A. Civil Rights
A person convicted of a felony loses the right to vote, to hold office, and to serve on a jury. Kan. Stat. Ann. § 21-6613(a).1 These rights are automatically restored upon completion of the authorized sentence. § 21-6613(b). Upon satisfaction of conditional release or parole (or sooner if the sentence expires sooner), a state offender receives from the parole board a “certificate of discharge,” which restores civil rights. § 22-3722.
A conviction of a “person felony” or a drug felony, or juvenile adjudication of a similar crime, results in a permanent loss of firearm rights if a firearm was carried at the time of the offense. Kan. Stat. Ann. § 21-6304(a)(1). If a firearm was not used, the prohibition is 10 years for specified serious felonies if the offense was not pardoned or expunged, § 21-6304(a)(3)(A), and five years for other person felonies. § 21-6304(a)(2). Nonperson felonies result in a ten-year loss if committed with a firearm. § 21-6304(a)(3)(B).
II. Discretionary Restoration Mechanisms
A. Executive pardon
The pardon power is vested in the governor, subject to regulations and restrictions by law. Kan. Const. art. I, § 7. The governor is required to seek the advice of the Kansas prisoner review board before acting, though he is not bound to follow it. See Kan. Stat. Ann. § 22-3701(4) (as amended by 2012 Kansas Laws Ch. 16 (H.B. 2535)). The governor must report to the legislature on each pardon application granted during the preceding year, but is not required to give his reasons. § 22-3703.
Prior to 2011, the governor was required to see the advice of the Kansas parole board before acting on a pardon, per Kan. Stat. Ann. § 22-3701(4) (2010). The parole board was composed of three members appointed by the governor to four-year terms, with the advice and consent of the Senate; and no more than two could be from the same political party. 22-3707(a) (2010). Board members were full-time salaried employees; and the chairperson was designated by the governor. §§ 22-3708 (2010); 22-3709 (2010). Board members were subject to dismissal by the governor for “disability, inefficiency, neglect of duty, or malfeasance in office.” § 22-3707(b) (2010).
In January 2011, however, Governor Brownback issued Executive Reorganization Order No. 34, which replaced the parole board with a “prisoner review board.” See Executive Reorganization Order No. 34 [hereinafter ERO 34], available at http://www.kslegislature.org/li/m/pdf/ero_34.pdf.2  Per the terms of ERO 34, the parole board was “abolished” and the prisoner review board was deemed a “continuation of the Kansas parole board.” ERO 34 at § 2(a). Accordingly, the ERO transferred “[a]ll of the powers, duties and functions” of the parole board to the prisoner review board and the prisoner review board became “the successor in every way” to the old parole board. Id. at §§ 2(b)-3.
The prisoner review board is established within the Kansas department of corrections and is administered under the supervision of the secretary of corrections. ERO 34 at § 1. “The prisoner review board shall consist of three members appointed by the secretary of corrections and all members shall serve at the pleasure of the secretary.” Id. (emphasis added). Additionally, Board members shall be “existing employees of the department of corrections.” Id. The abolishment of the old parole board and the establishment of, and transfer of powers to, the new prisoner review board was codified in Kan. Stat. Ann. §§ 75-52,152 and 75-52,153.3 Pursuant to a subsequent “clean-up” bill, see 2012 Kansas Laws Ch. 16 (H.B. 2535), the chair and vice-chair of the prisoner review board shall be designated by the secretary of corrections (not the governor).
The Kansas Department of Corrections’ website contains a historical overview of Kansas paroling authorities at http://www.doc.ks.gov/prb/overview.
No eligibility restrictions, except that only Kansas state convictions are eligible to be pardoned or commuted. Kan. Stat. Ann. § 22-3701(1).
In general a pardon removes disabilities imposed under state law, but does not erase or expunge conviction. See http://www.doc.ks.gov/prb/clemency (“a pardon does not erase the conviction from the record, remove responsibility for the crime, nor can it be the basis for a negative response to the question: ‘Have you ever been convicted of a crime?’”). In particular, it does not lift the bar to service as law enforcement officer. Kan. Att’y Gen. Op. No. 85-165, 1985 WL 204857 (Nov. 26, 1985) (Texas pardon, construed under Texas law, does not lift the bar under Kansas law to service as law enforcement officer). It also does not preclude increased sentencing in subsequent offense. State v. Zumalt, 451 P.2d 253, 256 (Kan. 1969).
An applicant for pardon must publish a copy of the application in a newspaper of general circulation in the county of conviction at least 30 days before pardon is granted or pardon is void. Kan. Stat. Ann. § 22-3701(3). An applicant must also provide written notice of the application to: (a) the prosecuting attorney and the judge of the court in which the defendant was convicted; and (b) any victim of the person’s crime or the victim’s family. Id. “All applications for pardon or commutation of sentence shall be referred to the board.” § 22-3701(4). The board “shall examine each case and submit a report, together with such information as the board may have concerning the applicant, to the governor within 120 days after referral to the board.” Id. The governor “shall not grant or deny any such application until the governor has received the report of the board or until 120 days after the referral to the board, whichever time is the shorter.” Id. The Board may seek a personal interview with an applicant in a particular case, but it is not required to do so. See Kan. Admin. Regs. § 45-900-1(c). Additional information about applying for clemency (including pardons) can be found on the Board’s website, http://www.doc.ks.gov/prb/clemency. This website contains a copy of the notice that needs to be sent to the judge, prosecuting attorney, and applicable law enforcement officer; a request for publication form to the newspaper; and the application form. See id.
Frequency of Grants
Pardons are very rare, and granted primarily for miscarriage of justice. For a summary of the pardoning practices of recent governors see Shaun Hittle, Brownback has no plans to pardon any Kansas inmates, Lawrence Journal-World, Dec. 11, 2011, http://www2.ljworld.com/news/2011/dec/11/brownback-has-no-plans-pardon-any-kansas-inmates/. Expungement appears to be the preferred method of dealing with disabilities associated with conviction.
Prisoner Review Board
Office of the Governor
300 SW 10th Ave., Ste. 212S
Topeka, KS 66612-1590
B. Judicial sealing or expungement
1. Adult conviction and arrest records
Authority and eligibility
A procedure for expunging state convictions and arrest records is set out in § 21-6614 of the Kansas statutes. A convicted person may petition the court after discharge from probation or parole, after a waiting period of three years for misdemeanors and minor felonies, and five years for eligible felony offenses, Kan. Stat. Ann. § 21-6614(a)-(b). Serious violent offenses (murder, rape, sex offenses) are ineligible for expungement. § 21-6614(d). DUI with a commercial driver’s license is also not eligible. In 2012, the legislature amended this law to provide that no expungement is available for any conviction or any part of an offender’s criminal record if and while the offender is required to register per the Kansas offender registration act (i.e., Kan. Stat. Ann. § 22-4901 et seq.), which applies to people convicted of sex offenses, violent offenses, and drug offenses. See § 21-6614(e). A person must be informed at each stage of the criminal process about the possibility of obtaining expungement, including upon release from prison. § 21-6614(i). The expungement law is amended frequently, so care should be taken to obtain the most current version.
Process and criteria
Expungement forms and instructions are available for each county. See, e.g., http://www.snco.us/da/document/expungement_instructions.pdf (Shawnee County). See also http://www.doc.ks.gov/kdoc-policies/impp/chapter-5/05102.pdf (internal Kansas Department of Corrections policies and procedures for expungement, reissued July 15, 2011). Petition must be filed in the county of conviction, and is made part of the original criminal docket. Kan. Stat. Ann. § 21-6614(f)(3). A docket fee of $100 is required. § 21-6614(f)(2). The court notifies prosecutor and arresting law enforcement agency, and may inquire into petitioner’s background and shall have access to any reports or records relating to the petitioner that are on file with the secretary of corrections or the Kansas prisoner review board. §§ 21-6614(f)(1), (3). Any person who may have relevant information about the petitioner may testify at the hearing. § 21-6614(f)(3). At the hearing on the petition, the court is required to order the petitioner’s arrest record, conviction or diversion expunged if the court finds that: (1) the petitioner has not been convicted of a felony in the past two years and no proceeding involving any such crime is presently pending or being instituted against the petitioner; (2) the circumstances and behavior of the petitioner warrant the expungement; and (3) the expungement is consistent with the public welfare. § 21-6614(g). Parole (in another jurisdiction) is not a “pending proceeding” for expungement purposes. State v. Gamble, 891 P.2d 472, 474 (Kan. Ct. App. 1995).
After expungement, a person “shall be treated as not having been arrested, convicted or diverted of the crime,” except that the expunged conviction may be considered as a prior conviction for sentencing purposes related to a conviction for a subsequent crime and it may be disclosed in a subsequent prosecution for an offense which requires a prior conviction as an element. Kan. Stat. Ann. §§ 21-6614(h)(1), (4). Additional circumstances requiring disclosure are set forth in § 21-6614(h). Additionally, the expungement may be disregarded by the secretary of corrections for purposes of a new commitment to the custody of the secretary, and the court ordering the expungement may specify other circumstances under which the conviction is to be disclosed. §§ 21-6614(h)(3), (5). Also, the conviction must be disclosed in connection with certain licensing and public employment applications (health, security, gaming, commercial driver or guide, investment adviser, law enforcement). § 21-6614(h)(2). See also § 21-6614(k).
An expungement does not remove state firearms restrictions (which are generally time-limited in any event, see Part I above). § 21-6614(j). In 2012, in response to the Kansas Supreme Court’s holding that an expungement terminates the obligation to register as a sex offender, State v. Divine, 291 Kan. 738 (2011), the legislature amended § 21-6614 to make clear that no expungement is available for any conviction or any part of an offender’s criminal record if and while the offender is required to register per the Kansas offender registration act (i.e., Kan. Stat. Ann. § 22-4901 et seq.).4 See § 21-6614(e).
Other than the contexts specified in § 21-6614(h) and (k), a person may respond that he has not been convicted in response to questions on applications for a license or employment or benefit. § 21-6614(j).
2. Juvenile Record
Kan. Stat. Ann. § 38-2312. Juveniles may have both arrest and court records expunged, and a juvenile’s parent or guardian may expunge records if the juvenile is under the age of majority. § 38-2312(a). Expungement is unavailable for certain serious or violent offenses. § 38-2312(b). To expunge, a juvenile must petition the court, which holds a hearing. § 38-2312(c). The court will grant expungement upon a finding that the person is at least age 23 or two years have passed since final discharge, there have been no subsequent convictions or adjudication, no charges are pending, and the petitioner’s circumstances and behavior warrant expungement. §§ 38-2312(d)(1)(A)–(C). Upon expungement, the custodian of records must disclose existence of the records to various state agencies upon request.
3. Non-conviction records
May be expunged on petition to court under Kan. Stat. Ann. § 22-2410(a). The court shall order the arrest record and subsequent court proceedings, if any, expunged upon finding: (1) the arrest occurred because of mistaken identity; (2) a court has found that there was no probable cause for the arrest; (3) the petitioner was found not guilty in court proceedings; or (4) the expungement would be in the best interests of justice and charges have been dismissed or no charges have been or are likely to be filed. § 22-2410(c). Expungement is subject to certain court-ordered grounds for disclosure in connection with certain peace-keeping or gambling employment. § 22-2410(e). “Subject to any disclosures required under subsection (e), in any application for employment, license or other civil right or privilege, or any appearance as a witness, a person whose arrest records have been expunged as provided in this section may state that such person has never been arrested.” § 22-2410(g). Per 2012 legislation, the statute was amended to provide that the court shall make all expunged records and related information in the court’s possession available to the Kansas bureau of investigation for the purposes of (1) completing a criminal history record information within the central repository or (2) providing information to the FBI for purposes of a background check to determine a person’s qualification to possess a firearm. § 22-2410(f) (as amended by 2012 Kansas Laws Ch. 66 (S.B. 322)). See also Kan. Stat. Ann. § 12-4516 (similar authority for expungement under city ordinances).
Penalties for Improper Disclosure of Information
Under Kan. Stat. Ann.§ 22-4707(a), a criminal justice agency and the central repository “may not disseminate criminal history record information except in strict accordance with laws including applicable rules and regulations adopted pursuant to this act,” and may not request such information from the central repository or another criminal justice agency unless it has a legitimate need for the information.” Under § 22-4707(c), “any individual violating or causing a violation of the provisions of this section shall be deemed guilty of a class A nonperson misdemeanor. If the person is employed or licensed by a state or local government agency, a conviction shall constitute good cause to terminate employment or to revoke or suspend a license.” See Patrick v. City of Overland Park, 937 F. Supp. 1491 (D. Kan. 1996) (suit under § 1983 against police chief for unauthorized use of criminal history information in political campaign, in violation of Stat. Ann.§ 22-4707; court held that defendant failed to keep private information that plaintiff “legitimately expected would remain confidential while in the state’s possession”).
III. Nondiscrimination in Licensing and Employment:
Limitations on Inquiry and on Use
Section 22-4710(a) of the Kansas Statutes Annotated makes it a misdemeanor for an employer to inquire into an applicant’s criminal history record without the applicant’s consent, though employer may require an applicant to sign a release allowing inquiry. See §§ 22-4710(a)-(c). Under a 1996 amendment to this law:
“No employer shall be held liable for any employment decision or decision to enter into a contract with an independent contractor based upon knowledge of such criminal history record information, provided the information reasonably bears upon the independent contactor’s, applicant’s or employee’s trustworthiness, or the safety and well-being of the employer’s employees or customers.”
§ 22-4710(f). See Brent N. Coverdale, Practical Use of Criminal History Information by Kansas Employers, 75 J. Kan. B. Ass’n 16 (2006).
Kan. Stat. Ann. § 74-120:
Notwithstanding any other provision of law, any person, board, commission or similar body who determines the qualifications of individuals for licensure, certification or registration may consider any felony conviction of the applicant, but such a conviction shall not operate as a bar to licensure, certification or registration.
- Until 1996, only persons sentenced to a term of imprisonment lost their civil rights.
- Under the Kansas Constitution, EROs have the force of law. Kansas Const. art. 1, § 6(c) (“[e]ach executive reorganization order transmitted to the legislature as provided in this section shall take effect and have the force of general law on the July 1 following its transmittal to the legislature” unless disapproved by the legislature). See also Kan. Const. art. 1, § 6(d) (“An executive reorganization order which is effective shall be published as and with the acts of the legislature and the statutes of the state.”). Governors may issue EROs to transfer, abolish, consolidate, or coordinate state agencies when considered “necessary for efficient administration.” Kansas Const. art. 1, § 6(a). Upon issuance, the ERO is transmitted to the legislature and becomes law on July 1 following its transmittal, unless either the senate or house disapproves of the order by majority vote within 60 days and before the adjournment of the legislative session. § 6(c). Accordingly, ERO 34 become effective on July 1, 2011.
- According to a press release, ERO 34 was intended to increase efficiency and save the state almost $500,000 in the next fiscal year. See http://www.doc.ks.gov/news-room/news-releases/news-release-governor-signs-executive-reorganization-order-establishing-the-prisoner-review-board-january-21-2011/. However, some news articles noted the criticism that this change in effect consolidated authority within the executive branch. That is, instead of being a somewhat independent agency (one where members are appointed by the governor but must also get consent from the senate), the prisoner review board now may become less independent since they must be corrections department employees, are appointed by the secretary of corrections, and the secretary is appointed by the governor. See, e.g. http://midwestdemocracy.com/articles/brownbacks-agenda-government-efficiency-or-power-grab. Potential conflicts of interest were also raised: http://blogs.kansas.com/gov/2011/02/04/skeptical-senators-press-corrections-secretary-on-abolishing-parole-board/
- Offenders required to register under Kansas’s offender registration act include sex offenders, violent offenders, and drug offenders as defined in Kan. Stat. Ann. § 22-4902. See generally §§ 22-4901 et seq. (as amended by 2012 Kansas Laws Ch. 149 (H.B. 2568)).
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