Insights: Tamara Holder on Pardons, Illinois, the Governor

Tamara N. Holder interned with the Cook County State's Attorney's Office (Chicago) and Miramax Films (Los Angeles) before graduating from The John Marshall Law School. As principal of The Law Firm of Tamara N. Holder, LLC, her practice focuses on criminal defense, expungement, racial discrimination, police brutality, public policy, and pro bono work. Holder founded The Rainbow PUSH Expungement Clinic, where she meets regularly with individuals to review criminal records and provide advice on expungements and other legal issues. She exposed improper employment practices in the railroad industry regarding those with criminal records and spearheaded a Congressional inquiry and a hearing before the Congressional Committee of Homeland Security in February of 2007. In July of 2007, Holder testified as an expert witness before the Congressional Committee of Transportation, Sub-Committee of Maritime and Infrastructure. In the past, she has met privately with Governor Rod Blagojevich on the issue of pardons and Attorney General Lisa Madigan on criminal sentencing and expungement laws. Last month, she organized a "We Need Pardons" rally at the Thompson Center in Chicago. PardonPower had these questions for Ms. Holder:

PardonPower: First, how would you explain the difference between pardon and expungement and their relationship to each other in the State of Illinois?

Holder: There are actually three ways you can have your Illinois criminal record cleared: 1) expungement, 2) sealing, and 3) governor's pardon. Illinois law defines what State crimes can/cannot be expunged or sealed. The first step in determining one’s eligibility for expungement, sealing or pardon is to look at the record as a whole. All arrests, even those that did not result in conviction are on an individual's “record.” So, the “record” refers to all cases for which a person has ever been arrested.

Expungement is an option when an applicant has no convictions (misdemeanor or felony) on his/her record. Even if they are eligible, the decision is entirely a matter of judicial discretion. (For example, a judge may not grant a petition to expunge for a person arrested 10 times for battery, even if none resulted in conviction.) In most cases, however, such petitions are granted. The judge of the county where the arrest took place orders original records of all arrests, original fingerprints and mug shots, to be returned to the applicant. Any internal computer records must be destroyed and removed from any public access system. The courthouse seals the file(s) so the public can't gain access. If there were arrests in multiple counties, petitions must be filed with each county courthouse.

Sealing is an option for those with a conviction on their record. There are two ways to seal a record: partial sealing and complete sealing. Partial sealing is for someone with a non-sealable offense on their record plus other sealable offenses. (For example, the person has a felony conviction for burglary on their record - which is not sealable - and 3 arrests for misdemeanors that were thrown out - which are sealable. The 3 arrests are sealed, but the burglary remains on record.) Total sealing is for someone with nothing but sealable offenses on their record. (For example, the person has a misdemeanor conviction for theft and 3 arrests for misdemeanors that were thrown out. We seal the 3 arrests and the conviction.) No felony conviction is sealable and no misdemeanor violent crime conviction is sealable. However, most misdemeanor convictions are sealable. Unlike expungement, the record is not destroyed; instead, the arresting agency (for example, Chicago Police), the Illinois State Police and the Clerk's Office will seal the record and remove the applicant's name from the electronic index. Government agencies can still access the file but only a judicial order can allow public view of the record.

If someone does not qualify for expungement or sealing, they must seek a pardon from the governor. Pardons are not just for people who've done time in prison! Anyone who has a conviction needs a pardon! However, the governor has the power to both pardon an offender and issue an executive order to expunge the conviction. In the case of Sharon Latiker, former Governor Ryan granted a pardon but did not order an expungement. Gov. Blagojevich, on the other hand, does not grant pardons without a following order for expungement - which is a good practice! Who wants a pardon when the crime is still visible to the public?!? Pardons are also a matter of discretion, and they are handled on a case-by-case basis. There is no requirement for the governor to address a pardon application within any period of time. However, he must make a decision on all petitions before he leaves office. It is not uncommon for a governor to wait until the end of the final term to make such decisions and avoid potential political backlash. (Witness what Gov. Blagojevich is going through now!)

PardonPower: How would you generally describe/assess Governor Blagojevich in terms of his use of the clemency power?

Holder: First, it is important to understand that, in the State of Illinois, “clemency” is for the person who is still in prison. A “pardon,” on the other hand, is for the person who has been released - or never entered prison - but seeks to have a conviction removed from his/her record. Currently, thousands of petitioners are waiting for the Governor to make a decision on their pardon petition. They have already submitted the documents and have had a hearing before the Prisoner Review Board. The Board has done its work by hearing the cases and making a recommendation. But the Governor is unfairly sitting on approximately 2000 pardons! He's only granted 67 since he's been in office.

What is the hold-up? What is his reasoning for not granting or denying the petitions? He's been so heavily criticized about pardons he has recently granted that it appears he is in fear of more political backlash. Of course, many people reject the idea of pardon ouright. I think it's because they think pardons are only for serial killers! Not true. The average 18-year-old who was caught with marijuana and given felony probation will also need a pardon. Otherwise, he is a convicted felon for the rest of his life. Does that sound fair? Forget “fair.” Does that even make sense?

PardonPower: So, is it accurate to say the Governor’s "non-use" of clemency powers is a partial reflection of societal attitudes and larger trends in the criminal justice system?

$60 billion a year is spent on incarceration. 700,000 people leave prison every year as convicted felons. And the number is even greater if you include people who are terminated from felony probation. As of December 2007, 7.2 million Americans were incarcerated or on probation. And more than 39,000 adults are released from the 28 Illinois state prisons each year. Again, the number is greater if you include Illinois residents terminated from probation. Regardless, if one was in prison or on probation, the felony conviction remains for life. 30 years in prison or 1 year on probation, both offenders are equally the same. Both are convicted felons for life. The costs to society of keeping convicted felons out of work and without an education are far greater than they would be if we helped them reintegrate: get an education and a job, provide for their family, pay taxes and become a productive member of society.

Section 115 of the federal 1996 Personal Responsibility and Work Opportunity Reconciliation Act imposes a lifetime ban on cash assistance and food stamps for those convicted of a drug offense. This doesn't make sense. Many people are sick. They have the disease of addiction. They need help and treatment, not punishment. The majority of the convicted offenders are parents. If they cannot get a job because of their record and they cannot feed their children, what are their options? Our penal system must begin to focus on rehabilitation, not a revolving door of punishment.

PardonPower: Do you think the process for clemency in Illinois needs to be changed or reformed in any specific way?

Holder: Absolutely. The law only requires the Governor make a decision on all petitions before he leaves office. This means every petition can sit on his desk until just before he walks out the door. As a consequence, there are petitioners from 2003 who are still waiting for a response! The function of the Prisoner Review Board (the body of people who review every petition and send it to the Governor for a final decision) seems pointless. I don't know how much the law can be changed with regard to “forcing” the State’s chief executive officer to make a decision. But we could amend some of our laws to expand both expungement and sealing by statute. For example, first-time offenders of all non-violent crimes should be able to seal their record if they have not had a conviction within x amount of years. Maybe 10 years is too soon but what about 20 years? Should a 40 year old man still be considered a “convicted felon” for selling marijuana his junior year in college? We can make the law as strict as possible, but make the law! 20 years without even a subsequent arrest?I think that is a bit harsh but maybe some conservatives do not. But at least we are allowing certain people to clear their criminal record after a defined period of time, no matter how long, without putting all of the power in the Governor's hands

Another part of the law states that a petitioner cannot re-petition the Governor for a pardon until he has been denied and waits for a period of one year before resubmission. So, if the Governor does not make a decision for years, the petitioner cannot make amend his/her petition for re-submission. I have a client who submitted 3 years ago and is waiting for a decision. In the past 3 years, he has gotten an MBA, built a homeless shelter and moved his sick mother into his home to care for her full-time. I think re-submission each year should be allowed, even if the Governor hasn't made a decision. This allows the Governor to see how petitioners have progressed as productive members of society. Under current law, the petitioner who waited for a response since 2003 must simply continue to wait. That person should be able to knock on the Governor's door every 365 days.

Finally, I do believe in the confidential process of the pardon. The governor should not have to publicly share his decisions. It's ludicrous that Blagojevich has been asked to share all records of all pardons granted. He is entitled to a certain level of confidentiality and secrecy.

PardonPower: What do you think of the recent court ruling that applicants have a "right" to a decision on clemency applications within a "reasonable" amount of time? Will this ruling blossom or die a quick death on appeal?

Holder: As much as I like the “reasonableness” requirement because too many people are awaiting a response, I do not believe it will hold up. Traditionally, governors (and even presidents) have granted pardons with their last authoritative stroke of the pen so as to avoid political backlash. I think it will be very difficult to impose the “reasonableness” requirement on the Governor as it pertains to his decision to grant a pardon, particularly because decisions are on a case-by-case basis. Instead of choosing “reasonableness” as the standard, the law could clearly define a maximum amount of time that can lapse from the time the Prisoner Review Board sends it to the Governor to the time he makes a decision.

PardonPower: Are the Chandra Gill and Sharaon Latiker pardons much to do about nothing, or are legitimate concerns being expressed? What is your take on all the attention they are getting?

Holder: The Gill and Latiker decisions are just another way for the media and the Governor's adversaries to attack him. Ms. Latiker was granted the pardon by Governor Ryan. Governor Blagojevich simply ordered the expungement (see explanation above). What's the big deal? Governor Ryan already forgave Ms. Latiker. Gov. Blagojevich was simply clearing her record as allowed by the law. Ms. Gill did have a lot of political support, not only from Rev. Jesse Jackson, Sr., but also from State Rep. Connie Howard. Ms. Gill is well-known by these political figures and their testimony was not based on political motive but based on personal knowledge of Ms. Gill. Did her witnesses give her more of an edge than the average Joe? Of course. But, that doesn't make her pardon a “political pardon.” Take away her witnesses and she was still deserving of a pardon. She is college educated, had no criminal background before the unfortunate incident (where she was convicted by an all-white jury for “aggravated battery” to a police officer during a basketball game where she was mentoring our youth), and she is an active member of society, etc. I really doubt the Governor granted these pardons as political favors. Political favors come in much bigger packages…..(Clinton’s Glenn Braswell and Carlos Vignali pardons look more like “political favors” than Latiker and Gill! I mean, come on!)

PardonPower: What can be done, if anything, to make governors in the states less hesitant to use clemency?

Holder: The pardon process must become more sacred and confidential. Governors should not be given the entire burden to make a decision on the pardon and then all of the criticism for granting the pardon. Further, as explained above, if the laws were more expansive and allowed for more judicial expungements, governors would not be burdened with so many petitions. Legislators in the states must find ways to conceal records of some felonies. Not all, but some. (For example, the kid who sold pot at 18 and who is now 40, who was given felony probation and has not been arrested since.) The burdens on the typical governor to pardon any person with a felony conviction - ever in their lifetime - is too great. Legislators need to step up.

The Law Firm of Tamara N. Holder, LLC19 South La Salle Street, Suite 1500Chicago, IL 60603312.981.1414 (telephone)312.787.1667 (facsimile) http://www.xpunged.com/