Inconvenience of Felony Not Sufficient Basis for Pardon

A felony record is inconvenient. However, that reality follows every person convicted of a felony in South Dakota. In its wisdom, the legislature created and maintains classifications for felonies, maximum penalties, and various conditions. The legislature also created a legal tool called the "suspended imposition of sentence," that allows individuals convicted of a crime the opportunity to demonstrate to the court that removing the conviction from their record is "in the interests of justice."

Beyond these laws, the general rule in South Dakota is that every conviction remains on a person's record. This is where policy comes into play. Some states have laws that automatically remove convictions from a person's record, other states do not. This debate arose at the Parole Board's last monthly meeting. It was a pleasant and respectful discussion, and I hope it will continue.

Whether we agree with the laws as written or the policies that stem from them, the fact remains they are the laws we apply.

With that in mind, we shift to the pardon power. The pardon power arises from our state constitution and it is entirely an executive function. As a member of the Board of Pardons and Paroles, I can only vote on whether to recommend a pardon. I cannot grant or deny an application. The Governor makes the decision, and it is his decision alone. The pardon power is not subject to judicial mandate, nor control by the legislature. The legislature has passed laws asserting what the board "may" consider, but such statutes do not control the process.

Technically, a board member could evaluate pardon applications using whatever criteria they see fit. A board member could explain their position entirely, or not at all. However, I believe board members have a fiduciary duty to the executive branch, the rule of law and ultimately to the citizens to apply the various rules and laws as consistently and fairly as possible with due consideration for the facts of each case.

This is why I started this article by identifying the status quo written into our laws. Convictions have consequences, not the least of which is a notation on one's criminal record. That conviction is inconvenient, and it may be inconvenient even after a person serves their full sentence. When a person requests a pardon, they are asking for an exception. The applicant is asking to be treated differently than every other person with a conviction on their record. My first question is simply, "Why?" Why should someone be treated differently than everybody else? Why is a case worthy of an exception?

If I accept that the inconvenience of a conviction is enough to justify a pardon recommendation, then I am telling the legislature that their statutory scheme does not work. I am creating an exception that swallows the rule. South Dakota has had 137 years to say that inconvenience - in one form or another - is enough for a pardon recommendation. We have not done so. Far be it from me to assume that power and create a new rule that has never existed in South Dakota.

To be clear, maybe it would be good policy to recognize the inconvenience and issue automatic expungements. As a board member, however, I am not elected to do that; I am not elected at all. I was not handed a mandate for change, and I was not empowered to steer South Dakota in a new direction. Every role has responsibilities. My current role is quasi-judicial, and rules must be applied equally and fairly. If a person wants an exception, it is my firm belief that an applicant must demonstrate why an exception is appropriate, and conditions that apply to everyone equally cannot, by definition, qualify as an exception.

It is an honor to serve on the board, and I look forward to the work ahead.