PHILADELPHIA BAR ASSOCIATION RESOLUTION URGING THE BOARD OF PARDONS TO RESCIND IMMEDIATELY ITS NEWLY-ANNOUNCED POLICY PROHIBITING HEARINGS ON APPLICATIONS FOR CLEMENCY WHERE THERE ARE UNPAID FINES, FEES, OR COSTS FROM UNDERLYING CONVICTIONS

WHEREAS, the Philadelphia Bar Association has demonstrated through its words and deeds, throughout its 119-year history, that access to justice is a core principle not just of the Constitution and laws of our state and nation, but of a just society, and has firmly and consistently advocated for equal justice under law for all Pennsylvanians; and

WHEREAS, the Philadelphia Bar Association has identified access to the Governor for clemency as an essential element of our justice system, and has adopted multiple resolutions over the past several years calling for needed reforms to the clemency process while also praising the recent actions that have been taken to make the clemency system more just and accessible, especially for those Pennsylvanians who are indigent and lack financial resources; and

WHEREAS, the Board of Pardons has always “strongly encouraged” applicants to pay any “outstanding legal financial obligations, which may include but not be limited to fines, court costs, supervision fees, and restitution. . .prior to applying for executive clemency,” and has always warned that “[f]ailure to do so may result in application processing delays or an adverse decision on your application from the Board” [emphasis in the original]; and

WHEREAS, the Board of Pardons has recently changed this policy from a warning to a requirement, announcing that “the full balance must be paid prior to the scheduling of your Merit Review Hearing; and

WHEREAS, as a result of this new policy, deserving applicants for clemency will not be able to obtain a Merit Review Hearing, which is a condition precedent to obtaining the public hearing on the merits of their applications that is required by the Constitution, simply because of their poverty; and

WHEREAS, unlike restitution, fees and costs are not part of the sentence imposed by a judge, and unlike civil proceedings where indigent parties are excused from having to pay costs, all defendants in criminal proceedings are assessed fees and costs without regard to their ability to pay, resulting in court dockets indicating that hundreds and occasionally thousands of dollars are “owed” by individuals long even decades after they have completely served their sentences; and

WHEREAS, simply allowing a petitioner’s case to be heard does not impair in any way the Board of Pardons’ ability to deny a recommendation of clemency or condition it upon the prior payment of such obligations by those with the financial resources to pay, and therefore is without budgetary consequence to the Commonwealth; and

WHEREAS, the Pennsylvania Constitution grants to the Governor alone the “power to remit fines,” and therefore does not give the Board of Pardons authority to prevent the Governor from cancelling a fine or administratively-imposed monetary obligation or penalty.

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association objects to the adoption of this exclusionary policy by the Board of Pardons as being contrary to principles of fairness and justice for all Pennsylvanians and the best interests of the Commonwealth of Pennsylvania; and therefore calls upon the Lieutenant Governor, the Attorney General, and the other members of the Board of Pardons to rescind immediately this obstacle to obtaining clemency for deserving low-income applicants.

AND BE IT FURTHER RESOLVED that the Chancellor and/or the Chancellor’s designee(s) shall communicate the Philadelphia Bar Association’s position as expressed in this resolution to the Governor, the Lieutenant Governor, the Attorney General, the Board of Pardons, the General Assembly, the legal profession, the media, and the public, and shall take all such other actions as may be deemed necessary or appropriate to effectuate this Resolution and obtain the rescission of the said policy.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: JUNE 29, 2021

1 https://www.bop.pa.gov/Pages/Fines-and-Costs.aspx (emphasis in original).

2 Id. It is at the Merit Review hearing that the Board votes whether to provide an applicant with the public hearing required by the Constitution before the Governor may grant a pardon. See infra, n. 4.

3 See accompanying Report in Support of Resolution Urging The Board Of Pardons To Rescind Immediately Its Newly-Announced Policy Prohibiting Hearings On Applications For Clemency Where There Are Unpaid Fines, Fees, Or Costs From Underlying Convictions (April 5, 2021).

4 Const. Art. 4, § 9. Pardoning power; Board of Pardons. “(a) In all criminal cases except impeachment the Governor shall have power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, ... after full hearing in open session, upon due public notice.” Cf. Commonwealth v. Williams, 129 A.3d 1199 (Pa. 2015) (unlike for pardons and commutations, governor’s power to grant reprieves is “conspicuously unencumbered”).