Dramatic rise in pardons in Delaware
- Gov. Jack Markell has signed 1%2C569 pardons during his first six-plus years in office.
- A pardon is an act of %22exective grace%22 from the governor.
- The governor%27s office and the Board of Pardons don%27t track how many people pardoned re-offend.
- Since 1950%2C the board has recommended pardons for about 85 percent of 4%2C800 applicants.
Gov. Jack Markell has signed 1,569 pardons during his six-plus years in office, more than any other Delaware governor. The vast majority were awarded to people with minor offenses, although some went to criminals with serious felonies.
Markell and state officials say pardons are an important tool to ensure people with criminal records aren't stigmatized forever and help deserving people secure jobs and move on with their lives after incarceration.
However, an analysis by The News Journal shows the state doesn't track the progress of those who have received pardons. The information is public record, but the governor's office and Board of Pardons has no system to follow whether a person who receives a pardon commits another crime.
In fact, no state officials could answer questions about how many of the 1,569 re-offended.
Pardons add a disclaimer to a criminal record saying someone is officially forgiven by the state but do not erase convictions. Rather, they restore civil liberties, including the right to vote and buy firearms. It can be used to show prospective employers a person is reformed — a kind of seal of approval from the governor.
Through the late 1980s, the state Board of Pardons considered about 50 bids annually. Last year the board had a record 432 bids – eight times more than a quarter-century earlier.
Dipeshkumar Patel, 44, was granted a pardon in 2014 over a prosecutor's objections and later slammed his Mercedes-Benz sedan into a stopped car on New Castle Avenue. His blood alcohol level was more than three times the legal limit, records show.
He had pleaded guilty in 1999 to patronizing a prostitute and in 2002 and 2004 for selling alcohol to a minor. Patel also was arrested for drunken driving in 1993 and 2008 and took the first offender's program both times.
He sought the pardon in 2013, Patel said, because he wanted his criminal record "to be nice and clean if you apply for a job."
A month after Markell's pardon, however, Patel was arrested again for selling alcohol to a minor. He pleaded guilty in June and was fined $500, about a month before the traffic accident. He was charged with a third-offense DUI, leaving the scene of an accident and other offenses.
The state dropped all but the new DUI charge, a Class G felony, and he pleaded guilty. A judge sentenced him to three months behind bars. Patel also lost his license for three years.
"I was just having a little fun with a friend and the cop stopped me," Patel said in an interview. "That's it. I didn't think. It ain't going to happen no more."
Markell, who sat on the pardons board for a decade as state treasurer, said he was unaware his pardon numbers were at historic levels. Gov. Ruth Ann Minner signed 940 in eight years before Markell took office. Tom Carper, whom she succeeded, signed 675 in eight years.
In 1989, Gov. Mike Castle's fifth year in office, he gave out 48 pardons. In 2014, Markell signed 338 – seven times as many.
Markell said applications for pardons have increased because more employers use criminal background checks. The "best predictor" of whether someone will re-offend is whether they have a job, he said.
"We're trying to get more people employed," he said.
More employers require background checks in part because state laws mandate them before hiring people to a variety of jobs, including nursing home administrators, pharmacy technicians, charitable gaming operators, charter school founders, physical therapists and bail bond agents.
Delaware, like other cities and states, has taken other limited steps that attempt to make it easier for citizens with a criminal record to find employment. Legislation passed last year, and signed into law by Markell, prevents most government employers in Delaware from asking applicants about a criminal history before the first interview. The so-called "ban-the-box" measure prevents government hiring managers from initially screening applicants based on previous run-ins with the law. It still allows governments to run background checks as a condition of employment.
Fred Calhoun, president of the Delaware Fraternal Order of Police, said the growth in pardons shows that more care is needed to make sure they are given to people are won't re-offend. In some cases, the state should consider rescinding pardons, he said.
Granting pardons without any follow-up, he said, gives businesses a "false sense of security" about job applicants.
"If they're going to give businesses and companies the impression that this person is a clean-cut, no-problems citizen, the board is obligated to track that person," Calhoun said.
Thomas J. Brackin, president of the Delaware State Troopers Association, said the sheer number of pardons signed by Markell raises questions about how thoroughly applications are reviewed.
"It makes you pause and think, 'Why so many?'
Good behavior, other factors considered
Anyone with a criminal conviction can apply for a pardon, but the five-member Board of Pardons advises prospective applicants that it likes to see a period of good behavior of at least three years since their sentence was completed, including probation and payment of fines.
Before an application can reach the governor's desk, it has to be approved at a public meeting by three members of the board, composed of lieutenant governor, treasurer, auditor, secretary of state and Chancery Court chief judge. Monthly board hearings can include testimony from the offender, an attorney, prosecutors and victims. The board also considers requests for commutation — a sentence reduction for someone in prison.
Members give the greatest weight to the recommendation by the Attorney General's Office, which is notified of every case and reviews the person's criminal history. The prosecutor's position, said the current board chair, Secretary of State Jeffrey W. Bullock, is "the most important single factor."
Those who seek pardons for more serious offenses also must undergo a psychiatric evaluation that includes the "probability of the applicant again committing any crime."
At the Pardon Board's meeting last week in Dover, 46 people were scheduled — burglars, thieves, shoplifters and low-level drug and alcohol violators, but also a methamphetamine trafficker and a cocaine trafficker. Each hearing lasted between five and 15 minutes, with members either ruling immediately or conferring in private before announcing their decision.
Since 1950, the board has recommended pardons for about 85 percent of 4,800 applicants. Governors have granted 93 percent of the board-approved bids.
The lack of data on re-incarceration, however, means it's impossible to know if this process is effective.
Markell said he carefully weighs every case. He has issued pardons in 1,569 of the 1,672 cases he has decided. He has 175 cases pending.
"I take each one that's in front of me," Markell said. "One at a time."
Among those pardoned since 1955 by all governors, 44 had been convicted of offensive touching, 32 of third-degree assault and 22 of theft.
Of those pardoned for a single crime, the most common ones were shoplifting (204), offensive touching (97), third-degree assault (67) and disorderly conduct (63). Nineteen of the single-conviction pardons were for first-degree murder, 24 for second-degree murder and 21 for manslaughter.
Markell also has pardoned several dozen people for serious felonies: six for murder or manslaughter, five for rape, and 14 for robbery, with almost all those criminals getting pardoned for other crimes.
Most receive little if any public scrutiny. An exception was Markell's pardon of preacher and Wilmington activist the Rev. Derrick D. Johnson soon after he took office in 2009.
Over a 25-year period ending in 2002, Johnson had been convicted of manslaughter, possession of a weapon during a felony, possession of a firearm by a person prohibited, robbery, attempted robbery, unlawful imprisonment and carrying a concealed deadly weapon.
Johnson, who spent several years in prison for his crimes, appeared before the board in November 2008. Then-Attorney General Beau Biden's office didn't object and board members agreed.
Markell wrote that despite a long criminal record, Johnson appeared to have "learned from his behavior and has lived a productive life."
Johnson, who has not been rearrested, said his joy at being pardoned was "unimaginable" and he often talks about the subject when visiting inmates in and out of Delaware.
"It's one of the most important things that happened in my life. It made me appreciate lawful living as much as being free," he said. "It kind of says, 'We forgive you."
'Somebody is going to break bad'
Devin L. Trotter, 29, said he sought his pardon for the same reason Markell and others cited — he couldn't find a good job.
"If you are not getting in, eventually you have to say, 'It must be my background,'" Trotter said.
Realizing he couldn't get the felony expunged — completely erased with the record destroyed — he chose the next-best option. Trotter wanted the pardon for a May 2005 crime in Newark, court papers show.
Then 19, Trotter was a back-seat passenger in a sport-utility vehicle searched by police, who found about 3 grams each of crack cocaine and marijuana, and a loaded .22-caliber handgun, according to the records. He was charged with carrying a concealed deadly weapon, using a vehicle for keeping drugs and second-degree conspiracy, plus cocaine and marijuana possession.
Four days later, Trotter was arrested again, charged with cocaine trafficking after police who raided a New Castle-area motel room he had recently left found a half-ounce of cocaine.
Sentenced to 2 1/2 years of probation, he was discharged 10 months later after his probation officer wrote that he followed all rules, had a steady job and finished drug counseling.
He avoided criminal trouble for eight years and in August 2013 made his pardon pitch, without an attorney. Biden's office did not object and the five members — Bullock, State Auditor R. Thomas Wagner, then-Lt. Gov. Matt Denn, Chancellor Leo E. Strine Jr. and Treasurer Chip Flowers — unanimously approved.
Trotter, a father of two, was able to be hired at Amazon.com's Middletown warehouse. A few months after getting the pardon, Trotter legally bought a .40-caliber Smith and Wesson revolver. He bought it for protection, he said, because he is often in Wilmington where shootings have occurred.
Trotter had the gun on Feb. 20, when he drove three friends to the city's Club Lavish. He left the weapon partially under his seat and locked its magazine with 14 bullets in the glove box, he said.
Police responding to a fight at the club ran the tag on Trotter's 2003 Lincoln sedan and found no registration. Looking inside, an officer saw "the handle of a firearm sticking out" under the seat, court document said.
Police used a search warrant and found 11 tablets of the anti-anxiety drug Xanax, 47 bags of heroin stamped "evil dead," and about 20 grams of marijuana in several vials, including Trotter's prescription bottle for Xanax.
He was charged with carrying a concealed deadly weapon, and possessing Xanax and marijuana.
Now free on unsecured bail, Trotter said in an interview the gun charge is bogus — that he didn't want to leave his gun on the seat, fearing someone might break into his car. Although the marijuana was in his bottle, Trotter said he wasn't "stupid" enough to put illegal drugs in a bottle with his name. He said the other men must have stashed the weed.
Trotter understands people might think he has thumbed his nose at the governor.
"I'm not saying I'm a role model citizen, but I'm not wrong in this case," Trotter said.
His main worry, Trotter said, is the same as when he sought the pardon — getting a job. After he was busted, Trotter said, Amazon let him go.
Margaret Colgate Love, a Washington, D.C., lawyer who has sought presidential pardons for clients and studies state clemency laws, said she knows of no states that track those who get pardons or have provisions to revoke pardons.
"Every once in a while, somebody is going to break bad," Love said. "But pardons are a tremendously positive tool for law enforcement. They encourage people to go straight. And they reward it."
In Delaware and six other states, governors share pardoning power with separate boards, according to Love's research published by the National Association of Criminal Defense Lawyers. Rhode Island's governor pardons with the advice and consent of the state Senate.
State Sen. David Lawson, a retired state trooper, agreed that monitoring is needed "if nothing else, just to see if the pardon system is working."
Bullock said the board has never considered tracking those who receive pardons. While Delaware has no legal mechanism for rescinding a pardon, Bullock agreed a felony arrest soon afterward is "strong evidence that someone did not deserve a pardon in the first place."
Current and former board members, including Denn, now attorney general, said they hadn't previously considered tracking pardoners. They also wondered what doing so would accomplish because all of a person's convictions, pre- and post-pardon, show up on a criminal records check available to any citizen or prospective employer.
"I don't think it would be bad information to have," Markell said. "The question is, what would we do with it?"
Markell expressed concern data could be used to deny pardons not based on individual circumstances, but on statistical probabilities of re-offending.
"I'm not going to hold somebody else's mistake against the current applicant," the governor said.
Bullock said such reports would be helpful. But even more beneficial, he said, is that Denn's office has begun providing police reports about specific cases for which a pardon is sought. Such reports, Bullock said, "are a significant improvement" and help members prepare for meetings.
Denn said there would be some benefit to monitoring offenders. Having such "statistical information" would let members know, for example, "what percentage of people who get a pardon for X type of offense later commit another crime."
Wagner said more data would be helpful for board members considering pardons. Having that information would confirm or disprove his theory that awarding pardons to people under age 30 comes with a higher risk that they will re-offend.
"At the end of the day, you give them the second chance to get on with their life," Wagner said. "If they blow it, they blow it."
Contact senior investigative reporter Cris Barrish at (302) 324-2785, cbarrish@delawareonline.com, on Facebook or Twitter @crisbarrish. Contact Jonathan Starkey at (302) 983-6756, on Twitter @jwstarkey or at jstarkey@delawareonline.com.
Delaware's pardon system
What: A pardon is an act of "executive grace" from the governor that removes all consequences of a conviction and restores civil liberties, including the right to vote and buy a firearm. A pardon, however, does not remove the conviction from someone's record.
Process: The application must fill out a detailed application and send it to the Board of Pardons for review. The Attorney General's Office also reviews the person's criminal history. The board meets in public monthly and in each case can hear testimony from petitioners, their attorneys, prosecutors and victims. At least of the five board must approve the petition before it can be sent to the governor, which makes the final decision.
How many: Gov. Jack Markell granted a record 336 pardons in 2014.