# 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:** 18\ **Page:** 3
**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, 9:50pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/41 "2017-10-12T21:50:41Z")
ISTM that if Arpaio has a problem with the sanctions associated with a conviction other than those imposed by the court, the appeal is not moot. ---
**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, 11:41pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/42 "2017-10-12T23:41:14Z")
> [@Really\_Not\_All\_That\_Bright](#): > > ISTM that if Arpaio has a problem with the sanctions associated with a conviction other than those imposed by the court, the appeal is not moot. That same situation existed in Schaffer, though. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 13, 2017, 1:46am UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/43 "2017-10-13T01:46:28Z")
Wait then how is a pardon different than commuting his sentence? ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [October 13, 2017, 3:03pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/44 "2017-10-13T15:03:15Z")
IIRC commuting means it’s as if the perp has completed their sentence, nothing more. A pardon, ISTM, is where the perp is given the equivalent of “the court finds you not guilty from now on going forward…”; what Arpaio is asking for is “you were never found guilty”. ---
**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 13, 2017, 3:05pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/45 "2017-10-13T15:05:05Z")
> [@Bricker](#): > > That same situation existed in Schaffer, though. Right. Hence my notation that I think SCOTUS got it wrong in Schaffer. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 13, 2017, 3:32pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/46 "2017-10-13T15:32:55Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Right. Hence my notation that I think SCOTUS got it wrong in Schaffer. US v. Schaffer, 240 F. 3d 35 (DC Circuit 2001). Not SCOTUS. 🙂 ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 13, 2017, 4:32pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/47 "2017-10-13T16:32:57Z")
> [@Really\_Not\_All\_That\_Bright](#): > > ISTM that if Arpaio has a problem with the sanctions associated with a conviction other than those imposed by the court, the appeal is not moot. That argument is rather circular. If he has “problem[s] with the sanctions associated with a conviction other than those imposed by the court” then an appeal would be fruitless. If it is not fruitless then almost by definition anything he seeks on appeal would be something that IS indeed imposed by the court. IOW, if an appeals court can cure his particular bitch, then the underlying issue is one that the government is taking in contravention of the idea that the executive has fully forgiven him of the offense. Bricker’s point is well taken that the government cannot cure some collateral consequences. Similar to expungement, they cannot mind wipe everyone who was there. But the spirit of a pardon, i.e. we forgive you and will take no further negative actions against you, seems to include refusing to answer any inquiry that the person was convicted. ---
**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 13, 2017, 7:10pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/48 "2017-10-13T19:10:36Z")
The power to pardon is solely reserved to the executive. The power to tell people about a conviction is a function of the judiciary. He would not be appealing the extrajudicial sanctions; he would be appealing the validity of the underlying conviction. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [October 13, 2017, 7:48pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/49 "2017-10-13T19:48:46Z")
Are there established grounds to vacate a conviction or could anyone just ask the court to vacate a conviction for any reason? I’m sure if you have been proven to have been unjustly convicted in the first place a court would consider it, but can you just ask the courts to vacate the conviction because you don’t want it on your record? ---
**Author:** ![Bookkeeper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bookkeeper/32/281_2.png) [@Bookkeeper](https://boards.straightdope.com/u/Bookkeeper)\ **Post date:** [October 15, 2017, 7:25pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/50 "2017-10-15T19:25:49Z")
Surely if Sheriff Joe is so firmly convinced that he was unjustly convicted, he could simply refuse the pardon and continue with his appeal, trusting that justice will be served and his innocence affirmed? ---
**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 16, 2017, 1:28am UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/51 "2017-10-16T01:28:13Z")
> [@TriPolar](#): > > Are there established grounds to vacate a conviction or could anyone just ask the court to vacate a conviction for any reason? I’m sure if you have been proven to have been unjustly convicted in the first place a court would consider it, but can you just ask the courts to vacate the conviction because you don’t want it on your record? You can have state court convictions expunged after you serve your sentence. Not sure if expungement is available for federal crimes. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 16, 2017, 12:23pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/52 "2017-10-16T12:23:20Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The power to pardon is solely reserved to the executive. The power to tell people about a conviction is a function of the judiciary. > > He would not be appealing the extrajudicial sanctions; he would be appealing the validity of the underlying conviction. But the argument that I am making is that his underlying conviction is not valid because the executive has forgiven him of the offense. Think of it this way: sentencing to prison is a judicial function. Why wouldn’t your argument be that while a president may pardon, the pardon cannot trample on the judicial power to sentence someone to prison? ---
**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 16, 2017, 12:27pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/53 "2017-10-16T12:27:48Z")
Because the Constitution says so, of course. Sent from my LG-H872 using Tapatalk ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 7, 2020, 11:25pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/54 "2020-03-07T23:25:09Z")
An update: The Ninth Circuit has spoken on the issue in this thread. Their opinion is here: [https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/27/17-10448.pdf](https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/27/17-10448.pdf) The hang their collective judicial hats on the fact that while there was a verdict for conviction, the court had not imposed sentence, and thus, say they, the district court’s findings of guilt were not a conviction and could create no future preclusive effect. This isn’t quite what I had argued above, so I thought I’d flesh out the story with its actual ending. ---
**Author:** ![dba\_Fred](https://avatars.discourse-cdn.com/v4/letter/d/c37758/32.png) [@dba\_Fred](https://boards.straightdope.com/u/dba_Fred)\ **Post date:** [March 8, 2020, 5:35am UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/55 "2020-03-08T05:35:23Z")
He’s alive! **Bricker’s** alive! Nice to see you again. ---
**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:** [March 9, 2020, 3:13pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/56 "2020-03-09T15:13:16Z")
Agreed. Interestingly, the Court didn’t address whether the conviction would impact Arpaio’s future eligibility for office. I had assumed that was the rationale for the appeal. I still think the whole thing is silly because Arpaio voluntarily accepted the pardon. The language of \*Schaffer \*that “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,” suggests that pardons are involuntary, which they clearly aren’t. ---
**Author:** ![Boozahol\_Squid\_P.I](https://avatars.discourse-cdn.com/v4/letter/b/d9b06d/32.png) [@Boozahol\_Squid\_P.I](https://boards.straightdope.com/u/Boozahol_Squid_P.I)\ **Post date:** [March 9, 2020, 3:41pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/57 "2020-03-09T15:41:33Z")
> [@Bricker](#): > > The hang their collective judicial hats on the fact that while there was a verdict for conviction, the court had not imposed sentence, and thus, say they, the district court’s findings of guilt were not a conviction and could create no future preclusive effect. This seems very strange: I see how they draw a line between a conviction and a “judgment of conviction,” and so they won’t vacate the conviction because it’s moot without the sentencing. But the laws that strip rights from convicted felons don’t make this distinction, themselves. In a future situation, if Arpaio tries to exercise some of these rights, would a future court be bound by these judges’ interpretation of “conviction” here? ---
**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:** [March 9, 2020, 5:45pm UTC](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961/58 "2020-03-09T17:45:16Z")
> [@Boozahol\_Squid\_P.I](#): > > But the laws that strip rights from convicted felons don’t make this distinction, themselves. Don’t they? I just looked up 18 U.S.C. § 921 and it specifically provides that pardoned crimes don’t count. [Previous page](https://boards.straightdope.com/t/vacating-conviction-after-pardon-how-common/797961.md?page=2)