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Clemency: Restoration of Rights and Pardons

| Mar 25, 2020 | Firm News |


Currently, there are approximately 377,000 residents of Virginia who cannot vote as a result of a felony conviction. It’s estimated that about 300,000 of those individuals have completed sentence. The effect of a felony conviction in Virginia is severe and life long unless you take action to restore your rights to your pre-felony state. When a person is convicted of a felony, he loses the rights to vote, to run for and hold public office, to serve on juries and to serve as a Notary Public. It does not include the right to possess or transport any firearm or to carry a concealed weapon. After you’ve served your sentence and re-entered your life, what can you do to restore your life to normal? You may seek clemency from the Governor.

There are two types of clemency: Restoration of Civil Rights and Pardons. Under the Virginia Constitution and the Virginia Code, all clemency authority is vested solely in the Governor. Clemency is not guaranteed and the petitioner has no right of appeal if the petition is denied.

There are two different petitions and processes to restore your rights, depending on the nature of the felony convictions. Non-violent felony offenders may use the short form to apply for restoration. Violent or drug-distribution felony offenders have to use the long form. In order to be eligible for the restoration of rights, regardless of felony type, you must meet certain requirements:

You must be a resident of Virginia or have been convicted of a felony in a Virginia court, a court in any other state (including the District of Columbia), a U.S. District Court, a military court, or any court of an associated Commonwealth, territory, or possession of the United States.
You must have been released from supervised probation for a minimum of three years for a non-violent offense or five years for a violent, drug distribution, or drug manufacturing offense and have no other convictions (felonies or misdemeanors) during that time.
You must have paid all costs, fines, and/or restitution or any obligations to any other court, including traffic courts.
You cannot have a conviction for Driving While Intoxicated within the past five years immediately preceding your application.
The Secretary of the Commonwealth will conduct a criminal history check on all applicants. You can expect the restoration process to take at least six months from the time an application is considered complete. If your petition for restoration of rights is denied, you have no right of appeal, but may re-apply after a two-year period.

There are three types of pardons: simple, conditional, and absolute. Pardons are unusual and exceptional. If a person feels able to provide substantial evidence of such exceptional circumstances, he or she may submit a petition for pardon to the Governor.All three types require the petitioner to write a letter to the governor stating why the pardon should be granted. If you have been convicted of a felony, you must first have your rights restored before your petition for a pardon will be considered.

A Simple Pardon is a statement of official forgiveness. Your record is not expunged, however. A simple pardon may serve assist a petitioner to advance in employment and education. Evidence of good citizenship is required, as are favorable recommendations from the officials involved in the case and from the Virginia Parole Board. Simple pardon petitions are sent to the Virginia Parole Board. If the Board finds a petition has merit, it will conduct an investigation. This investigation can take as long as a year to complete.

A Conditional Pardon is available only to people who are currently incarcerated. It is usually granted for early release and involves certain conditions; if you violate these conditions, you could be put back in prison. This is truly extraordinary for an inmate to be considered for a conditional pardon. A conditional pardon is an act by the Governor to modify or end a sentence imposed by the court. The Governor only grants a conditional pardon when there is substantial evidence of extraordinary circumstances to warrant it. Another form of conditional clemency is a medical pardon, which is available to inmates who are terminally ill with a life expectancy of three months or less. Of course, medical pardons are expedited. As with Simple Pardons, the Virginia Parole Board will investigate and its investigation may take up to a year to complete. If the petition for a conditional pardon is denied, it may be filed again after two years from the date of denial.

An Absolute Pardon is reserved for the unjustly convicted and the innocent. An absolute pardon is the only form of clemency that would allow you to petition the court to have that conviction removed from your criminal record. The petitioner must have pleaded Not Guilty throughout the judicial process in order to be eligible for an absolute pardon, and all judicial appeals and other remedies must be exhausted before appealing to the Governor. In 2004 the Virginia General Assembly passed legislation giving individuals convicted of crime the opportunity to have the court itself consider claims of innocence, even after a conviction. If the court finds it made an erroneous conviction, it would then issue a Writ of Actual Innocence. In most circumstances, this avenue for pardon must also be tried before appealing to the Governor.

If all remedies have been exhausted as required by law, you may then submit a petition for an absolute pardon to the governor, along with evidence that the court has rejected your claim under the new law above, or an explanation of the legal basis for why you believe the new law is not applicable to your situation. If a petition is denied, another cannot be filed for two years after the date of the denial.