PHILADELPHIA BAR ASSOCIATION RESOLUTION URGING THE COMMONWEALTH OF PENNSYLVANIA TO DISCONTINUE THE PRACTICE OF CONSIDERING THE ASSETS, INCOME OR WEALTH OF APPLICANTS WHEN CONDUCTING INVESTIGATIONS OF APPLICANTS FOR PARDON

WHEREAS, the Constitution of the Commonwealth of Pennsylvania grants to the Governor the power to grant pardons to those who have received the recommendation of the Board of Pardons; and,

WHEREAS, the Constitution not only recognizes the right of citizens to petition those having the power to pardon, but provides that this right “shall forever remain inviolate”; and,

WHEREAS, pursuant to procedures adopted by the Board of Pardons, and upon its request, the Board of Probation and Parole (PBPP) investigates applications for pardon, and the Board of Pardons evaluates the merits of pardon applications on the basis of reports provided to it by PBPP; and,

WHEREAS, in performing these investigations, the PBPP requires all applicants to disclose certain information that bears no demonstrated relationship to whether or not an applicant is deserving of forgiveness of past crimes or likely to commit future crimes, or that are otherwise relevant to the proper execution of PBPP’s official duties, including the following:

  • “The size of your home (square footage) and property (lot acreage)”
  • “Do you have any sheds, barns, pools, etc. located on the property?”
  • “Addresses of any properties you own and the amount of equity in each”
  • “Checking, Savings, Retirement Accounts, Life Insurance, Stocks, etc. Please provide the name of the financial institution related to each account and the balances of the accounts
  • “Vehicles: Year, make, model, and estimated value”
  • “Salaries [from] employment, last ten years,” “Spouse’s salary” and “Total annual household income”
  • “Debts: Mortgage, personal loans, vehicle loans, credit cards, medical debt, school loans, etc. Please provide name of lender, original loan amount, monthly payment amount, and balance”
  • “Do you have any bills in collections? If so, please provide all relevant information”
  • “If you pay child support, please provide the monthly amount and any arrears balance”; and,

WHEREAS, the PBPP warns pardon applicants that “the Board of Pardons does consider [this] information … when evaluating your application for clemency” and that “the Board will consider you to be uncooperative if you do not comply”; and,

WHEREAS, the PBPP seeks this information on the purported justification that the data address “criminogenic risk factors,” thereby displaying an explicit prejudice that individuals who reside in smaller homes, possess fewer assets, have low incomes, are in debt, or have ongoing financial obligations are more likely to commit future crime; and,

WHEREAS, there is no accepted body of scientific literature that proves that a “lack of assets, income or wealth” (as distinguished from “lack of employment”) is a bona fide predictor of future crime or recidivism, and this conclusion is confirmed by research conducted by the Pennsylvania Department of Corrections;1 and,

WHEREAS, as with all executive agencies, neither the Board of Pardons nor the PBPP may act arbitrarily or consider information that bears no proper relationship to a rational basis for the execution of their official duties, and,

WHEREAS, state and federal courts have long held that a criminal justice agency may not treat people differently on the basis of their financial situation;2 and,

WHEREAS, PBPP’s investigation into and consideration of an applicant’s assets, income or wealth, as previously described, is prejudicial to deserving applications, wastes scarce resources of the PBPP, and needlessly delays consideration of pardon applications, causing harm to applicants and their families, and the larger community;

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association urges the Board of Pardons and the Board of Probation and Parole to immediately discontinue the practice of considering the assets, income or wealth of applicants for pardons; and, more generally, to refine the information they request from applicants to ensure that there is a legitimate state interest in all information collected and considered before making a pardon recommendation to the Governor;

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, and the public at large, and to take such other action as may be appropriate.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: October 23, 2019


1 The professional literature identifies eight “criminogenic risk factors” that have commonly-accepted, statistically-significant correlations with criminal activity: Antisocial personality or temperament, Antisocial cognition, Antisocial companions, Family and/or marital stressors, Substance abuse, Lack of employment, Lack of education, and Lack of pro-social leisure or recreation. Donald Arthur Andrews and James Bonta, The Psychology of Criminal Conduct (6th ed. 2016). Gary Zajac, PhD, Chief of Research and Evaluation, and Kristofer Bret Bucklen, Senior Research Analyst, Pennsylvania Department of Corrections, ”But Some of Them Don’t Come Back (to Prison!): Resource Deprivation and Thinking Errors as Determinants of Parole Success and Failure,” The Prison Journal Vol. 89 (2009) (discussing the Department’s parole outcomes study which examined factors leading to success or failure on parole of inmates released from Pennsylvania correctional institutions).

2 "Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution." Roberts v. LaVallee, 389 U.S. 40, 42 (1967). Indigency cannot be the reason that people are denied access to the courts for relief that only a court can grant, Boddie v. Connecticut, 401 U.S. 371 (1971) (divorce), or to a public education, San Antonio Independent School District v. Rodriguez. 411 U.S. 1 (1973) (upholding a wealth-based equal protection challenge to Texas’s system of apportioning school funds). Further, indigent defendants are protected by equal protection "at all stages of [criminal] proceedings," Griffin v. Illinois, 351 U.S. 12, 18 (1956). Heightened scrutiny is required when criminal laws detain poor defendants because of their indigence. See e.g., Williams v. Illinois,399 U.S. 235, 241-42 (1970) (invalidating a facially neutral statute that required convicted defendants to remain in jail beyond the maximum sentence if they could not pay other fines associated with their sentences because it violated the equal protection rights of indigents).