Justice and Due Process

The Pardon Power in Utah

When a president’s term nears completion, it is common to see a flurry of pardons. In some states, the pattern is mirrored by outgoing governors. This was on display writ large by Governor Kate Brown of Oregon who granted 130 pardons and 104 commutations during her eight-year tenure, many during her last months in office. Other governors use the pardon power more sparingly: the last two governors of Wyoming issued no pardons during their tenure.

The topic of pardons can be controversial. Advocates like Governor Brown call them a “chance to save lives.” However, granting one individual the power to override a lawful conviction leaves that power subject to abuse. At times the pardon power has been used to let campaign donors and the well-connected escape accountability for their actions. Even when a pardon is granted with good intentions, those who are pardoned sometimes squander their second chance by returning to crime

Perhaps it is no surprise then that in many states, the governor does not wield the pardon power alone or even at all. In six states including Utah, a board — not the governor — is tasked with granting pardons. In eleven states, the governor issues pardons in conjunction with others. In the remaining thirty-three states, the governor alone decides who will be granted a pardon. However, even in these states, who qualifies for a pardon is often limited by statute or rule. For example in Oklahoma, an individual is only eligible for a pardon after he has completed his sentence. In Virginia, the governor can only pardon someone who has completed his sentence and waited five years or who is actually innocent, terminally ill, or facing deportation within thirty days. 

In Utah, the pardon power is held by the Board of Pardons and Parole, a board of five people appointed by the governor and approved by the Senate. They determine by majority vote when to parole prisoners and grant pardons. By rule, absent extraordinary circumstances, the Board will only consider pardoning people who have demonstrated exemplary citizenship, completed their sentence, and remained crime free for at least five years. In that sense, pardons in Utah act more like expungement than a get-out-of-jail card. 

What is not known is how often, if ever, the Board finds extraordinary circumstances justifying a deviation from their general rule. Nor is it clear how often pardons are granted, especially since expungement expansion in recent years has reduced the need for post-release relief. Several states require the creation of an annual report on pardons so lawmakers can assess the use of pardons and determine if any changes need to be made. While the Board is quite transparent — its website maintains a dashboard about parole and you can search decisions regarding specific individuals — annual reporting specific to pardons would help lawmakers evaluate Utah’s use of pardons.