Guest Post on Pardons and Judicial Record Sealing.

This guest post, “Ohio pardons provide only forgiveness, not forgetfulness,” was originally published on January 29, 2015, on the Collateral Consequences Resource Center website, www.CCResourceCenter.org.  It is republished with permission of its author, Margaret Love, who is a former U.S. Pardon Attorney now representing applicants for executive clemency in her private practice in Washington D.CAn 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. In the post, Ms. Love discusses the Supreme Court of Ohio’s recent decision in State v. Radcliff, puts the case in a broader context, and takes issue with the belief that a pardon is worth little unless it results in a sealed judicial record.

Guest Post: Ohio pardons provide only forgiveness, not forgetfulness.

Author: Attorney  Margaret Love

On January 28, 2015, the Supreme Court of Ohio settled an issue it has toyed with for several years, relating to the inherent power of courts to seal criminal records.  In State v. Radcliff, a closely divided court held that judicial power to seal a conviction record, including the record of a conviction that has been pardoned, is limited by law. In Ohio, there is no statutory basis for sealing a pardoned conviction as there is in many (though not most) states.  The majority evidently found this conclusion an unhappy one, lamenting that “until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness.”

“Only forgiveness.”  Is pardon then such a second class prize?  What makes an official determination of the recipient’s good character by the state’s highest elected official so much less attractive an option for mitigating the adverse consequences of conviction than pretending it never occurred?  If the answer is that the American people are relentlessly unforgiving, we clearly have some national soul-searching to do.

As will come clear from the following discussion, I do not share the Radcliff majority’s evident belief that a pardon is worth little unless it results in a court expunging the record of the pardoned conviction (and presumably the pardon itself).

In January 2011, Governor Ted Strickland pardoned James Radcliff’s five dated convictions (which included “a 1982 felony conviction in Franklin County for breaking and entering a donut shop while possessing a screwdriver”) in recognition of his 30 years of law-abiding conduct.  A month later Radcliff went to court to have his record sealed, even though the sheer number of his crimes put him outside the category of people authorized to pursue that relief under Ohio Rev. Code Ann. §§ 2953.31.  The court of appeals thought Radcliffe’s record of rehabilitation “deserves redemption,” and ordered that his petition be granted. The government appealed, arguing that the court had no inherent power to seal a record of conviction, even a pardoned one.  The high court held that “if he is to have that redemption, it must come from the General Assembly.”

Earlier decisions of the Supreme Court of Ohio had found inherent judicial power to expunge or seal convictions, but that was before the legislature entered the conversation to define with some precision exactly what convictions it wanted courts to be able to seal.  The enactment of sealing legislation meant there was no longer a role for the court to take an independent view of the matter.  Over and above the detailed sealing law, the Radcliff court pointed out that the legislature had also made certain provisions for retaining pardon documents, noting that “[t]he fact that the General Assembly has required that a record of a defendant’s pardon be filed in the same court where the pardoned offense was originally adjudicated expresses the General Assembly’s intent that courts must preserve the record of a pardon, not conceal it.”

In determining that courts had no power independent of statute, the Ohio high court expressed disappointment over the legislature’s failure to provide for a broader sealing remedy in cases like Mr. Radcliff’s:

Despite any frustrations judges may have with their inability to do justice in any given case of a pardoned offender, judges must respect that it is the role of the legislature to address the statutory scheme on sealing records, even in cases in which gubernatorial pardons are granted. Until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness. . . . . The pardon does not wipe the slate clean. If the slate is to be wiped clean for those pardoned of crimes, including Radcliff, the General Assembly must act.

The majority associated itself with the Pennsylvania Supreme Court in stating that “[a] pardon without expungement is not a pardon.”   The three dissenting justices thought it “unnecessary in this case to state the proposition so unequivocally,” though they thought there was enough left of the inherent judicial power to order expungement in the “unusual and exceptional circumstances” of a pardon.

In concluding that courts have no inherent authority to seal pardoned convictions, the Ohio high court is in good company.  The Supreme Court of Mississippi recently came to a similar conclusion about the limits of judicial authority in closing records, so that pardon in that state also “provides only forgiveness, not forgetfulness.”

In this regard, it seems worth noting that a majority of states do not authorize sealing or expungement of pardoned convictions.  Of those that do, it is by statute in all but three states (Indiana, New Jersey, and Pennsylvania).  Even a presidential pardon provides “only” forgiveness.

It appears that a national discussion of the relative merits of forgiving and forgetting as a way of restoring rights and status may be well underway.

NOTE: It seems anomalous that Ohio law would provide for “forgetting” out-of-state and federal convictions by authorizing Ohio courts to seal them, but not for “forgiving” them through a Certificate of Qualification for Employment. (See post on CQE’s here.) How will an Ohio court enforce its sealing order directed to a foreign jurisdiction?

 

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