Commutations and Pardons: Great If You Can Get Them

 

As his Presidency comes to a close, President Barack Obama pardoned 78 people and shortened the sentence of 153 others. This single day’s efforts roughly doubled the amount of pardons and commutations granted over the past eight years. For many individuals, this information merits a shrug of the shoulders; however, it is not uncommon for other people to have incidences from their past that prevent them from enjoying firearms. This incident could be one from 30 years ago that you thought would go away automatically (they don’t!), this could be the result of a lawyer not explaining the ramifications of the plea deal you were signing, or plenty of other reasons. The fact remains; there is something on your criminal record that you want off.

So, why get excited about the President granting all these pardons? After all, over an eight-year period, there was only a grand total of 148 pardons, out of the 3,095 reported applications (as of December 5). That’s only 4.8%! The good news here, however, is that the pardons are being granted, and that it is worth the effort of applying for a pardon. You have a 0% chance of receiving a pardon if you don’t apply, as opposed to this roughly 5% chance if you do apply.

But not all people need pardons from the President. What’s the difference between a pardon from the President, and a pardon from your Governor? If you have committed a federal offense, you need a pardon from the President; if you’ve committed a state offense, you need a pardon from the Governor of the state in which the offense occurred. A state restoration of your civil rights will not help you if your original offense was a federal crime.

A Presidential pardon is essentially the only way to restore your firearms rights if you’ve been convicted of a federal felony. Those of you brave enough to slog through the United States Code may think you’ve found a loophole; 18 U.S.C. § 925(c) allows the Attorney General, with the assistance of the BATFE, to restore firearms rights “if it is established to his satisfaction that… the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.” However, according to the Department of Justice, since Fiscal Year 1992, Congress has prohibited the BATFE from spending any appropriated funds to even investigate, much less grant, these applications. The result is that a presidential pardon is the only means by which a person convicted of a federal felony may obtain this relief.

Remember, this only applies to federal crimes. What are you supposed to do if you are convicted of an offense under a certain state’s law? What is the process for restoring one’s right to purchase and possess a firearm? We talked to our Independent Program Attorneys nationwide to find out:

State Pardon Law

Colorado

U.S. Law Shield of Colorado Independent Program Attorney Drew Eddy provides this input on the law in Colorado.

In Colorado, anyone convicted of a felony offense is no longer allowed to possess a firearm regardless of the age of the conviction.  C.R.S. § 18-12-108 makes it an additional felony offense for anyone previously convicted of a felony, Colorado or elsewhere, to possess a firearm.

Colorado laws governing sealing of criminal cases are extremely strict.  With the exception of very few low level drug convictions, felony convictions will never qualify for sealing in Colorado.  Therefore, a pardon by the governor’s office is the sole avenue for an individual to petition for restoration of their gun rights.  However, as with most states, the governor’s office traditionally issues very few pardons each year.

Per C.R.S. Const. Art. 4, § “The governor shall have the power to grant reprieves, commutations and pardons after conviction…subject to such regulations as may be prescribed by law relative to the manner of applying for pardons…”  In Colorado, this is known as the clemency process.  The Colorado Executive Clemency Advisory Board was created to assist in this process.  Per Executive Order B 2012 003 issued by Governor John Hickenlooper, “The Board may advise and make clemency recommendations for commutations and pardons after a conviction, for all offenses, except treason and impeachment…In considering any request for clemency, the Board may consider any factors, which may include:

Exemplary rehabilitation and institutional behavior;
Offenders who may be suffering from catastrophic or terminal medical, mental or physical conditions;
Acts of heroism by inmates who prevent risk or injury to staff, citizens, or other inmates;
Victim impact; and
Sentencing disparities or inequities with the Colorado criminal justice system
.

Ultimately, the governor has sole discretion over the decision to grant a pardon and full ability to limit the scope of any such pardon.  Therefore, the governor may elect to place conditions on pardons including continued restrictions on gun ownerships.  Individuals hoping to regain the right to possess a firearm should include this request in their application for a governor pardon.

The Colorado laws governing pardons are codified in C.R.S. § 16-17-101 and 1-17-102.

For more information or to discuss your particular circumstance, contact RichardsCarrington.com.

 

Florida

David Katz and James Phillips, Independent Program Attorneys for U.S. Law Shield of Florida, provide this advice regarding Florida law on restoring firearms rights.

When a person is convicted of a felony in Florida, he/she loses the right to possess a firearm.

However, that right is not lost forever. You may be able to restore your right to own, possess, or use firearms in Florida through a type of executive clemency.

To seek restoration, you must file a petition to restore your gun rights with the Florida Office of Executive Clemency after a specific waiting period (depending upon the type of clemency being sought) from the date your sentence expired or supervision was terminated.

Also, you must not have any outstanding detainers, or any pecuniary penalties or liabilities, which total more than $1,000 and resulted from any criminal conviction or traffic infraction. Furthermore, you may not have any outstanding victim restitution, or other victim assistance obligations.

An examiner of the Florida Parole Commission will conduct a personal interview with those seeking to restore their firearms rights.

In Florida, there are various types of clemency, including full pardons, pardons without firearms authority, commutations, restoration of civil rights, and specific authority to own firearms.

Full Pardons

A Full Pardon unconditionally releases a person from punishment and forgives guilt for any Florida convictions.  It restores to an applicant all of the rights of citizenship possessed by the person before his or her conviction, including the right to own, possess, or use firearms. The waiting period is 10 years.

Pardon Without Firearm Authority

A Pardon Without Firearm Authority releases a person from punishment and forgives guilt.  It entitles an applicant to all of the rights of citizenship, except the specific authority to own, possess, or use firearms. Waiting period is 10 years.

Commutation of Sentence

A Commutation of Sentence may adjust an applicant’s incarceration or penalty to one less severe but does not restore any civil rights, and it does not restore the authority to own, possess, or use firearms.

Restoration of Civil Rights in Florida

The Restoration of Civil Rights restores to an applicant all of the rights of citizenship in the State of Florida enjoyed before the felony conviction, except the specific authority to own, possess, or use firearms. Waiting period is 5 years without a hearing, or 7 years with a hearing.

Specific Authority to Own, Possess, or Use Firearms

The Specific Authority to Own, Possess, or Use Firearms restores to an applicant the right to own, possess, or use firearms, which were lost as a result of a felony conviction under Florida law. Waiting period is 8 years.

The whole clemency process in Florida can take several years for the Office of Clemency to screen the applications and to conduct investigations.

Again, this only applies to persons convicted of a felony under Florida law.  Out-of-state convictions require a pardon issued by the state of conviction.  Federal felony convictions require a presidential pardon.

For more information, contact the lawyers at Katz & Phillips, P.A.

 

Georgia

Matthew Kilgo, U.S. Law Shield of Georgia Independent Program Attorney, explains the law in the Peach State.

A person convicted of a felony in any jurisdiction cannot possess a firearm in Georgia unless their rights are restored or they are pardoned.

In Georgia, the State Board of Pardons and Paroles is vested with the power to pardon and remove disabilities by restoring civil and political rights, with a few exceptions for repeat offenders and those serving life sentences. And state law expressly precludes the governor from exercising any power or authority over pardons. The Board even has the authority to restore civil and political rights (but not firearms rights) to federal and out-of-state offenders as long as the applicant is residing in Georgia.

The process begins with the submission of an application form, that has three pertinent provisions:

  1. Restoration of Civil and Political Rights
  2. Pardon
  3. Restoration of Receive, Possess, or Transport in Commerce a Firearm

Restoration of Civil and Political Rights

To have civil and political rights restored, the individual needs to submit an application within two years of completing all sentencing with no further criminal involvement. However, this alone will not restore firearms rights.

As part of the application is a separate provision to specifically request a Restoration of Firearms Rights when applying for the restoration of civil and political rights. If that box is not checked on the application, restoration of firearms rights will not be considered.

Pardons

The State Board of Pardons and Paroles has the authority to issue pardons for Georgia convictions upon receipt and approval of an application for pardon. The same application form used for Restoration of Civil and Political Rights is used for Pardons and the same requirements apply for those seeking a pardon that wish to have their firearms rights restored.

While a full pardon restores civil and political rights, it does not restore firearms rights unless it is requested in the application and is explicitly stated in the pardon that the individual is authorized to possess firearms.

A pardon applicant may request that the pardon be specially worded to restore this firearm right, but he must provide in detail his reason for the request, and provide letters from three “citizens of unquestioned integrity.” However, it “cannot be granted for any offense in which a firearm was used or possessed.”

Restoration of Firearms Rights

The restoration of firearms rights can be requested along with the request to have civil and political rights restored or for a pardon.

To qualify for the restoration of firearms rights, the applicant must have completed a five-year waiting period after completion of all sentences, paid all fines and restitutions in full, and lived a law-abiding life for five years thereafter.

Furthermore, to have a Restoration of Firearms Rights issued, the applicant must submit three letters from un-related references of unquestionable integrity and undergo a personal interview by the State Board of Pardons and Paroles.

The facts and circumstances of each case are almost always different. U. S. Law Shield Independent Program Lawyer Matthew Kilgo at Hawkins Spizman Kilgo can provide further advice in this area if necessary.

Missouri

Deborah Alessi, U.S. Law Shield of Missouri Independent Program Attorney, explains the process in Missouri:

In Missouri, if you have a felony conviction under state or federal law, you are prohibited from possessing firearms. The processes available for restoration of firearms rights in Missouri is to be granted an executive pardon from the Governor or to obtain an expungement of the conviction.

Missouri Executive Pardons

Three years after being discharged from your sentence, you may submit an application for a pardon through the Board of Probation and Parole that will then conduct an investigation and make a recommendation to the Governor.

The Board may consider the circumstances of your offense, your criminal record, your conduct since being discharged (social, employment, and financial), significant positive achievements, testimonials from friends and employers, recommendations from the judge, prosecutor and law enforcement agency involved in the case, and the reason for your requesting clemency.

Missouri Expungement of Convictions

An alternative approach is to file a motion to expunge the conviction through the courts. An expungement can restore your citizenship rights, including the right to possess firearms. To be successful, the court must find you have not have any intervening convictions, your circumstances and behavior warrant expungement, and expungement is consistent with the public welfare.

However, expungement in Missouri is limited to certain types of cases, such as bad check convictions and certain public order misdemeanors, (trespassing, gambling and disturbing the peace.) After 10 years, first time alcohol-related misdemeanor offenses may also be expunged.

Due to these limitations, an executive pardon is often the only way to restore rights in Missouri.

New Jersey

Independent Program Attorney, Evan Nappen, of U.S. Law Shield of New Jersey explains the law in the Garden State:

A person convicted in any jurisdiction of specified violent crimes may not purchase, own, possess or control any firearm. Furthermore, anyone convicted of any crime, or a disorderly persons offense involving an act of domestic violence will be denied a handgun purchase permit and firearms purchaser identification card. The governor can, however, restore civil rights including firearms rights through a governor’s pardon.

When the governor receives an application for a pardon, he can refer it to the New Jersey State Parole Board for investigation and a non-binding recommendation. On or before March 1 of each year, the governor must report to the Legislature each pardon granted and the reasons for his granting the pardon. If the governor grants a pardon, the individual is eligible to seek an expungement of his conviction.

There are no formal eligibility requirements. However, federal and out-of-state offenders are not eligible for a gubernatorial pardon in New Jersey.

As of March 1, 2016, Gov. Chris Christie had granted nine pardons, six to out-of-state residents convicted under New Jersey firearms laws.

Oklahoma

U.S. Law Shield of Oklahoma Independent Program Attorney Robert Robles offers his insight.

When a person is convicted of a felony in any State in the Union, or the world, he loses his right to possess firearms in the State of Oklahoma forever. That means that if a convicted felon from any state enters Oklahoma, he/she cannot possess a firearm or pellet gun in Oklahoma. Possession means that the felon knows where a firearm is located and has the means to retrieve it. The bar against possession is forever, for any firearm, working or not, black powder or antique. All firearms are forbidden.

The only way an Oklahoma felon can re-acquire the right to possess a firearm is by petitioning the Governor of the State of Oklahoma and being granted a Governor’s pardon. The Oklahoma Governor may, under the right circumstances pardon an Oklahoma felon, but will not pardon a Texas, Kentucky, or any out of state felons. Out of state felons must be pardoned in the state where the felony conviction was ordered.

Pennsylvania

U.S. Law Shield of Pennsylvania Justin McShane of The McShane Firm, LLC, offered this advice:

In Pennsylvania, the Pardon process is a lengthy one – sometimes taking upwards of 5 years to get a final resolution. The process requires gathering up all the information from the case(s) that are prohibiting you from possessing a firearm. This includes all records from the magisterial district justice where the preliminary hearing was held and all records from the Court of Common Pleas where the case was ultimately resolved. You must also obtain a certified criminal record and driving record.

The application, which is approximately 10 pages long, asks for details on all the convictions for which you are seeking a pardon as well as the detailed reasons why you believe you should be granted a pardon.

Once the pardon application and all the supporting documents are filed with the Board of Pardons, the Board conducts an investigation of the facts surrounding the crimes for which you are seeking a pardon. You will also have to meet with an investigating agent to provide a plethora of information from residential information, such as a mortgage or lease agreement, employment information and educational history. The Board will also speak with the District Attorney and sentencing Judge in the county where the crime occurred to get their input as to the merits of the pardon application.

In order to get an actual hearing on the application, 2 out of 5 board members must approve. Following the hearing, the board members will convene to vote to approve or disapprove of the pardon application. If the board approves, they will submit a recommendation to the Governor, and the Governor may, at his discretion, approve or disapprove the recommendation submitted by the Board.

If the pardon is denied, you may request reconsideration and must show a change in circumstances since the application was filed or other compelling reasons sufficient to justify reconsideration.

Texas

Gordon Cooper, from the law firm of Walker & Byington, PLLC, on Texas Pardons:

Here in Texas, the procedure for getting your firearms rights back is a little tricky. You not only have to apply for a pardon, you also have to apply for a “restoration of firearms rights” as well. Theoretically, you could receive a pardon for your offense, but still not have your firearms rights restored! Keep in mind, this is only considering what forms you have to file; it’s a whole other ballgame to find out if you even qualify. Knowing how to navigate these two requirements, the pardon and the restoration of firearms rights, is key in the uphill battle that is restoring your right to keep and bear arms.

For additional questions on restoring your rights due to a Federal or Texas level conviction, Gordon Cooper may be contacted at gcooper@walkerbyington.com

Virginia Law

For people living in the Commonwealth of Virginia, U.S. Law Shield of Virginia Independent Program Attorney Mitchell M. Wells explains the complicated process in Virginia.

How an individual goes about restoring the right to possess a firearm depends on how that right was lost in the first place. The right to restore one’s firearm rights involves petitioning the court, but may require seeking relief from the Governor depending on the circumstances.

Court Petition

In cases involving a felony conviction, the Governor must first restore the individual’s civil rights before a petition to restore firearm’s rights can be filed with a circuit court. Once filed, the court holds a hearing, if requested, and may, at its discretion for good cause shown, grant the petition and issue a permit for the individual to possess a firearm.  There are no specific factors identified as to what constitutes “for good cause shown” for the court to consider.

An individual adjudicated as a delinquent as a juvenile for an offense that would have been a felony if committed by an adult can petition the circuit court for restoration in the same manner. However, if that individual has been honorably discharged after serving at least 2 years in the military, he does not need to seek a pardon or petition the court because, under Virginia law, such individuals are not prohibited from possessing firearms.

Certain individuals that lost their firearm rights because of incompetency or insanity can petition the general district court to restore their rights if their competency or capacity has been restored, if they have been released from involuntary or voluntary commitment, or from an order of mandatory treatment. If the general district court denies the petition, the individual may petition a circuit court for review.

Governor Pardon

Any individual may submit a petition for a pardon, but such petition must provide substantial evidence of such exceptional circumstances in order to justify a pardon because governors are reluctant to substitute their judgment for that of the courts.

All petitions for a pardon by the Governor are processed by the Secretary of the Commonwealth and require a Virginia Pardon Petition Questionnaire be submitted.

A Governor’s pardon is not necessarily a victory for the individual applicant’s restoration of firearm rights because the Governor may expressly place conditions upon the reinstatement of the person’s right to ship, transport, possess or receive firearms.

There are 3 types of Governor pardons: simple, conditional, absolute.

  1. A simple pardon is a statement of official forgiveness. It does not expunge or remove a criminal conviction from the record, but it often serves as a means for the petitioner to advance in employment, education, and self-esteem.
  2. A conditional or medical pardon is available only to people who are currently incarcerated. It is usually granted for early release and involves certain conditions. There must be extraordinary circumstances for an inmate to be considered for such a pardon.
  3. An absolute pardon is rarely granted because it is based on the belief that the petitioner was unjustly convicted and is innocent.

An absolute pardon is the only form of executive clemency that would allow for a petition to the circuit court to have the underlying conviction expunged or removed from both the criminal record and public record.

If the petition is denied, there is no appeal. However, the individual may reapply after a two-year period.

SPECIAL NOTE: An individual convicted of a Virginia misdemeanor domestic violence offense cannot possess a firearm according to federal law. This is an instance where a state conviction has triggered a loss of firearm rights under federal law.  Such an individual cannot petition a Virginia circuit court for restoration of firearm rights according to Va. Code § 18.2-308.2(C). Such an individual cannot be pardoned by the President of the United States. The only remedy for such an individual would be a pardon from the Governor.

As you can see, the process of restoring one’s firearms’ rights is a complicated matter.

The facts and circumstances of each case are almost always different. U. S. Law Shield Independent Program Lawyers Riley & Wells Attorneys-At-Law can provide further advice in this area if necessary.

 

 

 

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