The importance — to citizens and democracy — of granting worthy pardons
President Joe Biden recently said, “The work of the next four years must be the restoration of democracy — of decency, honor, respect, the rule of law … just plain, simple decency.” One way he can start to restore those foundations of democracy is to grant pardons to deserving people.
President Biden should use guidelines already in place to identify deserving pardon applicants. The U.S. Department of Justice manual lists four criteria, which are not constitutionally required, for the pardon attorney to recommend a person for a pardon:
1. Demonstrate a substantial period of excellent conduct after completing the criminal sentence;
2. Identify a job or volunteer activity that is currently prohibited, but would be permissible if the person were pardoned;
3. Convincingly express remorse for having committed the crime; and
4. Explain how the criminal conduct was not so egregious that it is unforgivable.
Donald Trump recently pardoned many loyalists, advisers and relatives. Unfortunately, instead of following the DOJ guidelines, he relied on his family and lobbyists to decide who should receive a pardon. Of the 237 pardons or commutations that Trump granted during his term, it is estimated that only 25 (10.5%) were at the recommendation of the pardon attorney. Trump’s pardons were even more corrupt because he granted most of them as a lame duck, after losing reelection.
Trump having tainted the pardon process should not slow down President Biden. Instead it should serve as a lesson on how Biden should use the pardon power to benefit citizens and strengthen our democracy.
We understand the beneficial effect of pardons because we represented Marine Eric Pizer in his application for a pardon. Home for just one day from a tour of duty in Iraq, Eric, a 24-year-old who had never been arrested, found himself in the middle of a bar fight. He threw one punch, attempting to defend a friend. Yet, he was convicted of a felony by the state of Wisconsin. In the 14 years since his conviction, Eric has never even been suspected of committing any other crime.
Eric dreamed of having a stable career that would support his family. But his job prospects were severely limited by his felony conviction. This is quite common. Without a pardon, a felony can make it impossible to obtain a professional license, borrow money, contract with government entities, serve in the military, run for local office, chaperone school field trips or travel outside the country.
Eric tried to apply for a pardon in 2012. However, former Wisconsin Gov. Scott Walker refused to review any pardon applications, and as a result granted no pardons. Walker’s view was that even pardoning someone like Eric — who had led an exemplary life other than his single criminal offense and who had paid his debt to society by serving his entire sentence — would “undermine” the justice system.
After defeating Walker in the 2018 election, Gov. Tony Evers created the Wisconsin Pardon Advisory Board. The board decides which applicants to recommend for a pardon using the same four criteria as the U.S. pardon attorney.
In 2020, Gov. Evers granted Eric a pardon on the board’s recommendation. Eric has since been hired to a position that he could not have gotten without a pardon, with better pay than any job he has ever had. He is grateful for the faith that the governor placed in him, and optimistic about his future.
Gov. Evers has granted 144 pardons so far. The board meets every month to hold pardon hearings and decide which applications to recommend for a pardon. Although he is not required to do so, we believe he has granted pardons to all the people who have received a recommendation from the board, and only to those people. By creating a rigorous, logical and predictable system for identifying which pardon applications are deserving, the governor has insulated his pardons from even the perception of bias.
President Biden should follow the example set by Gov. Evers: use appropriate criteria to identify worthy people to pardon and grant pardons at regular intervals throughout his term in office.
Why is the granting of deserving pardons beneficial to society? Like Eric Pizer, many people need a pardon to pursue a more productive career: a recent study suggests that receiving an expungement (which has a similar effect on employment to a pardon) leads to an average of 25% higher wages within two years. Higher wages result in a greater ability to pay for food, housing, health care, education and other basic living expenses, which benefits the person pardoned along with his family, community and the economy.
Receiving a second chance — when earned — also improves one’s emotional health. A pardon can bring closure to an embarrassing incident from the past, and restore one’s pride after having been labeled a felon for life. And granting deserving pardons sets a humane tone for how a government should treat citizens and how citizens, even those who are convicted of crimes, should treat one another. A person who has committed a felony and knows that with hard work there is a real chance of being forgiven is more likely to be a productive member of society than a person who has no hope of ever being pardoned.
Currently the U.S. pardon attorney has a backlog of 14,000 federal pardon applications to review. President Biden should clear this backlog by granting pardons to those who deserve it, and rejecting the applications that are unworthy. As Alexander Hamilton wrote in the Federalist Papers, the granting of deserving pardons is needed to promote a healthy judicial system; without a strong system for granting pardons, “justice would wear a countenance too sanguinary or cruel.”
Put simply, granting pardons to people who deserve a second chance is the right and decent thing to do.
David Relles has practiced law in Wisconsin for more than 40 years, focusing on areas in civil and criminal litigation. David’s co-author, Noah Relles, is an Associate Attorney at Reuter, Whitish & Evans in Madison Wisconsin. Noah is licensed to practice in Vermont and Wisconsin and is a graduate of Berkeley Law.