When it comes to pardons, expungements, and other forms of relief as a result of a criminal conviction,[1] There is a lot of misinformation online. While my area of practice focuses on Second Amendment issues, I handle a lot of pardons, expungements, and other mechanisms of relief for people at the state and federal levels for a multitude of reasons beyond restoration of their firearm rights, including employment, travel abroad, and to prevent their children and/or grandchildren from becoming aware of their incidents of youthful indiscretion. In this article, I will debunk a lot of the myths about when/if such are available.
To begin with, before we get into the specifics of each, it is important to understand that the state and federal governments are separate sovereigns, and, as such, neither can relieve a conviction by the other. [2] Thus, as an initial matter, it is important to understand whether you were convicted under state or federal law. For purposes of this article, I will only review Pennsylvania and federal law.
Moreover, it is important to understand that Pennsylvania and federal convictions constitute convictions until the end of time—including any disabilities stemming from them—unless you are able to obtain a pardon, expungement, or other form of relief.
Expungements
Federal Convictions: Unfortunately, federal law generally does not permit the expungement of criminal convictions. While there are extremely narrow exceptions for certain first-time minor drug offenses (which are virtually never charged), even if you have received a pardon from the President, you are ineligible for expungement.
Pennsylvania Convictions: When it comes to expunging convictions under Pennsylvania law, it is first important to break it down between whether it was a summary (akin to a traffic ticket) or a misdemeanor/felony conviction. In relation to summary convictions, you can obtain expungement if you have paid all your fines and been free of arrest or prosecution for at least five years following the conviction.
When it comes to misdemeanor/felony convictions, unless you received probation without verdict for certain drug-related offenses, you are only eligible for expungement if: (1) you have reached 70 years of age and have been free of arrest or prosecution for 10 years following final release from confinement or supervision; or (2) you have been dead for 3 years. [3] As a result, most people desiring to clear their criminal history have only one option in Pennsylvania – a pardon.
Pardons
Federal Convictions: Only the President can pardon an individual for a federal conviction. While statistics are available dating back to President McKinley[4], the success rate is historically low unless you have an extremely compelling case or a connection with the then-administration. However, during the current Administration, we have seen a sharp increase in the number of pardons being granted. As an attorney who has successfully argued a client’s application for a presidential pardon, I can tell you that, beyond it potentially being a lengthy [5] and a costly process, you need a compelling case that reflects substantial reform and community service. And even if you are granted a presidential pardon, although your record will reflect that the conviction has been pardoned and your civil rights will be restored, the criminal history/records regarding the charging and conviction will remain accessible to the public.
State Convictions: In Pennsylvania, especially for single-isolated incidents of youthful (pre-24 years of age) indiscretion, where more than 8 years have lapsed since the date of conviction, there is a strong likelihood, if you have good counsel, of obtaining a pardon. The Board of Pardons and the Governor are going to want to see that all costs/fines are paid, that you have been law-abiding since (including in relation to traffic offenses), and that you are no longer the person you were when you committed the offense. Beyond that, you will want to demonstrate civil engagement/community service. Even for very serious offenses, I have been extremely successful in obtaining pardons for clients; however, the more serious the offense (or where there are multiple offenses, e.g., repeat DUI convictions), the Board and Governor will want to see more time elapse before applying.
Federal Firearms Relief
For those only concerned with restoring their Second Amendment rights as a result of a state or federal conviction that triggers a federal prohibition, while the law has provided for federal firearm relief determinations since 1968, in 1992, Congress precluded the Bureau of Alcohol, Tobacco, Firearms, and Explosives from conducting such determinations. Thus, they have been unavailable since then. Recently, the U.S. Attorney General announced that she would begin conducting relief determinations and has submitted a notice of proposed rulemaking for new regulations guiding the application and rules for such. While the A.G. is still considering, based on comments received, what the final regulations will be and anticipates over a million applications being submitted in the first year when the final regulations are implemented, as an attorney that frequently litigates against the U.S. Government—where it denies citizens’ Constitutional rights, especially their right to keep and bear arms—I have an inside track on how to submit applications currently, in advance of a final regulation, if you are interested in skipping to the head of the line.
Hopefully, this article has dispelled some myths and helped you better understand your rights related to expungements, pardons, and federal firearms relief.
[1] This article does not address non-conviction dispositions, such as Accelerated Rehabilitative Disposition (ARD), or where the individual is found not guilty. To the surprise of most, even a finding of not guilty does not necessarily result in the automatic expungement of the criminal dockets and information.
[2] While there has been an academic debate over whether the President can pardon a state-law offense under the Supremacy Clause of Article VI, Clause 2 of the U.S. Constitution, no court has yet ruled on the issue. That said, this issue may be resolved in the near future, as the current Administration has issued presidential pardons to a couple of individuals for state-law convictions, even though the states intend to challenge the President’s authority in such matters.
[3] This is not a typo. The General Assembly, aware that people wish to clear their family name, permits expungement in this circumstance.
[4] (https://www.justice.gov/pardon/clemency-statistics
[5] I am aware that some pardon applications have been pending for more than 15 years.
