Pardons Only Entitle Conviction Expungement, Not Arrest Record Expungement

Blake v. State
Court of Appeals of Indiana
January 24, 2007

Holding: A petitioner who obtains a Governor’s pardon is entitled to expunge his conviction-related criminal records, but not entitled to expunge his records related to his arrest.

Why This Case is Important: Indiana courts have held that persons who obtain a Governor’s pardon may have their conviction records expunged. However, even if a pardon is granted, an individual who had been convicted will not be able to expunge his arrest records. This case explains why expungement is granted for conviction records and not arrest records when a Governor’s pardon is granted.

There are two prevailing theories governing the effects of a Governor’s pardon. One theory is that a pardon serves to erase the guilt of a former convict. The other theory states that the former convict’s guilt is not erased, but instead, that he is released from further punishment. Although there is conflict as to which theory should prevail, a majority of states, including Indiana, have rejected the theory that a pardon serves to completely erase the guilt of a former convict. As such, Indiana has adopted the rule that a former convict is not entitled to expungement of all criminal records related to the conviction.

This means that arrest records are not eligible for expungement, even if a Governor’s pardon is granted. Indiana Code section 25-28-5-1 is the exclusive authority for expunging criminal arrest records, and contains no language resolving the effects of a Governor’s pardon. Section 35-38-5-1 is only clear on who can obtain expungement of an arrest record, which would only be individuals who have not been convicted of a crime. Because Indiana courts have adopted the principle that a pardon does not erase the fact a conviction occurred, then those who are pardoned still stand as a former convict, and are thereby unable to expunge their arrest records.

It is important to note that a Governor’s pardon does allow an individual to expunge his or her conviction records. In the case State v. Bergman, the court held that a pardon requires expunction of all records pertaining to a conviction. As such, a Governor’s pardon allows for the expungement of conviction records, but not the expungement of arrest records.

Facts of This Case: In 1992, the petitioner in this case pled guilty to one count of robbery. In 2005, he was issued a Governor’s pardon for his conviction. The petitioner, seeking to obtain a license to practice law, filed a petition to compel the court to expunge his conviction and arrest records on the grounds his conviction was pardoned. The trial court denied his request.

The Court of Appeals of Indiana reversed-in-part and affirmed-in-part, concluding that the petitioner’s conviction records should be expunged, but that his arrest records should not. The court examined the effects of a Governor’s pardon and came to the conclusion that such a pardon did not have the effect of completely erasing the petitioner’s conviction. Because IC 35-38-5-1 entitled only those who have not been convicted of a crime to expunge their arrest records, then the petitioner was not entitled to expunge his records of arrest.

After examining case precedent, the court determined that although the petitioner was not entitled to arrest record expungement, the pardon entitled the petitioner to expunge his conviction records. As such, the court of appeals ordered expungement of petitioner’s conviction records and denied the petitioner’s arrest record expungement request.

Key Language: Petitioner who obtained Governor’s pardon from his conviction for robbery was entitled to expungement of his conviction-related criminal records, but was not entitled to expungement of records related to his arrest.

Expert Advise: “Many states treat the effects of a pardon differently, especially when it comes to expungement laws. Cases like this one clearly explain how a pardon effects a petitioners rights and should be looked to for guidance in this area of law.” -Attorney Mathew Higbee.

To read about more cases that help to define record clearing relief laws click here.

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