The North Carolina Constitution grants the governor the power to grant a pardon for a conviction of any criminal offense (except for impeachment). The granting of a pardon is in the governor’s discretion. N.C. Const. art III, sec. 5(6). A pardon may not be granted until after conviction.[1] For the purpose of a pardon, a “conviction” likely means an adjudication of guilt, with or without entry of judgment.[2] G.S. 147-21 through G.S. 147-25 describe the basic procedures for applying for a pardon. G.S. 147-21 briefly describes the required contents of an application. There is not an official form for applying for a pardon.
The Governor’s Clemency Office processes pardon applications. The current website contains brief answers to a few questions. See also G.S. 15A-838 (requiring Clemency Office to notify victim of pardon application and decision and give victim right to present written statement). The Clemency Office’s previous website, which is no longer available, contained additional information about pardons. The previous website’s Glossary of Terms stated that the governor may issue three different types of pardons: a pardon of innocence, a pardon of forgiveness, and an unconditional pardon. See also Ben Finholt & Jamie Lau, Everything You Need to Know about Clemency in North Carolina (Sept. 17, 2021) (citing glossary). According to the previous website, “[o]rdinarily, an applicant must wait to apply until at least five years have elapsed since the applicant was released from State supervision (including probation or parole).” This period is not required by statute but rather is established by the governor. See also Finholt & Lau (observing that information on the website is outdated and may not reflect current policies).
A pardon of innocence, as the name suggests, may be issued if it is determined following conviction that the applicant is innocent of the charges. While not an expunction, a pardon of innocence authorizes an expunction. See supra Expunction of Dismissals and Similar Dispositions: After Pardon of Innocence. Several statutes recognize that a pardon of innocence, with or without an expunction of the underlying conviction, removes the collateral consequences otherwise imposed by those statutes.[3] Even without an explicit statutory provision, a pardon recognizing a person’s innocence of the charges—in other words, recognizing that the conviction was wrongful—would appear to be sufficient to remove collateral consequences arising from the conviction.
The impact of a pardon of forgiveness is not as clear. According to the Glossary of Terms on the Clemency Office’s previous website, “The Pardon basically states that the individual has been pardoned and forgiven of their criminal conviction. This Pardon is granted with certain conditions.” See also G.S. 147-23 (providing that governor may grant pardon with conditions). A pardon of forgiveness appears to bar use of a conviction in subsequent criminal proceedings.[4] It may or may not affect collateral consequences, however. As indicated above, some statutes expressly require a pardon of innocence to relieve a person of a collateral consequence. Many statutes are silent about the impact of a pardon of any kind.
G.S. 15A-149 authorizes expunction of a conviction after a pardon of innocence but does not include pardons of forgiveness. A pardon of forgiveness therefore may not authorize expunction of the records of conviction. But cf. State v. Bergman, 558 N.E.2d 1111 (Ct. App. Ind. 1990) (holding that pardon obliterates conviction and authorizes expunction of records with or without specific statute; court reviews decisions from other jurisdictions reaching differing results).
In Booth v. State, 227 N.C. App. 484 (2013), the court held that a pardon of forgiveness removes the state ban in G.S. 14-415.1 on possession of a firearm by a person convicted of a felony. The court rejected the contrary view of the North Carolina Attorney General. See, e.g., Opinion Letter by North Carolina Attorney General to Charles L. White, Deputy Legal Counsel to Governor, 50 N.C. Op. Att’y Gen. 119 (Apr. 24, 1981).
According to the Glossary of Terms of the Clemency’s Office previous website, the third type of pardon—an unconditional pardon—is “granted primarily to restore an individual’s right to own or possess a firearm.” This pardon is granted without conditions or restrictions. In light of Booth, discussed above, this type of pardon may no longer be necessary to restore firearm rights under state law. Whether an unconditional pardon is necessary to remove the federal restriction on firearm rights is beyond the scope of this guide. See generally supra Firearm Rights after Felony Conviction.
[1] See Ex parte Williams, 149 N.C. 436 (1908) (so holding under previous version of state constitution).
[2] See Smith v. Commonwealth, 113 S.E. 707, 709 (Va. 1922) (holding that by conferring pardoning power “after conviction,” Virginia constitution authorized pardon after verdict of guilt, with or without judgment and sentence), cited in Barbour v. Scheidt, 246 N.C. 169 (1957).
[3] See, e.g., G.S. 14-208.6C (requiring discontinuance of sex offender registration obligations if registrant receives unconditional pardon of innocence); G.S. 15B-36 (requiring return to rightful owner of profit from alleged crime if alleged offender has received unconditional pardon of innocence); G.S. 17E-12 (barring adverse action against certification of justice officer in office of sheriff based on conviction that is subject of unconditional pardon of innocence); G.S. 148-82 (providing for compensation for erroneous felony conviction following pardon of innocence); G.S. 163-106 (providing that candidate for elected office need not file with Board of Elections statement of felony conviction for which pardon of innocence has been granted).
[4] See State v. Clifton, 125 N.C. App. 471 (1997) (holding that conviction for which person received pardon of forgiveness could not be used as aggravating factor at sentencing in later case); see generally G.S. 14-7.1 (providing that any felony conviction for which pardon has been granted does not constitute a felony for habitual felon purposes); G.S. 14-7.7 (containing similar provision for violent habitual felon purposes); N.C. R. Evid. 609(c) (barring impeachment of witness by evidence of a conviction that has been pardoned). A pardon of forgiveness is irrevocable unless the person violates the conditions of the pardon. See Ex parte Williams, 149 N.C. 436 (1908) (so holding under previous version of state constitution).