A. Civil Rights
Persons convicted of any felony offense may not vote while incarcerated or while on parole or probation, but the right to vote is automatically restored upon final discharge from sentence. Mo. Rev. Stat. § 115.133.2. Misdemeanants are also disenfranchised while serving a prison sentence. § 115.133.2(1). Persons convicted of “a felony or misdemeanor connected with the right of suffrage” are permanently disenfranchised unless pardoned. § 115.133.2(3). See also Mo. Const. art. VIII, § 2 (persons convicted of felony or crime connected with suffrage may be excluded from voting); Mo. Rev. Stat. § 561.026. A felony offender or offender convicted of misconduct in office or dishonesty forfeits any elective or appointive public office. Mo. Rev. Stat. § 561.021.1. The right to hold office is restored upon completion of sentence (unless the crime was “connected to the exercise of the right of suffrage,” in which case disqualification is permanent). §§ 561.021.2; 561.021.3. A felony offender is permanently disqualified from jury service unless pardoned. § 561.026(3). See also § 494.425(4) (person convicted of felony disqualified from serving as petit or grand juror unless person’s civil rights have been restored).
Possession of firearms is unlawful for a person “convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony.” Mo. Rev. Stat. § 571.070.1(1).1 Antique weapons are not prohibited. § 571.070.3. A pardon or expungement will restore firearms privileges.2. See infra Part II.
C. Other Collateral Consequences
State collateral consequences are catalogued in United States v. Brown, 408 F.3d 1016 (8th Cir. 2005) (holding that because Missouri does not restore all civil rights automatically, state offender subject to prosecution under federal firearms statute).
II. Discretionary Restoration Mechanisms
A. Executive pardon
The pardon power is vested in the governor, except in cases of treason or impeachment, under rules and regulations prescribed for the manner of applying. Mo. Const. art. IV, § 7. The governor may grant pardons under conditions and with restrictions as he deems proper. Id. Pursuant to Mo. Rev. Stat. § 217.800.2, all pardon applications must be referred to the Board of Probation and Parole for investigation and recommendation. The Board’s advice is not binding on the governor, and his power is not dependent upon a favorable Board recommendation. See James G. Lindsay, Pardons in Missouri: Procedure and Policy, 48 UMKC L. Rev. 33 (1979).
The Board of Probation and Parole consists of seven members appointed by the governor to six-year terms, no more than four from the same political party. Mo. Rev. Stat. § 217.665. All members are full-time salaried employees. Id. Chair is designated by the governor. Id.
The Board policy published online outlines eligibility requirements and details investigative procedures applicable to clemency applications. See http://doc.mo.gov/PP/Executive_Clemency.php. See also Policy and Procedure Manual of the Board of Probation and Parole, Nos. P2-1.3 through P2-1.6 (as of May 2012, not available online.) Pardon is available three years after discharge from sentence, without intervening convictions or charges pending. See http://doc.mo.gov/PP/Executive_Clemency.php. Those denied must wait three years to reapply. Id. Applicants whose sentences were suspended pursuant to Mo. Rev. Stat. § 610.105 are not eligible to apply for pardon, since they are not regarded as having a conviction (see below). Id. Persons convicted under the law of another state are ineligible for a gubernatorial pardon. The Board has not established substantive criteria for pardon.
According to Board officials, each full pardon document signed by the governor states that the grant “obliterates” effect of conviction, relieves of all obligations associated with the conviction, restores all rights and relieves legal disqualifications. However, a pardon does not “expunge” the record. See Policy and Procedure Manual of the Board of Probation and Parole, supra, at P2-1.3; http://doc.mo.gov/PP/Executive_Clemency.php (criminal history record still maintained as open record and will be available to public). A prior conviction that is the subject of a pardon cannot be used as the basis for subjecting a person to an extended term of imprisonment under Missouri’s persistent offender law (see Mo. Rev. Stat. § 558.016). See Guastello v. Dep’t of Liquor Control, 536 S.W.2d 21 (Mo. 1976) (analyzing prior version of law; also noting that while fact of conviction obliterated by pardon, fact of guilt remains). A convicted person who is required to register as a sex offender for life because of his conviction can be released from the registration requirement if he is pardoned of the offense(s) that required registration. § 589.400.3(2). A bill that would have required that a pardon explicitly state that the person is relieved of his/her duty to register as a sex offender passed the House in 2016 but was not acted on in the Senate.
“All applications for pardon, commutation of sentence or reprieve shall be referred to the board for investigation.” Mo. Rev. Stat. § 217.800. The board “shall investigate each such case and submit to the governor a report of its investigation, with all other information the board may have relating to the applicant together with any recommendations the board deems proper to make.” Id.3 The published policy from the Board outlines eligibility requirements and thoroughly details investigative procedures applicable to clemency applications. See Policy and Procedure Manual of the Board of Probation and Parole, supra, at P2-1.4, P2-1.6. The Board’s online policy notes that investigation of persons not incarcerated will include reason(s) for requesting clemency, including specific collateral consequences of conviction; circumstances of present offense; other criminal record information; victim impact information; conduct since discharge in social, employment, and financial areas; significant positive achievements; testimonials from friends, employers, and general references; and comments/recommendations from the judge, prosecuting attorney, and law enforcement agency. See http://doc.mo.gov/PP/Executive_Clemency.php. There is no provision for a public hearing. The Board recommendation is communicated in writing to the governor. See § 217.800.2 (report of investigation and recommendation submitted). Board meetings on clemency matters may be closed to the public. § 217.670.5. Generally, the clemency process takes a minimum of 18-24 months to complete. See http://doc.mo.gov/PP/Executive_Clemency.php. No fees are charged for filing for clemency. Id.
Frequency of Grants
Governor Jay Nixon (2009-2017) granted 110 pardons, 65 of them in his final year. Missouri governor tops 100 pardons, absolves clergy protest, http://www.sfgate.com/news/article/Missouri-governor-sets-three-decade-high-mark-for-10839848.php. Most of the pardoned convictions were minor offenses committed decades before, but 16 of his final grants went to religious leaders who had been convicted of trespassing for protesting in the Missouri Senate in support of Medicaid expansion. (He also commuted the sentence of one person, raising his total to 110 clemency actions.) Applications have increased dramatically in recent years, as a result of heightened employment restrictions since 9/11 and extension of firearms restrictions to long guns in 2008. Earlier governors had pardoned sparingly. For example, Governor Blunt (2005-2009) issued 14 pardons in four years, all to people convicted of minor offenses decades in the past, and denied 1338 pardon applications. Source: Board of Probation and Parole.4
Administrative Assistant, Board of Probation and Parole
1511 Christy Drive
Jefferson City, MO 65101
Phone: (573) 751-8488, 573-526-6551
Fax: (573) 751-8501
B. Judicial sealing or expungement
1. Expungement of convictions
Prior to January 1, 2018, the only offenses eligible for expungement were bad check convictions (both felony and misdemeanor) and certain public order misdemeanors (trespassing, gambling, disturbing the peace). Mo. Rev. Stat. § 610.140 (2015). The eligibility waiting period for misdemeanors was 10 years from completion of sentence, for felonies 20 years. § 610.140(5) (2015). The court must find that the petitioner has no intervening convictions, that “the circumstances and behavior of the petitioner warrant the expungement,” and that “expungement is consistent with the public welfare.” Effective January 1, 2018, the availability of expungement will be greatly expanded under a law enacted in July of 2016. The new law allows expungement of all non-Class A felonies and all misdemeanors, subject to a lengthy list of exceptions for violent offenses, sex offenses, and other more serious crimes, and driving offenses involving liquor or commercial drivers licenses. Mo. Rev. Stat. § 610.140(2) (as revised and reenacted by SB-588 (2016)). The waiting period for misdemeanors is three crime-free years after completion of sentence, and seven for felonies. § 610.140(5)(1). A person may expunge one felony and two misdemeanors in their lifetime, regardless of the court in which expungement is sought. § 610.140(12).
In addition to the basic eligibility requirements, an application must state that the petitioner’s “habits and conduct demonstrate that the petitioner is not a threat to the public safety of the state” and that “expungement is consistent with the public welfare and the interests of justice warrant the expungement.” Such a pleading “shall create a rebuttable presumption that the expungement is warranted” so long as the more objective eligibility criteria are satisfied. The burden then shifts to the prosecutor. The victim may also testify. If the presumption is not rebutted by the prosecutor, the court “shall” order expungement. A petition for expungement must be acted on within six months of its filing.
A person may apply to have one or more offenses expunged so long as such person lists all the offenses he or she is seeking to have expunged in the same petition and so long as all such offenses are eligible. A person may be granted more than one expungement under this section provided that no person shall be granted more than one order of expungement from the same court. § 610.140(10).
In addition, first-time alcohol-related misdemeanor offenses may be expunged after 10 years (except for those related to driving commercial motor vehicles while under the influence). Mo. Rev. Stat. § 577.054(1). See also §§ 217.360(3) (person convicted of delivery/concealment of intoxicating liquor may seek to expunge the record, unless delivery/concealment occurred in or about correctional facility); 311.326 (purchase/possession of liquor by a minor, can seek expungement one year after age 21).
Prior to January 1, 2018, expunged records considered “confidential,” and only available to the parties or by court order.
Entries of a record ordered expunged shall be removed from all electronic files maintained with the state of Missouri, except for the files of the court. The records and files maintained in any administrative or court proceeding in a municipal, associate, or circuit court for any offense ordered expunged under this section shall be confidential and only available to the parties or by order of the court for good cause shown. The central repository shall request the Federal Bureau of Investigation to expunge the records from its files.
§ 610.140(6). Records in the possession of any entity named in the petition shall be “destroyed,” except for court records.
“The order shall not limit any of the petitioner’s rights that were restricted as a collateral consequence of such person’s criminal record, and such rights shall be restored upon issuance of the order of expungement.” Except as provided below, expungement restores a person “to the status he or she occupied prior to [conviction] as if such events had never taken place.” A person whose record has been expunged may deny the conviction in response to an inquiry, and “no such inquiry shall be made for information relating to an expungement, except the petitioner shall disclose the expunged offense to any court when asked or upon being charged with any subsequent offense.” Expunged convictions may be used to enhance subsequent sentence, and are given predicate effect. § 610.140(7).
A person must disclose any expunged offense in an application for a professional license, any license or employment relating to alcoholic beverages, or employment with any state-operated lottery, or any emergency services provider, including any law enforcement agency. “Notwithstanding any provision of law to the contrary, an expunged offense shall not be grounds for automatic disqualification of an applicant, but may be a factor for denying employment, or a professional license, certificate, or permit.” § 610.140(8).
Effective January 2018, expunged records, including court records, will be “closed.” Mo. Rev. Stat. § 610.140(7) (as amended by SB-588 (2016)). Closed records are generally not available to the public, but will remain available to criminal justice agencies and to a number of public entities for use in screening out applicants for licenses or employment in sensitive areas such as private security, law enforcement, and care of children, the elderly, and the disabled. § 610.120. While the new law retains the provision stating that conviction shall not be grounds for automatic disqualification, it does not apply in connection with employment with banks, insurers, and any employer that is required by state or federal law to exclude applicants with certain convictions. § 610.140(9), subsections (4) through (6).
Closed records will also be available to law enforcement for use in issuing firearm purchase and possession permits. § 610.120. However, per both the old and new laws, “[t]he [expungement] order shall not limit any of the petitioner’s rights that were restricted as a collateral consequence of such person’s criminal record, and such rights shall be restored upon issuance of the order of expungement.” § 610.140(8). So, notwithstanding the fact that expunged records may be accessed for firearm permitting purposes, it appears that expungement remains effective at restoring firearm rights lost as a result of conviction.
2. Non-conviction records, including deferred sentencing
Mo. Rev. Stat. § 610.105 authorizes automatic “closure” of records in all cases disposed of favorably to the defendant (nolle prossed, acquitted, dismissed), or where imposition of sentence is suspended pursuant to § 557.011.2(3), upon conclusion of the case. Any felony or misdemeanor for which probation may be imposed is eligible for suspended imposition of sentence. See § 557.011.2(3). If sentence and judgment are suspended after a guilty plea, there is no conviction for purposes of collateral consequences. Upon successful completion of probation, the record becomes a “non-conviction record” and need not be reported as a conviction. § 610.110. See also Yale v. City of Independence, 846 S.W.2d 193, 195 (Mo. 1993):
The obvious legislative purpose of the sentencing alternative of suspended imposition of sentence is to allow a defendant to avoid the stigma of a lifetime conviction and the punitive collateral consequences that follow. That legislative purpose is further evidenced in statutes concerning closed records. . . . [I]f imposition of sentence is suspended, the official records are closed following successful completion of probation and termination of the case. Closed records are made available only in limited circumstances and are largely inaccessible to the general public. . . . Thus, with suspended imposition of sentence, trial judges have a tool for handling offenders worthy of the most lenient treatment. Worthy offenders have a chance to clear their records by demonstrating their value to society through compliance with conditions of probation under the guidance of the court.
However § 610.105 does not require or authorize expungement, and “the court’s judgment or order or the final action taken by the prosecutor . . . may be accessed.” § 610.105(1). See also Mo. Op. Att’y Gen. No. 101 (Sept. 28, 1977), available at https://www.ago.mo.gov/docs/default-source/opinions/1977/101_1977.pdf?sfvrsn=2. In addition, the complete record remains available to law enforcement and other governmental entities (e.g., department of revenue for driver license administration and the department of health and senior services facilities for licensing decisions). Mo. Rev. Stat. § 610.120.5
Effective January 1, 2018, SB-588 (2016) (discussed above) non-conviction records are subject to the same eligibility rules and procedures as convictions, and to the same three-year waiting period as misdemeanors.
[A] petition to expunge records related to an arrest for an eligible offense, violation, or infraction may be made in accordance with the provisions of this section to a court of competent jurisdiction in the county where the petitioner was arrested no earlier than three years from the date of arrest; provided that, during such time, the petitioner has not been charged and the petitioner has not been found guilty of any misdemeanor or felony offense. (§ 610.140(6).)
For effect of expungement, see § 610.140(6), discussed above. Arrest records not eligible for expungement under the new law may be “closed” under the old authority in Mo. Rev. Stat. § 610.105.
3. Arrests based on false information; motor vehicle cases
An arrest record may be expunged pursuant to Mo. Rev. Stat. § 610.122 if (1) the court determines that the arrest was based on false information and there is no probable cause, at the time of the action to expunge, to believe the individual committed the offense; no charges will be pursued as a result of the arrest; and the subject of the arrest did not receive a suspended imposition of sentence for the offense for which the arrest was made or for any offense related to the arrest; or (2) The court determines the person was arrested for, or was subsequently charged with, a misdemeanor driving offense (except for DUI), and each such charge was subsequently nol prossed or dismissed, or the person was found not guilty. Expungement under this section results in the destruction of the record and removal from state electronic databases and FBI files. § 610.124. This relief is not available to a person holding a commercial driver’s license. A record of arrest shall only be eligible for expungement under this section if the person has no prior or subsequent misdemeanor or felony convictions, and no civil action is pending relating to the arrest or the records sought to be expunged.
4. Sealing of Juvenile Court Records
Records of juvenile court proceedings are generally not open to inspection or disclosure except by order of the court to persons having a legitimate interest therein, unless a child charged with class A felony or murder. Mo. Rev. Stat. § 211.321.1. The court may, on its own motion or upon application, order destruction of records and seal the official court file and peace officers’ records at any time after the child has reached his seventeenth birthday if the court finds that it is in the best interest of the child (or at any time after the closing of the child’s case if court’s jurisdiction extends beyond the child’s age 17). § 211.321.5. Records of suspension or revocation of a juvenile’s driving privileges may be expunged two years after suspension/revocation or when the person reaches age 21 under certain circumstances (e.g., first-time offense, blood alcohol content of 0.02%, not driving commercial motor vehicle). § 302.545.
III. Nondiscrimination in Licensing and Employment
A. Collateral consequences in licensure and public employment
Mo. Rev. Stat. § 561.016.1 generally adopts the approach of the Model Penal Code in limiting the collateral consequences of a conviction to those imposed by the constitution or statute, embodied in the judgment of the court, or (in the case of discretionary consequences) those “reasonably related to the competency of the individual to exercise the right or privilege of which he is deprived:”
No person shall suffer any legal disqualification or disability because of a finding of guilt or conviction of a crime or the sentence on his conviction, unless the disqualification or disability involves the deprivation of a right or privilege which is: (1) Necessarily incident to execution of the sentence of the court; or (2) Provided by the constitution or the code; or (3) Provided by the statute other than the code, when the conviction is of a crime defined by such statute; or (4) Provided by the judgment, order or regulation of a court, agency or official exercising a jurisdiction conferred by law, or by the statute defining such jurisdiction, when the commission of the crime or the conviction or the sentence is reasonably related to the competency of the individual to exercise the right or privilege of which he is deprived.6
This provision applies to public employment. See, e.g., Hardy v. Fire Standards Comm’n of St. Louis Cnty., 992 S.W.2d 330 (Mo. App. 1999) (county rules denying employment as a firefighter to any person convicted of a felony or misdemeanor involving moral turpitude conflicted with statute limiting the disqualifications of convicted felons to those where the crimes convicted of reasonably relate to the felon’s competency to do the job at issue, and thus, rules were void unless they could be enforced in such a way as to be in compliance with the statute); Mager v. City of St. Louis, 699 S.W.2d 68 (Mo. App. 1985) (municipal ordinance prohibition against employment of convicted felons by liquor licensees was contrary to limitations in § 561.016 insofar as it sought to disqualify convicted felons from employment when their crimes, convictions, or sentences were not reasonably related to their competency to be employed by liquor licensees). The Statute is intended to remove much of the stigma of conviction, and increase the legitimate discretion of licensing boards by eliminating arbitrary or inflexible barriers imposed by criminal conviction. See Chandler v. Allen, 108 S.W.3d 756 (Mo. App. 2003) (sex offender properly dismissed from job in deli on public safety grounds; Section 561.016 only relates to employment in certain regulated areas where license is required, which was not applicable to employment in deli).
B. Ban-the-box in public employment
In April 2016, Governor Nixon signed an executive order directing “all departments, agencies and boards and commissions in the Executive Branch subject to the authority of the Governor” to remove from all initial employment applications “questions relating to an individual’s criminal history unless a criminal history would render an applicant ineligible for the position.” See Executive Order 16-04 (April 11, 2016), available at https://governor.mo.gov/news/executive-orders/executive-order-16-04. It would appear that this order limits initial inquiries about criminal history to situations where it would disqualify an applicant from employment under statute or regulation.
C. Licensing boards and other state agencies
“Except as otherwise specifically provided by law, no license for any occupation or profession shall be denied solely on the grounds that an applicant has been previously convicted of a felony.” Mo. Rev. Stat. § 324.029. Per Mo. Rev. Stat. § 314.200, no governmental board or other agency may deny an occupational or professional license to an applicant primarily on the basis that an applicant’s felony or misdemeanor conviction precludes the applicant from demonstrating good moral character, where the conviction resulted in the applicant’s incarceration and the applicant has been released by pardon, parole, or on probation and there is no evidence that the applicant has violated the conditions of his probation. Conviction may be considered as “some evidence of an absence of good moral character,” but an entity should also consider the nature of the crime committed in relation to the license sought, the date of the conviction, the conduct of the applicant since the date of the conviction, and other evidence as to the applicant’s character. Id. See also United States v. Brown, 408 F.3d at 1019 (citing Mo. Rev. Stat. § 314.200 and stating “good moral character’ determination may not be primarily based on felony conviction”). See also Section IIB (1) on the effect of expungement on licensing.
- Prior to 2008, only persons convicted of a “dangerous felony” were prohibited from possessing a firearm; only “concealable” weapons were banned; and only for five years after conviction or release from confinement. See L. 2008, H.B. No. 2034, § A. A bill was introduced in the Missouri legislature in January 2012 (HB 1482) that would create an exception to the unlawful possession law for those in possession of a rifle or shotgun who were not convicted of a “violent felony” (ie, one that involved a weapon, use of force, or arson), but there does not appear to be much support for this bill.
- The Missouri court of appeals has held that a guilty plea separately bars an individual from possessing a concealed weapon, even if pardoned. See Stallsworth v. Sheriff of Jackson County, Ct. App. W. Dist. May 31, 2016, http://www.courts.mo.gov/file.jsp?id=101635.
- A copy of the Application for Executive Clemency (which includes pardons) can be found online at: http://doc.mo.gov/Documents/prob/CLEMENCY_APPLICATION.pdf. The application should be mailed to the Missouri Board of Probation and Parole, P.O. Box 236, Jefferson City, MO, 65102.
- Earlier governors’ pardoning records are also available from the Board: Holden (2001-2005) issued 45 pardons, denied 840; Wilson (2000-01) granted 46 pardons and denied 347; Carnahan (1993-2000) granted 42 pardons and denied 607; Ashcroft (1985-1993) granted 34, denied 985; and Bond (1981-85) granted 73, denied 436.
- See also Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262 (11th Cir. 2004) (misdemeanor drug possession conviction rendered non-citizen subject to deportation even though the conviction had been expunged pursuant to Mo. Rev. Stat. § 610.105).
Comments to the 1973 Proposed Code, included in § 561.016, explain that “reasonable relationship” test is the “most important provision” in the section:
The present law sometimes contains blanket restrictions against employment in certain regulated areas of persons convicted of crimes. Sometimes conviction is relevant to the public safety interests underlying the regulation, but often it is not. By eliminating irrational barriers to employment, we assist offenders in reintegrating themselves into the community. Thus, instead of providing that no liquor license shall be issued to any [convicted] person . . . the Code provides a reasonable rule which would authorize a licensing agency to refuse to grant a license to an applicant whose criminal record and other circumstances indicate that he would endanger the particular group or industry protected by the agency’s licensing power.
The Commentary goes on to opine that “there should be very few of these statutes containing special penalties [referred to in subsection (3)] if the Code is enacted and the present disqualification and disability statutes are repealed and replaced by the Code provisions.”
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