Pardon Me

Nick Garcia joined the US Army when he was 17 years old.

The date was May 7, 1969—two days before news broke that the US was secretly sending B-52 bombers into Cambodia. He had just married his wife in Mexico, her home country. The two had a daughter together.

Garcia, who agreed to talk to SFR about his criminal history on the condition that his name be changed, is now 61. He served a six-month tour in Guam and Vietnam, where the savagery of war took its toll on him.

Garcia returned home with posttraumatic stress disorder, only to find that his wife had taken their daughter and left. He sank into drug addiction and became a repeat felon. Ultimately, he would spend a total of more than two decades behind bars.

Yet something changed in 1989, when the state charged Garcia with possession of heroin. Putting his faith in God instead of drugs, Garcia managed to turn his life around. He hasn't been in prison since his release in 1994. Soon, he would lead a Bible class at the Santa Fe County Adult Detention Facility and counsels young addicts in Española.

But Garcia wanted more than just the personal satisfaction of a reformed life: He also wanted outside recognition of how far he'd come. And so, in 2010, he requested an official pardon from Gov. Bill Richardson.

His case seemed like a compelling one. Garcia's application included character endorsements from two recent landlords, a doctor, two religious leaders, an addiction counselor, a judge and a retired warden who, in 39 years of corrections work, "never recommended any ex-offender for pardon consideration" until Garcia.

Nearly two years passed.

Then, last summer, Garcia received a response from Gov. Susana Martinez—a Republican former district attorney who campaigned on a tough-on-crime platform.

Her answer was no. According to data obtained through a public-records request and published here for the first time, Martinez has denied the vast majority of pardon applications processed during her first two years in office, granting only a fraction of the pardons that the two previous governors did.

But even Martinez' office recognized Garcia's progress.

"Governor Martinez commends you for leading a drug-free lifestyle," then-assistant general counsel Jennifer Padgett wrote on Aug. 9, 2012, "however she cannot overlook your habitual offender status and extensive criminal history."

Pardons occupy an often-overlooked corner of the criminal justice system. By restoring the "citizenship rights" of convicted felons like Garcia—such as the right to bear arms, serve on a jury and the hold public office—they offer a last-resort opportunity for official forgiveness and a clean slate. But in New Mexico, they're also one of the few areas in which the governor has absolute authority—a privilege Martinez has used sparingly.

For people like Garcia, a pardon can be a "lifeline," says Peter Schoenburg, an experienced Albuquerque criminal defense lawyer, "for someone to get their reputation back."

In New Mexico, he says, "pardons are doubly important" because expunging convictions—wiping them off your record—is a "difficult and expensive process."

But, he adds, pardons remain "rare as hens' teeth."

In part, that's because of the politics involved. Pardoning a repeat felon like Garcia, whom courts would eventually label a "habitual offender," is a tough sell; a governor has to be willing to bank on the fact that he won't reoffend.

Statistically, that's unlikely. An audit released by the state Legislative Finance Committee last summer found that, on average, 53 percent of New Mexico inmates return to prison within five years of their release. It's part of what makes issuing pardons such a tricky business.

New Mexico's constitution gives the governor exclusive authority to pardon "all offenses except treason and in cases of impeachment." Unlike some states, New Mexico imposes no check on the governor's authority, such as an independent review board.

Yet according to the data obtained by SFR, out of 100 pardon applications reviewed by the state Parole Board, which advises the governor on pardons, Martinez has granted just three pardons during her first two years in office. By contrast, Richardson, a Democrat, granted 27 pardons in his first two years; Gov. Gary Johnson, a Republican, granted 22. (News broke this week that President Barack Obama has also approved fewer pardons than his predecessors.)

The data include all pardon applications reviewed by the 15-member, governor-appointed Parole Board. (Not all pardon applications go through the Parole Board, however, so more people may have applied than the 100 whose applications SFR reviewed.) Parole Board officials told SFR they were not authorized to comment for this story. The governor's office also declined SFR's repeated requests for comment.

Although SFR requested all pardon applications—including any supporting documentation applicants submit to bolster their case—the governor's office declined to provide the applications, citing executive privilege.
Instead, the office provided 95 form letters telling most applicants that their pardon requests had been denied. Garcia was among them.

Attached to an oxygen tank in a small apartment on the third floor of a barren complex in Santa Fe, Garcia advises this reporter to quit smoking. The habit gave him emphysema, which he says has made it easier for him to catch pneumonia, the flu and other illnesses. A Santa Fe native with worn, wrinkled skin, a square jaw and carefully combed salt-and-pepper hair, he's nostalgic for simpler days, when people were in less of a hurry. As a child, he recalls gathering water from a nearby well. But even then, tragedy complicated his life.

Garcia's father, an alcoholic, died in a car crash when he was just nine years old. Adults counseled him to seek solace in religion, but Garcia remembers being angry at God. "I thought God was a murderer," he says now.

In the background, a televangelist preaches on TV. Garcia's front door is cracked open for his cat, Pearl, a friendly tortoiseshell that hops on the small table cluttered with paperwork and religious books.

Garcia's reasons for applying for a pardon are practical and personal. First, he wants to show he "accomplished things" in his life—"not just to the state," he says softly, "but to myself."

Second, he someday wants to go to Mexico for a religious mission. But as a felon, he can't leave the country.

The application process for pardons is on its face simple: Complete a sheet asking for basic information—name, birthday, social security number, contact information, etc. Include criminal history and a letter explaining the facts of the crime and why you should be officially pardoned. Deliver the information to the governor's office and wait for a response.

But the process was difficult for Garcia, who says that, without a lawyer's help, it took him a year to gather all the information.

Martinez' pardon guidelines state that applicants "shall include any significant achievements, such as employment and education accomplishments, and provide evidence of good citizenship and details about charitable and civic activities or other contributions made to the community."

Garcia keeps those documents in a manila envelope. They tell how a man he now calls "a young, lost drug addict," transformed into a "law-abiding citizen" who gives back to his community.

Yet restrictions abound. One of the first—also used by Richardson—is that all pardon applicants must have a high school diploma or GED. (Garcia received the latter.) Applicants are not eligible for pardons until specified windows of time pass following their "discharge from supervision," ranging from five years after release from an assault conviction, for instance, to 20 years following a release from second-degree felony conviction. (Technically, "discharge from supervision" means any supervision, such as probation—not just incarceration.)

In addition, Martinez' guidelines bar pardons for first-degree felony convictions such as murder or rape. Her administration has also strengthened the language on pardons for other crimes, including misdemeanors, multiple DWIs and sexual offenses. While both Johnson and Richardson stipulated that pardons for such offenses would not "ordinarily" be denied, that left the door open for the rare exception. Under Martinez, however, "sexual offenders, habitual offenders (including multiple convictions for [DUI], assault or battery against a household member), multi-felony offenders, or offenders convicted of a crime against a child are not eligible for a pardon."

The Martinez administration's responses to pardon requests highlight the unpredictability of the process.
Around one-third of the response letters obtained by SFR give no explanation for denying a pardon request (see chart, page 23). Others offer slightly more insight, informing applicants that not enough time has passed, that their offenses are ineligible, or both.

Garcia traces his problems back to Vietnam.

"It was an ugly situation there," he says, describing digging ditches and handling body bags. "I couldn't even understand what war was—much less being a father and a son."

A doctor's note included in his pardon request, written by Paul Rentz, lists a litany of psychological issues, "including: [posttraumatic stress disorder], Major Depression, Poly-substance abuse, and severe background trauma including his military experience in Vietnam and upon returning from Vietnam in 1969."

Garcia says the memories of war "haunt me to this day."

When the Army tried to send him back for a second tour, he made one of his first mistakes—and one he's regretted since—by going AWOL.

"I didn't want to go back to Vietnam," he says, "because I had already lost my life."

He turned himself in; he was court-marshaled and released with a undesirable discharge.

Garcia's first introduction to the civilian criminal justice system was in the winter after he returned from Vietnam, after he was involved in a bar fight that resulted in a police officer's death, he says. Garcia says police charged him with first-degree murder, but after questioning reduced those charges to drunk and disorderly conduct. The charges wouldn't show up on his record—he was never sentenced—but they foreshadowed a 20-year relationship with Santa Fe's criminal justice system.

"After when I got out of the service, then I started getting busted, started getting into trouble," Garcia says. "I was just angry. I was very angry. Besides being strung out, I was angry and hurt and just confused of what was going on and what happened. My wife and my kids and addiction—it was just all confusion."

Garcia spent the next 20 years in and out of custody, eventually landing the "habitual offender" label that would stand between him and a pardon. Most of his crimes were nonviolent—snatching an elderly woman's purse, for instance. But at least one wasn't: In August 1979, Garcia claims a man nearly ran over his young niece in his car. An argument between the two men escalated; after the other man pulled a gun, Garcia claims, he stabbed him in self-defense. But by 1980, Garcia had become a "seasoned criminal," as now-retired First Judicial District Judge Michael Vigil later wrote.

The data suggest that, in addition to imposing stricter pardon guidelines, Martinez is also employing her pardon authority in different ways.

Richardson left behind a backlog of 336 pardon requests, and insiders say Martinez has paid more attention to processing them than the previous two administrations.    

"Richardson and Johnson didn't do as thorough of a screening process," says one Parole Board official, who spoke on the condition of anonymity because he or she was not authorized by the governor's office to speak on the record. "…In my opinion, Martinez' staff does a much better and thorough job at screening [pardon applicants]."

That might explain why the Parole Board statistics show that Martinez' office forwarded only 100 requests to the Parole Board for investigation—50 a year, on average. Data show that Johnson's administration forwarded an average of 162 requests per year to the Parole Board, while Richardson averaged 130 per year.

But as with both Johnson and Richardson, the number of pardons Martinez has issued so far may not foreshadow her future actions.

Administrations tend to grant pardon requests near the end of their governorships, when outgoing politicians can avoid potential political blowback. Richardson, for instance, granted 20 pardons during his final year in office, more than one-fourth of his overall total. Johnson issued 43—more than one-third of his total pardons—in his last year.

And, of course, some cases are simply more compelling than others.

Edward Schneider, whom Martinez pardoned in October, was convicted of felony larceny more than 40 years ago. It was his only brush with the law, he says, but it has prevented him from running for office or taking high-ranking posts in community service organizations.

"My past felon status might arise," Schneider, 67, says. "It would be negative to the organization."

In 2011, border authorities prevented him from entering Canada on vacation because of his criminal history, says Schneider, a retired farmer who now lives in Idaho.

"I was sort of feeling imprisoned all over again," he says. The incident spurred him to appeal to Martinez for a pardon.

As a felon, he says, "You're told you can no longer own property; you can no longer vote; you can no longer do a lot of things. Basically, you're relegated outside the upward-bound mobile system."

Schneider was lucky enough to have a strong support system to keep him from reoffending—but many offenders don't.

"If a individual gets out cold and doesn't have somebody positive to help them out and support them, it's a really tough deal," Schneider says. "When I walked out of the gates of that prison, they gave me a $20 bill and a prison-made suit."

The incomplete data make it difficult to assess what, if anything, the Parole Board recommended Martinez do with Garcia's application. But his criminal record, application material and interviews paint a portrait of recidivism.

A turning point came in 1980, when Garcia was a prisoner at the state penitentiary during the notoriously brutal prison riot, which resulted in the deaths of 33 inmates. It made him reevaluate his life.

 "Alas sir," Garcia wrote eight months after the riot, in carefully scripted cursive, to a judge. "I am needed at home to help my wife and daughter. I want them to depend on me not the state welfare. I am capable of doing this and no longer do I want to ever be back to this environment. I did help on helping a[n] inmate get out of that ugly memory[—]the riot[.]"

But the judge denied his request to count time he spent in the county jail awaiting sentencing as part of his prison sentence. Garcia, then nearing 30, remembers contemplating suicide in his cell.

"The penitentiary riot only lasted three days," he says now. "But how long does it take for somebody to lose their mind?"

It was then that Garcia found God—or, as he believes, God found him. When a ministry of ex-convicts visited the prison, Garcia decided that he wanted to be just like them.

Garcia's "spiritual reawakening" renewed his outlook on life, but it would take years for him to fully reform himself.

Almost immediately after his release, Garcia was back in front of a judge, pleading guilty to a fourth-degree felony charge of receiving stolen property. He’d stolen between $100 and $2,500 of jewelry, according to court documents, and was sentenced to jail for a year on Dec. 6, 1982. He faced felony charges again in July 1985—this time for shoplifting “ten woman’s t-shirts in assorted colors, valued at $16.00 each.” But the offense was minor, and Garcia was already working toward his goal of helping people. A judge suspended his 18-month sentence so that Garcia could continue his employment at the Hoy Recovery Program in Española, along with a training program for certification as a substance abuse and alcohol counselor. He would also continue to attend Alcoholics Anonymous meetings during his probation and “shall consume no alcohol or controlled substances.”

But Garcia’s problems with addiction weren’t over.

On Jan. 11, 1989, authorities arrested Garcia and his third wife in a Bernalillo County motel with heroin, hypodermic syringes, a cooker and a handkerchief, “with the intent to…process, prepare, inject or otherwise introduce into the human body, a controlled substance,” according to the charges. Garcia pleaded guilty to one of the possession charges and agreed to serve behind bars until 1994.

“I didn’t want to get out, to tell you the truth,” Garcia says of his September 1994 release. But he looked around and decided to eschew his old friends and old haunts—the temptation of women and drugs and parties. “I didn’t want to get involved again,” he says. “But God told me he’d give me the strength and show me the way—and, ‘I’ll take care of you.’”

He got a gig at Santa Fe Recovery Center working maintenance, then as a cook and a counselor’s intern. He was clean for nearly seven years. He regressed in the late 1990s, he says, after a medical procedure left him addicted to pain pills. They triggered cravings, and he used heroin—but this time, he was able to overcome it.

He hasn’t used the drug in 10 years, he says, and has stayed away from alcohol since 1989. Gone are the days when he used to consume a fifth of Jose Cuervo for breakfast. In 2004, he started conducting a Bible study at the Santa Fe Adult Detention Facility—just like the ministers who helped him find God after the 1980 riot.

Garcia’s commitment to translating his own success story into community service is part of the reason Ted Peperas, deputy jail administrator for the Santa Fe County Adult Detention Facility, recommended an ex-offender for a pardon for the first time in his 39 years in corrections.

“He is always willing to assist inmates or staff in whatever capacity he has the ability to aid them in,” Peperas writes. “I would not hesitate to recommend Nick Garcia for pardon consideration.”

In another letter, Rev. Robert Ortiz writes that he’s known Garcia for five years, and that he “is an asset to our community.”

“His dedication to his faith and willingness to share it with others who are in situations which he himself has come out of and overcome,” Ortiz writes, “show his compassion and caring heart for his fellow man.”

Charles Romero, the associate pastor at Sangre De Cristo Bible Church, offers similar insights—as does Ruby Montoya, an alcoholism and drug abuse counselor who has known Garcia since 1982.

“[I]n this time he has made a complete 180 degree turn and now dedicates his time to the less fortunate,” Montoya writes. Vigil, too, was familiar with Garcia’s decades-long struggle.

“I was able to witness his release from prison and his attempt to make a life in the free world,” Vigil wrote in a 2010 recommendation letter. “It was a difficult task and one that [Garcia] struggled with.”

But it still wasn’t enough for a pardon.

“Susana Martinez is against habitual offenders,” Garcia says. “I understand that.” But he doesn’t believe that life of crime makes him a dangerous person or a threat to the community. He will be eligible to apply again in 2014, according to Martinez’ guidelines—but he isn’t sure he will. Maybe, he says, so he can spread the word in Mexico. But what matters to him right now is that God is working through him in his ministerial and counseling work. It’s evident in the way he talks, how he gets more animated about religion than anything else.

In interviews, he often gives one-word answers about the memories that haunt him the most. But asked about his relationship with God, his hollow eyes light up, and he becomes a preacher, getting out a Bible and slowly reciting his favorite verses.

In the end, though he’d like a pardon, he’s thankful that God “set me free.”

“It was no jailhouse Christianity, ’cause I would be doing the same thing,” he says of his spiritual awakening.

“I had to go back to prison…because I couldn’t believe God would want to use someone like me. But it’s true—he did. His word says he’s chosen the foolish things of the earth to confront the wise. He came for the sick—that’s who he came for. To heal the broken-hearted and the outcasts. The alcoholics, the drug addicts, the prostitutes, the broken-hearted.” 

Santa Fe Reporter