Criminal Convictions Are Not Automatically Sealed After a Pardon by the Governor
When the governor pardons a person with a criminal conviction, that pardon doesn’t automatically entitle the person to have his or her conviction sealed, the Ohio Supreme Court ruled today.
Today’s 6-1 decision, authored by Justice Judith Ann Lanzinger, upholds a ruling of the Ninth District Court of Appeals.
In January 2007, Montoya Boykin filed an application for executive clemency, requesting a pardon for a 1991 theft conviction in Cuyahoga County, 1991 and 1996 theft convictions in Akron Municipal Court, and a 1992 felony conviction for receiving stolen property in Summit County. The parole board voted unanimously to recommend clemency, and in November 2009 former Ohio Governor Ted Strickland pardoned Boykin for these four crimes.
Following the pardon, Boykin attempted to have her convictions sealed in the Summit County Court of Common Pleas and the Akron Municipal Court. She argued that the governor’s pardon entitles her to have her records in these cases sealed. Both courts denied her motions, and she appealed to the Ninth District Court of Appeals.
The appeals court combined the cases and then agreed with the lower courts’ determinations not to seal Boykin’s convictions. The appellate court wrote: “A trial court may exercise its authority to order judicial expungement but, as the Ohio Supreme Court concluded in Pepper Pike [v. Doe (1981)], this authority should not be exercised as a matter of course, but ‘where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction over the matter[.]’”
Boykin appealed the Ninth District’s decision to the Ohio Supreme Court. The Supreme Court accepted her discretionary appeal and a certified conflict question, because the Ninth District’s judgment conflicts with the First District Court of Appeals’ decision in State v. Cope (1996). The Supreme Court consolidated the cases for oral arguments.
In today’s decision, Justice Lanzinger noted that both the Ohio Supreme Court and the Ohio General Assembly have held that a pardon releases an offender from the penalty for the crime and from all disabilities stemming from the conviction. In her argument before the Supreme Court, Boykin’s attorney contended that a judicial expungement is necessary to remove the “disability” that results from having a criminal record. She asserted that, when the record isn’t sealed, the pardon’s purpose is undermined. Having a criminal record, Boykin’s attorney said, leads to long-term negative consequences, such as difficulty finding work, securing housing, and obtaining public benefits.
The court disagreed that expungement is required. “[A]lthough a pardon grants the recipient relief from any ongoing punishment for the offense and prevents any future legal disability based on that offense, it does not erase the past conduct,” Justice Lanzinger wrote. “In other words, what’s done is done.”
In addition, Justice Lanzinger pointed out that no Ohio case law requires the sealing of a conviction following a pardon. The U.S. Supreme Court has indicated that pardons can be limited in scope, and the Ohio Constitution “contemplates that a record of the conviction and the pardon will be maintained,” she also noted. She further added that the Ohio legislature hasn’t made pardons a factor to consider when sealing a criminal record in the statutes. “Although the governor may have the power to issue a pardon, an entitlement to the sealing of court records is not an automatic result of that pardon, because the maintenance of judicial records is not within the governor’s control,” Justice Lanzinger wrote.
On the conflict between the appellate courts, Justice Lanzinger stated that the Ohio Supreme Court does not agree that a pardon without an expungement is not a pardon, as the First District held.
“[W]hile a pardon releases the offender from further punishment prescribed for the offense and removes certain disabilities consequent on the conviction, there is nothing in the Constitution, the Revised Code, or our case law that requires the sealing of a criminal record based on a pardon,” she concluded. “It is within the purview of the General Assembly to provide that automatic entitlement to sealing of a criminal record is a consequence of a pardon. But in the absence of such a provision, we hold that a gubernatorial pardon does not automatically entitle the recipient to have the record of the pardoned conviction sealed.”
Justice Lanzinger’s majority opinion was joined by Justices Paul E. Pfeifer, Sharon L. Kennedy, and Judith L. French and by Judge Stephen R. Shaw of the Third District Court of Appeals. Shaw served as a visiting judge during oral arguments in this case, sitting in for Chief Justice Maureen O’Connor, who recused herself. Justice Terrence O’Donnell joined the majority in judgment only.
Justice William M. O’Neill dissented without opinion.
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