What is a Pardon?
The Washington State Constitution grants the Executive Branch (i.e. Governor) the power to pardon all state offenses. Wash. Const. Art. III §9.
A Governor's pardon in Washington State does not expunge or vacate a conviction record. See State v. Aguirre 73 Wash. App. 682 (1994); citing the State Supreme Court in State v. Cullen 14 Wash.2d 105 (1942).
It merely forgives the crime by commuting the sentence. The rationale for this stems from the nature of the pardon itself; by a pardon, the Governor forgives the individual for the crime committed. Such forgiving implies that guilt was established. Cullen, supra.
The Washington Legislature, however has enacted legislation which states;
A conviction may be removed from a defendant's criminal history only if … the conviction has been vacated pursuant to a governor's pardon. See RCW 9.94A.030(11)(b).
The Governor's office states;
If the Governor grants a pardon, the Governor's Office sends a copy of the pardon to the Washington State Patrol (WSP) and requests that they remove the conviction from the petitioner's criminal history available to the public. However, the conviction remains on a separate criminal history available to law enforcement and others who are entitled to non-conviction data under chapter 10.97 RCW. The Governor's Office also requests that the WSP add a note to the restricted criminal history, reflecting the pardon.
The Governor does not have the authority to expunge or vacate a criminal record; only the courts have that authority. Also, a pardon does not automatically remove the record of the conviction from court files and does not relieve the party from reporting the conviction on an application for employment. The party may, however, indicate the receipt of a Governor's pardon.
A person deciding to pursue a Governor's pardon should, therefore, understand that: (1) A successful result does not expunge the conviction; (2) Court records will still show record of conviction; and (3) Disclosure of the conviction record may still be required in most circumstances.
What Does the Pardon Process Look Like?
To accommodate review of pardon requests, the State has created a Clemency and Pardon Board (CPB). The CPB reviews pardon requests and makes recommendations to the Governor.
The pardon process involves three steps. The first step is filing a formal petition with the CPB. The CPB meets several times a year to review petitions and determine which petitioners will receive a hearing. Many do not.
The second step, assuming you receive a hearing, is the hearing itself. Hearings occur in person in Olympia, and are open to the public. You can provide live testimony and documentation to support your request. The prosecutor's office is notified of the hearing and may contact any victims or other person affected by your offense. At the conclusion of the hearing the CPB will vote on whether to make a recommendation to the Governor in favor of the pardon.
The third step is the Governor's decision. The Governor is not bound by the CPB's recommendation, and has the discretion to grant or deny a pardon based on his or her own judgment. The Governor is also under no time constraints to make a decision.
What Standards Are Used To Decide Whether to Grant a Pardon?
The CPB is authorized to recommend clemency requests to the Governor in “extraordinary cases.” While this term has no specific definition, the CPB recommends the following non-exclusive list of factors be considered:
· The seriousness of the offense.
· Whether the individual has complied with all obligations imposed by the court.
· The offender's criminal history and other relevant background.
· The impact on the victim(s).
· Acceptance of responsibility, remorse, and atonement.
· Personal development and positive life changes since the offense occurred.
· The risk or benefit to the community.
· Whether there is a significant and documented need for clemency.
The CPB reqiures a pardon petitioner to wait ten years from date of conviction to file a petition. Further, petitioner must state they have exhausted all other legal remedies to address the conviction; like seeking to vacate a conviction - if that is possible. Petitioner must submit a copy of the Judgment and Sentence for the offense(s) to be pardoned. There are no limitations on what other documents/materials can be presented.
If a petition is denied, a petitioner must wait three years to re-submit an application.
If You Are Interested In Seeking a Governor's Pardon, What Should You Do?
Call us at (206) 395-5257, or send us an email through our website. We are happy to schedule a phone consultation to discuss your situation.
From my experience, here are some things to think about.
- Be patient. A pardon petition takes time.
- Get documents. Treatment reports, diplomas, certificates, etc. Everything helps.
- Get support. Find people willing to write letters of support.
- Focus on “extraordinary circumstances.” How will a pardon impact you, others, and your community?