President Donald Trump’s recent pardon of former Sheriff Joe Arpaio has drawn public attention to the pardoning process in general. What is the basis of such a decision? Is there a difference between a presidential and gubernatorial pardon? Are there some offenses that cannot be pardoned? This post will explain how the pardon system works at the state and federal levels as well as who is eligible.

Overview

In summary, a pardon exempts a person or group from being punished for their alleged criminal offense. The decision to grant one rests solely in the discretion of the executive with pardoning power which, depending on the crime, may be the president, governor or, in some states, the Pardon Board. Once made, it is not typically subject to judicial review and cannot be revoked unless the offender obtained it via fraud.

It is important to remember that there are some limits to what a pardon can do and when one may be granted. For example:

• Receiving a pardon does not expunge the original conviction. Courts may take pardoned offenses into account when deciding on a sentence and job applicants must disclose the original conviction if requested.
• A person may receive a pardon for a certain crime yet remain liable for any civil consequences, such as a wrongful death lawsuit.
• Pardons don’t typically have an impact on administrative punishments, such as loss of a driver’s license.

What a pardon does do is restore forfeited civil rights, such as the right to vote and possess firearms.

Types of pardons

There are different types of pardons. They are-

• Full: The person is exempted unconditionally from punishment or consequences for their crime.
• Partial: The person is absolved from only some of the consequences for their actions.
• Absolute: The pardon is granted without any conditions.
• Conditional: One or more conditions must be met before the pardon comes into effect.

In an example of the latter, last December Governor Cuomo issued the first conditional pardons to over 100 individuals who were convicted of non-violent offenses while still minors and subsequently maintained a clean record for a minimum of 10 years. The pardons were conditional in that they could be revoked if the recipients re-offended.

Presidential pardons

The U.S. Constitution confirms that only the president may issue pardons for federal crimes. Anyone convicted of a federal offense must wait at least five years after completing their sentence to apply for relief, and all applications must go through the Department of Justice.

While the president may not pardon impeached officials, they can pardon the offenses that caused the impeachment.

Gubernatorial pardons

The decision to grant a pardon for a state crime rests in the discretion of the governor. In New York, pardon-seekers submit an application to the NYS Department of Corrections and Community Supervision, Executive Clemency Bureau. Once the governor has made a decision on the matter, it cannot be appealed or overturned.

For those who are rehabilitated, a pardon can help them put their mistake behind them and re-enter the community as active, law-abiding citizens. New York residents seeking a pardon for a state or federal crime should consult with a criminal defense attorney who can advise them on the application process and improve their chances of success. Julie Rendelman is an experienced New York City criminal defense lawyer. If you have legal questions regarding criminal charges for you or a loved one and are seeking advice, contact her office at 212-951-1232 for a free consultation. Visit www.RendelmanLaw.com to learn more.