What Is a Governor’s Pardon?
The Constitution of the State of California, Article V, Section 8(a), gives the governor of California the authority to “grant a reprieve, pardon, and commutation, after sentence, except in case of impeachment.” Such reprieves, pardons, and commutations are subject to the application procedures provided by California statutes and to any conditions the governor deems proper. The governor may not grant a pardon for a federal crime, a military crime, or a crime committed outside of the State of California.
A pardon is a form of clemency, which is forgiveness of the commission of a crime. The purposes a pardon serves include:
- Giving an incentive to persons convicted of crimes to enhance their accountability and rehabilitation
- Increasing public safety by removing counterproductive barriers to reentry into society
- Correcting unjust results in the legal system
Generally, a pardon indicates that a person who was convicted of a crime has, since the conviction, lived an exemplary life and has rehabilitated themselves.
Difference Between a Pardon and Expungement
A pardon does not seal a person’s criminal record, and it is not an expungement, which is the removal of a crime from a person’s record. A person who has been pardoned must still indicate, when asked, that they were convicted of a crime. A person whose record was expunged is entitled to say that they were not convicted of a crime.
Pardons are rare but not impossible to obtain. Thousands of applications are submitted each year, but few result in a pardon. Obtaining a pardon is considered an honor, and an applicant must earn that honor. Experienced appellate attorneys can help prepare an application for a pardon. Contact SPCRC's Recommended California Lawyers to discuss your case.
- What Is a Governor’s Pardon?
- Who Is Eligible for a Governor’s Pardon?
- Application Procedure to Get a Governor’s Pardon
- The Effects of a Pardon
- Get the Help of an Attorney When Applying for a Pardon
Who Is Eligible for a Governor’s Pardon?
Most people convicted of felonies, including multiple felonies, are eligible for a pardon, as are those who committed certain misdemeanor sex crimes. By law, however, the following persons are ineligible:
- Persons serving a mandatory life parole
- Persons committed under death sentences
- Persons in military service
People who have been convicted of certain sex crimes involving children are not eligible for a pardon unless the governor determines that extraordinary circumstances exist and exercises their discretion to grant a pardon.
- What Is a Governor’s Pardon?
- Who Is Eligible for a Governor’s Pardon?
- Application Procedure to Get a Governor’s Pardon
- The Effects of a Pardon
- Get the Help of an Attorney When Applying for a Pardon
Application Procedure to Get a Governor’s Pardon
The Governor’s website as well as California statutes set out the procedure for applying for a pardon. Three routes exist for obtaining a pardon:
- Acquiring a Certificate of Rehabilitation, which is an automatic application for a pardon
- Making a direct application for a pardon
- Receiving a reference for a pardon from the California Board of Parole Hearings
Application for a Certificate of Rehabilitation and Pardon
An application for a pardon is often confused with an application for a Certificate of Rehabilitation and Pardon. An application for a Certificate of Rehabilitation and Pardon is made to the superior court of the county in which the person resides. The application is investigated by a district attorney at the request of the court. If the court issues the Certificate of Rehabilitation, that issuance is an automatic application for a pardon from the governor.
A Certificate of Rehabilitation is an order issued by a California Superior Court stating that a person previously convicted of a violation of certain California state laws has been “rehabilitated.” It means that a person has, since their conviction, lived “an honest and upright life,” acted with “sobriety and industry,” demonstrated “good moral character,” and “conformed to and obeyed the laws of the land.”
Only certain persons convicted of crimes may apply for a Certificate of Rehabilitation. Generally, this includes:
- A person convicted of a California felony who was sentenced to prison or a county jail and who has completed their sentence
- A person convicted of a California felony who was put on probation if the person has completed probation
- A person convicted of certain misdemeanor sex crimes who was put on probation if the person has completed probation or has had the accusatory pleading dismissed (had the record expunged)
The issuance of a Certificate of Rehabilitation is an automatic application and recommendation for a pardon to the governor, who may issue the pardon based solely on the Certificate. Once the Certificate is sent to the governor, the rehabilitated person need take no further action unless requested by the Board of Parole Hearings or the governor’s office.
Waiting Period to Obtain a Certificate of Rehabilitation
A waiting period applies for application for a Certificate of Rehabilitation. This period is between seven and ten years following completion of a sentence or release from parole, depending on the crime for which the person was convicted.
Direct Application for a Pardon
A person who was convicted of a crime in California does not need to first obtain a Certificate of Rehabilitation before making application for a pardon, although the Governor recommends it as the preferred method and the Certificate demonstrates that the person has been rehabilitated. A person may instead apply for a pardon directly.
No Waiting Period to Make Application for a Pardon
There is no formal waiting period following a conviction for a person to make an application for a pardon. However, given the information requested by the application, discussed below, an applicant’s chances of obtaining a pardon are increased by information about the applicant’s good behavior since the conviction, and the longer the person has engaged in such good behavior, the better the chances for a pardon.
A person may apply for a governor’s pardon once every three years.
Notice of Intention and Direct Application for a Pardon
All applicants must give a Notice of Intention to Apply for a Traditional Pardon to the district attorney in any county in which the applicant was convicted of a felony.
The application requires the applicant to provide information regarding:
- The crime(s) for which the applicant is seeking a pardon
- Whether the applicant was under 26 when the crime occurred
- All other crimes for which the applicant was convicted, whether California state convictions, convictions in other states, or federal convictions
- A description of the circumstances of the crime for which a pardon is sought
- How a pardon would impact the applicant’s life, including immigration consequences, employment opportunities, impact on family members, and civic participation
- The applicant’s efforts in self-development, including addressing treatment needs; professional and educational achievements; any setbacks, arrests, or new convictions; insight about past conduct; and future goals
If the applicant is seeking a pardon for two or more felonies arising out of different cases, the governor cannot issue a pardon without first receiving the approval of the majority of judges on the California Supreme Court. The governor refers the application to the judges, who make their recommendation to the governor based on all of the information submitted with the application.
Once the application is received, the governor may request information from the judge of the court in which the applicant was convicted and from the district attorney, including:
- A summary of the facts proven at trial
- A summary of any other facts the governor should consider in granting or denying the application
- The judge’s or district attorney’s recommendation for or against a pardon.
The district attorney must be notified at least ten days before a pardon is granted unless the person convicted or incarcerated is in imminent danger of death or the person’s term of imprisonment is within ten days of expiration.
The governor may also request that the Board of Parole Hearing conduct an investigation into whether the pardon should be granted, but the request is not required, particularly if the application for a pardon is based on a Certificate of Rehabilitation. The Board investigates the pardon application and makes a recommendation to the governor for or against a pardon.
How to Get a Governor’s Pardon
Providing detailed information in the pardon application is crucial to an applicant’s chances of obtaining a pardon. Without the positive information supplied by the applicant, the governor will make their decision based on the applicant’s criminal record and the recommendations of the judge, district attorney, and/or Board of Parole Hearings. The application is a person’s opportunity to detail all of the good information about themselves, including their conduct following the conviction and the ways in which a pardon would positively affect their life.
This is where having an outstanding attorney experienced in pardons becomes critical. For an applicant to have even a chance at a pardon, the application must be filled out correctly and fully. An attorney knows the information that should be included and can present it in the light most favorable to the applicant. If a person is applying for a full pardon, they should have an attorney as a guide.
Experienced appellate attorneys can help with an application for a governor's pardon. Contact SPCRC's Recommended California Lawyers today.
Recommendation by the Board of Parole Hearings
The third route to obtaining a pardon is a referral to the governor by the California Board of Parole Hearings. The Board may recommend a pardon for a person currently incarcerated on the following grounds:
- Good conduct
- Unusual sentencing that resulted in the incarceration or length of incarceration
- That the convicted person suffered from intimate partner battering and its effects, including “evidence of the nature and effects of physical, emotional, or mental abuse upon the beliefs, perceptions, or behavior of victims of domestic violence if it appears the criminal behavior was the result of that victimization.”
- Any other cause
When the governor considers an application for a pardon, he may refer the case for investigation to the Board of Parole Hearings. Thus, already having a recommendation from the Board could carry significant weight with the governor.
Investigation by the Board of Parole Hearings
When a person applies for a pardon via a Certificate of Rehabilitation or a direct application, the governor may ask the Board of Parole Hearings to investigate the application. The Board considers the following:
- The impact of the pardon on the applicant’s family
- The impact the pardon may have on the applicant’s community, including whether the grant is consistent with public safety and the interests of justice
- The circumstances of the offense, including how long ago it was committed, and the age of the applicant when they committed the offense
- The applicant’s conduct and self-development since the conviction, including whether the applicant has taken advantage of available rehabilitative services or addressed treatment needs
- An applicant’s need for a pardon
- Any extraordinary circumstances that would justify granting a pardon to a person who would otherwise be ineligible because of a conviction for certain sex crimes involving children
The Board is empowered to take testimony and receive evidence in connection with its investigation of an application.
- What Is a Governor’s Pardon?
- Who Is Eligible for a Governor’s Pardon?
- Application Procedure to Get a Governor’s Pardon
- The Effects of a Pardon
- Get the Help of an Attorney When Applying for a Pardon
The Effects of a Pardon
Although a pardon does not have all the benefits of an expungement or the sealing of a criminal record, it does provide benefits to a person who receives it. These include:
- The potential for restoration of the right to own firearms (unlike an expungement)
- The right to serve on a jury in California
- The right not to have credibility impeached as a witness at trial by the fact of conviction of the crime if the person has also obtained a Certificate of Rehabilitation. A pardon alone does not give this right.
- Improved employment opportunities
- The ability to be employed as a county Probation Officer or state Parole Officer
- Removal of the automatic denial of an application for a state professional license
- For lawfully present non-citizens, a defense to deportation if the deportation is based solely on the conviction for which the person received the pardon
Can a Pardon Restore Gun Rights?
Gun rights are restored only if the governor issues a full and unconditional pardon and specifically grants restoration. By statute, restoration is not available if the applicant committed a felony that involved a deadly weapon, which includes firearms, knives illegal in California, concealed explosives, and metal knuckles. A person convicted of misdemeanor domestic violence may have gun rights restored after ten years.
Is a Pardoned Conviction Considered a Strike?
A pardoned conviction may still be used against a defendant in a subsequent prosecution. For example, a past conviction that was pardoned may still be used to enhance the penalty for a felony under California’s Three-Strike Rule.
Do I Still Have to Register as a Sex Offender?
The law in California formerly provided that a pardon alone negated the requirement for certain sex offenders to register. However, the law now states that only a Certificate of Rehabilitation will relieve a person of the duty to register.
Does a Pardon Impact Immigration and Deportation?
A pardon can have a significant effect on the deportation of a lawfully present alien. While it does not stop removal proceedings, it does provide a defense to deportation if the removal is based solely on the offense that has been pardoned.
For example, federal law states that a non-citizen may be deported for:
- Being convicted of a crime of moral turpitude committed within five years of the date of admission if the crime carries a sentence of one year or more
- Being convicted of two or more crimes of moral turpitude regardless of whether the alien was incarcerated
- Being convicted of an aggravated felony after admission
- Engaging in a high-speed flight from an immigration checkpoint
- Failure to register as a sex offender
A crime of “moral turpitude” does not have a specific definition in California law. Generally, it is a crime that involves dishonesty or fraud or those that “shock the conscience.” Crimes of moral turpitude involve those that require the intent to harm another individual. If a person purposefully did something to harm another individual, it may be considered a crime of moral turpitude.
Some examples of crimes of moral turpitude include obviously shocking crimes, such as rape, murder, drug crimes, and sex crimes involving children. Other crimes that have been considered crimes of moral turpitude include blackmail and extortion, arson, forgery, fraud, robbery, assault with a deadly weapon, and perjury. Other fraudulent or harmful conduct may also qualify as such a crime and therefore justify the deportation of an alien.
However, federal law specifically provides that committing a crime or crimes of moral turpitude, being convicted of an aggravated felony, or engaging in high-speed flight from an immigration checkpoint does not justify deportation if the alien has been granted a full and unconditional pardon by the governor of any state. Thus, a pardon, unlike an expungement or Certificate of Rehabilitation, will remove the conviction as a basis for deportation.
- What Is a Governor’s Pardon?
- Who Is Eligible for a Governor’s Pardon?
- Application Procedure to Get a Governor’s Pardon
- The Effects of a Pardon
- Get the Help of an Attorney When Applying for a Pardon
Get the Help of an Attorney When Applying for a Pardon
Applying for a pardon can be a confusing, overwhelming process. Given what is at stake, a person making an application should consult an attorney experienced in post-conviction proceedings to determine how and when to request a pardon. Even if the Board of Parole Hearings recommends a pardon, an attorney can still provide valuable information to assist an applicant in supplementing the Board’s recommendation.
Experienced criminal appeals lawyers can help with an application for a governor's pardon. Qualified appellate counsel understand what persuades the governor and Board of Parole Hearings, so they can help applicants get the best outcome possible. Contact SPCRC's Recommended California Lawyers today.