Try to think of an appropriate image for this past year – and especially this month’s final set of hearings. A missed penalty kick during extra time? An interception in the red zone? A crash in the final lap? A ship sinking after striking an iceberg? None worked, because in each of those cases, the individuals were doing their best and their best simply wasn’t enough. Alfred E. Neuman (What, Me Worry?)? Too trite.

But the above image of a crashing stock market fits. 2022 began with the Board deciding to hold only three sessions instead of four – promising to hear more cases per session, then promptly not. It included the Governor not proposing any increase in the budget or size of the staff (despite substantial increases in applications) and removing from the public website the number of applications received (because they showed how far they were falling behind); discontinuing procedures that had led to far greater efficiencies and faster hearings; and declining to give hearing dates promptly to those who had passed through Merit Review. And it ended with the Board canceling one of the four days of hearings, one Board member not showing up for any of the three days, the very public crash of the PA Marijuana Pardon Project and the devastation of thousands of good people and their families to whom hope had been given; and the failure even to mention, much less hear, our Petition for General Pardon (Amnesty) for non-violent marijuana crimes that could have helped tens of thousands.

But a new Board of Pardons convenes in January, and we have met incoming Lt. Gov. Austin Davis. We choose hope. And there are LOTS of reasons to be hopeful . . . including a terrific BOP staff that stuck to it, weathered the past year, and processed more applications for clemency than ever before in the agency’s history, by far!

At this month’s hearings, a total of just 133 people had their pardon applications determined. 97 were recommended to the Governor (72.9%) and 36 were denied. (These are in addition to the 231 PA Marijuana Pardon Project applicants, all of whom were excused from the hearings and unanimously recommended.) Simply put, these numbers are terrible: too few cases heard, too few recommended.

But two other numbers warrant the spotlight:

Given how long people had been waiting for this day, and how many more are still waiting to have their hearing scheduled, we have two recommendations for the Board for 2023:

We can all be hopeful here, right??

Thumbnails of the Eleven “General Pardon” Petitioners (non-violent marijuana offenses)

Pardon Me (film trailer, release expected March 2023) [2:22]

Joseph Young’s Story [2:17]

Rickey Duncan’s Story [1:53]

People Change [4:37]

The photo at the top of this article is the Charter of Pardon that was received in the mail this past Saturday by Evan Figueroa-Vargas, a member of our Board of Directors and a leader of the statewide Pardon Project Steering Committee. He has now been forgiven for crimes he committed in 2007 and 2011 that resulted from an addiction that started with opioids prescribed by his doctor. He hasn’t used drugs since September 8, 2011 and was never arrested again. He applied for a pardon on October 9, 2019. Now with five children and a master’s in social work, he was denied the perfect job a year ago solely because of his record.

– Evan Figueroa-Vargas, December 17, 2022

Tikkun tikkun olam. Justice, justice shalt thou pursue.  

Leaders of the twenty or so Pardon Projects around the state meet monthly to discuss developments and share best practices. The votes in the recent general election probably hadn’t all been counted yet when Lt. Gov.-elect Austin Davis reached out and offered to drop in on our December meeting! Not only did he, but he began to discuss priorities. One was speeding up hearings for people who have completed their sentences and clearly deserve second chances. A second was increasing the number of BOP staff, which is now WAY too small to handle the six-fold increase in the number of applications. He asked for our help, and we promised it … so be ready to help when the time comes to act!

This past summer Keystone First – the largest Medicaid plan in southeastern Pennsylvania – made news when it announced it would help its low-income clients facing evictions. They ended the year with the announcement (on December 6) that they have begun training associates and community partners how to be Pardon Coaches at its Wellness and Opportunity Center in Chester.

“Barriers to employment and stable housing also cause barriers to health and wellness, especially for low-income residents, who are the most vulnerable,” said Joanne McFall, Keystone First Market President. Criminal record-clearing will now be a key part of the organization’s “Tools for Tomorrow” program, which offers workforce development strategies to its low-income members.

Thank you, Joanne! Thank you, Keystone First! Health care providers are the PERFECT Pardon Coaches because they see their clients regularly, know them well, and can help them tell their stories best! 2023 is off to an awesome start!!

Note to other health care providers: Please follow Keystone First’s lead! Contact Moriah Mendicino, our Equal Justice Works Fellow, who will be spearheading our efforts in 2023 to bring criminal record-clearing to health clinics!

Most of what we do is education, expunging criminal records in court, and helping people apply for pardons. But sometimes we get presented with the opportunity for direct and immediate action.

That happened earlier this month for Terrence Way, PLSE’s newest attorney. The client he was helping was a candidate for employment with a large health care system. After completing her interview process and receiving a job offer, an HR representative let her know they wouldn’t be able to move forward with her employment due to a conviction on her record. She reached out to PLSE. After some guided research, obtaining records from different places, and a carefully drafted demand letter to the employer, PLSE was able to show that the conviction did not disqualify her from employment, and that it was entirely a discretionary decision on the part of the employer. The result? She received the position!!

Hooray for her, Hooray for the HR employee who used an open mind instead of prejudice, Hooray for the power of advocacy!

Discrimination against people with criminal records is rampant in the HR industry– for a wide variety of reasons As SHRM confirmed in its 2021 report Getting People Back To Work, the causes can be fear of getting sued, or worries about how customers might react.

What’s worse than private employers has been the state’s occupational licensing system, which for decades has allowed “good moral character” to be a requirement for a license to work in hundreds of careers – and often a “good” cover for rejecting Black and Brown applicants with convictions (or even just arrests) in their past. So it was terrifically good news when the General Assembly adopted Act 53 of 2020, eliminating that criterion. From then on, the crime had to be “directly related” to the license being sought; and regulations would ensure that the criteria objective.

Those hopes were dashed when the proposed regulations were published. At their core was a “rebuttable presumption” that an applicant would in fact “pose a substantial risk to the health and safety of the individual’s patients or clients or the public or a substantial risk of further criminal convictions” if their crime was on the list of “related crimes” regardless of how many years or decades ago the crime occurred! 

Many organizations submitted comments opposing the proposals, including the Pardon Project Steering Committee. We thought their words were particularly powerful:

There’s no fixed schedule for when the final regulations will be issued… but we are hoping that they are fundamentally changed, with the presumption instead being that people SHOULD be granted licenses to work in fields where they’re qualified UNLESS they’ve done something in their recent past to disqualify them.

You’ll remember the wonderfully strong letter that Pennsylvania Bar Association (PBA) President Kathleen Wilkinson sent to the Board of Pardons a year ago calling on them to eliminate unpaid fees and costs as a barrier to pardon hearings for low-income applicants. “Put simply,” she wrote, “indigency should never be used to slow, restrict, condition, or deny any person the ability to present their case to any tribunal that has the power to ‘do justice’ in our Commonwealth.” (Alas, the current Board remains deaf to this plea; but a new Board begins in January, so there is reason to hope ….)

On December 5, PBA President Jay Silberbatt sent an equally strong letter to the Procedural Rules Committees of the PA Supreme Court. Those Committees have been considering (since August 2020!!!) extending the “in forma pauperis” rules from the civil side of the courts to the criminal side. Citing a just-released national study on the harm done by fees and costs to low-income people (see next story), Jay endorsed one of that study’s proposals: the adoption of a presumption that fees and costs would be waived from the start for indigent defendants. “If it is to mean anything,” he wrote, “‘equal access to justice’ must mean that the indigent may not only enter the halls of justice without having to pay the costs of the proceedings, but also will not be billed for them on the way out.”  

“Your Other Partner” indeed!!! Thank you, Jay! The PBA is the voice of 27,000 attorneys, from every county of this state. We hope the Rules Committees will not just listen, but hear. It will be seismic when the PA Supreme Court finally acts. And we hope, soon!

“Fees and costs” are imposed on every defendant in criminal cases, even if it’s clear that they don’t have any money to pay – which is obvious when they are being represented by public defenders or court-appointed lawyers. These charges often lead to years of poverty for the individuals and their families, ruined credit, suspended driver’s licenses, possible incarceration for non-payment, and denial of hearings on their pardon petition.

In 2021 the National Center for Access to Justice researched fines and fees policies in all 50 states, scoring the states on the degree to which they protect the rights of litigants. Just released, the Fines and Fees Justice Index, ranks the states on whether their laws and rules match 17 primary benchmarks and 46 secondary benchmarks. How’d PA do? Not so good. We received 27 out of a possible 100 points, and rank 31st in the country, but thanks to the VERY recent (and still not effective) enactment of Act 163 of 2022 giving judges specific power to waive all fines, fees and costs, our score would be 8 points higher, and our rank tied for 15th.

We clearly have our work cut out for us, but this study gives us all a lighted path to a very promising future.

It’s always wonderful hearing from people who value what we do. Here are a few that are particularly meaningful to us:

“THANK YOU for what you are doing in the community. The world needs more people like you and your team who are not just momentarily inspired but are actually fighting for pardons and the pursuit of happiness.” –Candice McDermott, Vice President Development, Humotech, Pittsburgh, PA

"I want to do this here. I look at it as my job. People who have done their time and had one screw up on their record that keeps them from obtaining education, a job or a place to live, deserve a chance to clear their record." –Rose Svonavec Clerk of Courts, co-founder, Pardon Project of Somerset County.

“Working on this project has been one of the most meaningful moments of my legal career. It was a pleasure for me to represent [the client] and advocate for her. I am very grateful to be part of this effort and this organization.” –Terrence Way, Esq.

This issue of our newsletter will be the 36th, and last, written by Tobey Oxholm. He started it while serving as our Acting Executive Director in 2018, and next month, they’ll be written by Taylor Pacheco who not only leads PLSE as our Deputy Executive Director, but is a regular writer for Houston’s Legacy, the newsletter of the PBA’s Minority Bar Committee. NO need for hope here! Success is well in hand. Welcome, Taylor!