Friday, April 18, 2008

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/

9 comments:

Anthony said...

In response to the above postings: Without going into all the details; I was convicted of burglary, when I was 17, for breaking into a home and stealing essentially what amounted to petty cash and food. I successfully completed probation and restitution and have not had any legal trouble since. Shortly after my conviction, I turned my life around. I had been a high school dropout. I went back to school to obtain my GED. Now, 27 years later; I am 44, have an MBA and am successful in corporate management.

Because my crime was considered a felony, it went on my adult record. And because it is still on my record, I cannot gain federal clearance access to projects, within my company, as I would not pass the background check. I have also had several very promising interviews for higher level positions with other organizations. I am required to disclose my felony conviction, and when I did, the companies suddenly found “someone more qualified”.
Is this discrimination or did they truly find someone more qualified? I can’t say for sure. But would you want a VP or Director in your company with a felony conviction, regardless of what the crime was?

When I was processed through the judicial system after I was arrested; I wasn’t left in limbo for years wondering whether or not a final decision would be made on a conviction. But when asking for forgiveness, I am told that it could be years, before a final decision is made. And with the Governor sitting on approximately 2000 pardons, what kind of attention will mine receive when he must finally make the decision on all petitions before he leaves office?

I am left feeling like a second class citizen, still being punished for stealing a few dollars, orange juice and bread when I was a teenager.

This does affect my life. This does affect my career. I understand Governor Blagojevich being concerned about political backlash from granting pardons affecting his career. What about my career and the thousands of others waiting to move forward in theirs?

The system gives me the right to ask for a pardon, but it does not give me the right to speedy determination.

I would truly like to move on with my life and career without a mistake that I made when I was a teenager, still over my head.

Tamara Holder represented me in seeking a pardon. Like many others, I am still waiting to hear anything on the outcome.
I appreciate Tamara’s efforts in attempting to get the legislation changed.

Mike said...

I was a teacher in Chicago with a successful career. On Nov. 21, 2004, I was driving east bound on 47th street when I was flagged down by a woman at a bus stop. I pulled over and before I could say a word I was arrested and charged with solicitation of a sex act. Later I found that the woman was an undercover police officer working a prostitution sting on 47th street. Embarrassed by the whole situation I decided to not tell my wife and plead guilty to the offense. This would prove to be the worse mistake of my life. I was told that after a year I could have this offense removed from my record. That was a lie. I continued to work as a teacher for the next two years until I received a letter from Chicago Public Schools asking me to come in for a hearing concerning my conviction of solicitation of a sex act. At the hearing I was told I was going to be terminated and the only way to be reinstated was to receive a pardon from the governor of Illinois. I had a lawyer file a petition for me and my hearing was April 12, 2007. Since this time I have contacted the Prisoner Review Board and only been told a recommendation has been sent to the governor. I have also contacted the governor’s office and been told that a favorable recommendation was sent to the governor and I am on the “list”. This means my life and career are on hold until the governor decides to sign a piece of paper that releases me from this denigrating cloud. I have a masters degree in education and been a dedicated teacher for the last five years. Now once my record is pulled, I appear to be a sex offender. Please post any info you might have for someone in my situation.

Anonymous said...

I was stopped at a safety check after leaving a wedding. They wanted me to take a feild test and blow in a breatherlizer. I did not and now I am charged. I am looking for help to get a pardon. I am in the financing business and this stops me from doing my job does anyone know of a great attorney that can help me get this off my record?

Please email me at kbkglobalinvestmentco@gmail.com

Tamara said...

As you can see, many people's mistakes or errors in judgment permanently follow them throughout life. Everyone with a record has a story about what happened. My goal is to help people understand that what happened is not really the issue. The facts only matter when one is fighting the case. Once the conviction is entered, the only person's option is to work hard, educate yourself and begin to prepare a petition for the Governor that you have, in fact, changed your life. As Anthony stated above, he was able to show the Board evidence of rehabiitation. Again, the facts of the crime really don't matter at the pardon stage. Hopefully, Governor's take this function more seriously and continue to clear people's names who deserve another chance to start over.

Jackie said...

Hello, in 2004 I was living with my boyfriend and I was walking in the door when I seen he had a few friends over. I made all of them get out and I went into the bathroom to get ready to get in the shower, with the door still open I seen some officers come in and search the apartment. The officers didn't say anything until they were done they told me that my then boyfriend was going to jail for possesion of drugs. They left my home a wreck and I called their district on them to let the seargent know that they had no warrent or no authorization to search my home, 10 minutes later while I was on the phone with a laywer they had come back to arrest me. In the police car they said since I called in on them that they were going to arrest me for the possesion as well. At the time I was working and lost my job because of this even though this was my first time ever going through something like this. Because I did not have enough money to pay a lawyer a 3000 retainer fee and other charges I pled guilty and was given two years probabtion with random drops and expungement there after. Drugs were never found in my system and I was able to work some sales job throughout my probabtion period. Since my probabtion was terminated in 2006 I was told that the case was going to be expunged 2 years after my probabtion then I was told 5 years after my probation and I am still confused. Whats worse is that I recently lost my job where I was making good money and am currently almost done with my degree. Since I lost my job it has been hard for me to find another well paying job to support me and my 19 month son. Does anyone know of any way I can get this pardoned off my record or expunged quicker than waiting 5 years which will be in 2011 if it is 5 years after the termintation of my probabtion. if you do please contact me at jmacon6236@yahoo.com

Anonymous said...

i was 17 when i got in trouble and they officially charged me on 6/25/2004 i took a plea 15 days after my 18th bday my charge was MFG/DEL 10 TO 30GRAMS OF CANNIBAS I GOT 30MONTHS PROBATION 200HRS OF COMMUNITY SERVICE BUT THE MESSED UP THING IM NOT A DRUG DEALER AND THATS WHAT THEY CHARGE ME I DIDNT UNDERSTAND MY CHARGE i thought i was charged with possesion and something else i wasnt sure but i regret not getting a lawyer cause if i did i wouldnt be in this predictment. whenI tried to get I expunged i was told i couldnt this sux i need a job i need help trying to get this charge off my record it hurts when your raising 2 kids and u cant find work im not a drug dealer i was a teenager for god sake teens make mistakes and they want the teenagers to suffer for the rest of there life its wrong and everybody knows it just like how politic say they never tried cannibas thats bs everyone has at least tried i didnt say they liked it but they tried it but there gonna punish the youngins for smoking weed when they done in the past its wrong

Anonymous said...

If A Sex Offender Recieves A pardon From The Governor Of Illinois, Does This Relieve Him Or her Of Thier Duty To Register Under The Sex Offender Registration Act (730 ILCS Act 150)?

It States Under The Expungement law That Anyone Convicted Of A Sex Offense Under When The Victim Was Under Age 18, He or She The "Shall" Not Expunge Or Seal The Record. Does This Fall Under A Governors Order Specifically Authorizing Expungement? kepplertree@yahoo.com

Anonymous said...

I was arrested for a residential burglary in 1999. I walked into someones open garage and took a few items. Since the garage was connected to the house it had to be a residential burglary. I had just turned 18 at the time. I was arrested and plead guilty. Served 1 1/2 years for my first ever offense, because the states attorney wanted to make an example out of me. Now almost 10 years later I have worked many jobs that I could with my record following me, and decided to go to college last year. I am going premed and today I was just denied access into the program after working my butt off getting fantastic grades and many many hours of volunteering, because of my felony charge. No medical program will touch me and thats my passion in life! What do I do now? Where do I go? I don't have the money to hire Tamara Holder, and I would love to if I did have it, but I feel alienated because of my felony of walking into an open garage and taking some tools. LIFE is what I really got and its a shame that because of a mistake of a dumb 18 year old, now I will never be able to follow my dreams of being a doctor one day. My other dream was going into medical research which is also a no go for me again. Everywhere I turn, I am still paying for this mistake. Tamara, if you read this and you want to take me on pro bono or for at least what I could afford to pay you now, I would be ever so grateful. markbattist@yahoo.com

Mike said...

Hello,
I am writing this for a friend as he seems paralyzed by the situation. When he was 18 and is now 30 he broke a car window 2 weeks after turning 18. This resulted in a felony and has haunted him ever since. He was able to join the National Guard on a waiver and as a result has been to 2 combat deployments and multiple activations. I served with this individual in Iraq, and would do anything for him. What direction can I go in to start making some headway on this situation?

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