Resolution Calling on the Pennsylvania Board of Pardons to Refrain from Requesting, Investigating or Considering Expunged, ARD and Juvenile Court Records in Pardon Proceedings Involving Non-Incarcerated Applicants
WHEREAS, the Constitution of the Commonwealth of Pennsylvania (the “Constitution”) has recognized since 1873, in Article 1, Section 1, the “inherent and indefeasible rights” that every citizen has in of “acquiring, possessing and protecting property and reputation”; and,
WHEREAS, Article 4, Section 9 of the Constitution gives to the Governor of the Commonwealth the power to grant pardons for any crimes except impeachment upon the recommendation of the Board of Pardons, to which applications for pardons must be submitted; and,
WHEREAS, the form of the application for a pardon to be used by people who are not incarcerated that has been approved by the Board of Pardons (attached – SEE NOTE1) requires them to set forth all “Charges which resulted in ARD [Accelerated Rehabilitative Disposition] or have been expunged” and “any juvenile charges and/or adjudications of delinquency that are not to be included in your [pardon] request [including] [c]harges which resulted in a Consent Decree”; and,
WHEREAS, charges that have been expunged by final Order of Court, charges that the law requires must be expunged following successful completion of ARD, and charges that were lodged against children are all specifically and intentionally intended to not be used against anyone for any purpose other than for exceptions that are specified by statute, none of which applies to applications for pardons; and,
WHEREAS, the harms ancillary to an arrest record have been described as “obvious” by the appellate courts in Pennsylvania for a variety of reasons, even before criminal records became immediately accessible over the internet:
"Information denominated a record of arrest, if it becomes known, may subject an individual to serious difficulties. Even if no direct economic loss is involved, the injury to an individual's reputation may be substantial. Economic losses themselves may be both direct and serious. Opportunities for schooling, employment, or professional licenses may be restricted or nonexistent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved.”2
WHEREAS, because they are freely available over the internet, criminal history records (arrests and convictions) are routinely considered by employers, landlords, credit agencies, retirement homes and assisted care facilities, and used to exclude people from jobs, professions, schools, trades, homes, credit and financing for which they would otherwise be eligible, as well as to deny people opportunities to live full lives, such as going on school trips with their children or coaching them in sports leagues, or volunteering in community activities; and,
WHEREAS, the appellate courts in Pennsylvania have recognized how arrest records can be used to punish people:
“’An arrest record may be used by the police in determining whether subsequently to arrest the individual concerned, or whether to exercise their discretion to bring formal charges against an individual already arrested. Arrest records have been used in deciding whether to allow a defendant to present his story without impeachment by prior convictions, and as a basis for denying release prior to trial or an appeal; or they may be considered by a judge in determining the sentence to be given a convicted offender.’”3
WHEREAS, the Criminal History Records Information Act, 18 Pa.C.S. §§ 9101 et seq., provides that, after hearing and the opportunity for the Commonwealth to be heard, judges may Order that all data about arrests that did not result in convictions be expunged “so that there is no trace or indication that such information existed” [emphasis added], and that the limited information that the law allows to be retained “shall be used solely” in three, very limited circumstances: “determining subsequent eligibility for [pretrial or post-trial diversion or probation] programs, identifying persons in criminal investigations, or determining the grading of subsequent offenses” [emphasis added], none of which includes applications for pardons; and,
WHEREAS, the statute creating the Accelerated Rehabilitative Disposition (“ARD”) program specifically states that “[t]he program is intended to encourage offenders to make a fresh start after participation in a rehabilitative program and offers them the possibility of a clean record if they successfully complete the program,” and the Supreme Court has held that that a defendant’s arrest record must be expunged upon successful completion of an ARD program unless the Commonwealth presents compelling reasons why the arrest record should be retained;4 and,
WHEREAS, records of proceedings in Juvenile Court are confidential by statute (the Juvenile Act, 42 Pa.C.S. §§ 6301 et seq.) because of centuries-long social policies that are intended to protect individuals from having their lives and potentials permanently damaged because of bad decisions they made when they were children; and,
WHEREAS, because a regulation of the Board of Pardons provides, at 37 Pa Code § 81.227, that “[t]he application will be available for public inspection,” the Board of Pardon’s decision to require applicants to disclose expunged and juvenile records amounts to a public disclosure, contrary to the letter and spirit of the Juvenile Act, legislation creating ARD and the Criminal History Records Information Act, all to the detriment of individuals intended to be protected by these statutes; and,
WHEREAS, by Resolution adopted June 25, 2015, the Philadelphia Bar Association has previously confirmed that “there is great importance in individuals becoming free from the stain of mistakes made early in life to enjoy the opportunities that a clean criminal history background check will afford them,” and “that, when evaluated on their skills and qualifications for a job or housing, not just their past, individuals who are free from the stain of mistakes made early in life will have greater opportunity to become responsible and tax-paying community members and Pennsylvania will benefit by developing a workforce that is employed to its full potential, unburdened by mistakes of the past”;
NOW, THEREFORE, BE IT RESOLVED, that the Board of Governors of the Philadelphia Bar Association expresses its strong opposition to the Board of Pardons requesting, investigating, or considering in any way any information about (1) charges that have been expunged by Court Order; (2) charges which resulted in ARD the terms of which were satisfied by the applicant; and/or (3) any juvenile charges and/or adjudications of delinquency including charges which resulted in a Consent Decree.
AND BE IT FURTHER RESOLVED, that the Philadelphia Bar Association authorizes the Chancellor or the Chancellor’s designee to communicate the content of this resolution to the Governor, the Lieutenant Governor, the Attorney General, the other members of the Board of Pardons, state and local public officials, other bar associations, and the public at large, and to take such other action as may be appropriate including, but not limited to, calling on the Lieutenant Governor, the Attorney General and the other members of the Board of Pardons to put an end to this policy.
PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: January 29, 2019
1The attached form has been approved by the Board of Pardons but not released for use pending final comments. It is expected to be released with minor modifications before the end of February. The form currently in use (since 2015) specifically requires disclosure of ARD and juvenile court data, but is not explicit about expunged charges; instead it broadly requires the applicant to disclose “each federal and state charge … that are not to be included in your clemency request” – language which the Board has interpreted to include charges that have been expunged.
2 Commonwealth v. Armstrong, 434 A.2d 1205 (Pa. 1981), quoting Commonwealth v. Malone, 366 A.2d 584, 587-588 (Pa Super. 1976).
4 Commonwealth v. Armstrong, 434 A.2d 1205 (Pa. 1981).