‘Must read’ from Duke criminal justice experts: Everything you need to know about clemency in NC

By: - September 23, 2021 9:33 am
Ben Finholt

Jamie Lau

Most North Carolinians probably have a vague notion of what “clemency” and “pardons” are and the fact that the Governor has some power to grant them to people convicted of criminal offenses. What most probably don’t know, however, is that there have been some important developments in this realm of late, or that the practical reality of how the system works sometimes differs from what one can glean from merely reading the state statute books.

It’s thus an extremely helpful and timely development that a pair of criminal justice experts at Duke University — Ben Finholt the Director of  the Just Sentencing Project at Duke’s Wilson Center for Science and Justice and Prof. Jamie Lau, the Supervising Attorney for Duke Law School’s Center for Criminal Justice and Professional Responsibility — have put together a new and extremely thorough compilation of the rules that also explains how the system works in the real world.

They’ve entitled their article “Everything you need to know about clemency in North Carolina,” and it’s definitely worth the time it takes to review — especially during this era in which even large swaths of the political right have come to grasp the futility of mass incarceration and the need for dramatically enhanced systems and structures to assisted the formerly incarcerated. One of their central, if unsurprising conclusions: “First, despite continued attempts to increase ‘truth’ in sentencing, there is clear racial bias in North Carolina prison terms.”

After highlighting the fact that Gov. Cooper established a new Juvenile Sentence Review Board earlier this year — something that could, they say, revive an important but long neglected area of executive power in our state given that “there have been no sentence commutations or pardons of forgiveness granted since 2002” — the authors tackle the issue this way:

“The Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses (except in cases of impeachment), upon such conditions as he may think proper, subject to regulations prescribed by law relative to the manner of applying for pardons.  The terms reprieves, commutations, and pardons shall not include paroles.”

With this statement in Article III, § 5(6), the drafters of the 1971 North Carolina Constitution gave the right to grant clemency from a criminal conviction to the Governor. This was not a new concept. English monarchs had the power, as has every Tar Heel governor since the first state constitution in 1776.

The North Carolina General Assembly has very limited authority in the clemency process, as the 1971 Constitution limits the Assembly’s power to providing the manner of applying for a pardon. Given the bare-bones nature of guidance from both the executive and legislative branches, we will attempt to answer the following questions using what is officially and unofficially known about the process in North Carolina:

  1. What is executive clemency?
  2. Who can receive clemency?
  3. How does one petition for clemency?
  4. How are clemency petitions evaluated?
  5. What information is available about pending clemency petitions?
  6. Can clemency be revoked?
  7. Who gets clemency?

We will then abandon the attempt at official answers to address two additional questions:

  1. Who should get clemency?
  2. What about the Juvenile Sentence Review Board?

What is executive clemency?

Officially: Executive clemency in North Carolina takes the form of a commutation or a pardon. Commutation means changing the sentence that someone is presently serving. This can take the form of reducing the sentence by a certain amount or changing the nature of the sentence. One historical use of the commutation power was to remove someone from death row. The person’s capital sentence was changed to life with or without the possibility of parole.

Pardons take on three forms in North Carolina: forgiveness, unconditional, or innocence. These pardons are merely official statements “attached to the criminal record that states that the State of North Carolina has pardoned the crime.” While a pardon of forgiveness is granted with certain conditions, an unconditional pardon—as the name implies—does not. The unconditional pardon was traditionally granted “primarily to restore an individual’s right to own or possess a firearm.” However, the North Carolina Court of Appeals ruled in 2013 that a pardon of forgiveness removes the ban in N.C. Gen. Stat. § 14-415.1 on possession of a firearm by a person convicted of a felony. Therefore, the unconditional pardon may now be redundant.

None of these pardons erases the record of a person’s conviction. “Under the North Carolina Constitution, the Executive Branch does not have the authority to expunge a criminal record.” Instead, petitioners must follow the statutory requirements for expungement. However, a pardon of innocence authorizes an expunction. In addition, while a conviction that has been pardoned cannot be used in later proceedings, only pardons of innocence remove the collateral consequences associated with a conviction. Finally, a pardon of innocence is required before an individual can seek compensation from the state for wrongful incarceration.

Unofficially: The Governor has authority to makes any change to a sentence, other than make it longer. But the Governor alone can’t compensate someone wrongly convicted or make sure that a successful clemency petitioner’s record is clean.

Additionally, much of the official guidance on clemency comes from the Governor’s Clemency Office’s website, but information on the website is outdated and does not appear to have been updated since Gov. Cooper took office. Thus, the information available may not reflect current policies.

Let’s hope that, in addition to informing thousands of North Carolinians for whom it might be of direct assistance, Finholt’s and Lau’s article adds additional momentum to an cause of enormous importance. Click here to explore and share the entire article.

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Rob Schofield
Rob Schofield

NC Newsline Editor Rob Schofield oversees day-to-day newsroom operations, authors and voices regular commentaries, and hosts the 'News & Views' weekly radio show/podcast.