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Far from grace: How Minnesota radically changed the way it forgives criminals

Minnesota once granted pardons and sentence commutations routinely, even for violent offenders. Times have changed. 

photograph of gerald whitmore in his church
MinnPost photo by Steve Date
Reformed Crip gangster Gerald Whitmore, now a chaplain and family man, believes he's the perfect candidate for a pardon. But the odds aren't in his favor.

Gerald Maurice Whitmore was out in Uptown, just before midnight, looking for a couple of good victims.

In his early 20s, Whitmore was already a veteran member of the Crips, and the plan for this February evening was to initiate a young female recruit through a practice he called “put in some dirt, put in some work.” Their first idea was to knock over a currency exchange. But Whitmore decided that might be too much for his inexperienced teenage companion. “Let’s go snatch a couple purses, you know what I’m sayin’,” he offered as an alternative. “That’ll be cool.”

They found what they were looking for on 31st Street in Minneapolis, a block off Lake, between Girard and Fremont avenues. The two young gangsters came up behind a pair of women and tackled them to the ground. Whitmore’s target struggled, so he punched her in the face until she let go of the purse, according to court records. A few feet away, his accomplice repeatedly stomped the other victim until she gave up her belongings, too.

Later that night, a Minneapolis police lieutenant spotted the two not far from the crime scene and arrested them. Whitmore was only a few months out of St. Cloud Penitentiary, where he’d served a year and a half for attempted aggravated robbery. That night he bought himself another year at Lino Lakes prison. For a 23-year-old, he wasn’t off to a great start.

Twenty-one years later, Whitmore believes he’s ready for forgiveness. On a recent afternoon, he sits in the cool basement of Marie Sandvik Center, a Christian ministry in Minneapolis’ Phillips neighborhood, where he started volunteering in 1995 after getting out of Lino Lakes. He’s worked there as chaplain for the past seven years.

“I committed those crimes,” he readily admits. “I’m responsible for them. It’s been over 20 years. Since that time I’ve been crime-free, an asset to my community, no longer a burden to society. I believe I’m a blessing and encouragement.”

Whitmore is among the nearly two dozen Minnesotans who have gone before the state’s Board of Pardons in 2015 asking for clemency for past crimes. He believes he’s an ideal candidate for a pardon. After a youth marked by violence, drugs and promiscuity, Whitmore found religion during his stint in Lino Lakes. He’s now married and a father of six. In addition to his duties as a chaplain, which include weekly sermons, counseling community members and teaching Bible study, he’s also been volunteering for years as a track coach at Coon Rapids high school. He now wants to take the next step and get a paid position for USA Track and Field, a prestigious national nonprofit with several teams in Minnesota. But when he applied earlier this year, his two felonies precluded him from making the cut.

“Life has been great, and I’m not aggrieved,” says Whitmore. “But what I’m looking for is for all of my United States of America rights to be fully restored. I’ve already committed a crime and paid my dues. Now I’m looking to not have to be punished over and over again.”

A radical evolution

A few decades ago, Whitmore would have been a shoo-in for a pardon extraordinary, the term for legally absolving citizens of their crimes after they’ve served their time and shown demonstrable rehabilitation. From 1940 to the end of 1989, after all, Minnesota granted the vast majority – 87 percent – of applications for all types of pardons considered, according to data from the Department of Corrections. Pardon extraordinaries were accepted in all but very rare cases. The board denied just 6 percent over that 50-year period, even routinely granting pardons for crimes like murder, robbery and sexual abuse.

Times have changed. After Minnesota revamped its process for sentencing prisoners and some high-profile pardons went bad, the number of pardons granted dropped dramatically. Between 1990 and 2012, the state denied 37 percent of pardon extraordinaries.

Pardons granted in Minnesota by year
Minnesota's implementation of determinate sentencing guidelines in 1980 had a profound impact on the pardon process. To analyze changes in pardons over time, MinnPost reviewed 72 years (1940-2012) of data provided by the Department of Corrections, as well as annual reports from 2013, 2014, and the outcomes of the 2015 May meeting. The data is not perfect. We did not include a very small percentage of data that lacked complete information – missing dates, type of pardons, nature of offenses or outcome of applications – in our analysis.
Minnesota Department of Corrections.

Those convicted of violent offenses, like Whitmore, face a particularly difficult challenge in convincing the pardon board that they’re worthy of absolution. “We just don't consider a pardon of somebody accused of a spousal assault or a sexual assault,” says DFL Gov. Mark Dayton, a member of the pardon board. “The statute and the rules don't prevent them from applying, so it comes down to us to say we are not going to consider that, basically, ‘Don’t come back.’ ”

And that doesn’t even take into account “full pardons” — letting someone out of prison — or commutations, the once-common practice of reducing a sentence or lessening its severity. From 1940 to ‘89, the pardon board commuted 741 sentences: 84 percent of those considered. Today, the practice effectively doesn’t exist. Over the last 25 years, Minnesota has granted zero commutations.

A long way from the gallows

Cole Younger faced an unenviable decision: life in prison or the gallows.

Younger was a member of the notorious Jesse James-Younger gang. In 1876, the law finally caught up with him and brothers Jim and Bob after the famous outlaws raided the First National Bank of Northfield. The gang killed two innocent people, including the bank teller who refused to open the safe, during the failed heist.

Faced with death, Cole and his two brothers chose life in Stillwater prison. In the more than a decade that followed, Bob died of tuberculosis in confinement, but Jim and Cole became model prisoners. During a prison fire, the brothers helped guards keep other inmates from escaping. Cole also founded one of the longest-running prison newspapers in the nation, the “Prison Mirror.” Letters from politicians, prison staff and legislators flooded into the governor’s office requesting the reformed gangsters’ sentences be reduced.

The Department of Corrections granted them parole in 1901, after years of legal disputes. A year later, Jim committed suicide in St. Paul. A year after that, Cole, the only surviving Younger brother left, received an official commutation. The state had only one condition: He leave Minnesota and never return. Cole accepted their terms, moving back to his home state of Missouri and joining a Wild West troupe.

portrait of cole young
Minnesota Historical Society
Cole Younger of the notorious James-Younger gang.

Cole’s exile from the North Star state was one of the earliest acts of Minnesota’s unique, three-member pardon board, which voters approved in a constitutional amendment in 1896. Before that, the governor had sole authority to grant clemency.

In its early days, Minnesota pardoned criminals liberally. From 1942 — the year after the state implemented pardon extraordinaries — through 1979, the board granted 483 of these post-sentence-served applications, according to the data from the Department of Corrections. It denied only six during that time period.

From January of 1940 to end of 1979, there were 819 sentence commutation cases considered. Of those, 85 were denied, while 734 were granted.

All that began to change in the 1980s, when Minnesota became the first state to officially adopt legally binding sentencing guidelines. Going forward, judges would have less discretion over sentencing, instead handing that power over to a permanent, independent commission that would develop and monitor the implementation of guidelines and make other recommendations.

Minnesota also got rid of its parole board in exchange for supervised release. Instead of convincing a board that they have been rehabilitated, felony convicts now serve two-thirds of their sentence in prison and the last leg in the community but under close supervision of corrections.

These reforms led to generally shorter prison sentences. And with fewer convicts serving life or similar long stretches, there was less pressure for the pardon board to act as a safety net for unfairly sentenced prisoners, says Richard Frase, a University of Minnesota criminal justice professor. Minnesota had also long rid itself of the death penalty by this time, meaning there was no longer a risk of executing an innocent person.

Things were changing across the nation, too. In 1986, the Massachusetts Department of Corrections granted a weeklong furlough to Willie Horton, who had been in prison for killing a gas station attendant during a robbery. When his furlough was over, Horton didn’t return to prison. Ten months later, he raped a young woman at gunpoint and badly beat her fiance. As a supporter of the furlough program, then Massachusetts Gov. Michael Dukakis took the heat for what was viewed as a preventable horror story — one that would become the subject of an incendiary attack ad during the 1988 presidential campaign.

The Horton episode sent a message to elected officials: They had more to lose than gain from intervening in a prison sentence. The use of pardons soon slowed at both the state and federal levels.

“Now nobody wants to let somebody out when it might be another Willie Horton,” says Frase. “People are very risk averse, so the safe course is just leave them in there.”

Decades of generously granting pardons caught up with the Minnesota board, too. In 1992, after a critical news report on pardoned Minnesotans who reoffended, legislators ordered changes to the way the board works.

Under the legislation, petitions from convicted felonies or misdemeanors on a property offense — like burglary or car theft — couldn’t be heard until at least five years had elapsed, while individuals convicted of violent crimes had to wait at least 10 years before they could apply. Pardon board meetings were also opened to the public and media, and lawmakers undid a 1972 change that sealed the records of those who received pardons, instead adding a pardon to someone’s private record. That meant an employer or a landlord could still potentially see a criminal charge if they dug deep enough.

The board also began conducting a vetting process, led by the Department of Corrections, before someone could obtain an application and appear at the meetings. Those who were able to get applications were thoroughly investigated, sometimes bringing county attorneys, judges and victims into the process. Applicants had to disclose all criminal convictions and any arrests.

What followed all those changes was a huge drop in total applications, especially those seeking full pardons or commutations, many of which were screened out early in the process. “You have to apply to apply, in a sense,” says Margaret Colgate Love, who served as the U.S. pardons attorney from 1990 to 1997. “I don't know any other state that does that.”

In the 1980s, the board ruled on pardons from 522 applicants. From 1990 to ‘99, that number declined 30 percent to 365. The following decade, it ruled on only 224 applications, a 57 percent drop from the ‘80s.

‘Pray to the wisdom of Solomon’

The structure of Minnesota's pardon board is one-of-a-kind. It’s made up of the governor, the attorney general and the chief justice of the state Supreme Court — and there must be a unanimous vote before a pardon can be granted. A handful of other states have multiple-member boards, but most lean heavily on the governor to make a final decision. About two dozen states give sole responsibility to the governor to grant pardons.

Given the different personal philosophies — not to mention political ambitions — of various governors, the one-person system produces a wide range of results. For example, the forgiving California Gov. Jerry Brown, a Democrat, granted 83 pardon extraordinaries this past Easter alone. Days before he left office earlier this year, Democratic Illinois Gov. Pat Quinn granted 232 clemency requests. But in Wisconsin, Republican Gov. Scott Walker hasn’t even assembled a pardon board, which many attribute to his campaign for president.

In theory, Minnesota’s three-member setup gives some political cover to the governor, but it hasn’t always shielded politicians from blame. Minnesota’s former Republican Gov. Tim Pawlenty saw one of his own pardons go bad in 2010, when a Blue Earth County prosecutor charged a man named Jeremy Giefer with sexually abusing his daughter more than 200 times. Three years earlier, Pawlenty and the pardon board had granted Giefer a pardon extraordinary for Giefer’s 1994 statutory rape conviction, in part because Giefer had married the victim and raised a child with her. The timing of the new charges was not good for Pawlenty. He was mounting a presidential campaign, and part of his legacy as governor was being tough on sex offenders.

portrait of governor mark dayton
Office of the Governor
Gov. Mark Dayton

Current Minnesota Gov. Mark Dayton, a Democrat, doesn’t have higher political ambitions as Pawlenty did. At 68 years old, he’s serving his second term as governor and last term in any office. Yet Dayton admits he still gets nervous heading into the meetings.

“No matter how careful you are or how careful all three of you are, and the whole scrutiny that went into it before, there’s always that risk that somebody could go out and reoffend, and God forbid reoffend more severely,” Dayton says. Since 2011, Dayton’s first year in office, Minnesota’s board has granted 66 applications, all pardon extraordinaries.

The most compelling cases for Dayton are those of youthful indiscretions: Minnesotans who committed minor crimes in their early years and have gone on to clean up their lives and start a family but cannot get a job because of their blemished records.

“You sort of put all that into a composite and pray to the wisdom of Solomon and try to give people that clean slate where they’ve earned it,” Dayton says.

Dayton thinks Minnesota’s three-member system works well, even though it leads to fewer pardons. There have been several cases where just one member of the board blocked a pardon during Dayton’s tenure. On a board where members have differing philosophies on clemency, it’s easy for one member to block applications. “You think, well, that’s the process,” he says. “It reduces the number of pardons we grant, but it probably safeguards us from one person making the wrong decision.”

portrait of lori swanson
Attorney General Lori Swanson

Democratic Attorney General Lori Swanson, who has had more experience than any other member currently on the board, says the shared responsibility in Minnesota stops untoward activities that go on in other states — like individuals lobbying for a pardon using influence or political connections.

The weight of the decision also comes from very different levels of government, she says. “You have the state’s attorney, top justice and the governor, and to get a pardon you have to get all three on the same page,” Swanson says. “The system that we have tends to prevent abuses.”

Pardons are not a judicial proceeding — legally they are called an “act of grace” — and they hold different significance for each person applying. Some need clemency to help get a job. Others want a clean slate to qualify for a house, to buy a firearm or to vote. For some applicants, a pardon is a symbolic gesture, an acknowledgement from the highest-ranking officials in Minnesota’s criminal justice system that they’ve transformed their lives.

portrait of lorie gildea
Chief Justice Lorie Gildea

Pardon board meetings can last four to six hours, and happen twice a year. Sometimes applicants come alone; other times they bring supporters. The board invites victims of the accused to attend and testify. The three members of the board will take in all the information and deliberate and rule on a petition on the spot, a nerve-wracking moment for the petitioner. Minnesota Supreme Court Chief Justice Lorie Gildea is used to being behind the bench, but she describes being a member of the board as something akin to serving as a juror.

“It’s an arduous task and a tremendous responsibility. When I was an associate justice I remember hearing former chiefs talk about it, and you could see the burden on their faces getting ready to go to the pardon board,” she said. “I thought about it in terms of, you are deciding a case, that’s what we do up here. I didn’t appreciate the difference.”

Violent offenders face steep climb

Terry Bayne was a cop with a gambling addiction who would take great risks to stay in the game. Charolette Washington Benjamin was a woman trapped in a bad relationship, and one day a fight turned violent.

Earlier this year, a lifetime after their respective crimes, both went before the pardon board hoping to get forgiveness.

Bayne’s crime traces back to a dark day in September 2000. He’d been spending his time in front of a slot machine at Seven Clans Casino, 10 miles from the Pennington County Sheriff’s Office, where he worked as a deputy. Bayne had run out of money, but he knew there was cash for the sheriff’s department’s accounts in the secretary’s desk. He went to the office that night and stole $70.

What Bayne didn’t know is that an agent for the Minnesota Bureau of Criminal Apprehension had installed a camera in the office. This wasn’t the first time money had gone missing from the cash drawer. Bayne was caught and charged with theft, and he lost his license required to be a police officer.

After getting a suspended jail sentence and an order to pay restitution, Bayne entered treatment for gambling addiction. He got a new job as a probation agent, and went back to school at University of Minnesota-Crookston. He now works for the Department of Corrections and as a private chemical dependency counselor.

This was Bayne’s second appeal to the pardon board, and this time, he got it. “I’ll tell ya what, outside of my marriage to my wife and birth of my kids, it was one of the greatest feelings I’ve ever had,” he says.

Benjamin wasn’t so lucky.

Her criminal past goes back even further, to the late 1980s, when she was 26. Police responded to a domestic assault call at her house in St. Paul, according to her pardon application. When they arrived, she was bleeding from the nose and mouth. Her boyfriend lay dead in the street with multiple stab wounds, one through his heart, and a butcher knife protruding from his shoulder. Prosecutors charged her with two counts of second-degree murder; she pleaded guilty to a lower manslaughter charge.

In her pardon application, Benjamin said her boyfriend had threatened to kill her that day, and she was only protecting herself. They fought over the knife, and he got stabbed in the process. She acknowledged the severity of her crime, as well as an unrelated conviction for fraudulently abusing food stamps a year before the incident with the boyfriend. She’s now working as a nurse in South Carolina, and is an active church member and volunteer at her grandchild’s school, she told the board.

They weren’t convinced. In May, the board ruled against her pardon extraordinary application for manslaughter, though it did grant her a pardon for the lower public assistance fraud conviction.

In the end, it was no surprise that Bayne was successful while Benjamin was not.

Bayne meets all the requirements: in the 15 years since his conviction, Bayne has not been charged with a crime. He no longer gambles, and he counsels others who have strayed down his same dark path. His former boss, Sheriff Mike Hruby, even supported his application.

But Bayne also had a major advantage over many of the other applicants seeking pardons this year: His charge was a property crime, not a violent offense. From 1992 to 2012, about 82 percent of pardon extraordinaries granted by the board were for nonviolent crimes.

Violent offenses are routinely dismissed by the modern board. Former Republican Gov. Arne Carlson, who served on the pardon board from 1991 to 1999, says he simply put faith in Minnesota’s capable judicial system for more serious offenses and didn’t want to interfere. “If it was a violent crime, unless there were absolutely extraordinary circumstances, there was no pardon granted,” he says. Carlson never considered giving a full pardon or commutation, he says. “I think that really opens the door to endless mischief.”

(Note: Given dramatic changes to Minnesota’s criminal code over the past 75 years, and amendments to what’s defined as a crime of violence, MinnPost relied on current FBI definitions to determine violent vs. non-violent. We classified sex crimes as violent. For dated crimes no longer charged in Minnesota, we used the most similar modern offense to determine if it constitutes a violent or non-violent act.)

Since Carlson’s departure, granting pardon extraordinaries for violent crimes has remained a rare event. From 2002 to 2012, only about 76 applicants convicted of violent crimes made it through the screening process and to the board. Sixty-three percent were denied. In that same time period, the board considered 181 non-violent crimes, and denied only 37 percent.

“Anytime there is a violent crime being committed and you are using clemency you are in really high risk territory for some kind of a PR disaster,” says P.S. Ruckman Jr., a political science professor at Rock Valley College in Illinois and the author of several books on pardons. “Generally speaking, if it’s a violent crime it’s probably not a good candidate for clemency.”

Minnesota’s pardons by type
Sentence commutations have effectively disappeared in recent years. Pardon extraordinaries, granted after the sentence is served, are now by far the most common granted by the board.
Full pardons
Pardons extraordinaries

Gerald Whitmore’s second act

Gerald Whitmore, the chaplain at Marie Sandvik Center, first went before the state’s pardon board in 2005. Back then he lived in Dassel, a small farming town in Western Minnesota, and wanted to take his son hunting, but the felony disqualified him from owning a gun. By this time, Whitmore was 10 years out of prison. Still, the board was not impressed. All three members, Chief Justice Kathleen Blatz, Pawlenty and Swanson, voted against him. It would be a decade before he would try again.

This time around, with another 10 crime-free years on his application, Whitmore believed things would be different. The first test came late last year, when he had to get the board’s approval to re-apply. Dayton and Swanson gave him the go-ahead to move forward, but Gildea voted no. He was surprised. He didn’t need her approval to move to the next step; that only took a majority vote. But the pardon extraordinary would require a unanimous decision, which meant Whitmore would have to persuade Gildea to change her mind about him the next time he saw her.

photograph of whitmore speaking before a congregation
MinnPost photo by Steve Date
Whitmore began volunteering at Marie Sandvik after his stint in Lino Lakes Penitentiary, and has served there as a chaplain for the past seven years.

“I knew it had to be all three,” he says. “I needed to find out what it was going to take for her to be convinced to give me this pardon. Not to snow her or anything, but what is it that she needs that’s keeping her from saying yes?”

Whitmore did some research on Gildea. He determined his problem was that he spent too much time talking about his rehabilitation and work for the church, and not enough about the elements of his crimes. Perhaps she didn’t believe he was truly remorseful for what he had done.

His day of reckoning finally arrived on May 20. The order of applicants was determined alphabetically by last name, so Whitmore was last. He waited four hours for his chance to speak.

When his turn came, Whitmore was excited. He told the board about the crimes he committed. He talked about his volunteer work, his family, his servitude for the church.

The board ruled on the spot: no.

Not only did he fail to convince Gildea, but Swanson voted against him as well. Dayton was the only member who voted in favor of the pardon.

Whitmore walked back to his car wracking his brain for what went wrong. Maybe I was too excited, he wondered. Maybe they wanted me to come in boot lickin’. The coaching gig was out of the question now. In the eyes of the court, he may never escape the sins of his youth. “I don’t like the feeling, after so much time, over two decades, ‘No you still don’t belong here,’ ” he says. “I just don’t like it. I don’t think it’s justice.”

Two months after standing in front of the pardon board, on a July afternoon, Whitmore pulls up to the Marie Sandvik Center on Franklin Avenue in a white semi-truck he uses to pick up food and donations for the ministry. His young daughter and others are setting up folding tables in the parking lot. “It’s Tuesday — our Big Dinner,” he says, explaining that the ministry serves a free meal here for the community twice monthly.

Whitmore is articulate and often answers questions by reciting a Bible verse verbatim or paraphrasing a parable. In regaling his descent into a life of drug abuse and crime, his time in prison and his transformation after finding God in a penitentiary church pew, he breaks into tears as unabashedly as he does a hardy, full-bellied laugh.

“I’m excited about what I get to do now, man!” he shouts, clapping and stomping his feet. “You see, my mind is clear! My conscience is clear! There is joy in this, dig?!”

Getting rejected for a second time was a disappointment, he explains, but not a discouragement. His conscience is clear; the pardon, he says, is a technicality.

As for the future, Whitmore hasn’t yet decided if he’ll re-apply again or simply resign himself to the black mark on his permanent record. “You know, honestly, I don’t know,” he says. “I’ll have to take that up with my Heavenly Father.”