May 24, 2018

Analysis: Pardons have plummeted in New Mexico under Gov. Martinez

Andy Lyman

Susana Martinez during the 2016 State of the State Address.

Brenna Ellis thinks the Trump stuff on social media played a part.

She pushed for the New York reality TV star’s rogue candidacy on Facebook during the 2016 election season. Meanwhile, she was making a big ask of New Mexico Gov. Susana Martinez, who had publicly feuded with Trump over his comments about immigrants and Martinez’ running of the state.

Ellis, 51, wanted the governor to issue a pardon for her 2001 felony conviction on conspiracy to commit arson. An act of mercy from Martinez would give Ellis, who served six months in jail and has been free for more than 15 years, a clean record and enable her plumbing company to secure government contracts.

Martinez shot down Ellis’ request.

“I think I got screwed,” Ellis tells SFR and New Mexico In Depth in a telephone interview from her home in North Carolina, adding that she believes her impassioned support for Trump factored into Martinez’ decision.

Martinez and her aides did not respond to a request for comment on Ellis’ claims.

SFR and New Mexico In Depth have assembled what is perhaps the most complete picture ever of how recent New Mexico governors have used their constitutional power of executive clemency. That includes pardons, for people who have served their time, and commutations, in which sentences are reduced for those still incarcerated.

court victory in a public records lawsuit filed by SFR enabled this close examination, which found, among other things, that Ellis resides in an overwhelming majority: She has asked Martinez for a pardon—and didn’t receive one.

An analysis of hundreds of pages of documents and multiple spreadsheets by the news organizations shows that Martinez has granted just three pardons—an act that clears what are, in most cases, decades-old crimes from people’s criminal records—since taking office.

More significantly, the analysis reveals a drastic drop in the number of people even requesting clemency under Martinez, compared to the previous two   administrations.

Former two-term governors Gary Johnson and Bill Richardson fielded more than 1,000 clemency applications each; Martinez has received roughly 250 applications for mercy in her seven and half years as governor, according to records turned over by the state. Johnson, then a Republican and now a Libertarian, granted nearly 9 percent of pardon applications between 1995 and 2003, the analysis found. Richardson, a Democrat who served from 2003 through 2010, had a 7 percent pardon grant rate.

Martinez: 1 percent.

Johnson commuted two women’s sentences, and Richardson gave one woman a commutation. Martinez has not granted any commutation requests, the records show.

The meager grant rate for Martinez, a former district attorney in Las Cruces who is approaching the end of her second and final term, fits with her govern-as-prosecutor style on criminal justice issues—including her ongoing push to reinstate the death penalty, calls for increased sentences for a host of crimes and even coming around to support Trump’s border wall idea.

The precipitous decline in applications surprised a pair of longtime New Mexico criminal defense lawyers who have decades of experience in post-conviction work. Both concede, however, that they’ve told prospective clients not to bother with clemency applications until there’s a new governor, given Martinez’ rhetoric since she took office in 2011.

One of the lawyers, Mark Donatelli of Santa Fe, calls Martinez’ clemency record an “abuse of power in the sense of not using the powers that are granted to her by the Legislature and our constitution.”

Mark Osler, a professor at the University of St. Thomas in Minnesota whose scholarship, writing and teaching have focused on clemency nationwide, says he’s not aware of any other states that have seen applications fall off the cliff as they have here.

He called Martinez’ stinginess with clemency a “dereliction of duty.”

“Pardons, which effectively are a restoration of rights, are meant to be part of the system; they’re included in state constitutions, and we don’t throw constitutions together casually,” Osler says. “There’s something deeply troubling about kicking part of the system out from under people.”

Donatelli and Margaret Strickland, president of the New Mexico Criminal Defense Lawyers Association, say pardons are especially important in New Mexico, which does not allow expungement—the wiping clean of some criminal records after a certain period of time—even for misdemeanors. In the internet age, when arrest records are a mouse-click away, a pardon could go miles toward landing someone a job.

Gov. Susana Martinez holds a post session press conference, March 18, 2017. Photo by Trip Jennings.

Martinez, however, has granted pardons to three people who are at or near retirement age. Their crimes: welfare fraud; breaking and entering; and larceny. The governor has denied at least 65 applications for clemency outright; she deemed at least another 71 “ineligible” for various reasons and, in 32 cases, her office did not provide a disposition or an explanation for where the applications stand.

Some of the pardon files Martinez’ office provided are incomplete, leaving a question mark hovering over the disposition of some 85 cases, some of which the governor appears not to have acted on.

The data leaves other questions, too.

It appears the state does not track the race, ethnicity, age or even gender of those who have applied for pardons. Nor is there an indication of how many applicants had the assistance of a lawyer.

What is clear, however, is that people have sought clemency for crimes ranging from first-degree murder—automatically ineligible for pardons here, by law—to rape, armed robbery, writing worthless checks and drug possession charges that are no longer felonies in New Mexico.

And although Martinez has turned away a higher percentage of applicants than her predecessors, the vast majority of those who have filled out a pardon application during the past 24 years have come away empty-handed.

Martinez has steadfastly refused to discuss her pardon record, going so far as to spend hundreds of thousands of dollars of state money on a private lawyer to keep secret the records that underpin this story. She remained silent through multiple requests for comment on the findings by SFR and NMID.

What is a pardon?

Pardons in the United States release people who have committed crimes, typically felonies, of the legal consequences of convictions after they’ve completed their sentences, probation and parole. By wiping a conviction from someone’s record, pardons can serve as proof that either the conviction was wrongheaded in the first place, or demonstrates a president or governor’s belief the person in question has been rehabilitated and deserves a chance to fully integrate into society unfettered by potential obstacles that arise from legal blemishes.

During her first four-year term, Martinez put more requirements in place for applying for pardons, a process that already forced applicants to have a high school diploma and to wait various lengths of time after their convictions before applying. She has barred pardons for a host of crimes, including misdemeanors, multiple DWIs and sexual offenses.

New Mexico is one of 29 states where the power of executive clemency is vested in the governor alone, according to a scholarly paper published by the American Bar Association in 2009. New Mexico state law  allows  for its Parole Board to advise the state’s chief executive on pardons. And the governor does frequently seek Parole Board input; the SFR and NMID analysis shows the Parole Board weighed in on 134 requests under Johnson, 259 requests under Richardson and at least 68 requests under Martinez.

In 13 cases, Martinez went against the Parole Board’s recommendation. Such was the case with Bruce Gillis, who in 1974 was convicted of a fourth-degree felony for distributing marijuana. Gillis told Martinez in a letter that he was 20 years old, “immature and irresponsible,” and pleaded guilty to the charge at the advice of a lawyer, but later turned his life around.

The Parole Board recommended a pardon. Martinez denied it.

Generally, in states where pardon power isn’t invested in a single person, rates of successful pardon applications are higher, says Osler, the Minnesota law professor. For example, Georgia and South Carolina, where parole boards have ultimate authority over pardons, issue pardons at higher rates than Vermont, Minnesota and New Mexico, three states where the governor has complete control.

“You tend to see fewer granted when the executive has absolute power, because it becomes a political concern,” he says.

Gov comparisons

Gary Johnson tells SFR and NMID he didn’t consider politics in pardon applications, and he acknowledges that his perspective on the issue chafed other Republicans. Johnson says that partly explains his switch to the Libertarian Party.

As a political candidate, Johnson has often highlighted his stance in favor of marijuana legalization. He says he took special care to pardon drug offenders.

“Really, from the civil liberties standpoint, hey, these people have issues—but are they criminal?” Johnson says of drug users. “No way.”

Richardson declined comment for this story, but his lead pardon attorney, Justin Miller, says Richardson “was very interested in the personal stories of the people who applied for a pardon because he understood that he had the power to help people who had gotten into legal trouble become fully reintegrated into society.”

In granting far higher percentages of pardons than Martinez, Richardson and Johnson also were more willing to buck the Parole Board’s recommendations—including a few cases in which they granted pardons over the board’s objections.

Martinez, by contrast, has never granted a pardon in a case where the Parole Board recommended denial, according to state records. Those cases include marijuana-related convictions.

Under Johnson and Richardson, the number of clemency applications remained relatively steady from year to year. Martinez, on the other hand, received the overwhelming majority of applications in her first term—but they’ve slowed to faint trickle since 2015.

The data provides no insight into the roughly 75 percent decline in applications under Martinez compared to her two predecessors. New Mexico lawyers say they’ve turned away clients who want to pursue pardons because of Martinez’ track record, and the tightened requirements she’s put in place likely have deterred some from applying.

Donatelli, the Santa Fe-based criminal defense and civil rights lawyer, criticizes all three governors for a dearth of pardons, citing the raft of nonviolent crimes that show up in the 24 years’ worth of data as unworthy of excluding people from participating in democracy.

He singles out convictions for drug possession and minor drug sales from the 1970s, 1980s and 1990s, when the War on Drugs was at its height and focused primarily on impoverished, minority communities, as cases ripe for pardons.

“A governor should be taking into consideration when looking at a conviction, ‘Was this a case of unlawful or arbitrary application of police power that results in harsh treatment of the poor and minorities?’” Donatelli says.

He’s also certain many of those who applied were above the poverty level—skewing the data provided to SFR and NMID. The majority of people who get caught up in the criminal justice system are poor.

“If you had a public defender in the first place, you probably can’t get an attorney to submit an application to be considered—another imbalance and inequity in the distribution of justice in our state,” he says.

Some people whose cases SFR and NMID reviewed have applied multiple times for pardons from all three governors. Jesse Childers is a former police officer who, in 1981, “offhandedly advised my brother-in-law and his two friends how to commit an inside robbery and not get caught.” He was not present when the crime went down, but spent five years in prison anyway. He first asked Johnson to pardon his armed robbery and conspiracy convictions in 1998. Johnson denied him.

He appealed to Johnson again in 2001, but was ruled ineligible because he hadn’t waited long enough after his first denial. Richardson did not take action on Childers’ third application before leaving office at the end of 2010.

In 2011, Childers filed a fourth application, this time to Martinez. It came with a letter of support from well-known Albuquerque attorney and Martinez donor Turner Branch, which Branch had originally sent to Richardson’s legal team in 2009.

Martinez was unmoved—despite a recommendation from her Parole Board that Childers be pardoned. “I hold law enforcement officers to a higher standard than civilians,” Martinez wrote in her denial letter.

A month later, Childers’ wife tried again, imploring Martinez in a three-page letter to “remember mercy.”

“Now that you have a new job, it is time to take off the hat of a prosecutor and put on the hat of a public servant,” she wrote.

Martinez appears not to have responded.


The pardon files released by Martinez show heartfelt pleas by people who argue they’ve pursued the American Dream in spite of their felony convictions. In three cases, Martinez offered some redemption that granted them a full share of that dream.

Then 64 years old, Charles Hayes wrote to Martinez in a 2011 pardon request that he got into trouble 43 years back, when his friends decided to steal beer from a lodge in Los Alamos. Hayes did not participate in the theft, yet he drank some of the beer. He was convicted for breaking and entering, but the judge told him “if I would join the Marine Corps he would remove any record of my being in trouble.” He enlisted the same day, and did not know if he would return home from Vietnam alive.

A devout Catholic and family man, Hayes wrote that he led a “very good and productive life.” He worked for the same company for 30 years and rose into a management position before retiring. He volunteered for a Los Alamos search-and-rescue team.

But he discovered the judge did not fulfill his end of the bargain; the conviction remained on his criminal record for life, unbeknownst to him until he attempted, unsuccessfully, to purchase a deer rifle for his son as a Christmas gift. He wanted a pardon to enjoy annual hunting trips and “hold my head a little higher.”

Martinez gave it to him.

In another of the three cases, Martinez granted a pardon at some political risk of appearing soft on welfare fraud. Despite two requests by SFR and NMID, Martinez’ office turned over sparse documentation for the pardon application of Marian Donaldson, who pleaded no contest in 1986 to felony welfare fraud.

Donaldson’s pardon file shows no application letter, case documents or letters of recommendation that would help describe her crime. But Martinez granted Donaldson, born in 1939, a pardon, citing “extraordinary circumstances.”

Edward Schneider is one of three people Gov. Susana Martinez has pardoned, according to state records.

In a telephone interview from his home in northern Idaho, Edward Schneider, the third applicant to be granted a pardon by Martinez, says he applied for a pardon because he could not travel to Canada. He was surprised to learn he was only one of three applicants who received a pardon from Martinez, and he says no political or personal connections helped him get a felony larceny conviction pardoned.

Schneider wrote to the governor that, since his release, he had not been charged with a crime. He wrote that he’s paid his taxes, raised his family and volunteered. Schneider says the key to his not falling into the trap of recidivism was support from family and friends. Moving to another city after his prison sentence helped too, Schneider says.

“Maybe it’s like AA,” Schneider tells SFR and NMID. “You just have to make a clean break. You have to say, ‘I don’t want to do this anymore. I don’t like being locked up in prison. And I will do anything required of me to keep from returning to that system.’”

Schneider says his felon status did not inhibit his employment chances because it was harder in his days to find someone’s criminal history. But in the age of Google, Strickland, president of the New Mexico Criminal Defense Lawyers Association, says unemployment is why “pardons are an important part of justice.”

Like many governors, Martinez may wait until the end of office to grant more pardons. Others, such as Brenna Ellis, say they’ll wait for a new gubernatorial administration before applying again.

Donatelli, the criminal defense attorney, says he expects “the numbers to go back to what we saw in previous administrations” with a new governor in office Jan. 1, “and even greater given the recognition of drug convictions people are laboring under with the responsible exercise of executive power.”