explaining that the Burdick Court “suggested] that, far from blotting out guilt, the acceptance of a pardon may constitute a confession of guilt,” and holding that “[a] pardon does not ‘blot out guilt’ nor does it restore the offender to a state of innocence in the eye of the law as was suggested in Ex Parte Garland”
How later courts described this case
- explaining that the Burdick Court “suggested] that, far from blotting out guilt, the acceptance of a pardon may constitute a confession of guilt,” and holding that “[a] pardon does not ‘blot out guilt’ nor does it restore the offender to a state of innocence in the eye of the law as was suggested in Ex Parte Garland”
- explaining that the deprivation of basic civil rights “by a state,” such as the right to vote, would constitute punishment in violation of a pardon
- holding that a state’s deprivation of a pardoned individ- ual’s civil rights based on fact of a conviction alone violated pardon clause
- discussing “basic civil rights” and reasoning that a “full pardon would seem to intend [] that the [pardonee] be reinstated to his full rights as a citizen”
Written by the judges who cited it.
The opinion
FAIRCHILD, Chief Judge
(dissenting).
The Presidential Pardon received by Mr. Bjerkan does not remove all of the “collateral consequences” of his conviction. Therefore, I am unable to agree with the majority that this case is now moot. In Carlesi v. New York, 233 U.S. 51 , 34 S.Ct. 576 , 58 L.Ed. 843 (1914) the Court held that a state could take “into consideration a prior offense committed against the United States after pardon” as long as the state’s action did not constitute a punishment. Carlesi, supra, at 57 , 34 S.Ct. 577 . The assignment by the state of “second offender status” to the appellant did not impair the effect of his pardon for the first offense. In addition to the “status” consequences which a state may still impose on Mr. Bjerkan, he may be subject to other disqualifications which do not constitute punishments. In United States v. Nasser, 476 F.2d 1111, 1117 (1973), this court held that “ . . . where there is a sufficiently rational relationship between the past activity and the public interest in excluding unworthy people, the disqualification is not a punishment . . ..” Therefore, Mr. Bjerkan’s pardon may not immunize him from disqualifications by state licensing agencies. The new Federal Rules of Evidence, Fed. Rules Evid. Rule 606, 28 U.S.C., for example, may not preclude the impeachment of testimony which he may give in subsequent unrelated trials. The totality of these collateral consequences is substantial enough to make this appeal ripe for a decision.
In reaching the merits of Mr. Bjer-kan’s appeal, however, I would vote to affirm the decision of the district court. The major issue which Mr. Bjerkan raised in this appeal was the failure of the local board and the National Selective Service Board to state the reasons why Mr. Bjerkan was denied conscien *130 tious objector status. This omission was remedied, however, by the State Appeal Board’s explanation for denying this appeal. Neither United States v. Wainscott, 496 F.2d 356 (4 Cir. 1974) or United States v. Lemmens, 430 F.2d 619 (7 Cir. 1970) require a different analysis. The reasons for the denial of Mr. Bjerkan’s appeal articulated by the State Appeal Board were adequate for the purpose of both judicial and administrative review.