As the presidential pardon of everyone’s favorite Thanksgiving galliformes makes front-page news across the country (a tradition that the many human clemency petitioners who have spent years awaiting action must struggle to find the whimsy in), two law professors take the federal clemency system to task in a new Washington Post opinion piece. In the piece, professors Rachel E. Barkow (NYU) and Mark Osler (University of St. Thomas) argue that the long and multi-tiered review process for federal clemency petitions could be significantly improved if the president would minimize the Justice Department’s involvement in the process while shifting responsibility to a bi-partisan review commission. From the article:
Ohio’s on-line inventory of collateral consequences – a useful tool for defense lawyers
Kelley Williams-Bolar was a single mother in Akron Ohio, a teacher’s aide who was studying to become a teacher herself. Her story made headlines in 2011, when she was accused of misusing her father’s home address to enroll her two young daughters in a public school they were not entitled to attend. After her own home was burglarized, Kelley had enrolled the girls in their grandfather’s school district, so they could spend each afternoon after school safely at their grandfather’s house. To make this possible she had signed a “grandparent affidavit” saying that the girls lived with their grandfather. The new school district ultimately rejected the affidavit, and she withdrew the girls from t
heir new school at the end of the school year.
Ohio’s “grandparent affidavit” form contains a printed warning, advising that anyone who submits a false affidavit can be charged with “Falsification, a first degree misdemeanor.” But that warning gave no hint of what would actually happen to Kelley. Eighteen months after her daughters left the new school, the district attorney charged Kelley with felony Grand Theft, claiming she had “stolen” tens of thousands of dollars’ worth of tuition for her children.
Particularly given Kelley’s career aspiration to be a teacher, her defense lawyer could have made good use of a new online resource called CIVICC (Civil Impacts of Criminal Convictions), a computerized compendium of state collateral consequences linked to the crimes that trigger them. (Kelley’s felony conviction was eventually reduced to a misdemeanor by Governor John Kasich, high level intervention that cannot be counted on to substitute for effective advocacy.)
At the CIVICC website, counsel in a case like Kelley’s could run a quick search using the keyword “theft,” and learn right away that conviction on the Grand Theft charge would expose her to 509 possible collateral consequences (“civil impacts”) under Ohio law, burdens she would bear long after her criminal sentence was complete.
Reduced charge more harmful than original?
An earlier post highlighted the dilemma that some young Wisconsin defendants face because of the narrow scope of the law on sealing conviction records. The court can seal the record of certain convictions, but the record of dismissed charges remains accessible to the public in a searchable online database. Therefore, the dismissal can increase the potential for prospective employers to learn of an applicant’s legal troubles.
Now the Wisconsin Court of Appeals has held that the court may not seal the record of a n
on-criminal violation. Kenosha County v. Frett, 2014AP6 (Wis. Ct. App. Nov. 19, 2014). The appellate court reviewed the statutory language and concluded that references to 1) the maximum term of imprisonment for sealable offenses; 2) “completion of the sentence”; and 3) “certificate of discharge” from the “detaining or probationary authority” showed that the procedure applies only to criminal convictions.
For a young woman cited in 2012 in Kenosha County for underage drinking, now a college student in New York, the decision means that the record of her conviction for the amended charge of littering remains publicly accessible. If she had been convicted of drug possession or fraud she might have been able to close the book on this episode.
Although the Frett case did not involve the reduction of criminal charges, the decision means that some defendants might prefer to have a sealed criminal conviction than to have a public record of a reduced, non-criminal charge (the public record of the reduced charge also shows the original charges).
The Frett decision may be appealed to the Wisconsin Supreme Court, and policymakers are considering statutory amendments to expand judicial authority to seal records. For now, however, non-criminal dispositions and dismissals are publicly accessible in situations in which some criminal convictions can be sealed.
New reports evaluate national policy on juvenile record confidentiality
This month the Juvenile Law Center released an impressive pair of reports evaluating national policy on public access to juvenile criminal records. The first report, Juvenile Records: A National Review of State Laws on Confidentiality, Sealing and Expungement, provides a national overview of state laws, and proposes standards to mitigate exposure to collateral consequences as a result of a juvenile record. 
The report also makes recommendations for policy-makers, courts, defense attorneys, and youth-serving agencies. Supplementing the national overview are fact sheets on the law in each state, including the availability and effect of expungement or sealing, and an overview of the process for obtaining such relief. (These fact sheets can be found by clicking on the relevant state on the map here).
A second complementary report, Failed Policies, Forfeited Futures: A Nationwide Scorecard on Juvenile Records, scores each state on the degree to which it meets the Center’s ideal standards for juvenile record protection. The Center based its evaluation of the states on its “core principles for record protection” including:
Canada stiffens policy on sealing of criminal records – but it still looks pretty liberal from here
A couple of news items about an increase in clemency applications in Canada made me curious to learn more about how restoration of rights works in our Northern neighbor.
Canada has long had a policy of virtually automatic sealing of criminal records through what is known as a “record suspension” (before 2012, called a “pardon”). The Criminal Records Act (CRA) makes record suspension available from the Parole Board of Canada for any 
offense except sex crimes involving children, and to any individual except those convicted of multiple serious crimes, after waiting periods of five years from completion of sentence for “summary” offenses and 10 years for “indictable” offenses. (Prior to 2012 the waiting periods were three and five years.) Non-conviction records may be purged sooner.
Once a record has been suspended, all information pertaining to convictions is taken out of the Canadian Police Information Centre and may not be disclosed without permission from the Minister of Public Safety. The CRA states that no employment application form within the federal public service may ask any question that would require an applicant to disclose a conviction. It is unlawful under Section 3 of the Canadian Human Rights Act to discriminate in employment or housing or union membership against anyone based upon “an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”
In 2012-13 the PBC ordered more than 6600 pardons and records suspensions, 97% of all applications received. (According to the PBC website, since 1970 more than 460,000 Canadians have received pardons and record suspensions. “96 percent of these are still in force, indicating that the vast majority of pardon/record suspension recipients remain crime-free in the community.”)
The 2012 amendment of the CRA to extend the eligibility waiting periods has resulted in an increase in applications for the extraordinary remedy of “clemency,” which has higher standards but no eligibility waiting period. Clemency, formally known as the “Royal Prerogative of Mercy” (RPM), may be granted in federal cases by the Governor General or the Governor in Council (i.e. Federal Cabinet), and applications are staffed by the PBC. Clemency is intended “only for rare cases in which considerations of justice, humanity and compassion override the normal administration of justice.” All other avenues of relief must have been exhausted, and there must be must be “clear and strong evidence of injustice or undue hardship.” In contrast to the thousands of ordinary records suspensions granted each year in Canada, there are only a handful of these extraordinary clemency grants. In 2012 there were 52 RPM applications and only 12 grants.
Restoration of Firearm Rights After Conviction: A National Survey and Recommendations for Reform (Dec. 2025)
Positive Credentials That Limit Risk: A Report on Certificates of Relief (June 2024)
Advancing Second Chances: Clean Slate and Other Record Reforms in 2023 (Jan. 2024)
Accessing SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws (Dec. 2023)
The Many Roads from Reentry to Reintegration (March 2022)
The Reintegration Report Card
