# Vacating conviction after pardon - how common? **URL:** \ **Category:** Factual Questions\ **Created:** [October 4, 2017, 4:26pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961 "2017-10-04T16:26:58Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![puddleglum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puddleglum/32/137_2.png) [@puddleglum](https://boards.straightdope.com/u/puddleglum)\ **Post date:** [October 5, 2017, 2:44pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/21 "2017-10-05T14:44:00Z")
There is precedence that supports his case. In Schaffer v US the court said “When a case becomes moot on appeal, whether it be during initial review or in connection with consideration of a petition for rehearing or rehearing en banc, this court generally vacates the District Court’s judgment, vacates any outstanding panel decisions, and remands to the District Court with direction to dismiss. See U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 25, 29, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994); United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Clarke v. United States, 915 F.2d 699, 706-08 (D.C.Cir.1990) (en banc); Flynt v. Weinberger, 762 F.2d 134, 135-36 (D.C.Cir.1985). Because the present mootness results not from any voluntary acts of settlement or withdrawal by Schaffer, but from the unpredictable grace of a presidential pardon, vacatur is here just and appropriate. See U.S. Bancorp, 513 U.S. at 24-25, 115 S.Ct. 386.” That seems pretty definitive that if the defendant is pardoned before the appeals process is completed their conviction is vacated. ---
**Author:** ![aceplace57](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aceplace57/32/3500_2.png) [@aceplace57](https://boards.straightdope.com/u/aceplace57)\ **Post date:** [October 5, 2017, 11:37pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/22 "2017-10-05T23:37:36Z")
I’ve seen local news reports that indicated a state pardon reinstates the felons right to vote and own guns. The desire to go hunting often results in pardon applications in my state. They are sometimes granted several years after the person leaves prison. Merle Haggard received a California state pardon in 1972. A decade after leaving San Quentin. A pardon would have served no purpose unless it restored his rights and cleared his name. I don’t know if a Federal pardon works differently than state pardons. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [October 6, 2017, 12:16pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/23 "2017-10-06T12:16:26Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The general rule is correct, but your application is not. Arpaio was not convicted of a crime, _per se_. He was convicted of indirect criminal contempt for disobeying a court order in a _civil_ case. The underlying finding was not based on whether he violated the rights of suspects, but whether he violated federal law. > > In other words, it is the part in parentheses that controls the outcome of the hypothetical civil lawsuit. In any event, Arpaio would not be personally liable to civil plaintiffs, so his conviction is not admissible to sustain the defendant’s (Maricopa County’s) wrongdoing at all. I assume what you mean is qualified immunity. An officer of the government simply doing his job cannot be personally held liable. However, IIRC that immunity is lost if he knowingly does something well beyond the scope of his legal duties. (i.e. excessive force during an arrest, blatantly ignoring lack of probable cause, etc.) In this case, a court judgement showing he violated civil rights, and another judgement showing he continued to do so after being served with an order, suggests evidence of willful disregard of civil rights that he might have to answer personally? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 6, 2017, 2:05pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/24 "2017-10-06T14:05:33Z")
> [@md2000](#): > > I assume what you mean is qualified immunity. An officer of the government simply doing his job cannot be personally held liable. However, IIRC that immunity is lost if he knowingly does something well beyond the scope of his legal duties. (i.e. excessive force during an arrest, blatantly ignoring lack of probable cause, etc.) In this case, a court judgement showing he violated civil rights, and another judgement showing he continued to do so after being served with an order, suggests evidence of willful disregard of civil rights that he might have to answer personally? Not really. The standard required to get around immunity in §1983 (and equivalent state law) claims is pretty high - willful conduct is required. I don’t remember exactly what the findings in the contempt case were, but my recollection is that Arpaio was ordered to make affirmative changes to policy and did not (as opposed to ordering that the policy continue). More importantly - at least as to whether the criminal conviction is binding in a civil action - the issue is that the underlying case was an enforcement action by the DOJ which asserted that Arpaio’s _practices_ were violative of federal law. The court was not asked to find that Arpaio violated the rights of a specific individuals, only that he violated the rights of certain categories of people (brown ones). So the conviction is not evidence that “Arpaio wrongfully detained Suspect X,” only that Arpaio had a practice of wrongfully detaining certain people. It’s persuasive evidence, but not _conclusive_. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 6, 2017, 6:48pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/25 "2017-10-06T18:48:32Z")
> [@Bricker](#): > > As to the OP: I’m not aware of any legal theory that entitles Arpaio to void his conviction based on a subsequent pardon. If a conviction remains after a pardon such that an individual suffers collateral consequences, it would seem that it is not truly a “pardon”? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 6, 2017, 9:14pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/26 "2017-10-06T21:14:28Z")
> [@UltraVires](#): > > If a conviction remains after a pardon such that an individual suffers collateral consequences, it would seem that it is not truly a “pardon”? > [@](#): > > The true distinction seems to be this: The pardon removes all legal punishment for the offense. Therefore if the mere conviction involves certain disqualifications which would not follow from the commission of the crime without conviction, the pardon removes such disqualifications. On the other hand, if character is a necessary qualification and the commission of a crime would disqualify even though there had been no criminal prosecution for the crime, the fact that the criminal has been convicted and pardoned does not make him any more eligible. Quoting Samuel Wilson, _Does Pardon Blot Out Guilt?_, 28 Harvard Law Review 647, 649 (1915). ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [October 6, 2017, 9:21pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/27 "2017-10-06T21:21:36Z")
> [@UltraVires](#): > > If a conviction remains after a pardon such that an individual suffers collateral consequences, it would seem that it is not truly a “pardon”? If the conviction is expunged, is there still double-jeopardy if they try the individual again? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 7, 2017, 1:51am UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/28 "2017-10-07T01:51:59Z")
> [@Bricker](#): > > Quoting Samuel Wilson, _Does Pardon Blot Out Guilt?_, 28 Harvard Law Review 647, 649 (1915). Okay, say that Bricker Law Firm will not hire a person with a misdemeanor conviction on his record for the past five years. Sheriff Joe applies for a position and Bricker Law HR department does a background check and finds this criminal contempt conviction. You refuse to hire him. Didn’t Sheriff Joe suffer a harm as a result of his criminal conviction because the government continued to report it as a conviction which was otherwise forgiven by the President? ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [October 7, 2017, 2:56am UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/29 "2017-10-07T02:56:15Z")
They are not obligated to lie just to make him feel better. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [October 7, 2017, 3:30pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/30 "2017-10-07T15:30:43Z")
> [@UltraVires](#): > > Okay, say that Bricker Law Firm will not hire a person with a misdemeanor conviction on his record for the past five years. > > Sheriff Joe applies for a position and Bricker Law HR department does a background check and finds this criminal contempt conviction. You refuse to hire him. > > Didn’t Sheriff Joe suffer a harm as a result of his criminal conviction because the government continued to report it as a conviction which was otherwise forgiven by the President? Ah, the nuances of legalities. If Bricker Law has a rule they won’t hire someone with a conviction, then presumably they are violating the spirit of a pardon. If Bricker Law says “we don’t hire people that demonstrate the weakness or mendacity of character that something like a conviction demonstrates” then they are basing the hiring on his general character. Pardon is irrelevant. I assume they could make the same argument if Bob was charged with embezzlement but the case was thrown out because the evidence was obntained with an illegal search, so Bob was never convicted of the crime… ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [October 7, 2017, 3:57pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/31 "2017-10-07T15:57:58Z")
> [@UltraVires](#): > > Okay, say that Bricker Law Firm will not hire a person with a misdemeanor conviction on his record for the past five years. > > Sheriff Joe applies for a position and Bricker Law HR department does a background check and finds this criminal contempt conviction. You refuse to hire him. > > Didn’t Sheriff Joe suffer a harm as a result of his criminal conviction because the government continued to report it as a conviction which was otherwise forgiven by the President? Why should being forgiven erase the fact the crime was committed? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 10, 2017, 10:28pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/32 "2017-10-10T22:28:29Z")
> [@running\_coach](#): > > Why should being forgiven erase the fact the crime was committed? Maybe it’s my Christian upbringing, but that has always been my understanding of a pardon or forgiveness…we treat it as it never happened. In any event, it would seem that the government, knowing that some private businesses use a conviction as a disqualifier, would not report such a conviction if it had truly forgiven the transgression. Suppose I worked for you and took $20 out of petty cash. You catch me, I repay you and you tell me not to worry that all is forgiven. Now, you didn’t have to do that. You could prosecute, fire me, or tell everyone in town what I did. But given that you said that all was forgiven, wouldn’t I be rightfully upset if you started telling everyone in town that I stole from you? Wouldn’t it make your statement disingenuous? ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [October 10, 2017, 10:41pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/33 "2017-10-10T22:41:03Z")
> [@UltraVires](#): > > Suppose I worked for you and took $20 out of petty cash. You catch me, I repay you and you tell me not to worry that all is forgiven. > > Now, you didn’t have to do that. You could prosecute, fire me, or tell everyone in town what I did. > > But given that you said that all was forgiven, wouldn’t I be rightfully upset if you started telling everyone in town that I stole from you? Wouldn’t it make your statement disingenuous? Forgiven does not mean forgotten. I could forgive you, and not prosecute, but still make sure you aren’t in charge of the petty cash fund anymore. How could you be “rightfully” upset if what I told everyone in town was the truth? – You did steal, and only repaid it after you were caught. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [October 10, 2017, 10:43pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/34 "2017-10-10T22:43:05Z")
> [@UltraVires](#): > > Maybe it’s my Christian upbringing, but that has always been my understanding of a pardon or forgiveness…we treat it as it never happened. In any event, it would seem that the government, knowing that some private businesses use a conviction as a disqualifier, would not report such a conviction if it had truly forgiven the transgression. > > Suppose I worked for you and took $20 out of petty cash. You catch me, I repay you and you tell me not to worry that all is forgiven. > > Now, you didn’t have to do that. You could prosecute, fire me, or tell everyone in town what I did. > > But given that you said that all was forgiven, wouldn’t I be rightfully upset if you started telling everyone in town that I stole from you? Wouldn’t it make your statement disingenuous? As far as Trump is concerned, the shitbag is forgiven. I’m under no such restrictions. ---
**Author:** ![Marvin\_the\_Martian](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/marvin_the_martian/32/2898_2.png) [@Marvin\_the\_Martian](https://boards.straightdope.com/u/Marvin_the_Martian)\ **Post date:** [October 10, 2017, 11:33pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/35 "2017-10-10T23:33:26Z")
[At least Sheriff Joe’s “tent city” jail has been closed down.](http://tucson.com/news/state-and-regional/tent-city-joe-arpaio-s-infamous-outdoor-jail-shut-down/article_0993abdb-ab36-56f5-8681-db538825b821.html) ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [October 11, 2017, 2:48pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/36 "2017-10-11T14:48:58Z")
> [@UltraVires](#): > > Maybe it’s my Christian upbringing, but that has always been my understanding of a pardon or forgiveness…we treat it as it never happened. In any event, it would seem that the government, knowing that some private businesses use a conviction as a disqualifier, would not report such a conviction if it had truly forgiven the transgression. > > Suppose I worked for you and took $20 out of petty cash. You catch me, I repay you and you tell me not to worry that all is forgiven. > > Now, you didn’t have to do that. You could prosecute, fire me, or tell everyone in town what I did. > > But given that you said that all was forgiven, wouldn’t I be rightfully upset if you started telling everyone in town that I stole from you? Wouldn’t it make your statement disingenuous? My understanding of pardon or forgiveness is not that “it never happened”, but that I won’t treat you differently because of what you did, or I won’t continue to exact punishment. I.e. Kid misses curfew, lies about where he was - forgiveness means he’s no longer grounded, and it’s not strike 2 next time. But nobody has forgotten what happened… And hopefully your magnanimity brings on a bit more humbleness in his demeanor going forward. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 11, 2017, 6:24pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/37 "2017-10-11T18:24:58Z")
> [@UltraVires](#): > > Okay, say that Bricker Law Firm will not hire a person with a misdemeanor conviction on his record for the past five years. > > Sheriff Joe applies for a position and Bricker Law HR department does a background check and finds this criminal contempt conviction. You refuse to hire him. > > Didn’t Sheriff Joe suffer a harm as a result of his criminal conviction because the government continued to report it as a conviction which was otherwise forgiven by the President? Yes, he did suffer harm as the result of his criminal conviction, but that’s not harm imposed by the government, which is simply accurately reporting the history of events. Indeed, by crack team of HR researchers could just as well Google Joe, discover the fact of the conviction and the fact of the pardon, and refuse to extend an offer based on that report, even if the government no longer reports the conviction. The only thing that would help Joe at that point would be a Delorean that can reach 88 mph on the flat. However . . . I think **puddlegum** ’s research has convinced me that Arpaio should prevail. The case he cited, _US v. Schaffer_, 240 F. 3d 35 (DC Circuit 2001). In this case, President Clinton issued a full pardon to Archibald Schafer following his conviction of the anti-bribery provision of the Meat Inspection Act. Schafer appealed, and although there was some procedural wonkiness with the trial court setting aside the jury verdict and ordering a new trial mixed into the bowl, the appeals court said: > [@](#): > > The independent counsel, the appellant in this case, concedes that “these appeals are moot and that the Presidential pardon ends all litigation.” Response of United States to Schaffer’s Supplemental Memorandum at 2. We agree. In making this concession, however, the prosecutor advances the odd suggestion that Schaffer’s conviction is established as a matter of law. We disagree. Final judgment never has been reached on this issue, because the appeals process was terminated prematurely. > > Certainly, a pardon does not, standing alone, render Schaffer innocent of the alleged Meat Inspection Act violation. See In re North, 62 F.3d 1434, 1437 (D.C.Cir.1994) (citing United States v. Noonan, 906 F.2d 952, 960 (3d Cir.1990)). In fact, acceptance of a pardon may imply a confession of guilt. See North, 62 F.3d at 1437 (citing Burdick v. United States, 236 U.S. 79, 91, 94, 35 S.Ct. 267, 59 L.Ed. 476 (1915)). > . > . > . > Nevertheless, the independent counsel is wrong to suggest that Schaffer’s conviction is a fait accompli. Finality was never reached on the legal question of Schaffer’s guilt. The District Court ordered a new trial following Espy’s acquittal; the prosecutor exercised a legitimate right to appeal that order; a panel of this court reversed the order of the trial court; the court expedited issuance of the mandate in Schaffer II; and Schaffer was sentenced on September 25, 2000. However, the matter was never actually put to rest, because this court granted Schaffer’s petition for en banc review and recalled the mandate on December 1, 2000. And in agreeing to en banc review, this court vacated the panel decision in Schaffer II. It was at that uncertain juncture that then President Clinton pardoned Schaffer, thus rendering the case moot. > > **When a case becomes moot on appeal, whether it be during initial review or in connection with consideration of a petition for rehearing or rehearing en banc, this court generally vacates the District Court’s judgment, vacates any outstanding panel decisions, and remands to the District Court with direction to dismiss.** (emphasis added by me and the bolded text was also quoted by **puddlegum**. That seems pretty precisely on point. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 11, 2017, 6:29pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/38 "2017-10-11T18:29:30Z")
> [@UltraVires](#): > > Maybe it’s my Christian upbringing, but that has always been my understanding of a pardon or forgiveness…we treat it as it never happened. Here I think the distinction rests on the procedural posture of the case. If the direct and collateral appeals from this case had been exhausted, the pardon would not affect the historical fact of conviction. But because the case is in appellate review when it’s mooted, the process mandates vacatur. To draw the Christian analogy out a bit, one cannot be forgiven after the final determination of your soul is made: if you hear "Depart from me. . . " (Matt 7:21) in other words, your final appeals are exhausted and you cannot dodge the collateral consequences. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 12, 2017, 2:33pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/39 "2017-10-12T14:33:21Z")
> [@Bricker](#): > > That seems pretty precisely on point. Well, yes and no. The Arpaio prosecution doesn’t seem to be conceding that the (not taken) appeals are moot. Since Arpaio is the one seeking further relief, it seems to me that he isn’t conceding that either (but neither was Schaffer, so maybe SCOTUS just got it wrong). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 12, 2017, 3:11pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/40 "2017-10-12T15:11:42Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, yes and no. The Arpaio prosecution doesn’t seem to be conceding that the (not taken) appeals are moot. Since Arpaio is the one seeking further relief, it seems to me that he isn’t conceding that either (but neither was Schaffer, so maybe SCOTUS just got it wrong). I don’t think either side contests the issue of a pardon mooting an appeal. [Previous page](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961.md?page=1) [Next page](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961.md?page=3)