A recent issue of Governing Magazine reports that pardoning is “making a comeback” after decades of neglect.  It would be nice if it were true.

But the evidence of comeback is thin. Almost all of the jurisdictions where pardoning is thriving today are the same ones where it was thriving a decade ago.  In a dozen states, including Connecticut, Delaware, Georgia, Nebraska, South Carolina and South Dakota, pardon has never been neglected, much less abandoned by responsible officials. In these jurisdictions and a handful of others, pardon has deep roots in the justice system and is supported by accountable institutions of government.

It is certainly true that Pat Quinn of Illinois and Jerry Brown of California have made generous use of the power of their office after years in which the pardon power in their states languished unused.  Terry McAuliffe of Virginia is a newcomer to the small group of governors who evidently feel that pardoning is a responsibility of office.  All three are to be commended for it.  But three swallows do not make a summer.

For the most part pardoning in the United States remains a timid exercise in tokenism, and the vitality of pardon in most jurisdictions still depends on the personal predilections of the particular elected chief executive.  Most are not very interested in an activity that has few rewards and many pitfalls.   Our President is a case in point.  A number of current governors have refused to use their pardon power at all, some invoking bogus separation of powers arguments (Scott of Wisconsin), others making empty promises (Hickenlooper of Colorado).

The Marshall Project recently published an article asking if pardon was still the third rail of American politics. Apparently most governors think it is, whatever changes there may have been in the public mood.

Legislative alternatives to pardon

It seems to me that if governors and presidents are reluctant to use the power of their office to temper what Alexander Hamilton called the “necessary severity” of the criminal code, they have an obligation to see that the legal system addresses the needs pardon serves. Ohio Governor John Kasich did that when he supported legislation to authorize courts to issue “certificates of qualification for employment” to help people with convictions overcome legal restrictions that bar them from certain jobs.   Governors in Indiana, Louisiana, Minnesota and Vermont have also recently signed legislation giving courts the power to do what they are evidently reluctant to do themselves.  That is an acceptable alternative approach to governing, both in theory and in practice. Indeed, pardon was never supposed to be a substitute for law reform, and courts or administrative agencies are likely to be fairer and more accessible than an elected official.

Unfortunately, there is no indication that the Obama Administration is interested in supporting legislation that would ameliorate the adverse effects of a criminal record, though this is one of the few areas in which there is bipartisan support for reform in Congress.  The President’s failure to give criminal justice reform more than a passing mention in the State of the Union address, and only in the context of police/community relations, was discouraging.

Many U.S. jurisdictions are attempting to deal with the problems created by mass incarceration, by reducing the number of people who go to prison and by improving social services to keep those who do from going back.  Mass conviction has produced a separate and less tractable set of problems, including proliferation of collateral consequences that discourage rehabilitation, and creation of a permanent class of second class citizens defined by their criminal record.

The laboratories of democracy have not yet produced a single legislative solution that can command consensus.  Reform efforts in some jurisdictions involve limiting public access to criminal records through expungement or sealing, an approach that has both practical and theoretical drawbacks.  Other jurisdictions have adopted the more transparent judicial certificates recommended by the 2010 Uniform Collateral Consequences of Conviction Act and the 2014 Model Penal Code: Sentencing. Indiana‘s approach combining the two may be the wave of the future.

With a clear problem demanding a legislative solution, the recommendation of the National Association of Criminal Defense Lawyers looks appealing:

The three branches of government, on the federal, state, and local levels, should undertake a comprehensive effort to promote restoration of rights and status after conviction.   This is a major effort that requires a multi-faceted approach.  It should include enactment of laws to circumscribe or repeal existing collateral consequences, and  a resolve to stop enacting new ones. More fundamentally, government entities, the legal profession, the media and the business community must promote a change in the national mindset to embrace concepts of redemption and forgiveness, including a public education campaign to combat erroneous and harmful stereotypes and labels applied to individuals who have at one point or another committed a crime.  As a cornerstone of this movement, the United States and the states and territories should establish a “National Restoration of Rights Day” to recognize the need to give individuals who have successfully fulfilled the terms of a criminal sentence the opportunity to move on with their lives.

This will take leadership at a national level.  Given the support for collateral consequences reform in Congress and in governor’s mansions across the country, perhaps we will get it.