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Freedom with a Criminal Record is Not Really Freedom: Pardons and Commutations of Criminal Sentences

The United States leads the world in the number of people in prisons. In 2009, with 4.6 percent of the world’s population, the United States had 22.4 percent of the world’s prison population. The Department of Justice estimates that approximately 2,200,000 people are behind bars, and nearly all of them are black, hispanic, and/or poor. Over 7,000,000 people are imprisoned or on probation or parole.

According to the Pew Charitable Trust, a highly regarded social research group, the United States has an estimated incarceration rate 6 to 10 times higher than countries with similar standards of living. This situation exists despite the fact that United States crime rates are similar to those found in other countries; for example, the United States and Germany have comparable crime rates, yet there are approximately 750 people per 100,000 in jail in the United States while in Germany there are 93 per 100,000.

The Connecticut Office of Policy Management and Legislative Research estimates that the Connecticut prison population has grown from 3,845 in 1980 to 16,600 in 2014, an increase of 300 percent. Equally significant, there are an additional three people under criminal justice supervision (i.e., probation or parole) for every one person in prison.

In Michele Alexander’s recent best-selling book, “The New Jim Crow: Mass Incarceration in the Age of Color Blindness”, the blame for this mass imprisonment of our citizenry is placed on drug policy with its imposition of increased mandatory sentences without use of probation or parole. The Justice Policy Institute, a legal policy think tank, has found that across the United States there has been a radical increase in arrests for drug offenses, while arrests for violent and property crimes have fallen dramatically.

In Connecticut it is widely accepted that the increase in Connecticut’s prison population is due to the greater prosecution of non-violent crimes such as drug offenses and parole and probation violations, along with more prison time for all offenses, particularly drug offenses. In the meantime drug use in the country remains the same as a decade ago and drugs are cheaper and more available than when the so-called war on drugs began.

It is useful to keep in mind that the rest of the world, particularly Europe, views our sentencing system as grossly punitive. Rarely do criminal sentences in Europe exceed 5 years; in our country a 5 year sentence is a minimum baseline for any offense of any seriousness. Even the American Bar Association Standard for Criminal Sentencing, a highly regarded national standard for criminal procedure, takes the position that almost no sentence should exceed 5 years except for crimes that shock the conscience such as murders-for-hire.

Whatever the reasons for this state and federal exercise in mass incarceration, there are too many people in jail who endure ruined lives when they are finally released. Indeed, Michele Alexander describes ex-convicts as “permanent second class” citizens, who suffer a kind of “civic death” with a debt to society that is never repaid.

In almost every state parolees will be re-arrested if they are not employed. At the same time approximately 40 states have no laws protecting against consideration of an arrest record when making the hiring decision. “Banning the box” on employment applications has been instituted in the City of New Haven and for Connecticut state jobs; this is an exception, however, as Connecticut, along with most states, has created a network of laws and regulations that prohibit ex-offenders from obtaining jobs in certain fields or obtaining licensure. Moreover, felony drug offenders are barred from obtaining federal public assistance, along with an array of other programs such as food stamps.

The Pew Charitable Trust reports that there is a dramatic fall in family income after an imprisoned family breadwinner is released. The greatest single barrier facing someone released from prison is getting a job, as well as getting a better education or even decent housing. Possessing a job is not only necessary to survival, it is also vital to self-dignity and personal well being. It is also the biggest determinant of recidivism.

The most logical and necessary way of alleviating this otherwise unsurmountable barrier to employment is to provide a method for erasing a criminal record. Incredibly, obtaining expungement of a federal conviction is virtually impossible even if the petitioner has turned his life around and the crime occurred years ago. Only the President can pardon someone convicted of a federal crime , something that is rarely done. Obtaining a pardon is equally difficult in most state court systems.

Pardons in Connecticut
Fortunately for it’s citizens, Connecticut has a very special system which has been promoted for use around the country. Connecticut’s Constitution does not grant the Governor the power to grant pardons; instead, the power to pardon is accorded the General Assembly, which has delegated that authority to the Pardons Board. In 2003 the General Assembly moved the process to a new Board of Pardons and Parole. This was a serious effort to make the process meaningful since previously, dating back to 1833, the pardon process was essentially handled by a single volunteer in a private office who granted almost no pardons. Presently the Governor appoints the Board (not more than 25 members) and selects the chairperson from among the membership. Unlike most states, such as New York, a Connecticut pardon does not merely reverse the conviction, it provides a clean record without evidence of a criminal conviction.

The time period to apply for a pardon has recently been reduced to three years for a misdemeanor and five years for a felony. Under “extraordinary circumstances”, these time restrictions may be waived.

In addition to a full pardon, a provisional pardon has also been created which allows the applicant to be hired for a job or obtain a license which would otherwise be unavailable to someone with a criminal record. The provisional pardon provides only a partial remedy, however, since it does not completely erase a criminal record- only a full pardon can accomplish this. A provisional pardon can be applied for at anytime.

A pardon application is very lengthy and time consuming to adequately prepare. Once submitted the Pardons Board looks at several factors such as work record; rehabilitation; character references; and the nature of the crime, particularly the impact on victim and family. Rarely is a pardon granted for an exceptionally serious or violent crime. The whole process takes about one year. However, a new expedited hearing process is now in place. Mainly intended for non-violent victimless crimes a specific contingent of Board staff will afford expedited review in proper cases. In 2016 approximately 40 cases were granted expedited review.

It is a good time to be applying for a pardon. The federal system is presently intent on releasing more prisoners earlier as a result of increased criticism of the country’s overflowing Gulag filled with non-violent offenders.

In Connecticut, between 2008 and 2012 state officials granted pardons of various types for 1,564 people convicted of crimes. In 2016 approximately 1500 applications were made and over 700 granted. Hearings are held approximately once a month around the State

Overall, Governor Malloy has encouraged an enlightened, progressive program designed to minimize the prison population, especially for victimless drug crimes, through bail reform; home release; and other programs. The Board of Pardons has been a big focus of this program with more Board members and increased funding. A newly beefed-up staff consists of 5 probation officers; 3 clerks and legal counsel.

Commutation/ Clemency
In addition to the power to grant pardons, the Board has broad authority to grant conditioned or absolute commutations of criminal sentences. The ability to exercise clemency by commuting punishments applies to any crime for someone in prison or on parole.

There are two classes of eligibility: those with sentences of eight years or more are eligible after four years; for sentences of less than eight years eligibility occurs after 50% of the sentence is served. Where “compelling reasons” can be shown these eligibility requirements may be waived.

Before an otherwise eligible candidate may apply, he must exhaust all judicial remedies. This includes a motion in the trial court for sentence modification and an application for sentence review. As a practical matter these procedures will be futile for most cases; nonetheless they must be pursued and can usually be done without a huge effort.

The panel averages 80 applications per year. Hearings are conducted twice a year. A Board panel will pre-screen the applications administratively and select applications for further proceedings. Re-applications will not be entertained unless new or different extra- ordinary circumstances or exemplary conduct are presented.

Much like a pardon application, a request for commutation is not a retrial- arguments involving claims of innocence or procedural errors in the trial will fall on deaf ears. As frequently said, the applicant must “own his guilt”; there must be a reason presented in addition to a simple plea for clemency. In drafting the content of the application it is useful to think of the argument presented as a re-entry plan, with a description of family and friends who will act as a support group with a job in place and a plan for economic self-sufficiency

If the applicant has had a troubled family and personal life a good psychological evaluation is a necessity. If drugs have been an issue, a substance abuse treatment plan is also needed. It is also important to keep in mind that the commutation remedy requested must be consistent with the original sentence; for example a commutation request cannot involve special parole if that was not an element of the original sentence; similarly a flat sentence of definite years mandates a commutation consisting of a non-conditional sentence.

Conclusion
Judging from my personal experience representing many clients in this process, Connecticut’s pardon program is a welcome success; states like Massachusetts and Illinois are now looking at Connecticut as a possible model. Anyone with a criminal conviction must consider this process.

A. Paul Spinella is the author of Connecticut Criminal procedure