By Thomas A. Wilson
In May 2023, the Minnesota Legislature passed clemency reforms that made sweeping changes to Minnesota’s pardon and commutation laws.1 Some of the new clemency law’s reforms took effect in 2023 and its remaining provisions took effect July 1, 2024.2
The new clemency law reforms were authored by Minnesota State Sen. Ron Latz and co-authored by Minnesota State House Reps. Jamie Becker-Finn, Brion Curran, and Kelly Moller.3 The new changes include (in part): the establishment of a Clemency Review Commission; increased regularity of clemency application review meetings; new clemency application review standards; applicant eligibility expansion; removal of the unanimous vote requirement; and automatic expungement of pardoned
records.4
The reforms aim to increase the efficiency, effectiveness, and fairness of Minnesota’s clemency law.
Minnesota clemency law: A brief introduction
The Minnesota Board of Pardons consists of the governor, the chief justice of the Minnesota Supreme Court, and the Minnesota attorney general.5 The governor, in conjunction with the board, has the power to grant clemency.6 There are three types of clemency in Minnesota: pardon, commutation, and reprieve.7
A pardon is available for applicants who were convicted of a crime under Minnesota State Law and have completed their sentence.8 A pardon, when granted, sets aside the conviction, purges it from the applicant’s record, and seals the records related to the pardoned case.9 The applicant is also not required to disclose a pardoned record except in judicial proceedings and during the peace officer licensing process.10
A commutation is available to applicants who are currently serving a sentence for a criminal conviction under Minnesota state law.11 A commutation, when granted, can modify a sentence to time served or a lesser sentence.12
A reprieve is available for applicants who are currently serving a sentence for a criminal conviction under Minnesota state law.13 A reprieve is a temporary suspension of punishment.14
Six major clemency reforms
The new clemency law reforms introduced extensive changes to Minnesota’s clemency law. The following, non-exhaustive list of six clemency law reforms are probably the most significant to the majority of clemency applicants.
Clemency Review Commission
The new clemency law’s most significant reform is the establishment of a Clemency Review Commission and, with it, a new clemency application review process.15 The commission, which consists of nine members and an executive director,16 will work in conjunction with the three-member Board of Pardons.17 Each member of the board appoints three members of the commission, and those commission members serve at the pleasure of the board member who appointed them. Commission members serve a term coterminous with the governor.18
Meetings, voting, and non-binding recommendations
The commission’s duties include reviewing eligible clemency applications, making non-binding recommendations to the board on whether to grant or deny applications, aiding victims and applicants, and providing assistance as otherwise needed by the board.19 The commission must meet a minimum of four times a year to hear eligible clemency applications and make appropriate recommendations to the board.20 The board must meet at least twice a year to vote on commission-reviewed clemency applications.21
13 statutory review factors
The commission must consider “appropriate” factors when making recommendations whether to grant or deny clemency, including a non-exclusive list of 13 statutory factors such as the length of time since the offense, seriousness of the offense, demonstrated rehabilitation, and age at the time of the offense.22 The new 13-factor analysis is a significant departure from Minnesota’s old clemency law, which relied on the board’s determination of whether the applicant was “a person… of good character and reputation.”23
After reviewing appropriate factors, the commission must make a written, non-binding recommendation to the board to grant or deny an application or to hold a board hearing to further review the application.24 Each commission member’s vote must be recorded.25 After receiving the commission’s clemency recommendation, the board decides whether to grant or deny clemency with the vote of the governor plus one other member of the board.26
Automatic expungement of pardoned records
A pardon under the new clemency law results in the expungement, or sealing, of all records related to the pardoned offense.27 This change is a major benefit to applicants; under Minnesota’s old clemency law, a pardoned record was still publicly available and could result in obvious problems if revealed when seeking housing, employment, or other considerations.28
Increased clemency meeting frequency
The new clemency law requires the commission to hold at least four clemency meetings a year.29 (Minnesota’s old clemency law only required at least two board meetings a year.30) This reform should increase the number of applications that are reviewed annually and consequently, the number of total clemency applications granted.
Removal of unanimous vote requirement
Another significant reform is the removal of Minnesota’s old clemency law’s unanimous vote requirement.31 The new clemency law requires the governor’s vote along with that of one other board member (the attorney general or the chief justice) to grant clemency.32 This removes the old clemency law’s stricter unanimous vote requirement and increases the likelihood of more granted pardons and commutations.
Pardon eligibility requirements and other provisions
The new clemency law creates a universal five-year waiting period for pardon applicants.33 Applicants convicted of a crime under Minnesota state law are eligible to apply for a pardon five years after the expiration or discharge of their sentence for the offense for which they are seeking pardon.34
This new universal waiting period is a significant change from the Minnesota’s old clemency law, which required a 10-year waiting period from the discharge date for felony “crime of violence” convictions and a five-year waiting period from the discharge date for all other convictions.35 Moreover, the old law’s respective 5-and-10-year waiting periods began tolling again after an applicant’s most recent criminal conviction (including misdemeanor offenses).36 The new clemency law does not include that requirement.37
The new clemency law allows applicants who have been denied clemency on an application’s merit to reapply five years after the most recent denial.38 The old law required that once a clemency application was denied on its merits, an applicant could not reapply for clemency unless at least two members of the board granted their request for reapplication.39 This two-step reapplication process could be difficult and burdensome for once-denied applicants.
The new clemency law also removes the “pardon extraordinary” remedy for applicants who have already completed their sentences.40 Under the new clemency law, applicants in that position may simply apply for a pardon.41
Practice tips
In my 12 years of experience representing clemency clients in both pardons (formerly “pardon extraordinary”) and commutations, there are several considerations that arise in most cases. It is important to explain and discuss these considerations with clients prior to beginning the clemency process to help ensure client satisfaction and a positive case outcome.
Public process
Minnesota’s clemency law process is public, and your client will experience significant public exposure.42 Specifically, your client should be aware before beginning the process that their clemency application will be publicly available (even after the process is completed), and that clemency meetings are open to the public.43 In my experience, members of the press attend clemency meetings regularly, and the applicant’s information and pictures may be published.
Because of this public exposure, clients should weigh the possible benefits of clemency against the possible negative consequences that public exposure may cause.
Victim notification and participation
If a client’s offense involved an identifiable victim, they should know that the commission is required to make “all reasonable efforts” to notify victim(s) of the clemency application, the clemency meeting, and their right to submit a statement to the commission and appear at the meeting.44 This is an important consideration for your client, as the victim’s position in the case must be considered by the commission and can have a significant negative (or positive) impact on the client’s case outcome.45 Basically, if the victim in the case supports clemency, the likelihood of success is greatly increased, and conversely, if a victim opposes clemency, it is a major obstacle to success.
Emotional/psychological impact
In my experience, most clemency applicants will experience strong emotions (both positive and negative) throughout the clemency process, generally peaking at the clemency meeting. It is a stressful process, even when there is a successful result.
Throughout the clemency process, a client will essentially relive a traumatic time in their life, experiencing emotions that they probably have not experienced in a long time. It is important to prepare your clients for the stress and strong emotions that the clemency process entails.
Technical eligibility does not equal a good case
It is important to distinguish between mere eligibility and a good clemency case—and it’s crucial to honestly evaluate and discuss the merits of a case with your client prior to beginning the clemency process. A client may meet the minimum clemency eligibility requirements (five-year waiting period since sentence discharge) but have a weak case. For example, a client may lack relevant factors supporting clemency—including, most commonly, evidence of rehabilitation (such as long-term, stable employment; stable relationships with family, co-workers, and friends; volunteer work and community involvement); reconciliation with victim(s); and long-term, law-abiding behavior (including no petty misdemeanor convictions).
The new law makes clemency case evaluation much easier than before, as the commission is required to consider (at minimum) 13 statutory factors. Reviewing these factors with your client will help to evaluate the merits of their clemency case.
Clemency law alternatives
It is important to inform clients of clemency law alternatives that may help to achieve their goals more effectively. For example, an expungement or a firearm rights restoration may be a more appropriate remedy for a client, depending on their unique circumstances, specific goals, and the potential downsides they may experience with the clemency process.46
Conclusion
Minnesota’s new clemency reforms are a significant departure from its old clemency law and promise to ensure clemency opportunities for more applicants and provide a more objective, fair, and effective clemency process for all Minnesotans. It is a new day for clemency law in Minnesota. The future of forgiveness in Minnesota looks bright.
THOMAS A. WILSON is the owner of Wilson Law Firm P.L.L.C. in St. Paul, Minnesota. His practice focuses on criminal defense and post-conviction criminal law including expungement, firearm rights restorations, and pardons. Mr. Wilson has represented Minnesota clemency clients for over a decade.
Notes
1Minn. Stat. Ch. 638 (2023); Minn. S.F. 2909 (2023); Minn. H.F. 2890 (2023).
2 Minn. Stat. Ch. 638 (2023) (e.g., the commission recommendation provisions are effective 7/1/2024, Minn. Stat. §638.15 (2023)).
3 Minn. S.F. 2909 (2023); Minn. H.F. 2890 (2023).
4 Minn. Stat. Ch. 638 (2023).
5 Minn. Stat. §638.01 (2023).
6 Id.
7 Minn. Stat. §638.12, subd. 1(a), (1)-(3) (2023).
8 Minn. Stat. §638.12, subd. 1(a)(1) (2023).
9 Minn. Stat. §638.12, subd. 1(b), (d) (2023).
10 Minn. Stat. §638.12, subd. 1(b), (d)(1)-(2) (2023).
11 Minn. Stat. §638.12, subd. 1(a)(2) (2023).
12 Id.
13 Minn. Stat. §638.12, subd. 1(a)(3) (2023).
14 Id.
15 Minn. Stat. §638.09, subd. 1(2023).
16 Minn. Stat. §638.09, subds. 2, 5 (2023).
17 Minn. Stat. §638.09 (2023).
18 Minn. Stat. §638.09, subd. 2 (2023).
19 Minn. Stat. §638.09, subd. 1(a)(1)-(4) (2023).
20 Minn. Stat. §638.14, subd. 1 (2023).
21 Minn. Stat. §638.16, subd. 1(a) (2023).
22 Minn. Stat. §638.15, subd. 1(a)(1)-(13) (2023) Minn. Stat. §638.15, subd. 1(a)(1)-(13) (2023). The 13 factors are:
(1) the nature, seriousness, and circumstances of the applicant’s crime; the applicant’s age at the time of the crime; and the time that has elapsed between the crime and the application; (2) the successful completion or revocation of previous probation, parole, supervised release, or conditional release; (3) the number, nature, and circumstances of the applicant’s other criminal convictions; (4) the extent to which the applicant has demonstrated rehabilitation through postconviction conduct, character, and reputation; (5) the extent to which the applicant has accepted responsibility, demonstrated remorse, and made restitution to victims; (6) whether the sentence is clearly excessive in light of the applicant’s crime and criminal history and any sentence received by an accomplice and with due regard given to: (i) any plea agreement; (ii) the sentencing judge’s views; and (iii) the sentencing ranges established by law; (7) whether the applicant was convicted before August 1, 2023, of a violation of section 609.19, subdivision 1, clause (1), under the theory of liability for crimes of another and, if so, whether the applicant: (i) was charged with a violation of section 609.185, paragraph (a), clause (3), and: (A) thereafter pled guilty to a violation of section 609.19, subdivision 1, clause (1); (B) did not cause the death of a human being; and (C) did not intentionally aid, advise, hire, counsel, or conspire with or otherwise procure another with the intent to cause the death of a human being; or (ii) was charged with a violation of section 609.19, subdivision 2, and: (A) thereafter pled guilty to a violation of section 609.19, subdivision 1, clause (1); (B) did not cause the death of a human being; and (C) was not a major participant, as defined in section 609.05, subdivision 2a, paragraph (c), in the underlying felony and did not act with extreme indifference to human life; (8) whether the applicant’s age or medical status indicates that it is in the best interest of society that the applicant receive clemency; (9) the applicant’s asserted need for clemency, including family needs and barriers to housing or employment created by the conviction; (10) for an applicant under the department’s custody, the adequacy of the applicant’s reentry plan; (11) the amount of time already served by the applicant and the availability of other forms of judicial or administrative relief; (12) the extent to which there is credible evidence indicating that the applicant is or may be innocent of the crime for which they were convicted; and (13) if provided by the applicant, the applicant’s demographic information, including race, ethnicity, gender, disability status, and age.
23 Minn. Stat. §638.02, subd. 2(2) (2022) Note, under Minnesota’s old clemency law, the board could consider all relevant factors when making a clemency determination, but the only specific, statutory language it could rely on was whether the applicant was a “person…of good character and reputation.” Id.
24 Minn. Stat. §§638.09, subd. 1(a)(1)-(3); 638.14, subd. 1; 638.15, subd. 4 (2023).
25 Minn. Stat. §638.09, subd. 1(a)(3) (2023).
26 Minn. Stat. §§638.01; 638.17, subd. 1(a) (2023).
27 Minn. Stat. §§638.12, subd. 1(b); 638.18, subd. 2(a)(3) (2023).
28 Minnesota’s old clemency law did not automatically expunge the pardoned record, rather, the board was required to “file a copy of it [pardon order] with the district court of the county in which the conviction occurred, and [the] court… [was required to]… include a copy of the pardon in the court file.” Minn. Stat. §638.02, subd. 3 (2022)
29 Minn. Stat. §638.14, subd. 1 (2023).
30 Minn. Stat. §638.04 (2022).
31 Minn. Stat. §638.01 (2023); Minn. Stat. §638.02, subd. 2 (2022).
32 Minn. Stat. §638.01 (2023).
33 Minn. Stat. §638.12, subd. 2(a) (2023).
34 Id.
35 Minn. Stat. §638.02, subd. 2(1), (2) (2022) Note, a felony “crime of violence” does not necessarily involve actual violence and includes, for example, all felony controlled substance crimes under Minn. Stat. Ch. 152 (including possession crimes). Minn. Stat. §624.712, subd. 5 (2023) (list of statutory “crime[s] of violence).
36 Minn. Stat. §638.02, subd. 2(1), (2) (2022) (e.g., “five years must have elapsed since the sentence was discharged and during that time the person must not have been convicted of any other crime”) Minn. Stat. §638.02, subd. 2(2) (2022); Note, a misdemeanor, however minor, is defined as a “crime” and would trigger the waiting period to start tolling again under Minnesota’s old clemency law. (i.e., “Crime” means conduct which is prohibited by statute and for which the actor may be sentenced to imprisonment…,” Minn. Stat. §609.02, subd. 1 (2023); ““Misdemeanor” means a crime…”, Minn. Stat. §609.02, subd. 3).
37 Minn. Stat. §638.12, subd. 2(a) (2023).
38 Minn. Stat. §638.19, subd. 1(a) (2023).
39 Minn. Stat. §638.06 (2022).
40 Minn. Stat. §638.12, subd. 1 (a)(1) (2023); Minn. Stat. §638.02, subd. 2 (2022) (“pardon extraordinary”).
41 Id.
42 Minn. Stat. §638.12, subd. 3 (2023) (public notice of commission meeting); Minn. Stat. §638.14, subd. 2 (2023) (commission meetings open to public); Minn. Stat. §638.16, subd. 2 (board meetings open to public); Minn. Stat. §638.20, subds. 1, 2 (2023) (commission record keeping; records open to public inspection).
43 Id.
44 Minn. Stat. §638.11, subd. 1(a), (b), (c); subd. 2 (2023)
45 Minn. Stat. §638.15, subd. 3 (2023) (“when making its recommendation on an application, the commission must consider any statement provided by a victim…”).
46 Minn. Stat. §609.165, subd. 1d (2023) (firearm rights restoration process for individuals convicted of a felony “crime of violence”); Minn. Stat. Ch. 609A (2023) (expungement, generally).