by Governor Bob Casey after a majority of the Board of Pardons recommended a pardon.
After his release, McFadden was convicted of rape and murder in New York. Lt. Governor Mark Singel was one vote in favor of McFadden and that vote was a significant factor in his loss to Tom Ridge in the 1994 race for governor.
That does not mean that seeking a pardon is a waste of time. A well written, thoroughly investigated application will be carefully reviewed by the board. An applicant that has put some time between his conviction and the application, documented positive life changes and provided a concise statement regarding the need for clemency—can succeed. For most offenders seeking redemption, clemency is the only game in town.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. He is a featured columnist for the Pennsylvania Law Weekly and a regular contributor to the Youngstown Vindicator. You can read his musings on crime and punishment at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino.
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