West Virginia Pardon Information

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Authority

The West Virginia Constitution gives the Governor the exclusive power to grant pardons.[1] However, the Governor must report to the Legislature annually on every case which he pardons and the reason for the pardon.[1] The Governor can grant a full and complete pardon or a pardon with conditions.[2]

There is a body in West Virginia called the Board of Parole which—upon the Governor’s request—can receive, investigate, and make recommendations to the Governor on pardon applications.[3] As a matter of policy, the Governor will not consider a pardon application unless it has been recommended by the Board.[4]

Because the focus of this site is on pardons, we do not discuss reprieves, commutations, remission of fines and forfeitures, respites, parole, or other types of clemency that may be available in West Virginia here. We also do not discuss judicial alternatives such as record expungement, record sealing, setting aside or 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 does not appear to be any waiting periods before you can apply for a pardon in West Virginia. It appears you can apply for a pardon any time after you have been convicted. In fact, you can apply for a pardon even if you are still in prison for your conviction; a pardon granted in this situation would have the effect of releasing from prison early but would typically have conditions attached to it, which if you break can cause the pardon to be revoked and you sent back to prison.[5]

The Governor can only grant you a pardon for a West Virginia State conviction.[4] 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.

You should also keep in mind that pardons are very rarely granted in West Virginia. In 36 years, nine Governors have together granted only 121 full (i.e. unconditional) pardons and only 200 conditional pardons.[6] Therefore, if there are alternative avenues to a pardon that can achieve the same or substantially the same things you are seeking (such as judicial expungement), you may want to seriously consider those alternative avenues.

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 West Virginia. At the time of this writing, the Governor’s office has not made its pardon application materials available to access on the Internet. You will need to contact the Governor’s office directly and request that the application materials be mailed or possibly e-mailed to you. You can contact the Governor’s office by calling 1-888-438-2731. You can also write to:

Governor [name of current Governor] West Virginia State Capitol Charleston, WV 25305

If you dig hard enough on the internet, you might be able to find a sample pardon/clemency application form that other individuals or entities have placed there. If you run across any such forms, you should use it as a preview only. It might not be the most current form, and using a form that is not an original directly from the Governor’s office (an unofficial form) may cause your application to be rejected.

The application form should be rather simple and self-explanatory, as it was created for the non-lawyer to use. You will be asked basic information such as your name, Social Security Number, date of birth, and current address, among other things.

You will be asked to list information about your offenses, including the date you committed the offense, the date you were convicted or sentenced, and the sentence you received. If you do not have sufficient information about a particular offense, you should contact the law enforcing agency involved in the case and/or the court where you were convicted.

If you do not remember all of the offenses you have, you may need to obtain your criminal history report. Any local police station will be able to tell you how to do this. The report should list all arrests and convictions you have ever received in West Virginia.

If you have convictions in other states, you can 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.

You will also be asked why you should be considered for a pardon. This may be the most important part of your application. You should submit, on a separate sheet of paper, a detailed and genuine personal statement explaining why you need a pardon.

In your personal statement, do not simply say you want a clean criminal record again. Tell the Board of Parole/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 in 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.

If you are still in prison, are suffering a terminal illness, and do not have much longer to live, tell the Governor that you would like to spend your last days with your loved ones. Again, submit any proof you may have, such as your medical prison records.

In writing your personal statement, keep in mind that the Board/Governor is not retrying you for the offense. Although you might 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 Board/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.

You will be asked to sign a waiver/release form, which gives the Governor’s office permission to obtain confidential/private information about you, including your medical records and criminal history. If you are currently in prison, the application may need to be signed in front of a staff member of the prison facility.

Make sure you keep a copy of everything you send for your records. Unless the Governor’s office directs otherwise, your application materials, along with all supporting documents and letters, should be mailed to:

Governor [name of current Governor] West Virginia State Capitol Charleston, WV 25305

After your application is received, the Board will conduct an investigation into your case and make a recommendation to the Governor. The investigation may include doing a criminal background check on you, obtaining your medical and psychological records, and even conducting personal interviews on you and those around you. You should be upfront and cooperate with the Governor’s office, the Board, and their agents at all times.

There may or may not be a hearing in your case. If a hearing is held, you should not only attend but also look and act your best. Dress in the same way you would if you were going to court for a trial. Have friends, family members, a neighbor, your boss, coworkers, and others attend the hearing to show their support. The hearing would be an excellent opportunity for you to put a human face onto your application; it lets the Board/Governor not only see you in person but also the support you have in your community.

At least ten days before the Board makes it recommendation to the Governor, the Board must notify the sentencing judge and prosecuting attorney who were involved in the case.[7] These individuals will then have an opportunity to submit their opinions/recommendations on your application. The victim may also be notified of your application and be given an opportunity to comment. If a hearing is held, these individuals may attend the hearing to oppose your application.

The Governor has the final say on whether or not you receive a pardon. The Governor’s decision is final; this means you cannot appeal to a court if you are unhappy with the decision. However, if you are denied, you will have an opportunity to reapply in three years following the denial.


The Effects

A pardon is primarily an act of grace from the Governor forgiving you of the crime.[8] Once you receive a full pardon for a particular conviction, you cannot be punished any further for that conviction.[8] A full/unconditional pardon would also restore most if not all of the citizenship rights you may have lost because of the conviction; these include the rights to vote, to serve on a jury, and to hold public office.

However, a pardon in and of itself does not seal, erase, or expunge your conviction from your criminal record.[8] Getting a pardon does not suddenly make you “innocent” of the crime in the eyes of the law.[9] As in many other states, a pardon in West Virginia “forgives but does not forget.” Therefore, a conviction which has been pardoned can still be used to enhance your sentence under West Virginia’s “Habitual Criminal” law for any future convictions you receive.[10]

Nevertheless, once you are granted a full/unconditional pardon from the Governor, you are then eligible to petition the circuit court in the county where you were convicted to have the conviction expunged from the public records so that the general public cannot access it.[11] However, you must wait one year after you receive the pardon before you can do this.[11] Certain serious crimes are not eligible for an expungement.[11]

Your expungement petition will need to be served on the prosecuting attorney in the county and you will also need to publish a notice of the petition in a newspaper in the county. There will be a hearing on the expungement petition.[11] You may want to seek the help of a record expungement attorney when you apply for an expungement, as the process can be more complicated, formal, and adversarial than the process of applying for a pardon.

If you receive an expungement, the court will order all public records pertaining to the conviction expunged.[11] A conviction that has been expunged cannot be considered by any state educational institutions or licensing agencies in connection with your application for a license (a teacher’s, nursing, or lawyer license, for example).[11]

As we indicated in Part B, you can apply for a pardon even if you are still in prison for the conviction. A pardon granted in this situation would have the effect of releasing you from prison early but would typically have conditions attached to it (in other words, a “conditional pardon”); if you break any of the conditions, the pardon can be revoked and you can be sent back to prison.[6] A condition of the pardon might, for example, require you to remain in the state for a period of time without committing any crimes.[6] A pardon granted in this situation would be very similar to parole.

A pardon, even if it is an unconditional pardon, will not automatically restore your gun rights.[12] In order to restore your gun rights, you will need to file a petition with the circuit court of the county where you reside.[13] The court will then need to find by clear and convincing evidence that you are competent and capable of possessing a gun responsibly.[13] Again, because a court proceeding is typically more complicated, formal, and adversarial than the pardon process, you may want to retain an attorney to help you with this.

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.

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.

If you were wrongfully convicted and imprisoned for a crime and the Governor later grants you a pardon on the grounds of innocence (for example, DNA clears you of the crime), you may be eligible for compensation from the State for the wrongful imprisonment.[15] Because the deadline to claim compensation may be very short, you should talk to an attorney as soon as possible if you think you are eligible.

If you receive a pardon for a conviction based on a finding that you have been rehabilitated, that conviction cannot be used to impeach you (attack your credibility) if you are ever a witness in a future court proceeding, provided you are not convicted of any felony after you receive the pardon.[16] If you receive a pardon for a conviction based on a finding that you were innocent of the crime, that conviction cannot be used to impeach you under any circumstance.[16]

Finally, keep in mind that the effects of a pardon can vary from one state to the next. 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 W. Va. Const. art. 7, § 11
  2. ↑ See W. Va. Code § 5-1-16; see also (“A pardon can come in many forms. For instance, an ‘absolute pardon’ frees a criminal without restrictions, while a ‘conditional pardon,’ as is evident by its name, frees a criminal upon conditions. The conditions may require the performance or non-performance of a specific act which is essential to the pardon’s validity.”)
  3. ↑ W. Va. Code § 62-12-13(l)
  4. ↑ 4.0 4.1 The Sentencing Project, West Virginia, Margaret Colgate Love, http://www.sentencingproject.org/tmp/File/Collateral%20Consequences/WestVirginia.pdf
  5. ↑ See West Virginia Secretary of State, Executive Records, Pardons, Reprieves, Commutations and Respites, http://www.wvsos.com/execrecords/other/pardons.htm
  6. ↑ 6.0 6.1 6.2 West Virginia Secretary of State, Executive Records, Pardons, Reprieves, Commutations and Respites, http://www.wvsos.com/execrecords/other/pardons.htm
  7. ↑ W. Va. Code § 62-12-13
  8. ↑ 8.0 8.1 8.2 Perito v. The County of Brooke, 215 W.Va. 178, 597 S.E.2d 311 (W. Va. 2004)
  9. ↑ See, e.g., Dean v. Skeen, 137 W.Va. 105, 70 S.E.2d 256 (W.Va. 1952)
  10. ↑ See Dean v. Skeen, 137 W. Va. 105, 70 S.E.,2d 256 (W. Va. 1952)(“[Petitioner], who has broken faith with the pardoning authority and accepted the act of the unconditional pardon, which is an act of grace extended to the petitioner and not a right vested in him, and who has demonstrated that he has not been deterred from further crime by pardon of the prior offenses, should not be permitted to use the pardon to prevent the application of the habitual criminal act.”); W. Va. Code §§ 61-11-18 and 61-11-19
  11. ↑ 11.0 11.1 11.2 11.3 11.4 11.5 W. Va. Code § 5-1-16a
  12. ↑ Perito v. The County of Brooke, 215 W.Va. 178, 597 S.E.2d 311 (W. Va. 2004)
  13. ↑ 13.0 13.1 W. Va. Code § 61-7-7(c)
  14. ↑ 18 U.S.C. 921(a)(20) & (33)
  15. ↑ W. Va. Code § 14-2-13a
  16. ↑ 16.0 16.1 W. Va. R. Evid. 609
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