pardon me, but can you open that door?: the potential effects of

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443

PARDON ME, BUT CAN YOU OPEN THAT DOOR?:

THE POTENTIAL EFFECTS OF PARDONS ON

SUBSEQUENT CIVIL SUITS BY PARDONEES

UNDER MALICIOUS PROSECUTION AND SECTION

1983—A DISCIPLINED APPROACH TO STATE

PARDON LAW

Joseph D. Mueller*

INTRODUCTION

John,1 an imprisoned convicted felon, wants to sue the police

officers who arrested him and assisted in his prosecution.2 However, John’s lawyer tells him that to bring suit under the state tort of malicious prosecution3 or the federal civil rights statute, 42 U.S.C. § 1983,4 he must invalidate his conviction; these suits may not proceed if they contradict a still-valid conviction. John has a friend in the media who helps him secure a pardon from the governor, and John is released from prison.5 John’s lawyer—whose client is still angry about his

* Executive Editor, Cardozo Law Review. J.D. Candidate (2008), Benjamin N. Cardozo

School of Law. I would like to thank my wife, Holly, for her kindness, wit, love, and

understanding—you balance me and make me so happy. Thanks too, like so many before me, to

Professor Stewart Sterk and Professor Richard Bierschbach for their guidance on this Note, and

for their invaluable mentorship.

1 This hypothetical is culled loosely from the facts common to the cases in note 7 infra.

2 Police officers often take an active role in the prosecution of crimes—providing key

evidence and testimony, and aiding the prosecutor in decision-making. See generally the facts of

the four cases referenced in note 7, infra.

3 See discussion infra Part I.A.

4 See discussion infra Part I.B.

5 At this stage, to define a pardon fully might beg the question to be asked in this Note about

the unsettled issues regarding the effects of a pardon. However, a state pardon has two primary

relevant features for purposes of the ensuing discussion. First a state pardon is granted by any

mechanism which a state may select—most states outline the power in the state constitution—

although generally the power rests with the governor. See generally MARGARET COLGATE LOVE,

THE SENTENCING PROJECT, RELIEF FROM THE COLLATERAL CONSEQUENCES OF A CRIMINAL

CONVICTION: A STATE BY STATE RESOURCE GUIDE (2007),

http://www.sentencingproject.org/Publicationdetails.aspx?PublicationID=486 (outlining the

various state pardon mechanisms, and how parties may apply). Second, a pardon generally

releases an imprisoned party from confinement. Id. On the extent to which a pardon might do

more than merely release a party from prison, read on.


444 CARDOZO LAW REVIEW [Vol. 29:1

experience—examines the case law to determine whether the pardon opens the door to malicious prosecution and § 1983 claims by invalidating John’s conviction.

Although the lawyer might find limited case law to support John’s position, that case law misapprehends the nature of the invalidation requirement. Malicious prosecution and § 1983 doctrine require that a plaintiff (a convicted person) whose action challenges a conviction must show that the conviction has already been invalidated in some fashion. This is known as the “favorable termination” or “invalidation” requirement,6 and at least four federal courts have held that a state pardon satisfied the favorable termination requirement, thereby allowing the suits to proceed.7 However, the opinions are inconsistent and reveal various misunderstandings about state pardon law, choice of law principles, and the relationship between pardons and the favorable termination requirement. The leading case on point improperly rejected state pardon law as irrelevant,8 and those cases that have purportedly applied state pardon law have used unreliable dicta from pardon cases that do not provide a useful analogy to the favorable termination inquiry.9

This Note will explain why state pardon law alone must determine the effects of state pardons10 and will argue that courts should generally treat a pardon as a favorable termination if and only if the pardon would preclude use of the pardoned conviction to enhance punishment under the state’s repeat offender statute.11 Thus, in the large number of states in which pardoned convictions enhance punishment under repeat offender statutes, a pardon would not satisfy the favorable termination requirement. At least one state, however, disallows the use of pardoned convictions under repeat offender statutes, suggesting that a pardon would satisfy the favorable termination requirement in that state. Because nothing in the academic literature has attempted to analyze holistically the effects of state pardons or any of the peripheral issues that can arise (and have arisen), this Note, while addressing a narrow

6 The favorable termination requirements are discussed infra Parts I.A.2 and I.B.2.

7 See Wilson v. Lawrence County, 154 F.3d 757 (8th Cir. 1998); Evans v. City of Chicago,

No. 04 C 3570, 2006 U.S. Dist. LEXIS 9831 (N.D. Ill. Jan. 6, 2006); Walden v. City of Chicago,

391 F. Supp. 2d 660 (N.D. Ill. 2005); Snyder v. City of Alexandria, 870 F. Supp. 672 (E.D. Va.

1994). Each case is discussed infra.

8 See Wilson, 154 F.3d at 760-61.

9 See supra note 7, and the discussion infra Part III.D.

10 The presidential pardon power, relevant only to federal crimes, is beyond the scope of this

Note—although some similar issues may exist in determining the effect of a federal pardon on

federal crimes. For a discussion of some related issues in the context of the presidential pardon

power, see Harold J. Krent, Conditioning the President’s Conditional Pardon Power, 89 CAL. L.

REV. 1665 (2001), or William J. Violet, Presidential Pardon Relief and Its Relationship to

Federal Firearm Disability, 77 N.D. L. REV. 419 (2001).

11 See discussion infra Part III.


2007] PARDON EFFECTS 445

question of law, should serve as a useful starting point for many of the complex questions surrounding state pardons.

Part I will outline the basic causes of action and favorable termination requirements under malicious prosecution and § 1983 and will address the impact of issue preclusion. Part II will explain in detail why any analysis giving effect to gubernatorial pardons must incorporate that state’s pardon law. Part III will demonstrate why courts should start their analysis of state pardon law by examining cases deciding whether pardoned convictions may be used to enhance punishment for subsequent convictions under habitual offender statutes. Part III will also show that a pardon granted because the governor believes the pardonee to be innocent—instead of for other common reasons like mercy or prison crowding—should be given no greater effect than general pardons except where specifically provided in a state’s laws.12 Finally, Part IV will argue that when a state has not clearly established a rule regarding pardoned convictions in the repeat offender context, the default rule should be that a pardon does not constitute favorable termination of a conviction.

I. THE RELEVANCE OF PARDONS TO CLAIMS UNDER MALICIOUS

PROSECUTION AND 42 U.S.C. § 1983, AND TO THE APPLICATION OF ISSUE

PRECLUSION

A convicted person who believes she has been wronged by police

during her arrest or prosecution might have a cause of action under the state tort of malicious prosecution or the federal civil rights cause of action, 42 U.S.C. § 1983. Section 1983 provides remarkably broad avenues for relief,13 and while malicious prosecution is narrower, it is still regularly used by plaintiffs facing facts like those in the introductory hypothetical above. However, both malicious prosecution and § 1983 are severely limited for convicted persons by a “favorable termination requirement,” similarly framed in each cause of action. That is, both have been deemed inappropriate challenges to a currently valid conviction—both require that a previous criminal proceeding against the now-plaintiff be terminated in the plaintiff’s favor or that any resulting conviction be invalidated.14 Without such a showing, a

12 For example, some states have provided by statute for greater effect given to innocence

pardons than general pardons. See infra Part III.B. This position will be based primarily on the

relevant doctrine—including existing pardon law and separation of powers concerns—but will

also address the important policy interests in allowing innocent individuals, wronged by state

actors, to seek recompense.

13 See discussion infra note 32.

14 See infra note 17 and accompanying text regarding the malicious prosecution favorable

termination, and notes 39-47 and accompanying text regarding the § 1983 favorable termination,



plaintiff’s claim will be dismissed.15 Whether a pardon satisfies this favorable termination requirement remains an open question under current doctrine.16

A. The Potential Effect of Pardons on Malicious Prosecution Actions

1. The Cause of Action

While the elements of the tort of malicious prosecution vary

slightly by state, the most common formulation requires a plaintiff to prove four elements: 1) that a proceeding brought against the party terminated in her favor, 2) that the proceeding was brought without probable cause, 3) that the proceeding was brought with malice, and 4) that some injury was actually suffered.17 The latter three requirements are largely questions of fact, but the plaintiff must establish the favorable termination requirement as a matter of law. If he does not, the action will be dismissed.18

2. The Favorable Termination Requirement

There are several ways an action might terminate favorably to a

criminal defendant, including acquittal, reversal on appeal, refusal to indict by a grand jury,19 and nolle prosequi—whereby the prosecutor formally drops charges against a party.20 Plaintiff must show that the termination was consistent with his innocence.21 For example, a plaintiff has not proven a favorable termination unless he establishes that a prosecutor dropped charges for reasons consistent with his innocence, not for other reasons such as cooperation with the police on other matters.22 However, even if a plaintiff fails to establish the

or invalidation, requirement.

15 See infra note 17 and accompanying text.

16 See infra Parts II-III.

17 See Miller v. Rosenberg, 749 N.E.2d 946, 952 (Ill. 2001).

18 Id. While the favorable termination requirement might exhibit some similarities to the

affirmative defense of issue preclusion—which will be discussed in Part I.C—it is a distinct

element required to state a prima facie malicious prosecution claim.

19 See RESTATEMENT (SECOND) OF TORTS § 659 (“Manner of Termination”). Criminal

proceedings are terminated in favor of the accused by: (a) a discharge by a magistrate at a

preliminary hearing, or (b) the refusal of a grand jury to indict, or (c) the formal abandonment of

the proceedings by the public prosecutor, or (d) the quashing of an indictment or information, or

(e) an acquittal, or (f) a final order in favor of the accused by a trial or appellate court. Id.

20 See Swick v. Liautaud, 662 N.E.2d 1238, 1242-43 (Ill. 1996).

21 Id.

22 Id. Similarly, if a conviction is reversed for failure to suppress evidence and does not



favorable termination element conclusively, some courts recognize an exception when a judgment was obtained “by fraud, perjury, conspiracy or other undue means.”23 For example, if a malicious prosecution plaintiff shows that police knowingly prevented him from obtaining exculpatory evidence, one court has exempted him from the favorable termination requirement.24

In the malicious prosecution context, the favorable termination requirement is designed to prevent “inconsistent judgments” by preventing a plaintiff from contradicting the still-valid findings of the convicting court via the subsequent action.25 Courts disfavor such “collateral” attacks on convictions, which are not instituted solely for the purpose of attacking the judgment—like a motion to vacate—but instead have ulterior purposes like gaining money damages.26 Concerns of finality and judicial economy further support the limitation of such collateral attacks on convictions.27

A person charged with a crime can prevail in two ways: he might avoid conviction—by getting charges dropped or winning at trial—or he can attack the conviction later through appeal, a motion to vacate, or pardon. The former are obviously “favorable terminations,” since the proceeding never culminated in a conviction, but the phrase “favorable termination” will also be used throughout this Note to include the situation in which a now-plaintiff (previously convicted) seeks to show

impugn the underlying jury conviction, a court might find no favorable termination. See Freeman

v. State, 788 A.2d 867, 877-78 (N.J. Super. Ct. App. Div. 2002) (“[The] reversal of plaintiffs’

conviction was predicated on the trial court’s failure to suppress evidence, not upon a

determination that plaintiffs were innocent of the criminal behavior charged or entitled to an

acquittal. . . . [O]ur reversal of the conviction did not impugn the validity of the jury’s

determination of guilt.”).

23 Caminito v. New York, 269 N.Y.S.2d 826, 826 (App. Div. 1966).

24 Whitmore v. New York, 436 N.Y.S.2d 323, 323 (App. Div. 1981) (“[P]laintiff alleges . . .

that the police and the District Attorney’s office . . . intentional[ly] with[held] . . . exculpatory

evidence, so that a viable cause of action has at least been stated.”). It is unclear how egregious

such fraud must be in order to exempt a plaintiff from the favorable termination requirement, as it

appears that case law waiving the favorable termination requirement is limited.

25 See Babb v. Superior Court, 479 P.2d 379, 382 (Cal. 1971). Other reasoning simply

suggests an interest in the prior litigation being concluded irrespective of outcome, like the

interest in the subsequent court having the full record of the prior proceeding upon which to base

determinations of the other elements of the malicious prosecution action. See id. Thus, any

malicious prosecution action brought even after conviction is unaffected by that reasoning.

26 See DeLaurentis v. New Haven, 597 A.2d 807, 820-21 (Conn. 1991). However, it is

important to note as a policy consideration underlying this Note that direct attacks on criminal

convictions are not subject to the same criticisms as collateral attacks. That is, if a party really

does have evidence that a conviction was wrongfully obtained, and has significant evidence to

support that contention, other proceedings, like a motion for a new trial or to vacate the

underlying conviction might still be appropriate. See, e.g., Kansas v. Marsh, 126 S. Ct. 2516

(2006) (discussing various methods of direct attack, including moving for a new trial after

obtaining exonerating evidence).

27 See infra Part I.B.2 (discussing the favorable termination requirement in the context of §

1983).



that his conviction has since been invalidated. In essence, he seeks retroactively to show that the criminal proceeding “terminated” in his favor.28 However it is framed, the question remains whether a pardon might satisfy the favorable termination requirement—does it adequately “invalidate” the existing conviction? The only court to have answered the question directly in the malicious prosecution context determined that the pardon in that case did satisfy the requirement because, by its terms, the pardon impugned the conviction.29 However, Part II will explain why that court’s analysis of state pardon law was inadequate and why a subsequent court may not inject its own assumptions into a state’s pardon law.

B. The Potential Effect of Pardons on Civil Rights Claims Brought

Under 42 U.S.C. § 1983 and Subject to the Heck Bar

1. The § 1983 Cause of Action

The language of § 1983 sets out the basic elements required to

state a claim: a state actor must have acted under color of state law30 and must have violated a recognized federal right.31 Both of these textual requirements have proven to be highly contentious.32 The “under color

28 This is essentially what the court held in Snyder v. City of Alexandria, 870 F. Supp. 672

(E.D. Va. 1994).

29 Id. This common law malicious prosecution claim was brought in federal court through

pendant jurisdiction along with a federal question under 42 U.S.C. § 1983, discussed infra.

Snyder, 870 F. Supp. at 678.

30 42 U.S.C. § 1983 (2000) (requiring that the alleged violation occur “under color of any

statute, ordinance, regulation, custom, or usage, of any State”).

31 Id. (The behavior must have violated one of a party’s “rights, privileges, or immunities

secured by the Constitution and laws.”).

32 There are three plausible, related reasons for the numerous issues of contention

surrounding § 1983. First, the sheer volume of § 1983 litigation—an average of 40,000 to 50,000

claims per year—has led to innovative and varied arguments. 1 MARTIN A. SCHWARTZ,

SECTION 1983 LITIGATION: CLAIMS AND DEFENSES §1.1 (4th ed. 2003). Second, the language of

the statute itself is broad, giving rise to many legitimate questions about which claims are

cognizable and which are not, as well as regarding the interrelation of § 1983 with other statutory

and common law doctrine. And third, there are differing views regarding the statute’s proper

purpose at the most fundamental level, which has been manifested in the many particular issues

surrounding §1983. At its inception in 1871, the statute’s primary purpose was to combat the Ku

Klux Klan’s grip on many state governments and to address the general perception of the states’

inability to protect federal rights. Monroe v. Pape, 365 U.S. 167, 174 (1961). However, since

then, the Ku Klux Klan has largely been decimated and no longer has much influence on state

actions. See STEVEN D. LEVITT & STEPHEN J. DUBNER, FREAKONOMICS 55 (2005), for an

entertaining discussion of the decline of the KKK and one man’s inventive and effective

infiltration of and attack on the group. Coinciding with the decline of the KKK, the federal courts

have expressed an increased trust in states’ abilities to provide fair adjudications of federal rights.

Allen v. McCurry, 449 U.S. 90 (1980). With the initial impetus for the statute weakened, it is not

surprising that the courts have diverged on the proper role of § 1983—a federal right of action for



of state law” inquiry turns on the degree of official sanction an act must have to give rise to § 1983 liability. For example, a police officer need not have been actually authorized by state law to beat a suspect; rather liability extends to such an act as a “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law.”33 It is settled that the second requirement of § 1983 is an infringement of a recognized federal right and does not create any new substantive rights.34 Despite the “existing federal right” requirement, the courts do not seem to be overly rigorous in requiring civil rights plaintiffs to fit their grievances within a particular constitutional provision.35 Claims commonly considered under § 1983 include those for wrongful search and seizure, destruction of exculpatory evidence, and prosecution without probable cause.36 If a conviction and confinement result from such unlawful police conduct, plaintiffs may couch claims in terms of “wrongful conviction” or “wrongful imprisonment.”37 Finally, § 1983 has been interpreted not to

behavior of state actors—within the framework of federalism and have thus diverged on the scope

of the actions which may be brought under the statute.

33 Screws v. United States, 325 U.S. 91, 109 (1945); see also Monroe, 365 U.S. 167 (police

officers could be liable under § 1983 even though their actions were not specifically authorized

by state law). For further discussion of the “under color of law” requirement, specifically in the

police context, see Seth Kean, Note, Municipal Liability for Off-Duty Police Misconduct Under

Section 1983: The “Under Color of Law” Requirement, 79 B.U. L. REV. 195 (1999). The

Supreme Court has also held that municipal corporations qualify as a “person” under §1983, and

thus similar liability extends to the actions of such entities as long as there is some state sanction

of the rights violation. See Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 690 (1978).

34 Albright v. Oliver, 510 U.S. 266, 271 (1994). In Albright, a fractured court—including a

plurality, four concurrences, and a dissent—held that plaintiff’s claim of prosecution without

probable cause could not be analyzed on its own under a loose notion of substantive due process,

but must instead be argued under the Fourth Amendment. Since the plaintiff had not argued it

under the Fourth Amendment, the Supreme Court upheld the Appellate Court’s dismissal for

failure to state a cause of action under § 1983. Id. However, significant questions still arise

regarding the characterization of various causes of action, i.e., whether the stated cause of action

adequately invokes a recognized federal right. For example, there is a split among circuits over

whether arrest and prosecution without probable cause—essentially malicious prosecution—is

recognized under § 1983, or whether specific claims of unreasonable search and seizure may be

made under the Fourth Amendment. See, e.g., Joseph G. Yannetti, Note, Who’s on First, What’s

on Second, and I Don’t Know About the Sixth Circuit: A § 1983 Malicious Prosecution Circuit

Split That Would Confuse Even Abbott and Costello, 36 SUFFOLK U. L. REV. 513 (2003).

35 In one of the most widely cited § 1983 cases, Heck v. Humphrey, 512 U.S. 477 (1994), the

Supreme Court does not once mention the particular constitutional provision that gave rise to the

claims under consideration. Rather, the Court purported to be considering § 1983 claims for an

“unlawful, unreasonable, and arbitrary investigation” and the knowing destruction of exculpatory

evidence. Id. at 479.

36 See id. Note that these claims are not only available to convicted persons; rather, malicious

prosecution or unreasonable search and seizure claims—perhaps a seizure that caused damage to

person or property—might be available even when charges are dropped. See discussion supra of

state malicious prosecution.

37 The Court in Heck—discussed in detail below—even used this wording in its holding,

which places restrictions on a plaintiff who seeks “to recover damages for allegedly

unconstitutional conviction or imprisonment.” Heck, 512 U.S. at 486; see also Figueroa v.



require a showing of the perpetrator’s state-of-mind beyond any showing required by the constitutional provision in question.38

2. Heck v. Humphrey and the Favorable Termination Requirement

Section 1983 provides a broad, potent cause of action for civil

rights plaintiffs, but as with malicious prosecution, courts have held that it is an inappropriate avenue for challenging the validity of outstanding convictions.39 As in the malicious prosecution context, if the § 1983 plaintiff was previously convicted of a crime and the success of his § 1983 claim depends on the invalidity of that conviction, the plaintiff must prove that his conviction had been previously invalidated.40

In Heck v. Humphrey, the plaintiff brought a § 1983 action for damages against police and prosecutors claiming a variety of constitutional violations.41 The Supreme Court first noted that the claims, including destruction of exculpatory evidence by police and use of an illegal voice identification procedure, challenged the validity of Heck’s conviction for voluntary manslaughter.42 The Court held that because the § 1983 claim clearly challenged the conviction, a claim for damages was not cognizable under § 1983 unless the conviction had

Rivera, 147 F.3d 77, 80 (1st Cir. 1998) (considering a § 1983 claim for unconstitutional

“conviction and subsequent imprisonment”). While these courts have not specifically identified

the constitutional provisions under which they considered the § 1983 claims, it seems that they

are most commonly relying on search and seizure and notions of due process, even if not

explicitly.

38 Daniels v. Williams, 474 U.S. 327, 329-30 (1986) (“[Section 1983] contains no state-of-

mind requirement independent of that necessary to state a violation of the underlying

constitutional right.”). State of mind is only relevant when the requirements to establish an

infringement of a federal right already embody a state-of-mind requirement, like the requirement

of invidious discriminatory purpose to establish racial discrimination under the Equal Protection

Clause. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977). Similarly,

the Court has held that in order to amount to an unconstitutional “deprivation” of rights under

Due Process, an act cannot be merely negligent. Daniels, 474 U.S. at 333-34. The Court has also

held that “[m]edical malpractice does not become a constitutional violation merely because the

victim is a prisoner,” Estelle v. Gamble, 429 U.S. 97, 106 (1976), and that “false imprisonment

does not become a violation of the Fourteenth Amendment merely because the defendant is a

state official,” Baker v. McCollan, 443 U.S. 137, 146 (1979). Where a government official’s act

causing injury to life, liberty, or property is merely negligent, “no procedure for compensation is

constitutionally required.” Parratt v. Taylor, 451 U.S. 527, 548 (Powell, J., concurring in result)

(emphasis added); see generally Barbara Kritchevsky, Making Sense of the State of Mind:

Determining Responsibility in Section 1983 Municipal Liability Litigation, 60 GEO. WASH. L.

REV. 417 (1992).

39 See Heck, 512 U.S. 477.

40 Id.

41 Id. at 479-80 (plaintiff claiming destruction of exculpatory evidence and wrongful

conviction through the use of an illegal voice identification procedure).

42 Id. at 480.



been previously invalidated.43 In other words, “civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments.”44 The Court explicitly derived this principle from the malicious prosecution favorable termination requirement, citing similar concerns about avoiding the possibility of a party “succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same . . . transaction.”45 Like the states in their treatment of malicious prosecution, the Supreme Court “has long expressed similar concerns for finality and consistency and has generally declined to expand opportunities for collateral attack.”46 Thus, after Heck, when a § 1983 claim “necessarily implies the invalidity of the conviction,” the plaintiff must prove that his conviction has already been invalidated.47 The plaintiff in Heck had not been pardoned, and thus the Court had no occasion to discuss further the precise parameters of pardons in particular, enunciating only that the general “invalidation” requirement culled directly from the malicious prosecution favorable termination requirement.48 This requirement has come to be known as the “Heck bar” but will also be referred to hereinafter as an “invalidation” or “favorable termination” requirement.

While the Heck bar does operate against a significant class of claims, it does not arise in the many § 1983 claims by persons never convicted of the crime with which they were charged or the many § 1983 claims entirely unrelated to criminal actions.49 Nor does it bar convicted persons whose § 1983 claims are consistent with a valid conviction.50 For example, the Heck Court noted that a § 1983 claim for

43 Id. at 486.

44 Id. at 486-87 (“[I]n order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction

or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal court’s issuance of a

writ of habeas corpus, 28 U.S.C. § 2254.”).

45 Id. at 484-85 (quoting 8 S. SPEISER, C. KRAUSE, & A. GANS, AMERICAN LAW OF TORTS §

28:5, at 24 (1991)).

46 Heck, 512 U.S. at 484-85.

47 Id. at 487. For examples of claims which do not challenge the underlying conviction, see

infra Part II.B. The Court also made clear that the Heck requirement was entirely separate from

the doctrine of issue preclusion, which is discussed infra in Part I.C. Heck, 512 U.S. at 480 n.2.

The Court noted that issue preclusion might also be relevant to the case, but that the issue was not

before them. Since they held the claim barred, they had no reason to consider whether the

affirmative defense of issue preclusion was applicable. However, this clearly shows that the two

inquiries are entirely separate inquiries despite the rationale for each being relatively similar.

48 Id.

49 For a comprehensive treatment of the many other § 1983 claims, see SCHWARTZ, supra

note 32.

50 See Heck, 512 U.S. at 487 n.7.



unreasonable search and seizure will not always challenge the underlying conviction, reasoning that because of doctrines like independent source,51 inevitable discovery,52 and harmless error,53 there will be plenty of cases where a finding of unreasonable search and seizure by the trial court would not necessarily have led to acquittal.54 Thus, a pardon would only be relevant as a potential favorable termination when a favorable termination showing is actually required—when a party has been convicted of a crime and her § 1983 claim challenges her conviction.

3. The Scope of the Heck Bar After Spencer and the Response of the

Circuits

The seeds of further possible limitation on the Heck bar were sown

in Justice Souter’s Heck concurrence.55 Because the plaintiff in Heck was still imprisoned, the concurring justices supported the dismissal of plaintiff’s claim primarily because habeas corpus relief was still available to him.56 Justice Souter suggested that such a bar should not be applied if the § 1983 plaintiff were no longer imprisoned and thus had no habeas remedy.57 Justice Scalia, for the majority in Heck, addressed this notion by stating flatly that “the principle barring collateral attacks—a longstanding and deeply rooted feature of both the common law and our own jurisprudence—is not rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated.”58

51 See Nix v. Williams, 467 U.S. 431, 443 (1984) (explaining that when police discover

evidence in an untainted fashion, such evidence may be admissible even when the same

information was separately obtained in a tainted fashion, because “[w]hen the challenged

evidence has an independent source, exclusion of such evidence would put the police in a worse

position than they would have been in absent any error or violation”).

52 See id. at 446 (“Exclusion of physical evidence that would inevitably have been discovered

adds nothing to either the integrity or fairness of a criminal trial.”).

53 See Neder v. United States, 527 U.S. 1, 7 (1999) (“Rule 52(a) of the Federal Rules of

Criminal Procedure, which governs direct appeals from judgments of conviction in the federal

system, provides that ‘any error, defect, irregularity or variance which does not affect substantial

rights shall be disregarded.’”).

54 Heck, 512 U.S. at 487 n.7. In interpreting this footnote, some courts have read this to mean

that unreasonable search and seizure claims will never “necessarily” challenge the underlying

conviction, while other courts have found some search and seizure claims to challenge the

conviction. See Paul D. Vink, Note, The Emergence of Divergence: The Federal Court’s

Struggle to Apply Heck v. Humphrey to § 1983 Claims for Illegal Searches, 35 IND. L. REV. 1085

(2002).

55 Heck, 512 U.S. at 491-98 (Souter, J., concurring).

56 Id.

57 Id. at 498-99. The primary reason for this was the importance of providing a federal forum

to contest the violation of federal rights.

58 Id. at 490 n.10.



This conflict came to a head four years later in Spencer v. Kemna,59 where the majority opinion held that because a habeas petitioner there was no longer imprisoned, his habeas petition was no longer a case or controversy.60 Petitioner there challenged revocation of his parole—as a violation of due process—through habeas; but, his sentence expired before his case was decided, and the Court dismissed it as moot.61 In concurrence and dissent, however, five justices agreed on Souter’s additional rationale, not reached by the majority, that petitioner’s habeas petition should fail because he still had recourse in § 1983 since he was no longer imprisoned. Souter argued that a party must be allowed recourse via habeas or § 1983 but must pursue § 1983 first if it is available.62 If Souter’s position were followed then, contrary to the majority opinion in Heck, every pardon that releases a convicted person from confinement would make the Heck bar inapplicable.

However, at least five circuits have rejected, explicitly63 or implicitly,64 the concurring dicta in Heck and Spencer. It seems only three circuits have adopted Souter’s position, thereby eviscerating the Heck bar in cases where the party is no longer imprisoned.65 Those five circuits explicitly retaining the Heck bar for § 1983 plaintiffs without other remedies have adopted similar language and reasoning; that is, while Spencer’s concurrence may cast some doubt on the breadth of the Heck bar, the Court “has admonished the lower federal court to follow its directly applicable precedent, even if that precedent appears weakened by pronouncements in its subsequent decisions, and to leave to the Court ‘the prerogative of overruling its own decisions.’”66 It is

59 Spencer v. Kemna, 523 U.S. 1 (1998).

60 Id. at 13-14. Plaintiff was really seeking review of a decision of the Missouri Board of

Probation and Parole, revoking his parole. However, by the time his case came up, he was no

longer imprisoned. Id. at 5-6.

61 Id. at 5-6.

62 Justice Ginsburg changed her position from Heck, claiming that she finally understood

Justice Souter’s position to be the better rule. Spencer, 523 U.S. at 21-22.

63 See Drayer v. Delaware, 173 Fed. Appx. 997, 998-99 (3d Cir. 2006); Randell v. Johnson,

227 F.3d 300, 301 (5th Cir. 2000); Cabrera v. City of Huntington Park, 159 F.3d 374, 380 n.6

(9th Cir. 1998); Figueroa v. Rivera, 147 F.3d 77, 81 n.3 (1st Cir. 1998).

64 See Wilson v. Lawrence County, 154 F.3d 757, 760 (8th Cir. 1998). By applying the Heck

requirement to a plaintiff already out of jail, even though ultimately finding the requirement met,

the Eighth Circuit implied that it had not yet adopted Souter’s position.

65 See Jenkins v. Haubert, 179 F.3d 19, 26-27 (2d Cir. 1999); Shamaeizadeh v. Cunigan, 182

F.3d 391, 396 n.3 (6th Cir. 1999); Carr v. O’Leary, 167 F.3d 1124, 1127 (7th Cir. 1999).

66 Figueroa, 147 F.3d at 81 n.3 (citing Agostini v. Felton, 521 U.S. 203 (1997)). As a matter

of precedential value of course, one might make the colorable argument that because Heck was

dealing only with a prisoner who also had habeas recourse, footnote 10 of Scalia’s majority Heck

opinion is no more binding than Souter’s Spencer concurrence vis-à-vis cases where the party has

no other relief. It might follow that Heck is not “directly applicable precedent,” on this issue and

thus the Souter position is the more tenable position after Spencer since a majority of the justices

have agreed upon it. However, the majority of the circuit courts have not shared this analysis,

and the Heck bar survives.



unclear how the current Supreme Court would decide the matter, but it is clear that at least in the First, Third, Fifth, Eighth, and Ninth Circuits, pardoned convicts whose § 1983 claims challenge their underlying conviction must still show favorable termination—they must argue that their pardon invalidates their conviction under Heck.67

C. The Potential Effect of a Pardon on Issue Preclusion

It is possible that even if a party satisfies the favorable termination

requirement of malicious prosecution and § 1983, she may still be barred by issue preclusion. Both the doctrine of issue preclusion and the favorable termination requirement work to bar subsequent litigation that retreads matters already decided by the legal system, but they are treated as discrete legal questions.68 This section explains when the favorable termination requirement will be dispositive on an action’s

67 While the circuit split seems to revolve rather closely around the precise effect of

conflicting language in two cases, were the Supreme Court to reevaluate the question, they would

surely recognize that the doctrinal split cuts much deeper, to the very roots of the purposes of §

1983 and the continuing validity of those purposes. While this split is beyond the scope of this

Note, it deserves at least a footnote, since it certainly tugs at the policy considerations underlying

the favorable termination requirement in general. A good starting point is a student Note which

argues that after Spencer, collateral attacks should always be allowed in federal court, and

because of the overriding importance of giving plaintiffs a federal forum in which to contest

federal rights violations, even issue preclusion should be abolished in these circumstances.

Emery G. Lee III, Note, Federal Rights, Federal Forum: Section 1983 Challenges to State

Convictions in Federal Court, 51 CASE W. RES. L. REV. 353, 357 (2000). While this argument is

overly ambitious and broad, it does outline and highlight nicely the tension regarding the purpose

and scope of § 1983. Some, like Justice Souter, hark back to the strong position taken by Justice

Blackmun in his article, Section 1983 and Federal Protection of Individual Rights—Will the

Statute Remain Alive or Fade Away?, 60 N.Y.U. L. REV. 1, 1 (1985). This view essentially

imposes the federal courts between the states and their citizens, ensuring protection of federal

rights when states fail to do so. Id. at 17. However, the Court has emphatically rejected such an

extreme position, emphasizing in Allen v. McCurry, 449 U.S. 90 (1980), the importance of

“promot[ing] the comity between state and federal courts that has been recognized as a bulwark

of the federal system.” Id. at 96. It has long been accepted that there is “no intrinsic reason why

the fact that a man is a federal judge should make him more competent, or conscientious, or

learned with respect to the [consideration of Constitutional claims] than his neighbor in the state

courthouse.” Stone v. Powell, 428 U.S. 465, 494 n.35 (citing PAUL BATOR ET AL., HART AND

WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1539-40 (2d ed. 1973)). Thus,

the real inquiry must turn on whether the state application of issue preclusion—discussed

below—is the only bar to challenging state convictions that the Supreme Court would like to

recognize. For purposes of upholding federalism and comity, state issue preclusion doctrine

seems adequate; thus, the Heck bar must be further supported by the federal policies outlined by

Scalia in Heck. If greater access to federal courts cannot be justified by a lack of parity—ability

or acumen—among federal and state courts, it would seem that Scalia’s apt analogy between

malicious prosecution and § 1983 should carry the day. Just as there are sound reasons to have a

favorable termination requirement separate from the requirements of preclusion for malicious

prosecution, the same reasons apply equally forcefully to § 1983 plaintiffs who challenge their

conviction through an action for damages.

68 See discussion immediately following.



viability and when issue preclusion will ultimately be the relevant hurdle. Finally, this section addresses whether a pardon may have an effect on the application of issue preclusion.

1. Issue Preclusion Generally

Although the affirmative defense of issue preclusion limits the

number of cases which will ultimately go forward,69 there are enough exceptions70 to the doctrine that the favorable termination requirement will often still be dispositive on whether the malicious prosecution or § 1983 plaintiff may proceed. While the precise parameters of the doctrine must be extrapolated from the preclusion law of the convicting state,71 issue preclusion generally allows that “once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.”72 However, plaintiffs can generally argue that they did not have an “adequate opportunity or incentive to obtain a full and fair adjudication in the first proceeding,”73 or they may

69 Generally, even when a plaintiff states a prima facie case under malicious prosecution or §

1983—and the favorable termination requirement or invalidation requirement has been met—the

claim might still be dismissed if the defendant successfully raises the affirmative defense of issue

preclusion. See Simmons v. O’Brien, 77 F.3d 1093 (8th Cir. 1996) (holding that although

plaintiff stated a claim under § 1983 because his claim did not necessarily imply the invalidity of

his conviction, his claim failed because of issue preclusion).


71 28 U.S.C. § 1738 (2000) (requiring that a state conviction be given the same effect by

subsequent courts as would be given by the first state). In Allen v. McCurry, the Supreme Court

explicitly held that § 1738 requires subsequent courts to apply the convicting state’s preclusion

law in § 1983 cases. Allen, 449 U.S. at 94-96. The defendant’s motion to suppress evidence on

federal constitutional grounds—unreasonable search and seizure—was denied in his Missouri

criminal case, and he was convicted. In his subsequent § 1983 claim, McCurry again alleged

unreasonable search and seizure against the officers who had entered his home and seized

evidence. Id. at 91.

72 Allen, 449 U.S. at 94 (1980). At the time, the Court still used the term “collateral

estoppel.” Because the terms res judicata and collateral estoppel have largely given way to the

simplified “claim preclusion” and “issue preclusion,” respectively, the “preclusion” terminology

will be used throughout this Note. Claim preclusion requires that once a final judgment has been

reached on the merits of a case, parties are precluded from relitigating that same cause of action

or related claims that were or could have been raised in that action. Id. at 94 (citing Cromwell v.

County of Sac, 94 U.S. 351, 352 (1876)). Issue preclusion occurs when a given issue of fact or

law, like the guilt of a party, has been decided by a court as necessary to its judgment, and that

decision then precludes relitigation of that issue of fact or law on a different cause of action

involving a party to the first case. Allen, 449 U.S. at 94, (citing Montana v. United States, 440

U.S. 147, 153 (1979)).

73 Simmons, 77 F.3d at 1095 (citing RESTATEMENT (SECOND) OF JUDGMENTS § 28 cmt. j).

Issue preclusion is an equitable doctrine, whereby it is often stated that the party attempting to

assert the doctrine has the burden of showing that no unfairness will befall the opposing party.

See Kessinger v. Grefco, Inc., 672 N.E.2d 1149, 1158-59 (Ill. 1996) (“Even where the threshold

elements of the doctrine are satisfied and an identical common issue is found to exist between a



argue that the particular requirements of the state’s issue preclusion law itself were not met.74 For example, if lack of probable cause is an element of the claim, as it is in malicious prosecution, it is possible that a criminal defendant who did not specifically allege lack of probable cause in a prior proceeding might not be precluded from bringing a future action based on lack of probable cause.75

2. The Effect of Pardons on the Application of Preclusion

If a pardoned convict is unable to find a doctrinal exception to

preclusion, he may argue in some contexts that the pardon itself should prevent application of preclusion. There is sparse case law on the intersection of pardons and preclusion, and no court has held that preclusion will always be defeated by a pardon. One district court76 has reasoned that “an innocence pardon acts to prevent prior decisions in the proceeding to which the pardon pertains from having preclusive effect

former and current lawsuit, collateral estoppel must not be applied to preclude parties from

presenting their claims or defenses unless it is clear that no unfairness results to the party being

estopped.”) This burden is very unlikely to be met if the civil plaintiff can show that material

evidence was withheld in his criminal trial or other illicit behavior by state actors undermined his

“full and fair opportunity” to litigate. See Snyder v. City of Alexandria, 870 F. Supp. 672 (E.D.

Va. 1994); Evans v. City of Chicago, No. 04 C 3570, 2006 U.S. Dist. LEXIS 9831, at *30 (N.D.

Ill. Jan. 6, 2006). Additionally, a couple of states refuse categorically to apply preclusion when

the first action was criminal and the second civil, reasoning generally that the differing stakes and

standards of proof make the two cases too difficult to compare. See Luke Constr. Co. v.

Simpkins, 291 S.E.2d 204 (Va. 1982). A related exception exists in those states which still

require complete mutuality, whereby preclusion will only be applied in a subsequent suit against

the exact parties in the first suit. The mutuality requirement traditionally meant that preclusion

would apply on the parties in the original suit. However, the modern trend, summarized by

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), is to allow “non-mutual” issue preclusion.

See RESTATEMENT (SECOND) OF JUDGMENTS § 29 reporter’s notes (collecting cases to show that

the majority view is to allow non-mutual preclusion).

74 That is, if a state’s preclusion law requires that the prior issue have been “actually and fully

litigated on the merits to a judgment necessary to the conviction in the first proceeding,” plaintiff

in the second suit can simply claim that one of those elements was not met. For example, when a

§ 1983 plaintiff showed that there was “only a partial transcript of the prior proceedings and no

written order setting forth the grounds for any ruling,” the subsequent court denied application of

preclusion because without “a record of all of the rulings in the prior proceedings, it is by no

means clear that collateral estoppel is even applicable.” Evans, 2006 U.S. Dist. LEXIS 9831, at

*29 (applying Illinois preclusion law). Similarly, another court has held that when a criminal

defendant unsuccessfully argued for suppression of a confession because of a failure to read

Miranda warnings, he was not precluded from arguing in a § 1983 claim that there really was no

confession. Snyder, 870 F. Supp. at 689 (applying Virginia preclusion law).

75 B.C.R. Transp. Co. v. Fontaine, 727 F.2d 7, 11 (1st Cir. 1984). In fact, at least in civil

rights cases—like malicious prosecution or § 1983—some courts have held that any issue not

raised in an earlier state matter may still be litigated in a subsequent civil rights action. See

Ornstein v. Regan, 574 F.2d 115, 117 (2d Cir. 1978) (“[F]or policy reasons, [the Second Circuit]

has declined in civil rights cases to give res judicata effect as to constitutional issues which might

have been, but were not, litigated in an earlier state court action.”).

76 Evans, 2006 U.S. Dist. LEXIS 9831, at *51.



in a subsequent civil rights action.”77 However, that court was also very concerned about fairness to convicted plaintiffs with evidence of specific maltreatment, and that seemed to be the impetus for such broad language.78 Other courts to consider the question might also decide that if a pardon adequately undermines a conviction, then the very basis for affording preclusive effect to that conviction has also been undermined. However, even if the conviction itself is obliterated, not all factual findings leading up to the conviction would be similarly undermined—like trial court rulings on police conduct leading up to the conviction.79

The primary cases in which a pardon might be relevant to application of preclusion are those § 1983 claims based on wrongful conviction or wrongful imprisonment.80 Generally, a police officer defendant could use a valid conviction to preclude wrongful conviction or imprisonment claims, since the validity of the conviction would be the central issue in those claims.81 As a result, even if a § 1983 plaintiff alleges specific constitutional violations, she would not be able to claim wrongful conviction or imprisonment if her conviction and imprisonment have never been undermined.82 However, if courts were to hold that a pardon invalidates a conviction, and if a plaintiff alleges specific constitutional claims that were not themselves subject to preclusion, it is likely that the wrongful conviction or imprisonment claim could go forward.83 Thus, before analyzing whether a state’s

77 Id. Even there, however, it does seem the court might have denied application of

preclusion on other grounds even without the pardon. For example, the plaintiff had already

gotten his conviction vacated by a court.

78 Id. The court was concerned that plaintiff had essentially exhausted the remedies available

to him, and the court did not think it was fair to use preclusion against someone who might have

evidence of maltreatment.

79 It is difficult to predict what a given court would do if the pardon were the only basis

argued to negate preclusion, since the case law on point seems to rely on other exceptions when

deciding not to apply preclusion. See id. Furthermore, the other cases discussed above, like

Wilson, do not mention preclusion at all, even though it would seem to be a central issue in those

fact patterns involving pardons and subsequent civil actions. Wilson v. Lawrence County, 154

F.3d 757 (8th Cir. 1998). It is possible, as in Heck—where the court explicitly avoided a

discussion of preclusion—that preclusion simply had not arisen yet in the case or had already

been resolved in favor of the § 1983 plaintiff.

80 See Figueroa v. Rivera, 147 F.3d 77, 80-81 (1st Cir. 1998). In order to state such a claim

of course, a plaintiff still needs to establish a violation of a federal right by a state actor which

lead to the conviction. 28 U.S.C. § 1983 (2000). While the case language recognizes a § 1983

claim for “wrongful conviction” and “wrongful imprisonment,” it is difficult to glean exactly

which constitutional protection gives rise to these claims. See, e.g., Figueroa, 147 F.3d at 80-81

(upholding the Heck bar against plaintiff’s claims for “unconstitutional conviction and

imprisonment,” without identifying the particular federal right implicated). One might presume

that due process is the right implicated generally, but the courts do not seem too concerned with

classification.

81 Figueroa, 147 F.3d at 80-81.

82 Id. While the requirements often diverge to some extent, note the similarity here between

the favorable termination requirements of malicious prosecution and the operation of preclusion.

83 There appears to be no case yet on point.



preclusion doctrine will be applicable to a pardoned individual’s malicious prosecution or § 1983 claims, a court must analyze the pardon law of that state to determine whether the conviction itself would be invalidated.84 Of course, the application of preclusion may not arise at all if a plaintiff is found not to have stated a cause of action—like if plaintiff has not proven a favorable termination.85

II. THE EFFECTS OF A GUBERNATORIAL PARDON ARE A MATTER OF

STATE PARDON LAW

A. Why State Law Governs State Pardon Effects in All Contexts

In both the malicious prosecution and § 1983 contexts, the effects

of a gubernatorial pardon must be analyzed under the law of the state. As a power bestowed by the state constitutions, the scope of the pardon power is squarely a function of that initial grant of power and the interpretation of that grant by the states’ courts.86 States are only required by the Federal Constitution to provide a “republican form of government;”87 nothing requires the states even to recognize a pardon power.88 Thus, the Tenth Amendment strongly suggests that the creation, and thus the scope, of a gubernatorial pardon power are reserved to the states.89 If a state wishes to grant broad power to its governor to vacate state judgments, it may do so.90 If a state wants to deny the governor the pardon power and vest it in a board, or if the state wants to limit the circumstances under which pardons can be granted, that is also its prerogative.91 For example, Louisiana only allows an

84 See infra Part III.

85 This was the case in Heck.

86 Indeed, it is “too well settled to permit of question” that the federal courts must accept state

interpretation of applicable state law. Aero Mayflower Transit Co. v. Bd. of R.R. Comm’rs, 332

U.S. 495, 499-500 (1947); see also Kolender v. Lawson, 461 U.S. 352, 355 (1983) (“[A] federal

court must, of course, consider any limiting construction that a state court or enforcement agency

has proffered.”) (quoting Vill. of Hoffman Estates v. Flipside, 455 U.S. 489, 494 n.5 (1982)).

These cases are about the interpretation of state statutes, but the reasoning must surely be

applicable to a state’s limiting construction of its highest law, a state constitutional provision

granting a pardon power.

87 U.S. CONST. art. IV, § 4.

88 See Herrera v. Collins, 506 U.S. 390, 414 (1993) (“[A]lthough the Constitution vests in the

President a pardon power, it does not require the States to enact a clemency mechanism.”).

89 U.S. CONST. amend. X. (“The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the

people.”). This has obviously been interpreted to give the states the power to create and limit a

pardon power—obvious because every single state has developed a pardon power on its own with

no interference from the federal government. See generally LOVE, supra note 5.

90 See, e.g., N.Y. EXEC. LAW § 19 (McKinney 2006).

91 Alabama vests its pardon power in the legislature, which has in turn created a board to

review pardons. ALA. CONST. art. V, § 124. Georgia also vests pardon power in a board. GA.



executive pardon to have effect after favorable recommendation from a board92 and mandates that no pardon can be granted unless all court costs have been paid by the convict.93 Thus, if a governor granted a pardon without meeting these requirements set down by state law, the pardon would be without legal effect, and no court should give effect to that pardon.94 Section 1983 certainly creates some room for federal common law surrounding the § 1983 statute—Heck, for example—but nothing in § 1983 gives the federal courts the power to graft their own interpretations of state pardons over the state’s.

The holding and reasoning of Heck require incorporation of state pardon law. Heck held that collateral actions for money damages were inappropriate vehicles for attaching valid state convictions, reasoning that concerns of finality and consistency are only met through direct attack on a conviction. Heck contemplated expungement “by executive order” as a potential method for invalidation, which certainly opens the possibility that some executive orders might invalidate a conviction adequately.95 However, a subsequent sister court’s assumption—without reference to state pardon law—that a pardon satisfies the requirement would wantonly beg the question whether the state’s conviction was still valid. The concerns of Heck are only met if the conviction in question is no longer valid in the convicting state. These concerns of finality and consistency would be entirely unmet if the state still viewed its conviction as valid while a federal court has unilaterally presumed otherwise.

This position is also mandated by 28 U.S.C. § 1738, which requires all courts to give convictions the same effect they would be given by the convicting state’s courts.96 That is, if a state’s courts would continue to treat a conviction as valid even after a pardon, any subsequent court would be required to give the conviction the same effect.97 In Allen v.

CONST. art. IV, § 2. Georgia also places further limitations on the board’s power to pardon. For

example, when a person is sentenced to two life terms, the second for murder, that person is

ineligible for a pardon until he has served 30 years. GA. CODE ANN. § 42-9-39 (2006). As

infrequently as that might occur, it still highlights the necessity for an inquiry into a pardon’s

authority before analyzing its potential effects.

92 LA. CONST. art. IV, § 5.

93 LA. REV. STAT. ANN. § 15:572 (2006). This seems to rest on the recognition that most

pardons are granted for reasons other than innocence. Louisiana suggests that while certain

pardons are allowed, the—predominantly—guilty parties are still expected to pay the appropriate

court costs if they expect the state’s mercy.

94 See infra note 86. The Supreme Court was very adamant there about federal deference to

state interpretations of state law.

95 See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

96 Section 1738 states in relevant part: “[Judicial] proceedings [of any court of any state] shall

have the same full faith and credit in every court within the United States and its Territories and

Possessions as they have by law or usage in the courts of such state . . . .”

97 Indeed, since state courts have concurrent jurisdiction to hear § 1983 claims, a state court

could have occasion to determine the effect of a pardon by that state’s governor. It would seem



McCurry,98 the Supreme Court held that § 1983 did not provide an exception to § 1738 and that subsequent courts must still give the issue preclusive effect to state convictions that the state would, even if that means barring an otherwise valid § 1983 claim.99 That means that a subsequent court should put itself in the place of the convicting state’s courts to determine the effect of the pardon. If that state would give conviction-invalidating effect to the pardon, then a favorable termination requirement might be satisfied, but if the state’s courts significantly limit the effect of pardons, then the requirement likely would not be satisfied.

B. State Pardon Law and § 1983

In the leading § 1983 case on point, Wilson v. Lawrence County,100

the Eighth Circuit determined that a gubernatorial pardon satisfied Heck’s invalidation requirement.101 Plaintiff Wilson maintained that he had been wrongfully convicted and that his constitutional rights were violated by the actions of police officers during arrest, investigation, and trial.102 The Heck bar was triggered because Wilson’s conviction was based primarily on the evidence and testimony provided by the officers, and it was clear that elements of his § 1983 claim implied the invalidity of his conviction.103 Thus, the inquiry turned on whether the gubernatorial pardon satisfied the Heck invalidation requirement.104 The governor certainly purported to do so—claiming to “obliterate” the conviction and “remove any legal disqualification [or] impediment,”105 and the court agreed that the pardon indeed “obliterated” the conviction.106 In finding that the pardon invalidated the conviction under Heck, the court held that as a matter of federal law, “Heck requires nothing more” than the executive’s claim of invalidation.107

In holding tersely that federal law controls the effects of a state

highly inappropriate for a state court to have to look to federal common law to determine the

effect to give a pardon by that state’s governor—especially when that state has declined to give

pardons such effect.

98 449 U.S. 90 (1980).

99 Id. at 96-97.

100 154 F.3d 757 (8th Cir. 1998).

101 Id. at 761.

102 Wilson v. Lawrence County, 978 F. Supp. 915, 918 (W.D. Mo. 1997), rev’d, 154 F.3d 757

(8th Cir. 1998).

103 Wilson, Id. at 920 (“[T]he parties do not dispute that a judgment in favor of Wilson would

necessarily imply the invalidity of his conviction.”).

104 Wilson, 154 F.3d at 760.

105 Id. at 759.

106 Id. at 761-62.

107 Id. at 761.



pardon in this context, and in overruling the thorough district court application of state pardon law without any discussion,108 the Eighth Circuit in Wilson seems to assume that a consistent body of federal law may not depend on state standards for evaluation of an element of the federal cause of action.109 However, this ignores the logically sound possibility that “the elements of a federally-enacted cause of action”110 might be entirely dictated by the federal courts but that some individual element might still necessarily incorporate an issue of state law. To see that this is entirely consistent, and indeed necessary, one need look no further than federal Takings Clause law, which depends on the state’s property law to determine what constitutes a party’s property to be protected.111 Takings Clause law teaches that deference to state law on matters that inherently depend upon state law is required by federalism and the balance of powers outlined in the Constitution.112

In a case actually dealing with the effects of a state pardon, the Third Circuit recognized that it must look to Pennsylvania pardon law to determine whether the district court erred in dismissing a petition for a writ of habeas corpus.113 There, the petitioner challenged his Pennsylvania conviction on the grounds that the trial court allowed a pardoned prior conviction to be used as evidence in a subsequent murder trial, and the Third Circuit upheld the district court’s dismissal of the habeas petition because Pennsylvania gives no invalidating effect

108 Wilson, 978 F. Supp at 921-22. (“The pardon’s effect on a conviction is a question of state

law. On the other hand, federal law governs whether that pardon’s effect, as interpreted by state

law, is sufficient to invalidate a conviction within the meaning of Heck. Because state law is

operative in resolving this issue, ‘[w]e must do our best to determine what state law is under the

state decisions. . . . . [W]e must judicially ‘estimate’ what the [Missouri] Supreme Court would

do if confronted with the same issue.’”) (internal citations omitted).

109 The court made no attempt to explain why, if it did recognize that federal law sometimes

incorporates elements of state law, it should not do so here when the issue in question was so

clearly a state issue. This at least implies an assumption that federal law incorporating elements

of state law is not possible or necessary. This cursory reasoning is especially odd since the

district court had performed such a thoughtful analysis of the application of state pardon law.

Snyder, 870 F. Supp. at 679.

110 Smith v. Holtz, 879 F. Supp. 435, 443 (M.D. Pa. 1995) (emphasis added).

111 Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1012 (1984). The Court explained that the

Takings Clause must be limited by the state’s property law, which in that case defined

information taken as “trade secrets.” Id.

112 If the federal government could dictate the definition of “property,” that would upset the

constitutional balance of power by allowing the federal government to define property in the way

most beneficial to itself, thereby circumventing the purpose of the Takings Clause. Id. While

some of the considerations are certainly different in the context of gubernatorial pardons, the

Tenth Amendment suggests that the creation of a gubernatorial pardon power and concurrent

determination of the scope of that power would be a matter reserved to the states to determine.

Federal control over the gubernatorial pardon power might even be conceptually tantamount to

the kind of federal “commandeering” or control of state actors rejected in cases like Printz v.

United States, 521 U.S. 898 (1997).

113 United States ex rel. Cannon v. Maroney, 373 F.2d 908, 910 (3d Cir. 1967).



to pardons.114 The court determined that the Pennsylvania conviction, according to Pennsylvania pardon law, was still entirely valid after the pardon and could thus be used in the subsequent trial. Conversely, in interpreting Wilson’s pardon, the Eighth Circuit failed to recognize that the authority granted under the gubernatorial pardon power is unquestionably a matter of state law.

The Heck bar—the prohibition against § 1983 claims which challenge still-valid convictions—also cannot be overcome by a mere unofficial “questioning” of the validity of a conviction. Thus, if the Wilson court was suggesting that a conviction need only be unofficially questioned by the governor to satisfy the requirement, this would be inconsistent with Heck and its reasoning. To this end, the Wilson court noted that one of Heck’s enumerated avenues of invalidation of a state conviction was habeas corpus relief.115 The court reasoned that since habeas relief is essentially a federal court’s questioning of state confinement, this suggests Heck would also require only that the conviction be questioned.116 However, the Supreme Court has repeatedly recognized the unique nature of habeas relief, noting that habeas corpus is “bounded by a requirement of exhaustion of state remedies and by special procedural rules.”117 Habeas corpus is not a mere “questioning” of a state conviction—it is an official remedy enumerated by the U.S. Constitution118 and federal statute,119 which is subject to rigorous procedural requirements and limited to circumstances in which the party challenges her imprisonment.120 By stark contrast, the gubernatorial pardon power is within the domain of the states and subject only to those procedural barriers which a state chooses to erect.121 It is entirely consistent and necessary that any effect of a gubernatorial pardon still be dictated by the state, while the narrow, constitutionally granted habeas remedy remains within the federal sphere.

114 Id. (holding that the district court properly dismissed the petition because Pennsylvania law

allowed pardoned convictions to be admitted as evidence; petitioner also raised a Full Faith and

Credit argument regarding Pennsylvania’s application of its own pardon law to his earlier

conviction and pardon in Maryland, but this argument was dismissed since Maryland law was in

accord).

115 Wilson v. Lawrence County, 154 F.3d 757, 761 (8th Cir. 1998).

116 Id.

117 Allen v. McCurry, 449 U.S. 90, 104 n.24 (1980).

118 U.S. CONST. art. I, § 9 (“The Privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).

119 28 U.S.C. § 2254 (2000).

120 Id.; see also Spencer v. Kemna, 523 U.S. 1 (1998) (holding a habeas petition moot because

the party was no longer imprisoned).

121 For a survey of the requirements for pardon application, see LOVE, supra note 5.



C. State Pardon Law and Malicious Prosecution

In the malicious prosecution context, there is little contention

regarding the applicability of state pardon law because it is a state tort cause of action to which state law would ordinarily apply.122 However, the only court to have decided the issue directly, the federal district court in Snyder v. City of Alexandria,123 recognized the applicability of Virginia law and purported to apply it, but it did so inadequately.124 There, after receiving a pardon from the governor which impugned his conviction for rape, plaintiff alleged malicious prosecution based on his conviction.125 Plaintiff argued that his pardon satisfied the favorable termination requirement.126 The court held that when a pardon, “by its terms and circumstances, substantially impugns or discredits a conviction,” that pardon should satisfy the favorable termination requirement.127

The court’s blind reliance on the “terms” of the pardon is misplaced. The court concedes that general pardons (those not based on innocence) should not satisfy the favorable termination requirement in Virginia but suggests without any support that in Virginia the governor’s opinion impugning the conviction broadens the effect of the pardon.128 Thus, the real problem was that while the Snyder court

122 Snyder v. City of Alexandria, 870 F. Supp. 672 (E.D. Va. 1994). The court assumed

without discussion that state pardon law must apply, but injected other inappropriate assumptions.

See discussion immediately following.

123 Id.

124 Id. at 678-80. This common law malicious prosecution claim was brought in federal court

through pendant jurisdiction with a federal question under 42 U.S.C. § 1983.

125 Snyder, 870 F. Supp at 676. The malicious prosecution plaintiff had obtained exculpatory

DNA evidence, and this had been the basis for the governor’s pardon. In the opinion of the

governor, the DNA evidence placed a “cloud upon the verdict” and “raise[d] a doubt concerning”

the validity of the conviction. Id. at 681.

126 Id. at 680-81. Additionally, plaintiff had since obtained expungement of his record, but

that expungement was on appeal at the time of the case so it could not be relied upon. There is

little doubt that an expungement, a procedure granted by statute in Virginia which literally erases

the record of conviction, would accomplish a favorable termination. Id. at 682. If a court has

independently reviewed the evidence and granted expungement, that is akin to an acquittal or

reversal.

127 Id. at 680.

128 Id. at 681. In support of that assertion, the court cited several Virginia cases in which a

governor has seen fit to limit the effect of a pardon by making it conditional in some fashion, like

upon payment of the prosecution’s costs. See Anglea v. Commonwealth, 51 Va. (10 Gratt) 696

(1853). However, the court notably failed to establish that the language of a pardon can ever

expand the pardon’s reach beyond that of a general pardon. Similarly, the court reasoned that

every pardon answers the concern regarding “different outcomes on identical issues”; however,

the court did not explain this assertion, which seems to beg the question whether any given

pardon has an invalidating effect on the underlying conviction. Snyder, 870 F. Supp at 679. If a

state views its convictions as valid even after pardons, and a collateral attack is allowed on that

conviction, an outcome might be reached which would directly contradict the still-valid

conviction.



seemed to recognize that Virginia’s pardon law must control the inquiry, the court conducted an inadequate inquiry129 into the effects of a pardon in Virginia because of its ungrounded assumption that a governor’s opinion must always control.130

III. A DISCIPLINED APPROACH TO STATE PARDON LAW—UNCOVERING

A REASONABLE PROXY RULE FOR THE FAVORABLE TERMINATION

CONTEXT

A. An Overview

This section will argue that upon proper analysis of state pardon

law, courts should apply, as a proxy for the favorable termination context, the state’s rule regarding the use of pardoned convictions under repeat offender statutes. Because few states, if any, have directly addressed the effect of a gubernatorial pardon on a collateral civil action,131 courts must turn to a state’s existing pardon law to extract the appropriate rule.132 However, as courts attempt to apply existing pardon laws to new issues, there has been a tendency to pull dicta indiscriminately from cases without reference to factual similarities, setting a stage where “[t]he extravagant language sometimes used in describing the effect of a pardon is in contrast with the actual decisions

129 Part III infra suggests a more rigorous analysis of state pardon law, and Part III.B.3

explains why the governor’s opinion may not unilaterally expand the effects of a pardon

otherwise constrained by state law.

130 This is not to say that the court was necessarily incorrect in result; however, the court cited

no Virginia case, statute, or background law that would give the pardon such an effect. The

unsettled nature of pardon effects demands such an inquiry. The court in Snyder also made a

hyperbolic policy assertion that if pardons did not satisfy the favorable termination requirement,

“innocent persons maliciously prosecuted and convicted might have no tort remedy for the injury

they suffer as a result of the malicious prosecution.” Snyder, 870 F. Supp. at 681. This argument

is overstated for two reasons. First, the court itself acknowledges that if plaintiff’s judicial

expungement is affirmed, that would certainly satisfy the favorable termination requirement. Id.

Thus, clearly pardons are not the only way to open the door to a civil action for a plaintiff.

Second, there are obviously many cases in which a pardon is not granted; even many innocent

persons are probably denied such relief. Without a pardon, the action in Snyder likely would not

have gone forward. Thus, the problem of innocent persons lacking meaningful recourse is a

much broader concern, and one that might also be dealt with through direct attacks on the

judgment like vacation or expungement available through the judiciary.

131 One plausible explanation for the dearth of state case law on point is that the issue will

most often arise in the § 1983 context, and that while these claims may also be brought in state

court, they might be brought more often in federal court. Thus, simply by virtue of choice of

forum, the federal courts may more often be put in the position of interpreting a state’s pardon

law in this context than the state itself would.

132 Such an attempt can be seen in Wilson v. Lawrence County, 978 F. Supp. 915 (W.D. Mo.

1997).



of the courts.”133 The Missouri Supreme Court’s formulation of its pardon law in one case is illustrative: “the fact of conviction is obliterated but the guilt remains.”134 That case determined that a pardonee was no longer prohibited from reapplying for a liquor license, but that the licensor did not have to ignore the party’s “guilt” in deciding whether to grant the license.135 In the context of a collateral civil action however, such language is inapposite. The purpose of the favorable termination requirement is to prevent civil re-adjudication of guilt; “guilt” is the only relevant “fact.” Thus, it is contradictory to say that the fact of conviction, but not the guilt, is wiped away.

This section suggests that state pardon law really has two prongs: those issues dealing with the validity and reliability of a person’s conviction—the accuracy of the guilt finding—within the legal context; and those issues dealing with a person’s character and fitness to exercise certain rights and privileges in the sphere of business or politics.136 The former prong provides a reliable indicator of the appropriate rule regarding the validity of convictions in the favorable termination context. Conversely, the cases involving a pardonee’s character are inapposite because they do not turn on the validity of a conviction but instead focus on a person’s fitness to exercise rights and privileges outside of the legal system.137

This section argues that the issue which will generally provide a reliable proxy rule for the favorable termination context is whether the state allows pardoned convictions to be used to increase punishment under repeat offender statutes. The concerns regarding the accuracy of the prior conviction track the concerns in the favorable termination requirement context closely.138 Issues providing much weaker analogy include the use of pardoned convictions to impeach witnesses or to restore certain rights like voting, running for office, or owning gun or liquor licenses.139 Unfortunately however, the latter seem to be the areas that have been addressed and have given rise to confusing dicta, and subsequent courts should be rigorous about looking first to the

133 Shankle v. Woodruff, 324 P.2d 1017, 1020 (N.M. 1958) (citing 25 AM. JUR. Habitual

Criminals and Subsequent Offenders § 21 (1940)); see also People v. Biggs, 71 P.2d 214, 216

(Cal. 1937) (expressing concern about the importance of relying on the facts of cases, not just the

dicta, when attempting to decipher the effect of a pardon).

134 Guastello v. Dep’t of Liquor Control, 536 S.W.2d 21, 23 (Mo. 1976). The district court in

Wilson, discussed above, relied on this language to hold that the pardon did not satisfy Heck. The

Eighth Circuit, after presuming that federal law would determine the effect of the pardon,

suggested that even if it were to apply Missouri law, it disagreed with the district court and

interpreted the Missouri case language to satisfy Heck’s invalidation requirement. Wilson, 154

F.3d at 760 n.3.

135 Guastello, 436 S.W.2d at 23-24.

136 See infra Parts III.C-III.D.

137 See infra Part III.D.

138 See infra Part III.C.

139 See infra Part III.D.



state’s repeat offender law before grappling with inapposite cases. Finally, for states that have not yet created relevant pardon law, the rule against allowing pardons to invalidate convictions should be applied unless the state’s other pardon law and separation of powers doctrine suggest strong deference to pardons and to the executive generally.140

Courts must also be wary of the tenuous distinction drawn between pardons based on an executive opinion of innocence and those based on other reasons like prison crowding or political favor.141 This section will begin with the suggestion that unless state law has clearly delineated greater effects for innocence pardons, the sensible default position is for the subsequent court to grant no greater effect to innocence pardons. It will then delve into the specific instances in which states have given greater effect to innocence pardons, including state statutes for wrongful imprisonment and judicial expungement of records. When dealing with an innocence pardon, a court should first examine whether a state statute might give such a pardon greater effect.

B. The Question of Innocence Pardons

1. Innocence Pardons Generally

Despite the conceptual intrigue and the dearth of case law directly

on point, the effect of a gubernatorial pardon based on an opinion regarding a petitioner’s innocence is no less a matter relegated to state law than the effect of any other pardon.142 Pardons based on innocence are relatively common,143 but there is scarce law addressing the potential effects of an innocence opinion. Some states do include in the constitutional pardon provision language suggesting that the reasons or terms of the pardon are at the discretion of the pardoner, but then the unsettled issue remains as to what extent the reasons or terms of a

140 In an ideal system, any time a federal court would have to analyze the unclear pardon law

of another state, it could certify the question to the state’s highest court and receive a timely

response. The reality is that courts are often required to submerge themselves in tangled state

law, and this certainly seems to follow from the existence of several federal court opinions that

certainly proceed without help from a state court. Furthermore, there is generally no certification

process for sister state courts, and the fractured approaches and dicta still challenge courts within

any given state to decipher that state’s own pardon law. Thus, to accomplish a reliable approach

to a state’s pardon law, a court must look to indicia that provide a rational basis for analogy and

filter the chaff—the dicta with rhetorical appeal but little analogical value.

141 Ford’s pardon of Nixon is often mentioned as such an example.

142 As discussed above, the gubernatorial pardon power is a core state law issue, and no

reasoning suggests that a governor can exceed the power granted to him by the state, even if a

federal court disagrees with an outcome as a policy matter.

143 See Herrera v. Collins, 506 U.S. 390, 414 (1993) (citing M. RADELET ET AL., IN SPITE OF

INNOCENCE 282-356 (1992), which suggested that pardons were often based on “actual

innocence,” specifically in capital cases).



pardon may govern the subsequent effects of the pardon. Some, like Samuel Williston, have had an intuitive reaction to this: “Everybody knows that the word ‘pardon’ naturally connotes guilt as a matter of English.”144 A New York justice in 1941 also reasoned that while a pardon granted because the executive is convinced of a party’s innocence is all the more reasonable, that does not change the categorical legal reality that “the judgment of guilt is, as a matter of law, conclusive upon the executive as well as upon all others except where a statute provides otherwise.”145 While these reactions might be appealing on some level, there is no fundamental reason why a state may not give greater effect to a pardon based on innocence—and indeed some have.146 If greater effect has not been given explicitly to innocence pardons, however, this section will suggest that the most sensible default position is to give no greater effect to an innocence pardon than a “general” pardon.147

2. Innocence Pardons Specifically Given Greater Effect

a. Vacation or Expungement Statutes

Because statutes which allow for vacation or expungement of a

conviction via innocence pardon directly attack the validity of a conviction, they are more likely to satisfy the favorable termination requirements of malicious prosecution and § 1983. New York’s statute is the most radical on its face, allowing innocence pardons to set aside a conviction and place the pardonee in the “same position as if the indictment . . . had been dismissed at the conclusion of the trial by the

144 Samuel Williston, Does a Pardon Blot Out Guilt?, 28 HARV. L. REV. 647, 648 (1915).

145 People v. Brophy, 38 N.E.2d 468, 471 (N.Y. 1941).


147 It is unclear why more states have not explicitly adopted such statutes, but one plausible

explanation is that the states tend to trust the courts to make determinations of innocence more

than the governor. While the state constitutions generally allow the governor to release people

from imprisonment—providing a valuable safety valve against punishing the innocent—perhaps

the states consider the courts a more appropriate adjudicator of guilt. For a discussion of other

remedies available to convicted persons with evidence of innocence, see Judge Josephine Linker

Hart, Available Post-Trial Relief After a State Criminal Conviction When Newly Discovered

Evidence Establishes “Actual Innocence,” 22 U. ARK. LITTLE ROCK L. REV. 629 (2000). A

position that would favor the governor as the ultimate arbiter of innocence seems to assume that

the governor is more accurate or more appropriate in some other way; however, one might

disagree on the grounds that the judicial branch has systems of review and evidence to get at more

accurate adjudication, while the governor, generally subject to no such limitations, may be

swayed by political or personal interests. For a discussion of such abuses of the pardon power in

the presidential context, which shares many of the same concerns, see Paul J. Haase, Note, “Oh

My Darling Clemency”: Existing or Possible Limitations on the Use of the Presidential Pardon

Power, 39 AM. CRIM. L. REV. 1287 (2002).



court because of the failure to establish the defendant’s guilt beyond a reasonable doubt.”148 At first, the implications of such a statute are profound, since an innocence pardon then would certainly be dispositive on the favorable termination requirements discussed above and also likely on the issue of preclusion. If the pardonee were really placed in the same position as if the indictment had been dismissed, the issues ultimately decided incident to the conviction would never have been decided and would likely be devoid of preclusive effect. However, the only court to interpret the statute directly has pointed out that the statute’s language contains an exception—that a pardon is only given this effect when the time has expired for challenging the conviction directly—which has swallowed up the statute since there is no longer any time limit on challenging a conviction directly through a motion to vacate.149

In other states, even statutes that open the door to expungement do not provide a right to expungement. Such state statutes allow judicial expungement of records in certain circumstances—some specifically triggered by an innocence pardon.150 Because expungement erases, or at least seals, a record of conviction,151 it would very likely satisfy the favorable termination requirements of malicious prosecution and Heck—Heck even enumerates “expunged by executive order” as a favorable termination.152 However, the Illinois statute at least has not been read to provide expungement power to the executive; rather, a pardon at most opens the door to petition a state court for expungement and grants such authority to the court.153 Thus, the discretion to expunge in Illinois still rests with the courts.154 And, at least in that context, the Illinois courts have adopted the rule that a “gubernatorial pardon does not act to erase an offender’s conviction” but instead “merely releases the offender from further punishment.”155 Similarly, the Delaware Supreme Court has declined to allow expungement based on a pardon because the statute did not expressly give pardons such effect and, more fundamentally, because “a pardon does not erase

148 N.Y. EXEC. LAW § 19 (2007).

149 People v. Cole, 765 N.Y.S.2d 477, 483 (N.Y. Crim. Ct. 2003). There was a two-year

limitation on motions for a new trial when the statute was passed, but that limitation has since

been abolished. Id.

150 See 20 ILL. COMP. STAT. 2630/5 (2006) (allowing expungement after a pardon which

explicitly provides for expungement); see also DEL. CODE ANN. tit. 11, § 4372 (2007)

(expungement allowed after a nolle prosequi or acquittal); cf. N.J. STAT. ANN. § 2C:52 (West

2007) (allowing petition for expungement after ten years, unless convicted of a serious crime).

151 20 ILL. COMP. STAT. 2630/5 (2006).

152 Heck v. Humphrey, 512 U.S. 477, 487 (1994).

153 See People v. Thon, 746 N.E.2d 1225, 1229 (Ill. App. Ct. 2001) (denying expungement

because the statute had not authorized expungement for those “previously convicted” of a crime).

154 See Chesler v. People, 722 N.E.2d 668 (Ill. App. Ct. 1999), appeal denied, 729 N.E.2d 499

(Ill. 2000).

155 Thon, 746 N.E.2d at 1229 (citing People v. Glisson, 372 N.E.2d 669, 670 (Ill. 1978)).



guilt.”156 Ultimately then, it seems that no state provides automatic

expungement “by executive order,” as was contemplated in the language of Heck as a potential favorable termination.157

b. Wrongful Imprisonment Statutes

However, state statutes explicitly providing wrongful

imprisonment actions to recipients of innocence pardons suggest that an innocence pardon should also satisfy the favorable termination requirements. For example, California provides that after receiving a pardon based on innocence, a pardonee may “present a claim against the State to the State Board of Control for the pecuniary injury sustained by him through such erroneous conviction and imprisonment.”158 Illinois provides, after an innocence pardon, for a similar claim against the state in the Court of Claims for pecuniary injury suffered by incarceration.159 Despite the limits of the statute itself though, a civil rights plaintiff has a colorable argument that by giving such effect to an innocence pardon in this context, the legislature has enunciated a trust in the executive to reach reliable findings which merit lowering the procedural barriers otherwise faced in seeking recompense. Therefore, the same rationale would apply to an innocence pardon in other contexts, like civil rights actions against individual police officers.160 In a state like Illinois or California then, recipients of innocence pardons would have a strong argument that at least for civil claims for pecuniary loss, the innocence pardon satisfies the favorable termination requirement because of the increased deference to innocence pardons suggested in the wrongful imprisonment statutes.161

156 State v. Skinner, 632 A.2d 82, 85 (Del. 1993) (holding that a pardon cannot vest a right of

expungement because “[w]hile the pardon may have forgiven his conviction, it did not obliterate

the public memory of the offense”).

157 Heck, 512 U.S. at 486-87.

158 CAL. PENAL CODE § 4900 (West 2006).

159 705 ILL. COMP. STAT 505/8 (2006); cf. TEX. CIV. PRAC. & REM. CODE ANN. § 103

(Vernon 2006) (allowing pardonees who have received innocence pardons to bring claims against

the state).

160 The weak counterargument might be that the limited scope of the statute itself does not

give any greater effect to innocence pardons in other contexts, but only evinces less of a concern

about suits for pecuniary loss going forward against the state itself, not against individual police

officers. This is likely weak because states often provide indemnification anyway to individual

police officers, which essentially puts the state’s coffers at stake regardless of the particular

defendant.

161 This reasoning might not extend to non-pecuniary recompense, like punitive damages, for

which the “stakes” might be significantly higher.



3. Innocence Pardons in the Absence of Statute or Precedent Giving Greater Effect

In the absence of state statute or precedent giving greater effect to

innocence pardons, the most sensible default position is to give an innocence pardon no greater effect than a general pardon. The pardon power obviously includes the authority to gather information pertaining to an applicant’s potential innocence.162 However, this is very different from a suggestion that such an opinion should expand the effects of the pardon ultimately granted. If a state limits its pardon power to prevent a pardon from affecting legal judgments, the executive may not unilaterally expand that power.163 Thus, unless a state has made clear that the reach of its pardon power depends on the opinion of the governor, such an opinion should be legally irrelevant. The real inquiry then turns on the boundaries of the pardon power generally in a given state. Those boundaries should be established as the first step in the inquiry into state pardon law. If a state’s pardon power, either by statutory or common law allows invalidation of the conviction in all cases, regardless of the governor’s reasoning, then the governor’s opinion of innocence is superfluous.164 Conversely, if the state pardon law does not allow for invalidation of a conviction by pardon at all, even based on innocence, then the executive’s opinion should also be irrelevant.165 Thus, an opinion of innocence will be relevant only when,

162 In fact, the United State Supreme Court implied this in Herrera v. Collins, 506 U.S. 390,

407-12 (1993), holding essentially that as long as a state has the “fail safe” mechanism of a

pardon which could be granted based on the party’s innocence, there is no per se Due Process

violation for punishing a convicted person who may be innocent. The Court noted that at least

the 36 states which had the death penalty at that time all provided for pardons which might be

based on evidence of innocence. Id. at 414 n.14. Notably, however, the Court was suggesting

only that the governor could grant a pardon because of an opinion of innocence; there was no

implication by the court that such an opinion would manifest itself in greater effect in those

states.

163 For example, the use of pardoned convictions to increase punishment under habitual

offender statutes is discussed below. In that context, imagine a scenario in which a state supreme

court has said that under the state’s habitual offender statute, all pardoned convictions can be

considered, regardless of the reason for the pardon. There, the governor could not change that

rule by stating in his pardon: “I hereby obliterate the conviction because I think the party is

innocent, and the conviction shall never be considered again, particularly for purposes of

increasing punishment under our habitual offender statute.” Admittedly, explicit state

pronouncements on other matters of pardon law are often lacking, avoiding the direct

contradiction posited in that case. However, this seems intuitively to be a difference in degree,

not in kind. It does not change the reality that the scope of the pardon power may not be

determined by the executive.

164 For all practical purposes, it seems that Alabama has come close to this expansive

interpretation of the pardon power. See Ex parte Casey, 852 So. 2d 175 (Ala. 2002).

165 People v. Brophy, 38 N.E.2d 468, 471 (N.Y. 1941); Wilson v. Lawrence County, 978 F.



by clear statute or common law, a pardon based on innocence has been given greater effect then a general pardon. Then, of course, the pardon should be given that additional effect.

At a policy level, this is certainly not to suggest that a convicted person with compelling evidence of innocence should not be able to seek vindication and recompense; rather, this position only suggests that the governor, absent an indication from the legislature or courts of increased deference, cannot unilaterally achieve such legal vindication (beyond the generally indisputable power to release from further punishment).166 Instead, parties with compelling evidence of actual innocence should pursue the more direct remedies available via statute and through direct attack against the conviction.167 If a state has not explicitly given greater effect to innocence pardons, there are plausible reasons why that state may prefer to leave the power to adjudicate guilt with the courts168—subject to evidentiary rules and a system of review—rather than the whim of a single person.169 This section makes only the narrow point that, absent an explicit provision for greater effect given to innocence pardons, courts should not assume that a state has ceded such increased power to the governor’s opinion.170

C. Pardoned Convictions Under Repeat or Habitual Offender Statutes—A Sensible Proxy for the Favorable Termination Rule

Many states have repeat or habitual offender statutes that provide

for increased sentences for convicts with prior convictions,171 and a state’s rule about whether to use prior pardoned convictions to increase

Supp. 915, 924 (W.D. Mo. 1997).

166 See note 147 supra for a brief discussion of why states may have chosen not to grant such

powers to the governor.

167 For a discussion and survey of various methods available, like a motion for a new trial or

judicial vacation of a prior conviction, see Judge Josephine Linker Hart, Available Post-Trial

Relief After a State Criminal Conviction When Newly Discovered Evidence Establishes “Actual

Innocence,” 22 U. ARK. LITTLE ROCK L. REV. 629 (2000).

168 See Part IV infra for a discussion of the separation of powers concerns inherent in the

pardon power; these concerns are especially relevant when questioning the governor’s power to

rule unilaterally on guilt or innocence.

169 Again, see supra note 147 for a brief discussion of why states may have chosen not to grant

such powers to the governor.

170 The same might go for the courts of the state itself, but it does seem that with an issue of

first impression, the state court in question may infer any rule it wishes from other pardon or

separation of powers law, subject to an ultimate decision by the state’s highest court. Thus, this

section is really most concerned about presumptions by other courts, as has been the problem in

the federal court cases on point.

171 See, e.g., CAL. PENAL CODE § 667 (2006) (California Habitual Offender Statute); LA. REV.

STAT. ANN. § 15:529.1 (2006) (Louisiana Habitual Offender Statute); see generally Kimberly J.

Winbush, Annotation, Pardoned or Expunged Conviction as “Prior Offense” Under State Statute

or Regulation Enhancing Punishment for Subsequent Conviction, 97 A.L.R. 5th 293 (2002).



punishment under such statutes provides a sensible proxy for the state’s rule regarding the effects of pardons in the favorable termination context. Most of the statutes do not specifically address whether a pardoned conviction may be used to increase punishment,172 but case law has developed on the use of pardoned convictions under these statutes. The “decided weight of authority,” among those states to have answered the question, favors allowing pardoned convictions to be considered in increased sentencing.173 The reasoning used to support this outcome varies, but the majority generally agrees that a pardon cannot “blot out” the conviction or “obliterate the finding of guilt” because it is merely an “act of grace.”174 Those states allowing increased sentencing for pardoned convictions concede that a pardon should release a person from further punishment for a crime, but they reason that considering the pardoned conviction valid under the habitual offender statute is not in itself additional punishment for the pardoned conviction.175 It is not additional punishment because “[t]he fact of former conviction is an element merely in determining the criminality of the second offense.”176 Conversely, the Alabama courts have held in this context that a “pardon blotted out of existence [defendant’s] guilt with respect to the pardoned convictions, making him, in the eye of the law, a new and an innocent man. Therefore, the pardoned convictions cannot be used to enhance his sentence under the Habitual Felony Offender Act.”177

A state’s treatment of pardons for purposes of habitual offender statutes is likely the strongest indicator of how the state would decide the impact of a pardon on a subsequent civil action. Both issues turn on

172 See, e.g., CAL. PENAL CODE § 667 (West 2006) (California Habitual Offender Statute); LA.

REV. STAT. ANN. § 15:529.1 (2006) (Louisiana Habitual Offender Statute).

173 Shankle v. Woodruff, 324 P.2d 1017, 1020 (N.M. 1958); see, e.g., State v. Zumalt, 451

P.2d 253, 256 (Kan. 1969) (“Our rule is that the record of a prior felony conviction may be used

to increase the sentence imposed for a subsequent felony conviction in accord with the habitual

criminal act despite the fact the prisoner received a pardon as to the prior conviction.”);

Timberlake v. Commonwealth, 245 Ky. 163, 163 (1932) (“A pardon of the offender after a

conviction excuses him from serving his sentence, but it does not alter the fact that he was

convicted, and does not preclude the commonwealth from using such conviction to augment the

punishment for an offense subsequently committed.”); Smith v. State, 440 A.2d 406, 410 (Md.

Ct. Spec. App. 1982) (“[A]n executive pardon . . . does not preclude enhanced punishment under

habitual criminal statutes.”); accord State ex rel. Stout v. Rigg, 90 N.W.2d 910 (Minn. 1958); see

generally Winbush, supra note 171 (citing cases from fifteen states that have allowed pardoned

convictions to be considered under habitual offender statutes). But see Ex parte Casey, 852 So.

2d 175 (Ala. 2002) (overruling previous precedent to hold that pardoned convictions cannot be

used to enhance punishment under the habitual offender statute because the pardon undermines

the earlier conviction such that the court cannot use it as evidence of greater culpability).

174 New York v. Brophy, 38 N.E.2d 468, 469-70 (N.Y. 1941).

175 See id. at 135 (“The punishment is for the new crime only, but is the heavier if he is an

habitual criminal.”) (quoting McDonald v. Massachusetts, 180 U.S. 311, 312 (1901)).

176 Id.

177 Casey, 852 So. 2d at 181.



the legal status of a previously convicted person for purposes of a subsequent legal matter, and both are concerned with the reliability of a given conviction in determining whether a party should still be subject to certain ramifications because of it. Specifically, courts allowing pardoned convictions to be used to increase punishment treat the validity of the earlier pardoned conviction as an “element . . . in determining the criminality of the second offense.”178 There is a clear parallel between this formulation and the favorable termination requirement, which also essentially incorporates the validity of an earlier conviction as an element of the malicious prosecution and § 1983 causes of action.179 The concern in these contexts is the accuracy of the prior conviction. Those states that have allowed pardoned convictions to be used to satisfy the legal standard under the repeat offender statute are implying that the legal accuracy of the conviction has not been affected significantly by a pardon.180 Thus, if a state’s courts consider a pardoned conviction still valid for purposes of habitual offender sentencing, it is very unlikely that the same court would consider that conviction “invalidated” so as to satisfy the malicious prosecution or Heck favorable termination requirements. It also follows that states adopting Alabama’s position would be far more likely to consider the favorable termination requirement satisfied by a pardon.

D. Other Areas of Pardon Law Are Inapposite

1. Regaining Certain Rights and Privileges

There are a variety of rights and privileges that might be lost at the

commission of a crime but regained after a pardon. Such issues include the right to vote, the eligibility to hold office, and the eligibility to obtain liquor, firearm, or professional licenses.181 In most of these situations, a statute strips certain rights upon conviction, and, absent rare automatic restoration of rights by statute, the courts must determine whether a pardon restores those rights.182 Courts must then try to reconcile the statutes that take away rights with the pardon power. It is these situations that have prompted the perhaps “extravagant”183—or at least overbroad at times—language of some courts, like the Missouri

178 Brophy, 38 N.E.2d at 469.

179 See Heck v. Humphrey, 512 U.S. 477 (1994).

180 Brophy is a perfect example. That court made clear that if a party wished to attack the

accuracy or validity of his conviction, he must do so in the courts; a pardon cannot get at the

underlying conclusion of guilt. Brophy, 38 N.E.2d at 469.

181 See LOVE, supra note 5.

182 See id.

183 Shankle v. Woodruff, 324 P.2d 1017, 1020 (N.M. 1958).



language discussed above: “the fact of conviction is obliterated but the guilt remains.”184 However, since that case was about restoring the right to own a liquor license,185 the court was interested in the person’s fitness to operate a liquor store, not necessarily the accuracy of his prior conviction. This is in contrast to collateral civil actions, for which generally the legal invalidity of the conviction is required as an element of the claim.186 This distinction suggests, therefore, that reasoning applied to regaining certain rights does not necessarily apply to the ability to bring a collateral civil action.

This rationale is especially apparent in the context of regaining the right to vote. If a person is disenfranchised upon conviction, in nearly every state he will statutorily regain the right to vote after a pardon, either purely by virtue of no longer being imprisoned or as an effect of the pardon itself.187 The rationale underlying voting rights is substantially different than that underlying the right to bring a collateral civil action. The latter promotes integrity and fairness of the system to others, conservation of judicial resources, and key judicial policies of finality and consistency,188 while the voting inquiry focuses on unrelated issues of civic involvement and fitness to participate in the political process. In other words, there is not necessarily a logical connection between the legal validity of an underlying conviction and the right to vote. This is evidenced by several states choosing not to disenfranchise felons at all and many restoring the right to vote upon release from prison for any reason.189 There is a logical connection between the accuracy of the conviction and its continued legal validity, and it would be inconsistent to allow a person whose conviction is still otherwise valid to bring a civil action premised on the invalidity of that conviction.190

Regarding the recovery of certain rights like holding office or obtaining a professional license, the majority position seems to be that a pardon grants eligibility for these rights but does not compel the voting public or the licensing body to overlook the person’s behavior when deciding whether to reinstate the person.191 Again, however, this rationale does not fit the favorable termination context, since there the plaintiff essentially is asking the court, in light of the pardon, to overlook a prior conviction.

184 Guastello v. Dep’t of Liquor Control, 536 S.W.2d 21, 23 (Mo. 1976).

185 Id.

186 Heck v. Humphrey, 512 U.S. 477 (1994).


188 Heck, 512 U.S. at 484-85.


190 Heck, 512 U.S. at 484-85.

191 See generally Daniel E. Feld, Annotation, Pardon as Defense to Disbarment of Attorney,

59 A.L.R. 3d 466 (2006).



2. The Use of Pardoned Convictions to Impeach Witnesses

Witness-impeachment rules are primarily concerned with the

character and reliability of the witness and not necessarily with the continuing legal validity or reliability of that person’s conviction. At common law, it seems that many states explicitly allowed pardoned convictions to be used in impeaching a witness.192 However, several states have followed the lead of Federal Rule of Evidence 609(c),193 whereby a conviction may not be used to impeach a witness when the witness has received a pardon based on innocence or rehabilitation or a certificate of rehabilitation.194 Statutes of this nature certainly suggest some effect by a pardon, but by equating a pardon with a certificate of rehabilitation, the focus seems to be less on the validity of the underlying conviction than on the reliability of the person’s testimony at trial. Since a certificate of rehabilitation is entirely compatible with a valid conviction, it might also be entirely consistent for a pardoned conviction to be unimpeachable yet still valid enough to negate the favorable termination element.

IV. A DEFAULT POSITION, AGAINST INVALIDATION BY PARDON, WHEN

STATE PARDON LAW IS NOT CLEAR

When a state has not ruled on the use of pardoned convictions

under a repeat offender statute, separation of powers concerns inherent in determining the effects of a pardon support a default rule against invalidation by pardon in the context of malicious prosecution and § 1983. In the most thorough opinion on point to date, the Wilson195 district court recognized that Missouri’s pardon law did not provide dispositive precedent and conducted a thoughtful and illustrative analysis of Missouri separation of powers to support its determination that a pardon should not satisfy Heck.196 From the Missouri Constitution197 and case law,198 the district court in Wilson determined

192 See generally R.P. Davis, Annotation, Pardon as Affecting Impeachment by Proof of

Conviction of Crime, 30 A.L.R. 2d. 893 (2006).

193 FED. R. EVID. 609(c).

194 See, e.g., CAL. EVID. CODE § 788 (West 2006); PA. RULES OF EVID. § 609 (2006).

195 Wilson v. Lawrence County, 978 F. Supp. 915, 917 (W.D. Mo. 1997).

196 Id. It is noteworthy that while the Eighth Circuit ultimately reversed the district court, it

did so on the simple—and faulty—grounds that federal, not Missouri, law should be applied.

Thus, the reasoning of the district court regarding separation of powers has not been questioned

and serves as a useful illustration of how a court might conduct such an analysis.

197 The Missouri Constitution expressly provides for the usual branches, “each of which shall

be confided to a separate magistracy,” and specifically mandates that a branch may not “exercise



that such power is “non-delegable and rests exclusively with the judiciary.”199 The court reasoned that in order to satisfy Heck, a governor, through a pardon, would have to “make a final determination of a question of law—the guilt or innocence of an individual within Missouri’s legal system.”200 Thus, the court inferred that such an outcome would violate Missouri’s constitutional separation of powers.201 While the states guard their separation of powers doctrines with varying degrees of jealousy,202 the foregoing analysis offers a useful illustration of how separation of powers doctrine informs the relationship between a pardon and a valid judicial determination of a legal question. This analysis comports with a common understanding of separation of powers.203 The judicial power would be significantly undercut if the governor could negate any and all effects of a still-valid conviction.

Determining that a pardon invalidates a conviction inherently suggests the tension in separation of powers doctrine noted by the Wilson district court. Allowing the executive to moot retroactively a

any power properly belonging to either of the others,” except where the Constitution has

“expressly directed or permitted.” MO. CONST. art. II, § 1. That section also states that the

judicial power lies in the courts.

198 See Asbury v. Lombardi, 846 S.W.2d. 196, 199-200 (Mo. 1993). A subsequent court must

look beyond a state’s constitutional language on separation of powers, or the absence thereof.

Some state constitutions include express separation of powers provisions, while others do not.

Compare the Georgia Constitution, article I, section 2, paragraph 3 (“[N]o person discharging the

duties of one [of the three branches of government] shall at the same time exercise the functions

of either of the others ….”) with that of Kansas, which does not expressly provide for separation

of powers. See State v. Beard, 49 P.3d 492, 496 (Kan. 2002). However, an absence of such

language does not mean the state has not recognized a more stringent separation of powers

doctrine through the courts. See id. at 185 (“[I]t has long been recognized that the very structure

of our three-branch system gives rise to the doctrine.”).

199 Wilson, 978 F. Supp. at 924; cf. Wolcott v. State, 604 S.E.2d 478, 481 (Ga. 2004) (“[T]he

judiciary has ‘the power and jurisdiction to adjudicate any and all justiciable questions presented

to it in litigation . . . .’”) (internal citations omitted).

200 Id.

201 Id. at 925. The court dealt with the argument that the Missouri court allows encroachment

where otherwise expressly provided, admitting that arguably, such an exception might be

embodied in the pardon power itself. The court ultimately determined that Missouri case law did

not suggest that the pardon power “expressly” provided such an exception. Thus, the

encroachment would violate the separation of powers.

202 See Asbury v. Lombardi, 846 S.W.2d at 199-200 (holding that although administrative or

legislative entities are sometimes authorized to make quasi-judicial decisions, such decisions

must be subject to direct judicial review). But see Beard, 49 P.3d at 496-500 (requiring a judge to

refer certain prisoners to “conservation camps” managed by the executive as part of sentencing,

and taking “a more pragmatic, flexible, and practical approach, recognizing that there may be a

certain degree of ‘blending or admixture’ of the three powers of government and that absolute

separation of powers is impossible”).

203 See People v. Brophy, 38 N.E.2d 468, 471 (N.Y. 1941) (“[T]he judgment of guilt is, as a

matter of law, conclusive upon the executive as well as upon all others except where a statute

provides otherwise.”); Samuel Williston, Does a Pardon Blot Out Guilt?, 28 HARV. L. REV. 647

(1915) (ultimately determining that a pardon could not possibly make the person innocent in the

eyes of the law).



core function of the judiciary would certainly suggest a shift of power to the executive.204 Thus, while a given state certainly has the prerogative to structure its balance of powers to defer judicial findings to the governor, the majority of states apparently have not, and it is outside a subsequent court’s authority to infer an unusual concentration of power without clear support from the state’s law.205 This reasoning supports the rule against invalidation by pardon as a default rule and suggests that a state should be especially clear206 if such broad authority in the executive is intended.

CONCLUSION

This Note has shown that while certain courts have been very

willing to interpret pardons as invalidating a conviction,207 such outcomes were reached without an adequate understanding of pardon law and without reference to the necessarily intertwined issue of choice of law. Thus, it was necessary to show that state law controls the question of pardon effects and then to advance a more disciplined approach to novel questions regarding pardon effects. Since state habitual offender statutes provide a reasonable proxy for a favorable termination rule, and most states have allowed pardoned convictions to be used to increase punishment, it follows that most courts would also likely deny collateral attack even after a pardon. Finally, this Note suggests that the rule against allowing pardons to invalidate convictions is sensible in light of the significant separation of powers concerns and might be followed as a default position when a state’s pardon law is unclear. A basic separation of powers understanding suggests that the executive would be encroaching on the power of the judiciary if she had the power to obliterate any conviction, without review, for all future purposes, and a subsequent court should not adopt such an interpretation unless the state208 has given some reason to do so.

204 This was certainly recognized by the New York justice in Brophy. See Brophy, 38 N.E.2d

at 471-72.

205 This seems to be the primary concern animating the Wilson district court’s interpretation of

Missouri pardon law. Wilson v. Lawrence County, 978 F. Supp. 915 (W.D. Mo. 1997).

206 An attempt at such clarity can be seen in the wrongful imprisonment statutes discussed

supra in notes 158-161 and accompanying text.

207 See supra note 7.

208 Alabama seems to be the only state at this time to have expressed such deference. See

supra note 177 and accompanying text.

Documents

pardon me, but can you open that door?: the potential effects of