Virginia Pardon Information

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Authority

The Constitution of Virginia gives the Governor the power to grant pardons, reprieves, commutations, and remission of fines and penalties.[1] The Governor must report to the Legislature annually describing the circumstances of every case he pardons and the reasons for the pardons.[1]

There is a body called the Parole Board which has the authority, upon the Governor’s request, to investigate and make recommendation to the Governor on pardon applications.[2] The Parole Board is made up of five members who are appointed by the Governor and confirmed by the General Assembly.[3] The members serve at the pleasure of the Governor.[3]

The Secretary of the Commonwealth is the office that receives all pardon applications. You can find out more about Virginia pardons on the Secretary of the Commonwealth’s website at http://www.commonwealth.virginia.gov/JudicialSystem/Clemency/pardons.cfm.

Each Governor has the discretion to set his or her own guidelines/policies regarding who is eligible for a pardon/clemency and the process to apply.[4]

Because the focus of this site is on pardons, we do not discuss reprieves, commutations, parole, remission of fines and forfeitures, or other types of clemency that may be available in Virginia here. We also do not discuss judicial alternatives such as record expungement, record sealing, setting aside and dismissal of convictions. You should talk to an attorney if you think any of these alternative options may be more appropriate for you.


Eligibility

There are no application fees to apply for a pardon in Virginia.

There are three types of pardons that you can apply for in Virginia:

  1. A simple pardon.
  2. A conditional pardon.
  3. An absolute pardon.

A simple pardon is an official statement of forgiveness.[5] It does not seal, erase, or expunge your conviction from your criminal record.[5] If you are granted a simple pardon, there will be an indication in your record that you have been granted the pardon.[6] Getting a simple pardon can be beneficial in terms of removing some of the stigma of conviction, advancing your educational and employment prospects, and improving your self-esteem.[5]

In order to obtain a simple pardon, you must show evidence of good citizenship, plus favorable recommendations from the Parole Board and public officials who were involved in the case (judge, prosecutor, etc.).[5] You must also have been released from your sentence for at least five years before you can apply for a simple pardon.[6] For a felony conviction, you must have applied for and been granted a Restoration of Rights before applying for a simple pardon. Restoration of Rights is basically another type of clemency that is offered in Virginia. You can find out more about the Restoration of Rights process and access the application forms on the Secretary of the Commonwealth’s website: http://www.commonwealth.virginia.gov/JudicialSystem/Clemency/restoration.cfm.

A conditional pardon is available only to a person who is currently incarcerated.[5] It is primarily used by an inmate who wants to be released from prison early (in this sense, it is similar to parole).[5] As the name suggests, there are conditions attached to the pardon, which if you violate could cause your pardon to be revoked and you to be thrown back in prison.[5]

In order to get a conditional pardon, you will need to show “substantial evidence of extraordinary circumstances” to warrant the Governor to grant you the pardon.[7] Having a terminal illness with a life expectancy of three months or less would qualify you for a conditional pardon.[7] Of course, this is not the only “extraordinary circumstance” that would qualify you for a conditional pardon.

An absolute pardon is the most difficult type of pardon to get. This pardon is based on the idea that you were innocent of the crime and were wrongfully convicted of.[5] An absolute pardon is the only type of pardon that would allow you to have your conviction expunged from your criminal record.[5]

In order to qualify for an absolute pardon, you must have pleaded “not guilty” throughout your trial, notwithstanding the fact that you were ultimately convicted. In other words, you must have maintained your innocence throughout the proceedings. Also, you must have exhausted all judicial appeals and other post-conviction remedies that were available to you before you can apply for an absolute pardon.[8]

There was a new law passed in 2004 that allows a person who has been convicted to have the court itself consider a claim of innocence; if the court is convinced that the person is truly innocent, the court can issue something called a Writ of Actual Innocence (which is much like an absolute pardon).[8] In most cases you must have tried to get a Writ of Actual Innocence before you can ask for an absolute pardon from the Governor.[8]

The Governor can only grant a pardon for a Virginia conviction.[9] If you want a pardon for a federal conviction, you must do that through the United States Department of Justice, Office of the Pardon Attorney (see our page on this site on federal pardons). If you want to pardon for an out-of-state conviction, you should find the appropriate page on this site dealing with pardons in that particular state.

Finally, pardons are granted very sparingly in Virginia.[9] In 2009, 64 pardons were granted.[10] Your chance of getting a pardon largely depends on your individual circumstances. Naturally, the older and less serious your conviction, and the more compelling your life story, the higher your chance of getting a pardon. Your chance of getting a pardon can also depend on who is serving as Governor at the time your application is reviewed; some Governors are simply more lenient than others in handing out pardons.

The Application Process

There are no application fees to apply for a pardon in Virginia. The process to apply for a pardon varies depending on which type of pardon (see Part B) you would like to apply for. Regardless of which pardon you apply for, however, there are no formal, standardized application forms. Rather, applying for a pardon in Virginia is simply a matter of writing a letter addressed to the Governor.

Simple Pardon

If you would like to apply for a simple pardon, and have satisfied the eligibility requirements indicated above, your letter to the Governor must include the minimum following information[6]:

  • Your full name
  • Any previous names and/or aliases you have used.
  • Your Social Security Number.
  • Your date of birth.
  • Your mailing and street addresses.
  • Your phone number(s).
  • For each conviction (misdemeanor or felony) you have ever received, list the:
  • Date you were convicted.
  • Court you were convicted in.
  • The sentence you received or the outcome of the case.
  • A detailed statement of the facts/circumstances of the offense.
  • An explanation as to why the Governor should grant you a pardon.

If you do not remember all of your convictions or have insufficient information about particular convictions, you may need to obtain a Virginia criminal history report for yourself. You can do this by contacting the Department of State Police, Central Criminal Records Exchange, by calling (804) 674-2000. You can also do an online request on its website at http://www.vsp.state.va.us/. Your report should list all convictions you have ever received in Virginia.

If you have convictions in other states, you may need to obtain a more comprehensive, nationwide criminal report from the Federal Bureau of Investigation. You can find out how to do this by calling the FBI’s headquarters in Washington, D.C., at (202) 324-3000, or logging onto its website at http://www.fbi.gov. The FBI’s website also has a list of local FBI offices you can call. Alternatively, you can contact the criminal history record repository (which keeps a record of all criminal activity in a state) in each state where you have arrests/convictions. Listed on Criminal History Record Repositories is a list of criminal history record repositories for all 50 states.

Remember that you must show you have been a good citizen in order to get a simple pardon. We suggest that you submit a detailed and genuine personal statement detailing your reasons for requesting a pardon.

In your statement, do not simply say that you want a clean criminal record. Tell the Governor how your conviction has negatively affected you and/or your family. For example, explain how you have been denied housing or employment opportunities because of your conviction, and how this has prevented you from providing you and your family an adequate standard of living. Submit any proof you may have (such as denial letters) to support your claims.

If you are facing deportation because of a conviction, explain how being separated from your family will negatively affect you as well as them. If you are pursuing a career in a field that requires you to obtain a pardon, submit documents, letters, or other proof from a prospective employer, licensing agency, or attorney verifying this necessity. If you need to regain your gun rights, explain why you need this—for example, you are pursuing a career that requires the use of firearms, or you want to take part in your family hunting traditions, or you simply want to feel more secure and able to defend yourself and/or your family after a recent traumatic event.

Also indicate on your personal statement all the positive things that have occurred in your life—for example, educational achievements, new or stable employment, marriage and children, community involvement, charitable services or donations, law-abiding behavior, etc. Submit copies of your college transcript, high school diploma or GED, military certificates, marriage certificate, honors and awards, and other proof of your rehabilitation and good character. Explain what your future plans are and how a pardon would help you.

In writing your personal statement, keep in mind that the Governor will not be retrying you for the offense. Although you may feel the need to explain the facts of the crime from your perspective, avoid trying to make excessive excuses for your crime and arguing away your guilt. However you feel about the crime, you have already been found guilty. The Governor is probably more interested in seeing your remorse for the crime, and your understanding of its effects on the victim and society, than anything else.

Also, although not required, we suggest that you submit a few letters of recommendation from credible people (such as your boss) who know you well and can say good things about you. These letters should indicate to what extent the writer knows you and why he or she thinks you should be granted a pardon. The letters should also indicate the writer’s contact information for verification purposes. If possible, you should choose individuals who are not related to you, in order to avoid the appearance of bias.

Remember to find out who the current Governor is at the time you apply, so that you address the Governor by his or her correct name. Make sure you keep a copy of everything you send for your records. Your entire application/petition, along with all supporting documents and letters of recommendation, should be mailed to:

The Honorable [current Governor’s name]
Governor of Virginia
Office of the Governor
State Capitol, 3rd Floor
Richmond, VA 23219

Your simple pardon application will first be sent to the Parole Board for review, and, if the Parole Board finds that your application has merit, it will conduct a thorough investigation.[6] The Parole Board’s investigation can take up to a year to complete. There will not be a hearing, meeting, or conference on your application.[6] However, you should still be upfront and cooperative with the Parole Board, the Governor’s office, and their agents at all times.

After the Parole Board has completed its investigation, it will make a recommendation to the Governor, who then has the final say on whether or not you receive a pardon. The Governor’s decision is final, which means you cannot appeal to a court if you are unhappy with the decision. However, if you are denied, you can reapply two years later after the denial.[6]

Conditional Pardon

If you would like to apply for a conditional pardon, and you are an inmate at a prison facility, you, your family member, or your attorney must provide the following information in a letter addressed to the Governor[7]:

  • Your full name.
  • Any previous names and/or aliases you have used.
  • Your inmate number.
  • The location where you are confined/incarcerated.
  • Your social security number.
  • Your date of birth.
  • Your mailing address.
  • For each conviction (misdemeanor or felony) you have ever received:
  • The date of the conviction.
  • The court where you were convicted.
  • The sentence you received or the outcome of the case.
  • The date you will be eligible for parole.
  • The date which you will be mandatorily released.
  • A detailed statement of the facts/circumstances of the offense.
  • An explanation as to why the Governor should grant you a pardon.

Refer to the previous section on Simple Pardons to find out how to obtain your criminal records and suggestions on what to include in your letter to the Governor.

Remember the standard for getting a conditional pardon is that you must show “substantial evidence of extraordinary circumstances.” For example, if you have a terminal illness and do not have much longer to live, explain this and provide proof of the terminal illness (e.g., a letter from the prison doctor). If a close family member of yours has a terminal illness and you wish to be with them during the life days of their life, explain this and provide proof of their illness. If you feel your life is in danger as long as you remain in prison, explain this and perhaps have some witnesses write letters to support your claim.

You should also list any positive things that you have done while in prison. Provide any other relevant information that you wish to be considered in your application. Explain to the Governor what your plans are if you are granted the pardon (where you will stay, who you will stay with, what you plan to do for a living, etc.). Assure the Governor that you will not revert to criminal activity after you are released, but instead will be a productive member of society. If possible, have credible people in your community (such as former teach or boss) or even a fellow prison inmate write letters of recommendation for you.

If your reason for applying is to avoid deportation (yes, you can be placed in deportation proceedings even while you are being incarcerated), explain to the Governor how being separated from your family would be devastating for both you and them. Submit a copy of your Notice to Appear or other immigration documents and remind the Governor the emergency of the situation.

Keep a copy of everything you send for your records. Your entire application should be sent to:

The Honorable [current Governor’s name]
Governor of Virginia
Office of the Governor
State Capitol, 3rd Floor
Richmond, VA 23219

Like the process for a simple pardon, there will not be any hearings, meetings, or conferences held on your application.[7] The Parole Board will review your application, and, if it finds merit, will conduct a thorough investigation and then submit a recommendation to the Governor.[7] You should be upfront and cooperative with the Parole Board, the Governor’s office, and their agents at all times.

Unless your situation involves a terminal illness or deportation where you do not have a lot of time, the Parole Board’s investigation can take up to a year to complete.[7] If you are denied a conditional pardon, you cannot apply for another one until two years after the denial.[7]

Absolute Pardon

If you would like to apply for an absolute pardon, and have met the eligibility requirements indicated in Part B, your letter to the Governor must contain the following information[8]:

  • Your full name.
  • Any other names and/or aliases you have used.
  • Your social security number.
  • Your date of birth.
  • Your mailing and street addresses.
  • Your phone number(s).
  • For each conviction (misdemeanor or felony) you have ever received, list:
  • The date you were convicted.
  • The court where you were convicted.
  • The sentence you received, or otherwise the outcome of the case.
  • A detailed statement of the facts/circumstances of the offense.
  • An explanation as to why you should be granted an absolute pardon.

Refer to the above section on Simple Pardons for information about how to obtain your criminal records and suggestions about what to include in your letter to the Governor.

Remember, getting an absolute pardon is very difficult—perhaps the most difficult of the three types. You must have been innocent of the crime of which you were unjustly convicted. Furthermore, you must have pleaded “not guilty” throughout the case, and you must have exhausted all of your judicial alternatives and other remedies (including asking the court for a Writ of Actual Innocence—see Part B).

You should provide other relevant information that you wish the Governor to consider. Obviously, if you have DNA evidence conclusively proving you were innocent of the crime, you should submit this. Have witnesses who can prove your innocence write letters explaining their version of the events. If possible, have the attorney who represented you at the court proceedings write a letter explaining what occurred during the trial (for example, evidence that was excluded which would have otherwise proven your innocence, the fact that you maintained your innocence throughout the trial, etc.).

Keep a copy of everything you send for your records. Your entire application should be sent to:

The Honorable [name of current Governor]
Governor of Virginia
Office of the Governor
State Capitol, 3rd Floor
Richmond, VA 23219

As with the simple and conditional pardons, there will not be any hearings, meetings, or conferences for an absolute pardon.[8] The Governor will simply have the Parole Board review your application, conduct an investigation, and then make a recommendation to him or her. If the Governor denies your application, you can reapply two years later after the denial.[8]


The Effects

As indicated in Part B, the primary effect of a simple pardon is that is serves as an official statement of forgiveness. Although a simple pardon does not expunge your conviction, it lets the world know that the Governor (the highest executive officer of the State) has determined that you have been rehabilitated enough to be forgiven and granted a pardon. This could be beneficial when you apply for a job, housing, a business or occupational license; employers, landlords, and licensing agencies are probably much less likely to consider a conviction which they know has been pardoned.

If you receive a conditional pardon, the most obvious benefit is that you would be released from prison early. A conditional pardon, in this respect, is much like parole. There will be conditions attached to the pardon (hence the name), which if you violate can cause your pardon to be revoked and you to be thrown back in prison.[11]

An absolute pardon goes even further than the two above. It not only relieves you of any further punishment for the conviction, it basically declares you innocent of the crime, and treats you as though you were never convicted. In addition, it is the only type of pardon that would allow you to have your conviction expunged from your criminal record. However, keep in mind that the absolute pardon does not automatically expunge your conviction; you must still apply to a court for this after you receive the pardon.[12] You should talk to an attorney knowledgeable about record expungements to help you with this process.

Other than the benefits noted above, the law is unclear what other effects a pardon actually has. If you lost certain rights because of a conviction—such as your rights to vote, to serve on a jury, and to hold public office—the most sure way to have them restored is not through a pardon but through a type of clemency called Restoration of Rights. You can find out more about Restoration of Rights from the Secretary of the Commonwealth’s website: http://www.commonwealth.virginia.gov/JudicialSystem/Clemency/restoration.cfm. Self-explanatory forms are there for you to access and fill out.

Recall we stated in Part B that you must have applied for a Restoration of Rights before you can apply for a simple pardon (you do not need to do the same with a conditional pardon or an absolute pardon). You can apply for Restoration of Rights even if your conviction is a federal or out-of-state conviction.[9] However, there is a 3-year waiting period before you can apply (that is, 3 years after you completed your sentence) if your conviction was a nonviolent offense, and a 5-year waiting period for violent and drug offenses (other than simple possession).[9] Receiving a Restoration of Rights would definitely restore your rights to vote, to hold public office, to serve on a jury, and to serve as a notary public.[9]

However, A Restoration of Rights certificate does not necessarily restore your gun rights. A pardon, on the other hand, does restore your gun rights if you ever lost them due to a conviction, unless the pardon specifically says otherwise.[13] Nevertheless, a pardon isn’t necessarily the only way to get your gun rights restored. You should talk to an attorney knowledgeable about gun rights restoration in Virginia if you specifically want your gun rights restored.

Under federal law, if you have received a pardon from any state, the pardoned conviction cannot be used by federal authorities to prosecute you for “unlawful possession of a firearm” unless the pardon specifically says you cannot possess a gun.[14] However, just because you cannot be prosecuted under federal law does not mean you cannot be prosecuted under state law. Some states have stricter gun laws than federal law. If regaining your gun rights is important to you, make sure you make you desire known during the application process.

Also, in most cases, federal immigration authorities cannot rely solely on a conviction that has been subject to a pardon for the purpose of deporting you from the country. If immigration is not an issue for you, this benefit is obviously irrelevant.

Finally, keep in mind that the effects of a pardon can vary from one state to the next. For example, if you receive a pardon in Virginia and then move to another state, that other state might take away your gun rights or require you to register as a sex offender again even if the pardon listed these restrictions on you while you were living in Virginia. Thus, you should always check with the laws of the state you move to rather than just assume that the benefits of the pardon moves with you across state lines. Fortunately, states tend and honor each other’s pardons.

External Links

References

  1. 1.0 1.1 Va. Const. art. V, § 12
  2. Va. Stat. § 53.1-136; Va. Stat. § 53.1-231
  3. 3.0 3.1 Va. Stat. § 53.1-134
  4. Secretary of the Commonwealth, Clemency, http://www.commonwealth.virginia.gov/JudicialSystem/Clemency/clemency.cfm
  5. 5.0 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 Secretary of the Commonwealth, Pardons, http://www.commonwealth.virginia.gov/JudicialSystem/Clemency/pardons.cfm
  6. 6.0 6.1 6.2 6.3 6.4 6.5 Secretary of the Commonwealth, Simple Pardons, http://www.commonwealth.virginia.gov/JudicialSystem/Clemency/simplePardon.cfm
  7. 7.0 7.1 7.2 7.3 7.4 7.5 7.6 Secretary of the Commonwealth, Conditional Pardons, http://www.commonwealth.virginia.gov/JudicialSystem/Clemency/conditionalPardon.cfm
  8. 8.0 8.1 8.2 8.3 8.4 8.5 Secretary of the Commonwealth, Absolute Pardons and Writ of Actual Innocence, http://www.commonwealth.virginia.gov/JudicialSystem/Clemency/absolutePardon.cfm
  9. 9.0 9.1 9.2 9.3 9.4 The Sentencing Project, Virginia, Margaret Colgate Love, http://www.sentencingproject.org/doc/File/Collateral%20Consequences/Virginia.pdf
  10. http://www.timesdispatch.com/news/article_006dacdd-5f85-5e7e-8a87-abdbb83eac03.html
  11. See, e.g., Wilborn v. Saunders, 195 S.E. 723, 170 Va. 153 (Va. 1938)
  12. Va. Code § 19.2-392.1 et seq
  13. Va. Code § 18.2-308.2; see also Dodson v. Commonwealth, 23 Va.App. 286, 476 S.E.2d 512 (Va. Ct. App. 1996)(person pardoned is exempt from prohibitions against possession of firearms by felons)
  14. 18 U.S.C. 921(a)(20) & (33)