Collateral consequences and the curious case of Mark Wahlberg

Actor-producer Mark Wahlberg has filed an application for pardon with the Governor of Massachusetts, seeking forgiveness for a 25-year old assault conviction that occurred when he was 16 years old.   The “onetime ruffian from Dorchester”  bases his request for pardon on his rehabilitation and contributions to society since his conviction.  He also specifies his desire to avoid certain legal restrictions that he claims are impeding his business endeavors and civic activities.

By his own account, Mr. Wahlberg was a troubled teen who had a history of scrapes with the law by the time of the 1988 assault. He states in his pardon application that, if he
had not turned his life around with the help of “faith, hard work, and guidance from some incredible mentors,” he “would likely have ended up like so many of my childhood friends from Dorchester: dead or in prison for a prolonged period of time.”   He expresses remorse for his actions on the night of the assault, as well as “any lasting damage that I may have caused the victims.” He does not specify what that damage might have been, though news reports indicate that it was serious and possibly permanent.

As to his reasons for seeking a pardon, he claims that “my prior record can potentially be the basis to deny me a concessionaire’s license in California and elsewhere, “an important consideration given my personal involvement in various restaurant ventures,” presumably a reference to the fast-expanding chain of Wahlburgers.   He believes that, if pardoned, “I could not be denied a concessionaire’s license on the basis of my prior record,” which may or may not be the case.*

Wahlberg also proposes that a pardon would enable him to become “more active in law enfor
cement activities, including those that assist at-risk individuals.”  He states that only a full and unconditional pardon would, under California law, enable him to “obtain a position as a parole or probation officer.”  True enough, but an improbable ambition for an A-List movie star.  He disavows in his application any immediate interest in obtaining a firearms permit — leading this writer to wonder if one is required on location.

Wahlberg offers another “more complex” reason for wanting a pardon:

The more complex answer is that receiving a pardon would be a formal recognition that I am not the same person that I was on the night of April 8, 1988.    It would be formal recognition that someone like me can receive official public redemption if he devotes himself to personal improvement and a life of good works. My hope is that, if I receive a pardon, troubled youths will see this as an inspiration and motivation that they too can turn their lives around and be formally accepted back into society. It would also be an important capstone to the lessons that I try to teach my own children on a daily basis.

Wahlberg’s pardon quest faces formidable procedural hurdles under Massachusetts law, though he may be able to take advantage of a special fast-track procedure for “particularly meritorious” applications put in place by Governor Patrick last January.  And, no pardons have been granted by a Massachusetts governor since 2002. (Governor Patrick has indicated his intention to grant four pardons, the first of his tenure, but any pardon grants must be approved by the State’s Executive Council, an elected body that has announced its intention to hold hearings on the four cases.) Wahlberg’s barebones description of the episode that led to his conviction, as well as his apparent failure to recognize the serious injuries he caused his victims and to apologize to them, may also be held against him. Finally, his road to redemption may have been somewhat rockier than would be suggested by the dated nature of his criminal record, and the redemption itself of relatively recent vintage.

All the same, whenever a celebrity with a plausible case for pardon comes forward to request relief, it reminds the public of why the pardon power exists in the first place, both for the person requesting it and for the person of whom it is requested:  to recognize redemption, to set an example for others, and to avoid the legal disabilities and stigma that linger years after the fact of conviction.  Whatever the merits of Wahlberg’s request for pardon, and whatever its fate, it shines a light on a beneficent power that has atrophied in Massachusetts.  Hopefully it will encourage the revival of ordinary pardoning for the dozens of ordinary individuals whose futures may depend on it.  As one Boston defense lawyer told the Boston Globe, “If someone high-profile like Wahlberg wants to get a pardon and he’s able to secure a hearing then maybe it gives a road map to the rest of us.”

LATE BREAKING NEWS – In a bit of good news for Mark Wahlberg’s otherwise-foundering pardon bid, one of his victims has come forward to say that 1) Wahlberg didn’t hurt him that badly; and 2) he forgives him.   On December 11, the Daily Mail reported that Johnny Trinh, who was thought to have been blinded by Wahlberg in the 1988 attack that resulted in his conviction, actually incurred this injury years before while fighting Communists in the Vietnam War.  “He did hurt me, but my left eye was already gone. He was not responsible for that.”  Now living in Arlington, Texas, Trinh told the Daily Mail that he is happy for Wahlberg to be given a pardon: “He was young and reckless but I forgive him now. Everyone deserves another chance.”   Trinh said that he would like to meet Wahlberg face-to-face to tell him he doesn’t bear a grudge.  Note to MW:  Go see Trinh if you want that pardon.

* It appears that a pardon would preclude consideration of Wahlberg’s record by Massachusetts licensing authorities, but it is far from clear what effect a Massachusetts pardon would be given by licensing authorities of other states.  See Blackwell v. Haslam, 2013 WL 3379364 (Tenn. Ct. App. Jun 28, 2013) (remanding for consideration whether giving effect to a Georgia pardon restoring firearms rights to a drug offender violates Tennessee’s public policy against restoring firearms rights to violent drug offenders). In most U.S. jurisdictions, the conduct underlying the conviction could still be considered notwithstanding a pardon.See generally Flynn Patrick Carey, Extending the Home Court Advantage:  A Call to Update the Arizona Civil Rights Restoration Scheme, 48 Az. L. Rev. 1129 (2006), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=961965.   

Margaret Love

Former U.S. Pardon Attorney Margaret Love represents applicants for executive clemency in her private practice in Washington, D.C.. An author of Collateral Consequences of Criminal Convictions (NACDL/West), she created and maintains the NACDL Restoration of Rights Resource and serves on the enactment committee of the Uniform Collateral Consequences of Conviction Act.

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