Clemency Benefits Don't Cross State Lines

Recently, a former client who received clemency in Illinois asked me if he could answer “no” to a criminal history question on the job application (“Have you ever been convicted of a felony?”) for a part-time job in Wisconsin. After asking Ben (not his real name) a few preliminary questions, I told him I needed to do some research. Part of the difficulty in answering Ben’s question is that the benefits associated with clemency in Wisconsin are not the same as they are in Illinois.

Clemency Benefits Differ From State to State

In Illinois, if an individual receives clemency with permission to expunge, s/he can petition a court to expunge the conviction(s). Once expunged or sealed, a job applicant can then deny having a criminal record.

In Wisconsin, there is no right to expunge or seal a conviction. The current governor of Wisconsin, Scott Walker, suspended the state's clemency program several years ago. But even before that occurred, job applicants in Wisconsin were required to disclose pardoned convictions to employers.

Full Faith and Credit Clause

The “Full Faith and Credit Clause” of the U.S. Constitution provides that public acts (governor’s pardon) and court decisions of one state must be recognized by another state with some exceptions.

One such exception is that if the public act or judicial decision of State A violates the public policy of State B, State B does not have to recognize the other state’s public act or ruling.  Citing this exception, several courts held that a pardon or an expungement granted in one state does not have to be recognized by another state.

In the end, I told Ben to disclose the conviction.  Why risks being accused of lying?

A word to the wise: Never assume clemency benefits earned in one state will follow you to another state.