Under the Iowa Constitution, persons convicted of an “infamous crime” (any crime punishable by imprisonment in the penitentiary, which may include aggravated misdemeanors as well as felonies) are ineligible to vote or hold public office. Iowa Const. art. II, § 5; see Iowa Code § 48A.30(d). The rule in Iowa has been that “[a]ny crime punishable by imprisonment in the penitentiary is an infamous crime.” State ex rel. Dean v. Haubrich, 248 Iowa 978, 980 (1957). In 2016, the Iowa Supreme Court upheld the state’s policy of lifetime disenfranchisement of anyone convicted of any felony as being consistent with the state Constitution. See Griffin v. Pate, No 15-1661 (June 20, 2016). Two years earlier, the court held that repeat DWI, an aggravated misdemeanor carrying a potential prison term, was not an “infamous crime” so as to constitute a bar to eligibility for office. See Chiodo v. Section 43.24 Panel, No 14-0553 (April 15, 2014). However, the court stressed that the category of “infamous crime” was broader than “felony.”
Iowa state offenders may regain the right to vote by applying directly to the governor for restoration of rights under Iowa Code § 914.2, or through the Board of Parole for a pardon. Under current policy, a convicted person will be eligible for restoration of rights only upon satisfaction of fines, restitution, or other financial obligations stemming from the crime. See Iowa Exec. Order No. 70 (Jan. 14, 2011), available at http://sentencingproject.org/doc/publications/fd_Branstad%20Exec_Order_70.pdf (last visited May 29, 2012). 1
Federal and out-of-state offenders may also obtain a restoration of rights through application to the Board of Parole, but the Governor’s Office takes the position that the persons convicted in another state jurisdiction, whose rights have been restored in that jurisdiction, may vote in Iowa.
Conviction or adjudication of a felony, or conviction of misdemeanor domestic violence, renders an individual ineligible to possess a firearm. Iowa Code § 724.26. See also §§ 724.8(4), 724.15(1)(b). In addition, a person convicted within the previous three years of “any serious or aggravated misdemeanor defined in chapter 708 not involving the use of a firearm or explosive” may not possess a firearm. Iowa Code § 724.8(5). See also § 724.15(1)(b). Restoration of citizenship by governor or expungement restores firearms rights unless the conviction is of a forcible felony or firearms offense. Iowa Code §§ 724.27; 914.7(1). See Part IIA, infra.
II. Discretionary Restoration Mechanisms
A. Executive pardon and restoration of rights
The governor has the authority, except in cases of treason or impeachment, to grant reprieves, commutations, and pardons, after conviction, “subject to such regulations as may be provided by law.” Iowa Const. art. IV, § 16; accord Iowa Code §§ 914.1-914.7. Application for clemency may be made at any time either to the Board of Parole or to the governor. Iowa Code § 914.2.2 Every two years, the governor must report to the legislature on pardons issued, “and the reasons therefor . . . .” Iowa Const. art. IV, § 16. The pardon power includes the power to restore rights of citizenship. See State ex rel. Dean v. Haubrich, 83 N.W.2d 451, 455-56 (Iowa 1957).
Restoration of Citizenship, including firearms rights
Restoration of the right to vote and hold public office is handled by the Office of the Governor. There is a special process for restoration of firearms rights. The governor’s website on executive clemency includes application forms and instructions as well as frequently asked questions. See https://governor.iowa.gov/constituent-services/restoration-of-citizenship-rights (accessed July 6, 2017).
Applications for pardon are also submitted to the governor. However, the Board of Parole is authorized to periodically review applications for pardon and make recommendations to the governor for all applications by persons convicted of criminal offenses. Iowa Code § 914.3(1). Upon request of the governor, the board may “take charge of all correspondence in reference to an application filed with the governor” and provide the governor with advice and recommendation concerning “any person for whom the board has not previously issued a recommendation.” § 914.3(2). The governor is required to respond to recommendations of the Board within 90 days; he must “state whether the commendation will be granted and shall specifically set out the reasons for such action.” § 914.4. However, the governor’s power to pardon and restore rights of citizenship “shall not be impaired.” Iowa Code § 914.1; see State v. Duff, 122 N.W. 829 (Iowa 1909) (statute authorizing board to parole prisoners does not confer power upon the board to reprieve or pardon and hence does not violate the constitutional provision granting such power to the governor).
The predecessor statute to section 914.3 does not require the governor to present a case to and obtain a recommendation from the Board of Parole before granting a pardon. See 1940 Op. Att’y Gen. 125 (reversing 1934 Op. Att’y Gen. 372). A challenge to this opinion was rejected in the context of the governor’s blanket restoration of voting rights to all persons who have completed their court-imposed sentences. See Iowa Exec. Order No. 70; see also Ruling on Mot. for Summ. J., State ex rel. Gary R. Allison v. Vilsack, No. EQCV 018165 (Oct. 27, 2005).
Restoration of Citizenship (Vote and Office)
Application for restoration of civil rights may be made directly to the Office of the Governor at any time following conviction. Iowa Code § 914.2. It is not necessary for a person to have completed parole, probation, or paid all fines (though progress toward satisfying court-imposed obligations will be considered). Federal and out-of-state offenders may obtain a restoration of civil rights, but not restoration of firearms rights or pardon.
Special Restoration of Citizenship (Firearms)
Firearms restoration must be applied for separately, and requires a waiting period of five years from the date of discharge of sentence. All fines and restitution must be paid. Persons convicted of forcible felonies, or felonies involving drugs or weapons, are ineligible to have their firearms rights restored, even by pardon. Iowa Code § 914.7.
Application may be submitted “at any time following the conviction,” Iowa Code § 914.2, though it is the general policy of the governor’s office to require at least ten years to pass from the date that a person is discharged from the sentence of that person’s most recent conviction before granting a pardon. An applicant must submit criminal history and credit history information. Evidence of rehabilitation and good character must be demonstrated, and the applicant is invited to submit as many letters of recommendation as possible. Review appears to be a paper review, since no in-person hearing specified.
The governor’s website on executive clemency includes application forms and instructions as well as frequently asked questions. See https://governor.iowa.gov/constituent-services/restoration-of-citizenship-rights (accessed July 6, 2017).
Restoration of rights restores right to vote and hold public office. Pardon relieves all legal disabilities (including public employment disabilities). See Slater v. Olson, 299 N.W. 879 (Iowa 1941) (invalidating a statute barring convicted persons who had been pardoned from civil service positions, on ground that it encroached upon the governor’s constitutional powers). Firearms rights may be restored by pardon, restoration of rights, or expungement of a conviction for a disqualifying offense, Iowa Code § 724.27, except for persons convicted of forcible felonies or firearms offenses, § 914.7.
Role of Board
The Board “shall recommend to the governor the reprieve, pardon, commutation of sentence, remission of fines or forfeitures, or restoration of the rights of citizenship for persons who have by their conduct given satisfactory evidence that they will become or continue to be law-abiding citizens.” Iowa Code § 914.3(1); see Iowa Admin. Code rules 205-14.3-14.4. For violent crimes, notice of application for commutation or pardon must be given to registered victims. Iowa Code § 915.19; see paragraph above on governor’s obligation to respond to Board recommendations and give his reasons; see also http://www.bop.state.ia.us/pdf/07-01-2009.205.pdf (last visited July 27, 2013).
Restoration of Citizenship
There is a streamlined statutory process for restoration of citizenship by the governor. Persons sentenced to prison must initiate application under section 914.2, and upon request from the governor, the warden or superintendent of prison shall provide the government with a statement of the prison conduct and recommendation “as to the propriety of restoration.” Iowa Code § 914.5(3). For those sentenced to probation, upon discharge the sentencing judge “shall forward to the governor a recommendation for or against restoration of citizenship rights . . . .” § 907.9(4)(a). The abbreviated process takes from four to six months. A list of the persons whose rights have been restored must be delivered to the state registrar of voters at least once each month. § 914.6(3).
An application may be filed with Board of Parole or directly with the governor. Each application is forwarded to the Department of Public Safety for a full review of criminal and traffic violations as well as a credit history. According to law, these materials will be reviewed by the Board of Parole, and a recommendation will be submitted to the governor. The governor may ask the judge and prosecutor for facts or a recommendation. Upon receipt of recommendation from the Board of Parole, the governor must act on it within 90 days, stating whether or not the recommendation will be granted. The governor may interview an applicant personally. The governor must give reasons for decision in either case. If the governor does not grant the recommendation, the recommendation shall be returned to the board of parole and may be re-filed with the governor at any time. Iowa Code § 914.4.
Frequency of Grants
See Iowa Board of Parole Annual Reports, 1999 through present. http://www.bop.state.ia.us/AnnualReports; see also charts below.
Special Restoration applications
Special Restoration of rights (w/gun) granted/denied
Deputy Legal Counsel, Office of the Governor
Board of Parole
B. Judicial sealing or expungement of adult felony convictions
1. Deferred Adjudication and Expungement
For a first felony offense (excluding forcible felonies and certain sex offenses) , the court may defer judgment and place the defendant on probation.4 Iowa Code § 907.3(1). At any time, if the court determines that the purposes of probation have been fulfilled and fees have been paid, the court may order the discharge of a person from probation. § 907.9(1). If the defendant is discharged from probation, no conviction occurred in strict legal sense because no adjudication of guilt was made. State v. Farmer, 234 N.W.2d 89, 92 (Iowa 1975); accord Daughenbaugh v. State, 805 N.W.2d 591, 597 (Iowa 2011). Upon successful completion of probation, “the court shall forward to the governor a recommendation for or against restoration of citizenship rights to that person . . . .” § 907.9(4)(a). In addition, a person who has been discharged from probation “shall no longer be held to answer for the person’s offense,” id. and “the court’s criminal record with reference to the deferred judgment shall be expunged,” § 907.9(4)(b). The court’s record “shall not be expunged in any other circumstances, unless authorized by law.” Id.; see Op. Iowa Att’y Gen. No. 75-9-11, 1975 WL 368808 (Sept. 10, 1975) (“expungement” refers only to that part of the court’s criminal record “with reference to the deferred judgment” and there is no authority for expunging the docketing or indexing of the case, the defendant’s name, the charge filed or the plea).5
Expunged records are “segregated in a secure area or database which is exempted from public access.” Iowa Code § 907.1. However, a deferred judgment that has been expunged may be used to enhance punishment for a subsequent offense. State v. Moore, 569 N.W.2d 130, 131-32 (Iowa 1997). Convictions expunged under this authority count as prior convictions under the U.S. Sentencing Guidelines. See United States v. Townsend, 408 F.3d 1020, 1025 (8th Cir. 2005) (concluding that “Iowa state-court conviction for third-degree burglary was not expunged due to constitutional invalidity, innocence, or a mistake of law . . . [i]nstead, the conviction was exempted from public access to permit [defendant] Townsend a clean start and to restore some civil rights”).
2. Juvenile records
Adjudication records in delinquency proceedings arising on or after July 1, 2016 are presumptively confidential if they do not involve a forcible felony offense. Iowa Code Ann. §§ 232.147(3), 232.149B(1) (amended and enacted by 2015 SF 2288). Forcible felony records may be treated as confidential if, upon petition, the court finds that the juvenile’s interest in making the records confidential outweighs the public’s interest in the records remaining public. § 232.149A(1). Confidential records are not available to the general public but remain available to law enforcement, county attorneys, and military recruiters, among others. §§ 232.147(3), 232.149A(3).
For non-forcible felony offenses, presumptively confidential records may be made public while the juvenile court holds jurisdiction if the court finds, upon a motion by the court or anyone else, any of the following: that the public interest in disclosure outweighs the juvenile’s interest in confidentiality; that, in certain “youthful offender” cases, jurisdiction will be transferred to district court upon the juvenile’s 18th birthday; or the juvenile was subsequently charged with or adjudicated for a serious misdemeanor, aggravated misdemeanor, or felony. § 232.149B(2), (3). Records made public may be subsequently sealed under § 232.150, discussed below. § 232.149B(4).
Sealing is governed by Iowa Code Ann. § 232.150(1). The court is required to schedule a sealing hearing two years after the last official action in a case or on the person’s 18th birthday, whichever is later. Id. For offenses other than aggravated misdemeanors and felonies, the court will seal upon a finding that the person is at least age 18; at least two years have elapsed since the last official action on the person’s case; there have been no subsequent felony or aggravated misdemeanor convictions; the person was not placed on youthful offender status, transferred to adult court, and sentenced for the underlying offense; and that the person was not adjudicated for an OWI (DUI). Id. Aggravated misdemeanors may be sealed upon application if they meet the same eligibility requirements (excepting the youthful offender and OWI criteria) and if sealing is in the best interests of the person and the public § 232.150(1)(b). Unlike “confidential” records, sealed records “shall no longer be deemed to exist as a matter of law.” § 232.150(5). Courts and agencies shall respond to requests for sealed records that no such records exist. Id. “All agencies and persons having custody of [sealed records] shall send such records to the court issuing the [sealing] order,” and “all index references to sealed records shall be deleted.” Id.
Status of records at age 21
Iowa Code Ann. § 692.17(1):
Criminal history data shall not include custody or adjudication data, except as necessary for the purpose of administering chapter 692A, after the juvenile has reached twenty-one years of age, unless the juvenile was convicted of or pled guilty to a serious or aggravated misdemeanor or felony between age eighteen and age twenty-one.
3. Non-conviction records
Effective January 1, 2016, a person acquitted of all charges or whose charges have been dismissed (except deferred adjudication cases) is entitled to have the record expunged after 180 days. Iowa Code § 901C.1. Same definition of expungement as for deferred adjudication under § 907.4. See also Iowa Code § 962.17(1): “Criminal history data in a computer data storage system shall not include arrest or disposition data or custody or adjudication data after the person has been acquitted or the charges dismissed . . . .”
C. Administrative certificate
“Certificate of Employability”
In 2008, the Iowa legislature authorized the Board of Parole to develop and implement a “certificate of employability program” for certain formerly incarcerated persons on parole (no sex offenders), or no longer on parole but unemployed or underemployed. The purpose of the program is to “maximize the opportunities for rehabilitation and employability of a person and provide protection of the community, while considering the needs of potential employers.” Iowa Code § 906.19(2). The program developed by the Board is described at Chapter 9 of the Parole Board Rules, http://www.bop.state.ia.us/pdf/07-01-2009.205.pdf (last visited May 29, 2012).
Certificates may be issued by the board at the time the offender is released from prison or at any time thereafter, with a positive recommendation from the department of corrections or community-based corrections in the state of Iowa. The Board must determine that relief “is consistent with the employability of the eligible offender,” and “consistent with the public interest.” Iowa Code § 9.3(2). The certificate may be revoked during the parole period for a new arrest, or afterwards for a new conviction. § 9.3(3). A certificate of employability may be presented to any public agency or private employer, except where a statutory bar exists to employment. The only legal effect given a certificate under the Board Rules relates to licensing: Under section 9.2(2), licensing agencies cannot deny a license based on the felony conviction or based on a lack of good moral character, unless the agency makes a determination that there is a direct relationship between the offense and the license sought or that the issuance of the license involves unreasonable risk to property or the safety and welfare of specific individuals or the general public.
III. Nondiscrimination in Licensing and Employment:
Iowa has no general law regulating consideration of conviction in employment or licensure. It does apply a direct relationship test in connection with some licenses. See, e.g., Iowa Code § 147.3 (health-related professions licensing; “[a] board may consider the past criminal record of an applicant only if the conviction relates to the practice of the profession”); see also Part II C, supra, on certificates of employability.
- Between 2005 and 2011, an executive order issued by Governor Tom Vilsack automatically restored the right to vote and to hold public office to offenders who had completed their court-imposed sentences. See Iowa Exec. Order No. 42, available at http://publications.iowa.gov/3762/1/EO_42.pdf. According to news accounts of Governor Vilsack’s action, the order restored the right to vote to some 80,000 persons then unable to vote in Iowa. His successor Chet Culver continued this automatic restoration policy, and rights were restored to offenders completing their sentences on a monthly basis (about 25,000 individuals over his four-year term). Governor Terry Branstad rescinded the Vilsack order on January 14, 2011, so requests for restoration of rights are again handled on a case-by-case basis by the Office of the Governor. See Iowa Exec. Order No. 70, available at https://governor.iowa.gov/documents/executive-order-70.
- An exception is stated under section 902.2, which provides that persons sentenced to life in prison may apply for clemency “no more frequently than once every ten years.” This provision, enacted in 1995, was sustained against constitutional challenge under the ex post facto clause in Snodgrass v. Robinson, 512 F.3d 999 (8th Cir.), cert. denied, 555 U.S. 813 (2008). To the extent this provision appears to require the Governor to send applications for clemency to the Parole Board, it may be constitutionally problematic. See State ex rel. Gary R. Allison v. Vilsack, No. EQCV 018165.
- Prior to 2005, when Governor Vilsack issued a blanket restoration of the right to vote, much of the Board’s clemency work was consumed with processing applications for restoration of rights. Now that Governor Vilsack’s executive order has been rescinded, this work may pick up again.
- If a case qualifies for disposition under section 907.3, a defendant is entitled to be considered for deferred judgment. See State v. Johansen, Nos. 6-451, 05-1106, 2006 WL 1751285, at *1 (June 28, 2006).
- In Dickerson v. New Banner Institute, the Supreme Court held that a guilty plea and deferred sentence that was expunged under the Iowa deferred adjudication scheme did not relieve a defendant of federal firearms disabilities. 460 U.S. 103 (1983), superseded by statute, Firearms Owners’ Protection Act, 100 Stat. 449 (1986), as recognized in Logan v. United States, 552 U.S. 23, 27-28 (2007) (citing 18 U.S.C. § 921(a)(20)). Congress subsequently amended the Federal Firearms Act to give effect to state relief provisions, including set-aside and expungement provisions. See 18 U.S.C. § 921(a)(20).
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