Restoration of Rights Series/New Jersey

I.  Restoration of Civil/Firearms Rights

A.  Vote, Jury

The rights to vote and serve on a jury are lost to anyone who is serving a sentence for “any indictable offense,” which includes all crimes except petty offenses.  N.J. Stat. Ann. §§ 2C:51-3(a) and (b), 19:4-1(8)(voting); 2B:20-1(e)(jury); 2C:1-4(b) (“petty offenses . . . are not crimes within the meaning of the Constitution of this State”).1  The right to vote is automatically restored upon completion of the service of sentence, probation, or parole, whichever occurs later.  § 19:4-1(8).2  If loss of the suffrage was imposed by the court as part of the punishment for a criminal violation of election laws, only a pardon restores the vote.   §§ 19:4-1(6), (7).  The right to sit on a jury is restored only by pardon.  See § 2A:167-5.

B.  Public Office and Employment

A person holding public office or employment at the time of conviction of a crime involving dishonesty or a third or higher degree crime forfeits his position.  N.J. Stat. Ann. § 2C:51-2(a).  In addition, if the crime is one “involving or touching on” his office or employment, he is “forever disqualified” from holding any office or employment.  §§ 2C:51-2(a)(2), (d); see McCann v. Clerk, City of Jersey City, 770 A.2d 723, 731 (N.J. Super. Ct. App. Div. 2001) (former mayor convicted of fraud and bribery while in office barred from running again), aff’d, 773 A.2d 1151 (N.J. 2001).  This so-called Forfeiture Act has been interpreted to extend to all government employment.  Collateral consequences affecting public employment and pension benefits are discussed in greater detail in Part III, infra.

The bar to holding public office may be relieved by a governor’s pardon or gubernatorial restoration of rights under § 2A:167-5.   In addition, any forfeiture or disqualification which is based upon a conviction of a disorderly person offense “may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown.” § 2C:51-2(e).  An individual subject to the Forfeiture Act may petition for expungement under § 2C:52-2(a); provided that an expungement does not remove the Forfeiture Act bar where the crime is one “involving or touching on” the person’s office.  See In re Expungement Petition of D.H., 6 A.3d 421 (N.J. 2010).  A certificate of rehabilitation granted under the Rehabilitated Convicted Offenders Act may remove the otherwise permanent disqualification from public employment in some cases.  See § 2A:168A-8(c), discussed in Part IIC.

C.  Collateral Consequences

N.J. Stat. Ann. § 2C:51-1(a), derived from section 306.1 of the Model Penal Code, limits the collateral consequences of conviction to those that are necessarily incident to the execution of the court-imposed sentence, that are provided by the constitution or a statute, or that are provided by the order or regulation of a court or public official exercising a jurisdiction conferred by law “when the commission of the offense 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.”   

D.  Occupational and Business Licensing

Under N.J. Stat. Ann. § 2A:168A-2, no licensing board may discriminate against or disqualify an applicant based upon conviction of a crime unless the conviction “relates adversely to the occupation, trade, vocation, profession or business for which the license or certificate is sought.”  Exceptions are the bar to public employment in the Forfeiture Act, discussed supra, and the bar to licensure as a mortgage originator in § 17:11C-57.  Any disqualification based upon conviction must be explained in writing in terms of specific enumerated factors.  A licensing authority is “precluded” from “disqualifying or discriminating against” an applicant who has been pardoned, had the conviction expunged, or been granted a certificate by a parole board or court indicating that “the applicant has achieved a degree of rehabilitation indicating that his engaging in the proposed employment would not be incompatible with the welfare of society.” § 2A:168A-3.   This provision is discussed in greater detail in Part III, infra.

E.  Public Contracts

People convicted of bribery or a number of offenses relating to misconduct in office are barred from “submit[ting] a bid, enter[ing] into any contract, or . . . conduct[ing] any business with any board, agency, authority, department, commission, public corporation, or other body of this State, of this or one or more other states, or of one or more political subdivisions of this State for a period of” 10 years if second-degree crime, five years if third-degree crime.  N.J. Stat. Ann. § 2C:51-2(f).  The Attorney General may waive this bar “as the public need may require.”  Id.

F.  Firearms

A person convicted in any jurisdiction of specified violent crimes may not purchase, own, possess or control any firearm.  See N.J. Stat. Ann. § 2C:39-7. A person convicted of “any crime, or a disorderly persons offense involving an act of domestic violence as defined in section 3 of P.L.1991, c.261 [§ 2C:25-19] whether or not armed with or possessing a weapon at the time of such offense,” will be denied a handgun purchase permit and firearms purchaser identification card.  See §§ 2C:58-3(c)(1), 2C:58-4(c).  A person may apply to the Governor for restoration of civil rights or privileges through pardon (other than disqualification from public office by impeachment).  See § 2A:167-5.  A governor’s pardon can also restore firearm rights, see N.J. Const. art. V, § 2, ¶ 1, but a certificate of rehabilitation does not.  See United States v. Breckenridge, 899 F.2d 540, 542-43 (6th Cir.), cert. denied, 498 U.S. 841 (1990).

II.  Discretionary Restoration Mechanisms

A.  Executive Pardon

Authority

The power to pardon is vested in the Governor, except in cases of treason and impeachment.  N.J. Const. art. V, § 2, ¶ 1.3  The Constitution allows for the creation of a commission to assist and advise the governor on pardons, but no such single-purpose panel exists.  Id.  Governor may also act to restore civil and all other rights, except the right to hold office.  N.J. Stat. Ann. § 2A:167-5.  (Latter statute does not seem to provide a separate process from pardon.)  “On or before March 1 of each year, the Governor shall report to the Legislature each reprieve, pardon and commutation granted, stating the name of the convicted person, the crime for which the person was convicted, the sentence imposed, its date, the date of the pardon, reprieve or commutation and the reasons for granting same.”  N.J. Stat. § 2A:167-3.1.

Process

The Governor may refer applications for pardon to the New Jersey State Parole Board for investigation and recommendation, N.J. Stat. Ann. § 2A:167-7, but the Board’s recommendation is not binding on the Governor.  See id.; N.J. Const. art. V, § 2, ¶ 1; see generally Zink v. Lear, 101 A.2d 72 (N.J. Super. Ct. App. Div. 1954).  Parole Board composed of 15 members (and three alternatives) appointed by the Governor with the advice and consent of the Senate for six-year terms.  N.J. Stat. Ann. § 30:4-123.47(a).  All but the alternates serve on a full-time basis.  § 30:4-123.47(c).  All policies and decisions are by majority vote.  Id. § 30:4-123.48(a).  No regulations have been promulgated governing clemency applications.

Eligibility

No formal eligibility requirements; federal and out-of-state offenders are not eligible for a gubernatorial pardon.

Effect

Restoration of civil rights and relief from all legal disabilities, including right to hold public office except in cases of impeachment. See N.J. Stat. Ann. § 2A:167-5; Brezizecki v. Gregorio, 588 A.2d 453, 457-58 (N.J. Super. Ct. Law Div. 1990).  Pardon makes recipient eligible for expungement. See In re L.B., 848 A.2d 899, 907 (N.J. Super. Ct. Law Div. 2004)

Frequency of Grants

Recent governors have granted relatively few pardons, and generally only at end of their terms. They do not appear to have exercised their separate power to restore civil rights (N.J. Stat. Ann. § 2A:167-5).  As of the end of his term in January 2019, , Gov. Christie had granted 52e pardons, six to out-of-state residents convicted under New Jersey firearms laws.4 Governor Corzine granted 13 pardons out of over 400 applications, most of them to non-violent offenders whose convictions were over a decade old.  Source: New Jersey Division of Criminal Justice.

Contact

Susan Meier

NJ Div. of Criminal Justice

609-984-2806

meiers@njdcj.org

B.  Judicial sealing or expungement

The “primary objective” of the expungement statute is to “provid[e] relief to the reformed offender who has led a life of rectitude and disassociated himself with unlawful activity[.]”  N.J. Stat. Ann. § 2C:52-32. “[A] central purpose of the expungement statute was to broaden the reliable base of information that will be maintained for law enforcement[,]” thus “requir[ing] merely the extraction and isolation, not the destruction, of expunged records.”  In re D.H., 6 A.3d 421, 427 (N.J. 2009).

1.  Expungement of conviction records

Expungement of conviction records is available for certain “indictable offenses” (equivalent to felonies in other jurisdictions), “disorderly persons offenses” (misdemeanors), “petty disorderly persons” offenses, and municipal offenses. Different waiting periods apply depending on the type of offense. The law applicable to both types of offense was significantly amended in December of 2017 to reduce waiting periods and raise the cap on the number of convictions that may be expunged in a lifetime.  See S-3307 (2017) (effective October 1, 2018). A pardon creates a basis for expungement for otherwise ineligible offenses.  In re L.B., 848 A.2d 899, 903 (N.J. Law Div. 2004).  Special procedures and eligibility criteria apply for “drug court” cases where special probation was imposed, see N.J. Stat. § 2C:35-14, and they are described in section 2, below.

Eligibility – Types of offenses

Indictable offenses, disorderly persons offenses, and petty disorderly persons offenses

An application for expungement of indictable or disorderly/petty disorderly persons offenses may be granted only once in a person’s lifetime.  N.J. Stat. Ann. § 2C:52-14(e). However, a single application may seek expungement of up to three separate convictions, only one of which may be an indictable offense.  §§ 2C:52-2(a), -3(b). Effective October 1, 2018, the general cap on the number of petitions will be raised from three to four.  S-3307, §§ 1 & 2 (2017).  Exceptions to the cap may apply for convictions that are closely related, entered on the same day, or part of the same judgement.

Indictable offenses

Expungement of indictable offenses is governed by N.J. Stat. Ann. § 2C:52-2. Expungement may only be granted for a single indictable offense in a person’s lifetime unless the convictions were part of the same judgment or were “interdependent or closely related.” (see below). Most serious and violent offenses, and serious drug offenses are ineligible, as are offenses committed by public officials and employees that “touched” the public office or position.  §§ 2C:52-2(b) & (c). 5

The waiting period is ordinarily the later of “ten years from the date of … conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration.” § 2C:52-2(a).  The waiting period will be reduced to six years effective October 1, 2018.  S-3307, § 1 (2017).  A court may waive the waiting period where all requirements but payment of fine are satisfied and “the court finds that the person substantially complied with [a fine payment plan], or could not do so due to compelling circumstances ….” N.J. Stat. Ann. § 2C:52-2(a)(1) 6A court may entertain an  expungement motion after five years if it finds that a person has had no subsequent convictions and that “expungement is in the public interest, giving due consideration to the nature of the offense or offenses, and the applicant’s character and conduct since the conviction or convictions.” § 2C:52-2(a)(2); See In the Matter of LoBasso, 33 A.3d 540, 550-52 (N.J. Super. Ct. App. Div. 2012) (discussing factors courts may consider in determining whether expungement is in the public interest).

Legislation that took effect on April 18, 2016, permits a person to append to a petition for expungement of an indictable offense up to two petitions for expungement of disorderly persons/petty disorderly persons offenses. § 2C:52-2(a) (as amended by P.L. 2015, c. 261). Effective October 1, 2018, the number of disorderly/petty disorderly persons offense petitions that may be appended will be raised to three. S-3307, § 1 (2017). Prior to the 2015 legislation, there was no way for an individual to expunge a combination of indictable and disorderly/petty disorderly persons offenses. 7 If additional petitions are appended, the waiting period for all offenses is the later of “10 years from the date of [the] most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration.” N.J. Stat. § 2C-52:2(a).  That waiting period will also be reduced to six years effective October 1, 2018. S-3307, § 1 (2017).

Persons convicted at any time of more than one indictable offense are ineligible.  N.J. Stat. § 2C-52:2(a).  Persons appending petitions for disorderly/petty disorderly persons offenses must not have been convicted of more than two such offenses at any time (raised to three effective October 1, 2018).  Id.; S-3307, § 1 (2017).

Interdependent or closely related offenses

Effective October 1, 2018, there will be no cap on the number of indictable offenses (or combination of indictable and disorderly/disorderly persons offenses) that may be expunged if the convictions were entered in a single judgement or were “interdependent or closely related in circumstances and were committed as part of a sequence of events that took place within a comparatively short period of time.”  N.J. Stat. Ann. § 2C:52-2(a) (as amended by S-3307, § 1 (2017)).  However, this authority is an alternative to the general “capped” authority, so individuals granted expungement under it are ineligible for expungement of additional convictions in the future.  Eligibility is limited to those with no convictions other than those for which expungement is sought.  Id.

Disorderly persons & petty disorderly persons offenses

Expungement of disorderly/petty disorderly persons offenses is governed by N.J. Stat. Ann. § 2C:52-3.  Up to three convictions for disorderly persons/petty disorderly persons offenses may be expunged in a person’s lifetime, unless the convictions were entered on the same day or were “interdependent or closely related” (see below).  § 2C:52-3(b). Effective October 1, 2018, the cap will be raised to four convictions.  S-3307, § 2 (2017).  A separate petition must be filed for each offense.

The waiting period is ordinarily five years “from the date of [the] most recent conviction, payment of fine, satisfactory completion of probation or release from incarceration for any disorderly persons or petty disorderly persons offense, whichever is later.”  N.J. Stat. Ann. § 2C:52-3(b).  The waiting period may be waived if “less than five years has expired from the satisfaction of a fine, but the five-year time requirement is otherwise satisfied, and the court finds that the person has substantially complied with [a fine payment plan], or could not do so due to compelling circumstances ….” § 2C:52-3(b)(1). 8  The waiting period may be reduced to three years if the person has had no intervening convictions and “the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant’s character and conduct since conviction.” § 2C:52-3(b)(2).  See In the Matter of LoBasso, 33 A.3d at 550-52 (discussing factors courts may consider in determining whether expungement is in the public interest).

Expungement of disorderly/petty disorderly persons offenses under § 2C:52-3 is unavailable if a person has at any time been convicted of an indictable offense or more than three disorderly/petty disorderly persons offenses (raised to four effective October 1, 2018). N.J. Stat. § 2C:52-2(a); S-3307, § 2 (2017).

Although expungement under § 2C:52-3 is not available to a person that has been convicted of an indictable offense, such persons may, pursuant to § 2C:52-2, petition for expungement of disorderly/petty disorderly persons offenses at the same time they petition for expungement of an indictable offense.  This process is described in the preceding section.

Convictions entered on the same day, and interdependent or closely related offenses

Effective October 1, 2018, there will be no cap on the number of disorderly/disorderly persons offenses that may be expunged if the convictions were entered on the same day, or were “interdependent or closely related in circumstances and were committed as part of a sequence of events that took place within a comparatively short period of time.”  N.J. Stat. Ann. § 2C:52-3(b) (as amended by S-3307, § 2 (2017)).  However, this authority is an alternative to the general “capped” authority, so individuals granted expungement under it are ineligible for expungement of additional convictions in the future. Eligibility is limited to those with no convictions other than those for which expungement is sought.  Id.

Youthful drug offenses

Persons convicted of low-level drug offenses at age 21 or younger may petition for expungement one year after the date of conviction, termination of probation, or discharge from custody, whichever is later. N.J. Stat. Ann. § 2C:52-5.  Convictions for sale and distribution are ineligible, except in cases involving small amounts of marijuana or hashish. Id.

[E]xpungement under this section shall be granted only if said person has not, prior to the time of hearing, violated any of the conditions of his probation or parole, albeit subsequent to discharge from probation or parole, has not been convicted of any previous or subsequent criminal act or any subsequent or previous violation of chapters 35 or 36 of this title or of P.L. 1955, c. 277, § 3 (C. 2A:170-77.5) or of P.L. 1962, c. 113, § 1 (C. 2A:170-77.8), or who has not had a prior or subsequent criminal matter dismissed because of acceptance into a supervisory treatment or other diversion program.

Id.

Municipal ordinance violations

A person guilty of violating a municipal ordinance may petition for an expungement after 2 years “from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later.” N.J. Stat. Ann. § 2C:52-4.  Prior expungements do not bar subsequent expungement for a municipal ordinance violation.  § 2C:52-14(e).

Eligibility – Criminal history

Expungement is not available if a person has previously had a conviction expunged (unless seeking expungement for a municipal offense), N.J. Stat. § 2C:52-14(e), or has, prior to or subsequent to the convictions to be expunged, been granted dismissal of charges following completion of a supervisory treatment or diversion program.  § 2C:52-14(f).  The bar applicable to individuals granted such dismissals is repealed effective October 1, 2018.  S-3307, § 5 (2017).   Persons with pending charges are ineligible for expungement.  N.J. Stat. § 2C:52-13.

Process

The procedures for expungement of conviction records are the same for all offense types.  Requirements for expungement petitions are set out in N.J. Stat. Ann. §§ 2C:52-7 (contents of petition) and -8 (required statements that must accompany petition).  Petitions are filed in the Superior Court where the most recent conviction occurred.  §§ 2C:52-2(a); 2C-52-3(b).  Upon receipt, the court sets a hearing date within the next 35 to 60 days and serves the petition and supporting documents to the “Superintendent of State Police; the Attorney General; the county prosecutor of the county wherein the court is located; the chief of police or other executive head of the police department of the municipality wherein the offense was committed; the chief law enforcement officer of any other law enforcement agency of this State which participated in the arrest of the individual; the superintendent or warden of any institution in which the petitioner was confined; and, if a disposition was made by a municipal court, upon the magistrate of that court.” §§ 2C:52-9, -10.  The county prosecutor has the burden of verifying the petition and showing that expungement is inappropriate:

Notwithstanding the notice requirements provided herein, it shall be the obligation of the county prosecutor of the county wherein any petition for expungement is filed to verify the accuracy of the allegations contained in the petition for expungement and to bring to the court’s attention any facts which may be a bar to, or which may make inappropriate the granting of, such relief. If no disabling, adverse or relevant information is ascertained other than that as included in the petitioner’s affidavit, such facts shall be communicated by the prosecutor to the court.

§ 2C:52-24. If there is no objection from the persons served, then the court may grant or deny the petition without a hearing. §§ 2C:52-11, -12.

Fees

An e-mail dated February 12, 2018 from Akil Roper of Legal Services of New Jersey, contains additional information on filing and other fees associated with expungement petitions:

The current filing fee for most expungements in NJ is $75. There is no filing fee for successful graduates from drug court, identity theft and human trafficking victims, and in non-conviction cases. Under New Jersey’s Court Rule, court fees may be waived for those who have proven their indigence (fee waiver application can be filed without a fee) – including those filing for expungement. Court fees are automatically waived for those represented by legal services and other eligible entities representing indigents.

There are some associated costs which cannot be waived for those seeking expungement. In most cases, expungement petitions and orders must be served on a number of parties by certified mail, by the petitioner, return receipt requested. If there are ten parties for example, that is over $50 — more if one or more amended petitions are required. And for those seeking relief under “public interest” provisions, petitioners must pay for transcripts of plea and sentencing hearings and for those, a deposit of up to $300 may be required.

The general eligibility of expungements used to include a requirement that all related fines imposed at time of sentencing be paid prior to expungement, but under recent reform (which goes into effect in October) those still on a court-ordered payment plan may now be eligible to expunge.

Criteria

A petition for expungement of a conviction record “shall be denied” if the person does not meet the statutory eligibility requirements described above, or if the “need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise provided in this chapter.” N.J. Stat. § 2C:52:14(b).

Effect of expungement

N.J. Stat. Ann. § 2C:52-27:

Unless otherwise provided by law, if an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred, and the [person] may answer any questions related to their occurrence accordingly . . . .

See also § 2C:52-1(a) (“expungement shall mean the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system”).  Officers, departments and agencies notified of the expungement order are required to reply, when asked about records for the individual, that there is no record information.  § 2C:52-15.  Expunged records shall be provided to any judge, county prosecutor, probation department or the Attorney General when same are requested for use in conjunction with a bail hearing or for the preparation of a presentence report or for purpose of sentencing.  § 2C:52-21.  Persons who reveal expunged offenses are subject to a fine and potentially to six months’ jail.  §§ 2C:52-30 and 2C:43-8.9 Expunged records shall be disclosed to appropriate officials when a defendant in a subsequent criminal case is seeking admission to a diversionary program.  § 2C:52-27(b).

Public Office or Employment: Expungement ordinarily relieves the bar to public office applicable to those convicted while holding public office or employment. In re Forfeiture of Public Office of Nunez, 894 A.2d 1176, 1178 (N.J. Super. Ct. App. Div. 2006).  However, only a pardon or a certificate of rehabilitation granted pursuant to N.J. Stat. § 2A:168A-7 will permit a former government employee to overcome the mandatory and permanent bar to public employment found in the Forfeiture Act (N.J. Stat. Ann. § 2C:51-2(d) for an offense committed in office that “involves or touches on” the office or employment.  See In re D.H., 6 A.3d 421, 430-32 (N.J. 2009). The Court in In re D.H. noted that the legislature created a “relief valve” in 1988 by adding a provision that “[a]ny forfeiture or disqualification . . . which is based upon a conviction of a disorderly persons or petty disorderly persons offense may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown.”  See N.J. Stat. Ann. § 2C:51-2(e).

Expungement does not provide relief for a person seeking employment with the judicial branch or with law enforcement or corrections agencies.  An applicant must reveal expunged records to those employers, and “such information shall continue to provide a disability as otherwise provided by law.” § 2C:52-27(c). See also Cicchetti v. Morris County Sheriff’s Office, 947 A.2d 626, 639 (N.J. 2006) (holding that “nothing in [§ 2C:52-27] imposes an absolute bar on employment with a law enforcement agency,” while observing that the plaintiff’s particular expunged conviction would not have statutorily disqualified him from a law enforcement position).

2. Expungement following “drug court” special probation

As of April 2016, a Superior Court may order expungement of “of all records and information relating to all prior arrests, detentions, convictions, and proceedings for any offense enumerated in Title 2C of the New Jersey Statutes [Code of Criminal Justice]” upon successful discharge from a term of special probation under §§ 2C:35-14 if the person completes a substance abuse treatment program and is not convicted of an offense during the term of special probation. N.J. Stat. Ann. § 2C:35-14(m)(1) (added by P.L. 2015, c. 261).10 This expungement authority is distinct from the authority for general conviction records described above, and different procedures and criteria apply; however, the effect of expungement is the same.  The court must order expungement “unless it finds that the need for the availability of the record outweighs the desirability of having the person freed from any disabilities associated with their availability.” § 2C:35-14(m)(1). Offenses that are ineligible for expungement under § 2C:52-2 (expungement authority for indictable offenses, see above) may not be expunged. § 2C:35-14(m)(2).  If a person who receives an expungement under this authority is subsequently convicted of a crime, then “the full record of arrests and convictions may be restored to public access and no future expungements shall be granted….” § 2C:35-14(m)(4). Persons convicted before this authority was enacted in April 2016 may petition for expungement if they meet similar eligibility requirements. See § 2C:35-14(m)(5).

3.  Expungment of juvenile delinquency adjudications

Until April 1, 2018, N.J. Stat. Ann. § 2C:52-4.1(b) provides:

[A]ny person who has been adjudged a juvenile delinquent may have his entire record of delinquency adjudications expunged if:

(1) Five years have elapsed since the final discharge of the person from legal custody or supervision or 5 years have elapsed after the entry of any other court order not involving custody or supervision, except that periods of post-incarceration supervision pursuant to section 25 of P.L.1982, c.77 (C.2A:4A-44), shall not be considered in calculating the five-year period for purposes of this paragraph;

(2) He has not been convicted of a crime, or a disorderly or petty disorderly persons offense, or adjudged a delinquent, or in need of supervision, during the 5 years prior to the filing of the petition, and no proceeding or complaint is pending seeking such a conviction or adjudication, except that periods of post-incarceration supervision pursuant to section 25 of P.L.1982, c.77 (C.2A:4A-44), shall not be considered in calculating the five-year period for purposes of this paragraph;

(3) He was never adjudged a juvenile delinquent on the basis of an act which if committed by an adult would constitute a crime not subject to expungement under N.J.S.2C:52-2;

(4) He has never had an adult conviction expunged; and

(5) He has never had adult criminal charges dismissed following completion of a supervisory treatment or other diversion program.

Effective April 1, 2018, the waiting periods in subsections 1 and 2 will be reduced from five to three years.  S-3308 (2017).  Juvenile adjudications may also be expunged in the same manner as adult convictions for offenses that would have constituted an indictable offense (§ 2C:52-2), a disorderly or petty disorderly persons offense (§ 2C:52-3), or an ordinance violation (§ 2C:52-4). § 2C:52-4.1(a).

The procedures and criteria for expungement of juvenile adjudication records are the same as those that apply generally to conviction records, which are discussed in the preceding sections.  The bars to expungement based on prior criminal history described in § 2C:52-14 (discussed above) also apply to juvenile adjudications, as does the bar in § 2C:52-13 that prohibits expungement for persons with pending charges.  The effect of expungement is the same for juvenile adjudication records and for conviction records (discussed in subsection 1, supra).

4.  Non-conviction records (including deferred adjudication)

The Superior Court must, “upon application,” expunge most non-conviction records at the time of disposition:

When a person has been arrested or held to answer for a crime, disorderly persons offense, petty disorderly persons offense, or municipal ordinance violation under the laws of this State or of any governmental entity thereof and proceedings against the person were dismissed, the person was acquitted, or the person was discharged without a conviction or finding of guilt, the Superior Court shall, at the time of dismissal, acquittal, or discharge, … upon receipt of an application from the person, order the expungement of all records and information relating to the arrest or charge.

N.J. Stat. Ann. § 2C:52-6(a) (as amended by P.L. 2015 ch. 261) (under the old law, a person was required to file a formal petition for expungement).  For municipal court proceedings, the court must, upon request, furnish the person with appropriate documentation to be given to the Superior Court, which must enter an ex parte expungement order upon receipt.  § 2C:52-6(a)(3).  There is a waiting period of six months for expungement of deferred adjudication records (authorized for minor drug offenses under N.J. Stat. Ann. § 2C:36A-1). § 2C:52-6(c).  “An expungement … shall not be ordered where the dismissal, acquittal, or discharge resulted from a plea bargaining agreement involving the conviction of other charges. This bar, however, shall not apply once the conviction is itself expunged.” § 2C:52-6(a)(3); see also § 2C:52-14(c).  A person who did not apply for expungement at the time of disposition may petition the Superior Court for expungement “at any time following the disposition of proceedings.”  § 2C:52-6(b).  Non-conviction records may not be expunged “where the dismissal, discharge, or acquittal resulted from a determination that the person was insane or lacked the mental capacity to commit the crime charged.”  § 2C52-6(d).  There is no limitation on the number of times non-conviction records may be expunged. § 2C:52-6(a)(5).

The effect of expungement is described in subsection 1, supra.

C.  Certificate of Rehabilitation

N.J. Stat. Ann. § 2A:168A-7 (Rehabilitated Convicted Offenders Act, as amended in 2007) provides that a court at the time of sentencing, or thereafter a supervisory agency, may issue a certificate evidencing rehabilitation “that suspends certain disabilities, forfeitures or bars to employment or professional licensure or certification that apply to persons convicted of criminal offenses.”  Disabilities affected include public employment (other than law enforcement and certain other sensitive positions11) and professional/occupational or business licenses (other than law and mortgage origination).   A certificate issued pursuant to this act may be limited to one or more enumerated disabilities, forfeitures or bars, or may relieve the subject of all disabilities, forfeitures or bars that may be affected.

Eligibility

“Qualified offender” refers to a person who has one criminal conviction or who has convictions for more than one crime charged in separate counts of one indictment or accusation. Convictions of crimes entered more than 10 years prior to an application for a certificate under this act are not to be considered in determining whether a person has one criminal conviction. Persons convicted of specified serious offenses are not eligible. N.J. Stat. Ann. § 2A:168A-8.   While the text of the law is not clear, the applicable process supports the conclusion that those with federal out of state offenses are not eligible for relief, since application must be made either to the sentencing court or to the supervisory authority. Id.

Effect

In addition to lifting disabilities, a certificate evidences that “the applicant has achieved a degree of rehabilitation indicating that his engaging in the proposed employment would not be incompatible with the welfare of society,” and “shall preclude a licensing authority from disqualifying or discriminating against the applicant.” N.J. Stat. Ann. § 2A:168A-3.  Under 2007 amendments to the RCOA, a certificate relieves bars to public employment as well as licensure, except bars to public employment based upon crimes specified in §§ 2A:168A-7(b), 2A:168A-8(c).  See § 43:1-3.1.  A certificate issued under the RCOA “is the legislatively-chosen mechanism to ‘relieve disabilities, forfeitures or bars’ to public employment arising from certain prior criminal convictions.”  In the Matter of Carluccio, 42 A.3d 918, 927 (N.J. Super. App. Div. 2012)(certificate issued by Parole Board presumptively demonstrated candidate’s rehabilitation for purposes of seeking employment with DMV as safety specialist trainee).  Private employers may but are not required to give effect to certificates awarded under the RCOA. § 2A:168A-12.

Conduct may still be taken into account:  While an automatic bar may be lifted, the conduct underlying the conviction may still be taken into account.  See Hyland v. Kehayas, 157 N.J. Super. 258, 262 (App. Div. 1978) (“[R]espondent’s argument overlooks the fact that the action under review does not involve disqualification or discrimination because of a conviction of crime. The determination by the board consisted of a revocation for misconduct, a standard which does not depend upon a criminal conviction. Hence the provisions of the [RCOA] are inapplicable notwithstanding that the underlying misconduct may have also given rise to a criminal conviction.”).  See also Storcella v. Dep’t of Treasury, 296 N.J. Super. 238, 243 (App. Div. 1997), on the other hand, held that N.J.S. 2A:168A-3 does not preclude a licensing authority from contemplating a past conviction in the event of an executive pardon; it merely prohibits the entity from automatically “disqualifying or discriminating against” an applicant on that basis.  Difficulties in applying the RCOA also arise from the lack of a statutory standard for determining whether a past offense is relevant to licensure when an applicant presents a certificate of rehabilitation.

It remains to be seen what if any effect the 2007 amendments to the RCOA have in situations where a regulatory scheme includes its own ameliorative provisions authorizing an agency to make exceptions to otherwise applicable disqualifications.  See Maietta v. New Jersey Racing Com’n, 93 N.J. 1, 459 A.2d 295, 298 (1983)(contrasting the mandatory disqualification under the horse racing laws with the more flexible “savings provision” under the alcoholic beverages control act that “remove the statutory disqualification in certain instances and thus serve the same purpose as the RCOA”).

Process

A certificate may be issued by the court at sentencing where the sentence does not involve incarceration (and thereafter through a period of supervision) or post-incarceration by the Parole Board, after a three-year eligibility waiting period.  Both court and board must find that issuing the certificate will not pose a substantial risk to public safety, and “will assist in the successful reintegration of the offender and is consistent with the public interest.” N.J. Stat. Ann. § 2A:168A-8.  The prosecutor must be given notice, § 2A:168A-10, and a certificate may be revoked upon conviction of another crime.  § 2A:168A-11.

III.  Nondiscrimination in Licensing and Employment

A.  Licensing

N.J. Stat. Ann. § 2A:168A-1 (1968 Rehabilitated Convicted Offenders Act): “a person shall not be disqualified or discriminated against by any licensing authority because of any conviction for a crime, unless [the crime involves dishonesty in public service] or unless the conviction relates adversely to the occupation, trade, vocation, profession or business for which the license or certificate is sought.”  Statute premised on idea that “it is in the public interest to assist the rehabilitation of convicted offenders by removing impediments and restrictions upon their ability to obtain employment or to participate in vocational or educational rehabilitation programs based solely upon the existence of a criminal record.”  Id.  See also § 45:1-21(f) (licensing boards may suspend or terminate upon proof of conviction involving “moral turpitude” or “relating adversely” to activity regulated by board).

In determining that a conviction “relates adversely” to a particular occupation or trade, a licensing authority is required to explain in writing how the following factors, or any other factors, relate to the license or certificate sought:

  1.   The nature and duties of the occupation, trade, vocation, profession or business, a license or certificate for which the person is applying;
  2.   Nature and seriousness of the crime;
  3.   Circumstances under which the crime occurred;
  4.   Date of the crime;
  5.   Age of the person when the crime was committed;
  6.  Whether the crime was an isolated or repeated incident;
  7.  Social conditions which may have contributed to the crime;
  8.  Any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of persons who have or have had the applicant under their supervision.

§ 2A:168A-2.

Presentation of evidence of pardon or expungement, or certificate of rehabilitation from state or federal parole board, “shall preclude a licensing authority from disqualifying or discriminating against the applicant.”  § 2A:168A-3.  However, this provision has been interpreted to allow presentation of evidence that “past criminal activity . . . on the very premises for which the license is sought adversely affects upon [the individual’s] moral character.”  See Storcella v. State, Dep’t of Treasury, 686 A.2d 789, 792 (N.J. Super. Ct. App. Div. 1997), cert. denied, 693 A.2d 110 (N.J. 1997) (“It was not arbitrary, capricious, or unreasonable for the Lottery Director to conclude that Storcella’s past criminal activity in conducting a bookmaking operation on the very premises for which the license is sought adversely reflects upon his moral character and will directly affect the public perception of the integrity of the Lottery.”); and compare Maietta v. New Jersey Racing Comm’n, 459 A.2d 295, 300 (N.J. 1983) (applicant for groom’s license who had previously worked as a groom, who had been convicted five years before of drug offenses in which he was found to be a minor participant, who had not otherwise been engaged in criminal conduct, and who presented overwhelming evidence of rehabilitation, was improperly denied license) with Verrone v. New Jersey Racing Comm’n, 92 N.J.A.R.2d (RAC) 16 (N.J. Admin. 1992) (convictions for race-fixing precluded grant of assistant trainer license where convictions involved deliberate, planned scheme conducted over period of time and involving other participants as part of larger scheme to subvert integrity of racing in New Jersey, and there was no showing of rehabilitation.).

Conviction for health care claims fraud or insurance fraud: first offense requires suspension for one year, and second offense requires permanent disqualification from licensure “unless the court finds that such license forfeiture would be a serious injustice which overrides the need to deter such conduct by others and in such case the court shall determine an appropriate period of license suspension which shall be for a period of not less than one year.”  § 2C:51-5(a).

Law enforcement agencies are exempt by statute. § 2A:168A-6.  Alcoholic Beverages Commission is exempt not only for this reason, but “because of the unique status of the alcoholic beverage industry and Legislature’s special treatment of it.” Matter of C. Schmidt & Sons, Inc., 399 A.2d 637, 642 (N.J. 1979).  In Maietta v. Racing Commission, supra, the Court added as an additional distinguishing reason justifying its holding in Schmidt the fact that the scheme contains discretionary relief provisions.  459 A. 2d at 298.

B.  Opportunity to Compete Law

(Ban-the-Box and Limitations on Consideration of Criminal Record):  Effective March 15, 2015, the Opportunity to Compete Law (A1999) requires most public and private employers with more than 15 employees (over a minimum of twenty calendar weeks) to delay inquiry into criminal history until after the first interview.  N.J. Stat. § 34:6B-14. The law carves out exceptions, including but not limited to jobs in law enforcement and the judiciary, jobs for which criminal checks are required by law, and jobs for which lack of prior record is required for licensing or similar purposes. Beyond those narrow exclusions, employers face significant financial penalties for violating the law.12 In December 2017, the law was amended to explicitly prohibit inquiries into expunged records during the application process and to clarify that the law covers online applications in addition to oral and written inquiries. See S3306 (2017).

Employers may not “knowingly or purposefully publish, or cause to be published, any advertisement that solicits applicants for employment where that advertisement explicitly provides that the employer will not consider any applicant who has been arrested or convicted of one or more crimes or offenses.”  § 34:6B-15.  This restriction on the content of employment applications does not apply to any advertisement that solicits applicants for positions in law enforcement, corrections, the judiciary, homeland security, or emergency management, or any other position where a criminal history record background check is required by law, where an arrest or conviction by the person for one or more crimes or offenses would or may preclude the person from holding such employment as required by law, or where any law restricts an employer’s ability to engage in specified business activities based on the criminal records of its employees. – See more at  http://www.littler.com/publication-press/publication/new-jerseys-opportunity-compete-act-continues-nationwide-ban-box-trend#sthash.s9LB4cKd.dpuf.

Several New Jersey municipalities (Newark, Atlantic City) have adopted ban-the-box provisions, but these will be superseded effective March 15, 2015, as a result of the new law.  This includes Newark’s law, one of the broadest in the nation, applying to private as well as public employment, licensing, and housing, and limiting the kinds of criminal records that could be considered.13

C.  Certificate of Rehabilitation

Under 2007 amendments to the RCOA statute, a “certificate of rehabilitation” issued under N.J. Stat. § 2A:168A-7 is effective to remove bars to public employment, with certain exceptions: “Public employment” shall mean employment by a State, county, or municipal agency, but shall not include elected office, or employment in law enforcement, corrections, the judiciary, in a position related to homeland security or emergency management, or any position that has access to sensitive information that could threaten the public health, welfare, or safety.”  § 2A:168A-7(c)(1).  See discussion of certificates of rehabilitation in Part IIC.

The so-called “Forfeiture Act” provides that conviction of any crime involving dishonesty or “of a crime of the third degree or above” while employed by the government results in forfeiture of office and disqualification from all public employment. § 2C:51-2(a)(1).  If the crime is one “involving or touching such office, position or employment,” the disqualification is “permanent.”  § 2C:51-2(d).  See Pastore v. Cnty. of Essex, 568 A.2d 81, 86 (N.J. Sup. Ct. App. Div. 1989), cert. denied, 584 A.2d 205 (N.J. 1990) (forfeiture statute bars from public employment Essex County golf course greens superintendent previously convicted of forgery and misappropriation of public funds); see also Cedeno v. Montclair State Univ., 750 A.2d 73, 75 (N.J. 2000) (university purchasing officer previously convicted of bribery could not recover in age discrimination suit, even though university did not discover conviction until after termination).

In 2007, § 2C:51-2(d) was amended to make clear that “involving or touching on his public office, position or employment” means that the offense was “related directly to the person’s performance in, or circumstances flowing from, the specific public office, position or employment held by the person.”  This definition “signals strongly that the disqualification provision was intended to be contingent on a conclusion that the conviction was related, directly and specifically, to the position held.”  State v. Hupka, 1 A.3d 640, 647 (N.J. 2010) (permanent forfeiture not warranted where off-duty sheriff engaged in sexual intercourse with a woman without her consent at his apartment).  Nevertheless, the application of the definition is not always entirely clear.  See id. (noting there is some ambiguity in the statute); see also State v. Blessing, No. A-1306-10T1, 2011 WL 5244964, *5-6 (N.J. Super. Ct. App. Div. Nov. 4, 2011) (swim coach at parochial school who developed sexual relationship with swim team member did not forfeit teaching position at unrelated public school).

Consequence of failure to notify about forfeiture

N.J. Stat. § 2C:51-2(g) provides that “[i]n any case in which the issue of forfeiture is not raised in a court of this State at the time of a finding of guilt, entry of guilty plea or sentencing, a forfeiture of public office, position or employment required by this section may be ordered by a court of this State upon application of the county prosecutor or the Attorney General or upon application of the public officer or public entity having authority to remove the person convicted from his public office, position or employment. The fact that a court has declined to order forfeiture shall not preclude the public officer or public entity having authority to remove the person convicted from seeking to remove or suspend the person from his office, position or employment on the ground that the conduct giving rise to the conviction demonstrates that the person is unfit to hold the office, position or employment.”

Relief

Relief from “permanent” disqualification from employment under N.J. Stat. § 2C:51-2(d) may be provided through a gubernatorial pardon or, in some cases, a Certificate of Rehabilitation. See § 2A:168A-8(c)(e); Part IIC, supra.

Pension benefits

A person convicted while in office of specified crimes involving fraud or public corruption forfeits pension benefits if the crime involved or touched their office. N.J. Stat. § 43:1-3.1  As used in these sections, a crime or offense that “involves or touches such office, position or employment” means that the crime or offense was “related directly to the person’s performance in, or circumstances flowing from, the specific public office or employment held by the person.” § 2C:51-2(d); § 43:1-3.1.

Public contracts

See Part I for provisions barring public employees convicted of misconduct in office from public contracts for a specified period of time. N.J. Stat. Ann. § 2C:51-2(f).

 


  1. Article 2, section I, paragraph 7 of the New Jersey Constitution provides that “The Legislature may pass laws to deprive persons of the right of suffrage who shall be convicted of such crimes as it may designate. Any person so deprived, when pardoned or otherwise restored by law to the right of suffrage, shall again enjoy that right.”  In 1979, New Jersey abandoned the classification of crimes as felonies, high misdemeanors, misdemeanors, and disorderly persons, and re-defined all non-capital offenses as either “crimes” or disorderly persons offenses.  All “crimes” carry with them the right to be indicted by a grand jury and to trial by jury, and thus result in loss of civil rights.
  2. An unpublished Appellate Division decision states that individuals who are subject to “community supervision for life” are disenfranchised as if on parole.  Hunt v. Supervision of Elections, No. L-7371-05, 2005 WL 2978737 (N.J. Sup. Ct. Nov. 7, 2005).
  3. Under the 1844 Constitution, a court of pardons consisting of the Governor, the Chancellor, and six judges of the court of appeals, had authority to issue pardons.See In re Court of Pardons, 129 A. 624, 627 (N.J. Pardons 1925).  The power was placed with the Governor alone in the 1947 Constitution.
  4. See John Munson, Christie issues 6th gun pardon of 2015, his one for a Marine recruiter in N.H., NJ.com, http://www.nj.com/politics/index.ssf/2015/12/christie_issues_sixth_gun_pardon_of_2015for_nh_man.html (Dec. 23, 2015); Salvador Rizzo, Christie pardons reformed drug addict from Philadelphia, NorthJersey.com, http://www.northjersey.com/news/christie-pardons-reformed-drug-addict-from-philadelphia-1.1462500 (Nov. 25, 2015).  In the midst of his campaign for president in 2015, Gov. Christie “vowed to pardon those out-of-state residents who became unwittingly ensnared in New Jersey’s tough gun transport laws.” Id.
  5. Prior to March 13, 2010, expungement was not permitted in drug cases except those for minor marijuana and hashish possession.  Now expungement is permitted for grade 3 or 4 drug offenses, “where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner’s character and conduct since conviction.”  § 2C:52-2(c)(3).
  6. “In determining whether compelling circumstances exist . . . a court may consider the amount of the fine or fines imposed, the person’s age at the time of the offense or offenses, the person’s financial condition and other relevant circumstances regarding the person’s ability to pay.”  N.J. Stat. Ann. § 2C:52-2(a).
  7. Previously, the authorities for expunging indictable offenses and disorderly/petty disorderly persons offenses were entirely separate; and since expungement may only be granted once in a person’s lifetime, receiving an expungement under one authority barred expungement under the other.
  8. “In determining whether compelling circumstances exist …, a court may consider the amount of the fine or fines imposed, the person’s age at the time of the offense, the person’s financial condition and other relevant circumstances regarding the person’s ability to pay.” § 2C:52-3(b).
  9. In G.D. v. Kenny, 15 A.3d 300, 304 (N.J. 2011), an individual argued that his conviction of drug charges “was expunged,” that “therefore, his conviction…is deemed not have occurred,” and thus a political rival’s reference to his prior conviction was defamatory.  The New Jersey Supreme Court disagreed, holding that “the expungement statute does not obliterate the record of conviction,” and that the “defense of truth to a defamation action was not lost” because of the expungement order.”  Id. at 313-15.
  10. The N.J. drug court program encourages treatment and rehabilitation of substance abusers by sentencing eligible persons to a term of special probation in lieu of incarceration.
  11. Except elected office, law enforcement, corrections, the judiciary, homeland security or emergency management, or “any position that has access to sensitive information that could threaten the public health, welfare, or safety.”  See also § 2A:168A-6 (“This act shall not be applicable to any law enforcement agency; however, nothing herein shall preclude a law enforcement agency in its discretion from adopting the policies and procedures set forth herein.”).  In In re Schmidt, 79N.J. 344, 399 A.2d 637 (1979), the New Jersey Supreme Court held that the Alcoholic Beverages Control Board was a law enforcement agency and hence exempt from the limiting provisions of the RCOA.  The court denied similar treatment to the New Jersey Racing Commission.  See Maietta v. New Jersey Racing Com’n, 93 N.J. 1, 459 A.2d 295, 300 (1983).  In Maietta the Court also distinguished the regulatory scheme at issue in Schmidt as involving “certain ‘savings’ provisions that  . . . . remove the statutory disqualification in certain instances and thus serve the same purpose as the RCOA.” 459 A. 2d at 298.
  12. Last-minute amendments to the law omitted a provision delaying consideration of criminal record until after an offer of employment was made, and prohibiting consideration of certain records, including non-conviction records, expunged convictions, and juvenile adjudications.  Covered employers would also have been prohibited from considering most felony convictions after ten years, and disorderly offenses for five years.  Other provisions were omitted giving an employer guidance in evaluating a criminal record, including the extent of the individual’s rehabilitation, time elapsed since conviction, and the responsibilities of the job.  Also, gone was a provisions requiring an employer taking adverse action based upon conviction, to “certify in writing its reasonable consideration of the factors set forth in subsection a. of this section.”  Under the Section 9 that was omitted,an employer who has any questions or concerns relating to the candidate’s criminal history and suitability for the position sought or held based on a criminal history inquiry shall make a good faith effort to discuss with the candidate these questions or concerns and provide the candidate with an opportunity to explain and contextualize any crime or offense, provide evidence of rehabilitation, and rebut any inaccuracies in the criminal history.

    A provision limiting employer liability for negligent hiring based upon an employee’s criminal record was also omitted.  

  13. The Newark law, superseded as of March 15, 2015, delayed inquiry into an applicant’s criminal history until a conditional offer of employment is made by the employer, and imposed a limited “lookback” period for offenses, ranging from eight years for indictable offenses and five years for disorderly persons convictions or municipal ordinance convictions. Several other components of the soon-to-be-superseded ordinance stand out, including: a prohibition on advertisements that limit eligibility based on the criminal record; an enforcement provision with fines for violations; and detailed mandated notices to denied applicants.  See Ordinance #12-1630 (Sept. 19, 2012).

 

Restoration of Right Series/New Hampshire

I.  Restoration of Civil/Firearms Rights A.  Civil Rights

New Hampshire follows the Uniform Act on Status of Convicted Persons.  The rights to vote and hold office are lost following conviction until completion of sentence, except that a person may vote unless actually incarcerated:

A person sentenced for a felony, from the time of his sentence until his final discharge, may not: (a) Vote in an election, but if execution of sentence is suspended with or without the defendant being placed on probation or he is paroled after commitment to imprisonment, he may vote during the period of the suspension or parole; or (b) Become a candidate for or hold public office.

N.H. Rev. Stat. Ann. § 607-A:2(I).  The right to seek and hold public office is automatically restored upon final discharge.  § 607-A:2(I)(b); see Charlene Beaulieu & Lauren F. Hanke, Commentary: The Disenfranchisement of New Hampshire’s Incarcerated Felons, 42 N.H.B.J. 38, Sept. 1, 2001, available at http://www.nhbar.org/publications/archives/display-journal-issue.asp?id=227.

Jury service:  N.H. Rev. Stat. Ann. § 500-A:7-a(V):  “A juror shall not have been convicted of any felony which has not been annulled or which is not eligible for annulment under New Hampshire law.”

Restoration of rights is also available from the governor in the case of federal or out-of-state convictions.  N.H. Rev. Stat. Ann. § 607-A:5.

B.  Firearms

A person convicted of a “felony against the person or property of another” or a felony drug offense may not own or possess any firearm.  N.H. Rev. Stat. Ann. § 159:3.  This restriction may be relieved by pardon or, for nonviolent offenses, by judicial annulment pursuant to N.H. Rev. Stat. Ann. §§ 4:23, 651:5, discussed infra.

II.  Discretionary Restoration Mechanisms:
A.  Executive pardon
Authority

The pardon power (except in cases of impeachment) is vested in the governor, “by and with the advice of [the executive] council,” a core elected body of five that advises the governor generally in carrying out his duties.  N.H. Const. pt. 2, art. 52.  The executive council is composed of five members, biennially elected from each of five counties of the state, “for advising the governor in the executive part of government.”  Id. pt. 2, art. 60.  According to the Office of the Attorney General, the constitutional requirement of “advice” has traditionally been interpreted to require the governor to obtain a supporting majority vote of the council before issuing a pardon.  The governor may not remit fines or forfeitures in criminal cases, and may not grant a pardon before conviction.  Id. pt. 2, art. 52.

Eligibility

Persons eligible for “annulment” under N.H. Rev. Stat. Ann. § 651:5 will generally not be considered for a pardon.  Persons convicted under federal law or the law of another state will not be considered for pardon.

Effect

A pardon “is an act of executive grace completely eliminating all consequences of the conviction, but it does not remove the record of the conviction.”  Doe v. State, 114 N.H. 714 (1974).

Process

See N.H. Rev. Stat. Ann. §§ 4:21 to 4:28.

On all petitions to the governor and council for pardon or commutation of sentence written notice thereof shall be given to the state’s counsel, and such notice to others as the governor may direct; and the prosecuting officer may be required to furnish a concise statement of the case as proved at the trial and any other facts bearing on the propriety of granting the petition.

  • 4:21. “In all cases where the petition is for the pardon of a person serving a sentence in the state prison, the commissioner of corrections shall make a report upon the petition before it is referred to the council.” § 4:22.  No hearing is required.  It has been the custom to consider cases in the order filed, with no case being moved ahead of others in line.  No standards of review have been promulgated to date.  Source: Office of the Attorney General of New Hampshire.
Frequency of Grants

The Attorney General’s office receives about 25 applications for clemency per year, but only two pardons and two sentence commutations have been granted since 1996.  One pardon was granted in 2003 to a National Guardsman headed for Iraq who wanted firearms restoration, and the other in 2011 to a woman convicted of escape 29 years before.  See Owen Labrie unlikely to get pardon, history says, WCVB 5, http://www.wcvb.com/news/owen-labrie-unlikely-to-get-pardon-history-says/36039286 (Oct. 25, 2015); Guardsman Pardoned, Will Be Deployed, Dec. 22, 2003, http://www.freerepublic.com/focus/f-news/1044919/posts; Lynn Tuohy, NH Executive Council Pardons Escape Conviction, 16, 2011, http://www.fosters.com/apps/pbcs.dll/article?AID=/20110216/NEWS0201/110219681.  The last governor to issue a significant number of pardons was John Sununu (17 pardons from 1983 to 1989).  See Norma Love, NH govs historically stingy in granting pardons, Boston Globe (Jan. 1, 2011), available at http://www.boston.com/news/local/new_hampshire/articles/2011/01/01/nh_govs_historically_stingy_in_granting_pardons.

Contact

Audrey Blodgett
Office of the Attorney General
603/271-3591
blodgett@doj.nh.gov

B.  Judicial sealing or expungement (“annulment”)
Eligibility

N.H. Rev. Stat. Ann. § 651:5(I):

[T]he record of arrest, conviction and sentence of any person may be annulled by the sentencing court at any time in response to a petition for annulment which is timely brought in accordance with the provisions of this section if in the opinion of the court, the annulment will assist in the petitioner’s rehabilitation and will be consistent with the public welfare.  The court may grant or deny an annulment without a hearing, unless a hearing is requested by the petitioner.1

In a 2012 opinion, the Supreme Court of New Hampshire ruled that, in exercising discretion to grant an annulment pursuant to the “public welfare” standard, the court

may consider such factors as the number and circumstances of the convictions at issue, the defendant’s age at the time of each conviction, the time span of the convictions, and the particular manner in which annulment would aid the defendant’s rehabilitation—for example, by allowing him to obtain a professional license or to pursue a calling otherwise prohibited to those convicted of a crime.

State v. Baker, 55 A.3d 1001, 1005 (2012).  Other relevant factors may also be considered.  Id.  Courts “may not consider simply the fact of the defendant’s convictions without considering the specific facts and circumstances that led to them.”  Id. at 1004.

Waiting periods range from one year for a violation, three years for misdemeanors, five years for a class B felony and ten years for a Class A felony and sexual assault, indecent exposure, and lewdness.  § 651:5(III).  If denied, a petitioner must wait three years to reapply.  § 651:5(IV).  Certain crimes are ineligible for annulment, including obstruction of justice, violent crimes, and crimes for which an extended sentence was imposed under § 651:6, which includes crime as a major source of livelihood, exceptional cruelty resulting in serious bodily harm, crime against (or by) a law enforcement officer, and hate crimes.  See § 651:5(V).  Recidivists must satisfy waiting periods for all crimes, and may not have any excludable crime.  § 651:5(VI).  For rules governing applications to annul records of conviction and sentence see N.H. Super. Ct. R. 108 & N.H. Dist. Ct. R. 2.18 (as amended by 2012 N.H. Ct. Order 0002).

Non-conviction records

Any person whose arrest has resulted in a finding of not guilty, or whose case was dismissed or not prosecuted, may petition for annulment of the arrest record or court record, or both, at any time . . . . .”   Relief subject to same “public welfare” standard as convictions.  N.H. Rev. Stat. Ann. § 651:5(II).

Procedure

The Department of Corrections is required to report to the court on a petitioner’s criminal history, for which petitioners must pay a statutory fee of $100 unless the petitioner is indigent, or has been found not guilty, or the case has been dismissed or not prosecuted.  There is also a $100 fee payable to the Department of Safety for researching and correcting the criminal history record.  The court shall provide a copy of the petition to the prosecutor of the underlying offense and permit them to be heard regarding the interest of justice in regard to the petition.  N.H. Rev. Stat. Ann. § 651:5(IX).

­Effect

Upon entry of an order of annulment, the person “shall be treated in all respects as if he had never been arrested, convicted or sentenced,” except that, upon conviction of any later crime, the annulled conviction may be taken into account for sentencing purposes and may be counted toward habitual offender status.  N.H. Rev. Stat. Ann. § 651:5(X)(a).  See Panas v. Harakis, 129 N.H. 591 (1987) (this section effectively “erases” the conviction but does not prevent introduction of evidence of the incident that underlies the conviction); Brown v. Brown, 133 N.H. 442 (1990) (civil litigant properly prohibited by this section from using defendant’s annulled conviction to establish the occurrence of an assault).

In any application for employment, license or other civil right or privilege, or in any appearance as a witness in any proceeding or hearing, a person may be questioned about a previous criminal record only in terms such as “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?”

N.H. Rev. Stat. Ann. § 651:5(X)(f).

Effective in 2013, annulled records are only available to the person receiving the annulment and to law enforcement. § 651:5(XI)(c) (as amended by 2013 NH Ch. 123 (HB 450)).  Prior to 2013, annulled records remained available to the public, though they were required to be marked as having been annulled.

Juvenile records

Sealing is governed by N.H. Rev. Stat. Ann. § 169-B:35.  Upon reaching age 21, court and individual institutional records are closed and placed into an inactive file.    Law enforcement officials may still access the files to investigate and prosecute criminal activity.  Id.

III.  Nondiscrimination in Licensing and Employment

As of January 2015, no board or commission may deny, suspend, or revoke an occupational or business license “because of a prior conviction of a crime in and of itself.”  N.H. Rev. Stat. Ann. § 332-G:10. However, a license may be denied or impaired “after considering the nature of the crime and whether there is a substantial and direct relationship to the occupation, trade, vocation, or profession for which the person has applied, and may consider information about the rehabilitation of the convicted person, and the amount of time that has passed since the conviction or release.”  Id

As noted in Part II, N.H. Rev. Stat. Ann. § 651:5(X)(f) limits questions from employers and licensing boards about annulled convictions.

  1. As originally enacted, annulment applied only to youthful offenders (under 21) sentenced to probation or conditional discharge, including payment of a fine.  See State v. Comeau, 142 N.H. 84 (1997); State v. Roger M., 121 N.H. 19 (1981).  The statute was completely rewritten in 1994 and extended to certain adult offenders.  In Comeau, the retroactive application of the longer waiting periods under the new statute was held not to violate the ex post facto clause.  142 N.H. at 89.

Copyright © 2017

Restoration of Rights Series/Nevada

Nevada FlagI.  Restoration of Civil Rights/Firearms Rights
A.  Civil rights

Nevada has one of the most complicated civil rights restoration schemes in the country. Persons convicted of “treason or felony in any state” lose the right to vote, hold office, and sit on a jury.  Nev. Const. art. 2, § 1; id. art. 15, § 3; Nev. Rev. Stat. § 6.010.  First offenders convicted of all but the most serious and/or violent offenses are restored automatically to the right to vote and sit on a civil jury upon successful completion of sentence; to hold office after four years; and to sit on a criminal jury after six years.  See Nev. Rev. Stat. §§ 213.157(1) (completion of sentence), 213.155(1) (discharge from parole), 176A.850(3) (discharge from probation).  Persons convicted under Nevada law of Category A and violent Category B felonies resulting in substantial bodily harm, or who have more than one Nevada felony conviction, must seek restoration of civil rights in the court in which they were convicted, or from the Board of Pardons Commissioners.   §§ 213.090(2), 213.155(2), 213.157(2), 176A.850(4).

Persons not “honorably” discharged from parole or probation (either because they were in fugitive status or because they were not excused from an obligation to pay court-ordered restitution) are also not eligible for automatic civil rights restoration under the law presently in effect.  Legislation enacted in 2017, and effective January 1, 2019, extends automatic civil rights restoration to individuals who were not “honorably discharged” from  probation or parole.  However, this same legislation also provides that those convicted of violent Category B felonies not resulting in substantial bodily harm must wait for two years for restoration of voting rights. See AB-181, § 1 & 2  (2017) (amending Nev. Rev. Stat. §§ 213.155 & 176A.850).  

B. Juvenile adjudications

Except as provided by a specific statute, a juvenile adjudication “does not impose any of the civil disabilities ordinarily resulting from conviction.”  Nev. Rev. Stat. § 62E.010.

C. Federal and out-of-state convictions 

Persons convicted of a felony in another state may exercise civil rights in Nevada if the person’s civil rights have been restored pursuant to the laws of the state in which he or she was convicted or a court in the jurisdiction of conviction certifies that his or her civil rights have been restored in that jurisdiction.  See Nev. Rev. Stat. §§ 293.540(3), 293.543(2)(b)(2),1 §§ 213.155(5), 213.157(5), 176A.850(9).  A federal offender may regain civil rights in Nevada upon proof of restoration by federal authorities, which is currently a presidential pardon.  1996 Nev. Op. Att’y Gen. No. 27, 1996 WL 587397, *3-4, 7-8 (Sept. 25, 1996).

D.  Firearms

“A person shall not own or have in his possession or under his custody or control any firearm if he . . . has been convicted of a felony in this or any other state.”  Nev. Rev. Stat. § 202.360(1)(a).  Firearms rights may be restored only by pardon.  Id.; see also § 213.090(1).  Presumably federal and out-of-state offenders may have their firearms rights restored under Nevada law only by a pardon in the jurisdiction of their conviction.

E.  Registration

All repeat offenders or persons convicted of a serious felony who reside in Nevada, or who enter the state on more than five occasions in a month, must register with the local sheriff.  Nev. Rev. Stat. §§ 179C.100(1)-(2).  Convicted persons who have had their civil rights restored may be relieved of this obligation by the sentencing court, the Board of Parole Commissioners, or Board of Pardons Commissioners.   § 179C.100(6).  No such relief is available from sex offender registration requirements.  § 179D.490.

F.  Collateral consequences inventory

Under Nev. Rev. Stat. Ann. § 176.0125(9), enacted in 2013 and amended in 2017, the Advisory Commission on the Administration of Justice2 is directed to “cause to be identified any provision in the Nevada Constitution, the Nevada Revised Statutes and the Nevada Administrative Code which imposes a collateral sanction or authorizes the imposition of a disqualification, and any provision of law that may afford relief from a collateral consequence.”  In carrying out this duty it “may rely on the study of this State’s collateral sanctions, disqualifications and relief provisions prepared by the National Institute of Justice described in section 510 of the Court Security Improvement Act of 2007, Public Law 110-177.”  Further, it “[m]ust include the posting of a hyperlink on the Commission’s website to any study of this State’s collateral sanctions, disqualifications and relief provisions prepared by the National Institute of Justice described in section 510 of the Court Security Improvement Act of 2007, Public Law 110-177.”

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

The Nevada Constitution gives certain short-term clemency powers to the governor (reprieves, suspensions).  Nev. Const. art. 5, § 13.  However the full clemency power is entrusted to a panel consisting of “the governor, justices of the supreme court, and attorney general, or a major part of them.” Id. art. 5, § 14.   The legislature has constituted this group as the Board of Pardons Commissioners.  Nev. Rev. Stat. § 213.010(1).  A majority of the Board can grant a pardon, but the governor must be among the majority.  Nev. Const. art 5, § 14.  The legislature has specified Board operating procedures (see below) but it may not modify or restrict Board’s powers.  King v. Board of Regents, 200 P.2d 221 (Nev. 1948).3 The Board meets semiannually in the second weeks of November and May, or more often as determined by the Board.  Nev. Rev. Stat. § 213.010(2); Nev. Admin. Code § 213.020(1), (2).  The governor must report to the legislature at the beginning of each session every clemency action (no reasons necessary).  Nev. Const. art 5, § 13.

Administration

The Chairman of the State Board of Parole Commissioners appoints a person to serve as secretary of the Board of Pardons Commissioners.   Nev. Rev. Stat. § 213.017(1).

Eligibility

The application revised in 2012 no longer contains criteria for assessing pardon petitions, but provides only that

An application for a pardon will ordinarily not be considered unless a significant amount of time has passed since the applicant’s final discharge . . . . [during which period] an applicant is expected to demonstrate complete and total rehabilitation.

See Board of Pardons, Criteria and Application Instructions in Community Cases, available at http://pardons.nv.gov/Downloads/Community_Case_Pardons_Application_2012/.4  The Board accepts applications only from state offenders, including applications from misdemeanants, which represent about 20% of its caseload.  Sex offenders may apply for pardon only after they have obtained relief from registration requirements by a court of competent jurisdiction.  See Nev. Rev. Stat. § 179D.490.

Effect

“A person who is granted a full, unconditional pardon by the Board is restored to all civil rights . . . and is relieved of all disabilities incurred upon conviction.”  Nev. Rev. Stat.§ 213.090(1).  “A pardon granted by the Board shall be deemed to be a full, unconditional pardon unless the official document issued pursuant to subsection 3 explicitly limits the restoration of the civil rights of the person or does not relieve the person of all disabilities incurred upon conviction.”  § 213.090(2); see also 2003 Attorney General Opinion, supra note 4 (full and unconditional pardon removes all disabilities, including licensing bars, but does not “erase conviction” or dispense with licensing boards’ authority to condition licensure on finding of good moral character).5 A pardon “does not attest to rehabilitation of a person” and “does not substitute a good reputation for one that is bad.”  See http://www.pardons.nv.gov/About/Effect_of_a_Pardon.

For sex offenders, pardon does not obviate need to register.  2003 Attorney General Opinion, supra, at p. 14; http://www.pardons.nv.gov/About/Effect_of_a_PardonIn re Sang Man Shin, 206 P.3d 91, 91 (Nev. 2009) (pardon did not supersede Nevada law prohibiting the sealing of a sex offense).  Pardon relieves firearms restrictions in state law (unless otherwise provided in the pardon document itself), Nev. Rev. Stat. § 213.090; see also id. § 202.360(1)(a), and a pardoned conviction releasing the offender from all penalties and disabilities cannot serve as a predicate felony for federal firearms prosecution.  2003 Attorney General Opinion, supra, at p. 15 (citing U.S. v. Laskie, 258 F.3d 1047, 1052-53 (9th Cir. 2001) (state conviction that had been set-aside cannot serve as predicate felony for federal firearms prosecution)).

Process

A public hearing is required in all cases where pardon is to be granted.  Nev. Rev. Stat. §§ 233B.010 et seq., 213.020 et seq.; Nev. Admin. Code § 213.020 et seq..  Application form for community cases available http://www.pardons.nv.gov/About/Application.  The Division of Parole & Probation prepares an extensive background investigation report for the Board’s consideration, a process that generally takes 2-3 months, after which cases will be chosen for a hearing.  Nev. Admin. Code §§ 213.073(1), (2).  The Board may hear cases twice a year.  (In recent years, for budgetary reasons, the Board has held only one hearing each year.)  Nev. Rev. Stat. § 213.010(2); Nev. Admin. Code § 213.020.  All applications must be submitted at least 90 days beforehand.  Nev. Admin Code § 213.040(2).  The Board’s agenda is posted on the Pardons Board web site at http://www.pardons.nv.gov/Meetings.  Copies of this agenda are mailed to every Nevada judge, every Nevada district attorney, and every person on the mailing list of the Board of Pardons.  The Board must notify the county attorney and court of conviction 30 days before the hearing, and any victims 15 days before the hearing.  Nev. Rev. Stat. §§ 213.010(3), 213.020(4).  The County district attorney also gives notice to victims.  Applications are generally presented to the Board only after the recommendation of the Department of Corrections and/or Secretary of the Board.  See Nev. Admin. Code §§ 213.073, 213.183.  Hearings are informal, though the Board may require the applicant’s presence.  Nev. Admin. Code § 213.190.  The Board’s decision is by a majority, which must include Governor.  Nev. Const. art. 5, § 14(1).  Proceedings are subject to the Nevada Administrative Procedure Act, so that the public receives 3 working days advance notice of a hearing, and minutes of meetings are public, including how each member voted.  Nev. Rev. Stat. § 233B.010 et seq

Expedited process for non-violent first time offenders:  In August 2010, the Board adopted regulations providing for an expedited process to consider pardon applications filed by non-violent first-time offenders without a hearing, as long as there is no objection from district attorney, judge, or victim.  See Nev. Admin Code § 213.077.  See also Rev. Stat. Ann. § 213.017 (authorizing the Board to establish procedures for pardon and restoration of civil rights).  

Frequency of grants
Pardons

In recent years the Board has received 50-80 new pardon applications from “community cases,” of which more than half have typically been granted a hearing.  Some cases held over from prior years may also be heard.  Until 2017 the Board met only once a year, but a second meeting was held in 2017 after a meeting in May resulted in 19 grants (the Board finished 2017 with 55 grants from 60 cases heard, for a grant rate of over 90%).   The Board granted 21 pardons in 2016, 29 in 2015, 20 in 2014, and 25 in 2013. See Table below and reports published on the Board’s website, http://pardons.nv.gov/Meetings/.  

2017
2016
2015
2014
2013

Apps rec’d
  84
  62
  52
  74
  39

Apps heard
  60
  28
  35
  23
  31

Pardons granted
  55
  21
  29
  20
  25

Grant rate
  91%
  75%
  56%
  83%
  81%

Source: Board of Pardons Commissioners

Between 2006 and 2011 there were about 20 grants each year, a substantial majority of those following hearings.  See Nevada Pardons Board Historical Actions (1990-2011), on file with author.6  The Board’s 2009 authority to adopt an expedited process for non-violent first offenders began to show up in its case processing statistics after 2011.

Commutations

The Board receives about 1000 commutation petitions each year, hears about 20 cases each year, and in the past decade has granted about  half of those.  See Nevada Pardons Board Historical Actions (1990-2011), supra.

Contact

Brian Campolieti
Executive Secretary, Board of Pardons Commissioners
1677 Old Hot Springs Road, Suite A
Carson City, NV 89706
bcampolieti@parole.nv.gov
Phone: 775-687-5049, ext. 225

B.  Judicial sealing or expungement
1.  Authority for sealing
Adult convictions

Legislation passed in June 2017 declares that it is “the public policy of this State . . . to favor the giving of second chances to offenders who are rehabilitated and the sealing of the records of such persons. . . ”  Even before the 2017 law, Nevada had one of the broadest record-closing laws in the Nation, making all convictions but those for crimes against a child, sex offenses, and certain DUI offenses eligible for sealing after a waiting period.    

After an eligibility waiting period that varies depending on the seriousness of the offense (for felonies, two-to-10 years after the date of conviction or release from actual custody, whichever is later; for misdemeanors, one-to-seven years), a person may petition the court in which he was convicted to seal all records related to the conviction.  Nev. Rev. Stat. § 179.245(1).7   Sealing relief is not available to those convicted of crimes against a child, sex offenses, and certain DUI offenses, § 179.245(5), or to anyone who has been convicted during the eligibility waiting period. § 179.245(4); see also In re Sang Man Shin, supra, 206 P.3d at 91 (pardon did not supersede Nevada law prohibiting the sealing of a sex offense).  Also effective October 1, 2017, probationers not given an honorable discharge from probation or parole are for the first time eligible to have their records sealed if they otherwise meet the eligibility standards of § 179.245.  See AB-327, § 1 (2017).

Finally, the June 2017 legislation enacted “a rebuttable presumption that the records should be sealed if the applicant satisfies all statutory requirements for the sealing of the records.”  This presumption does not apply to an individual who was not honorably discharged from probation or parole. See AB-327, § 4 (2017) (not yet codified).

Additional sealing authority for certain minor offenders

Probationers with mental illness or “retardation” after honorable discharge (Nev. Rev. Stat. §§ 176A.260, 176A.265(1)), successful reentry program participants (§ 179.259), persons convicted of drug possession after a three-year waiting period (§§ 453.336, 453.3365), and veterans (§§ 176A.290, 176A.295).

Human trafficking victims

Victims of human trafficking convicted of prostitution and related offenses may petition to have their convictions vacated and sealed “after the petitioner has ceased being a victim of trafficking or involuntary servitude or has sought services for victims of such trafficking or involuntary servitude.”  AB-243, § 1.2 (2017), not yet codified.  Sealing is discretionary, and the court must “take into consideration any reasonable concerns for the safety of the defendant, family members of the defendant or other victims that may be jeopardized by the granting of the petition.” Id.  Prior to the enactment of AB-243 in 2017, vacatur was available for human trafficking victims, but sealing was not explicitly authorized.

Deferred sentencing and sealing for substance abusers and first-time drug offenders

Nev. Rev. Stat. § 458.300 authorizes deferred sentencing in the case of persons convicted of a crime and adjudged an addict or alcoholic.  Certain crimes are not eligible.  See §§ 458.300(1)-(7).  Upon successful completion of a treatment program, the conviction may be set-aside and the record sealed.  §§ 458.330(1), (4).   Deferred sentencing and sealing is also available for first-time drug offenders.  See § 453.3363. 

Non-conviction records

Nonconviction records relating to a dismissal, declination or acquittal are also presumptively eligible for sealing after the charges are dismissed, declined for prosecution, or a person is acquitted. Nev. Rev. Stat. § 179.255.

Juvenile records

Records are sealed automatically upon reaching age 21 for most juvenile offenses.  Nev. Rev. Stat. § 62H.140.   Records for certain violent and sexual offenses may be sealed after reaching age 30.  § 62H.150.  Those under age 21 may petition for sealing if they have not been adjudicated in or referred to juvenile court for the preceding three-year period.  Id.  Before sealing, the court holds a hearing to determine whether the person has been convicted of any felony or misdemeanor involving moral turpitude and whether the applicant has been rehabilitated.  § 62H.130.  Upon sealing, a person may deny any existence of the records.  § 62H.170. 

2.   Applicable procedures

The July 2017 legislation simplified the application process by relieving requirements that applications be accompanied by extensive records.   When the court receives an application to seal the record, it must notify the prosecutor. Under the June 2017 legislation, if the prosecutor stipulates, the court need not hold a hearing but may seal the record.  If an applicant seeks to have more than one record sealed, he or she may file a single petition in district court for the sealing of all records. The new law also authorizes the district court to order the sealing of any records in the justice or municipal courts in certain circumstances.  As noted, there is a rebuttable presumption that eligible records should be sealed. 

3.  Effect of sealing

If the court seals the records, “all proceedings recounted in the record are deemed never to have occurred,” and the person “may properly answer accordingly to any inquiry . . . concerning the arrest, conviction, dismissal or acquittal and the events and proceedings related to the arrest, conviction, dismissal or acquittal.”  Nev. Rev. Stat. § 179.285.  A person whose records have been sealed may also vote, hold office and serve as a juror.  Id.; see also § 179.285(b).  However, sealing does not restore firearms rights under state law, for which a pardon is necessary.  See § 179.285(2)(b).  A sealed conviction may not be utilized to prove an element in a new crime or as an enhancement for a new conviction.  In addition, with the exception of gaming and insurance licensing (see below), a sealed conviction may not be used as the basis for denial or revocation of a professional license.  See Baliotis v. Clark County, 729 P.2d 1338, 1339-40 (Nev. 1986) (finding that licensing officials cannot use sealed convictions as basis for denying license, but licensing authorities may use independent knowledge of criminal behavior to make decision); see also Nev. Op. Att’y Gen. No. 83-13 (1983), available at http://ag.nv.gov/uploadedFiles/agnvgov/Content/Publications/opinions/1983_AGO.pdf.

Sealed records may be inspected under certain circumstances by prosecutors, § 179.295, agencies changed with gaming and insurance licensing, the Central Repository for Nevada Records of Criminal History, law enforcement, and the State Board of Pardons Commissioners. § 179.301.  Sealed conviction records may be used to deny gaming employment if the crime “relates to the applicant’s suitability or qualifications to hold the work permit,” § 179.301(1), but there is no similar limiting caveat where insurance licensing is concerned.  § 179.301(2).   In addition, somewhat anomalously, professional licensing authorities are entitled to inspect records of sealed drug possession convictions “for purposes of determining suitability for a license or liability to discipline.”  See Nev. Rev. Stat. § 453.3365(4); Yllas v. State, 920 P.2d 1003, 1005 n.3 (Nev. 1996). ).  

III.  Nondiscrimination in Licensing and Employment
A. Public employment

In June of 2017, the Nevada legislature enacted a nondiscrimination law that regulates consideration of convictions in public employment.  See Assembly Bill 384, amending Chapter 284 of the Nevada Statutes.   https://www.leg.state.nv.us/App/NELIS/REL/79th2017/Bill/5421/Overview. Under sections 2 and 3 of AB 384, which became effective January 1, 2018, employers may not consider the criminal history of an applicant for a position in the classified or unclassified service of the state until after the earliest of the following: (1) the final interview; (2) a conditional offer of employment; or (3) if applicable, the applicant has been certified by the Administrator. The law does not apply to persons who would be disqualified by state or federal law for employment in a particular position because of their particular criminal history and does not apply to certain positions (firefighter or peace officer and “any position that entails physical access to a computer or other equipment used for access to the Nevada Criminal Justice Information System or the National Crime Information Center”).

Under the new law, a public employer may refuse to certify an applicant or rescind a conditional offer of employment on the basis of a prior conviction or charges pending or filed within the last six months only after considering the following factors:

(a) Whether any criminal offense charged against the person or committed by the person directly relates to the responsibilities of the position for which the person has applied or is being considered;

(b) The nature and severity of each criminal offense charged against the person or committed by the person;

(c) The age of the person at the time of the commission of each criminal offense;

(d) The period between the commission of each criminal offense and the date of the application for employment in the unclassified/classified service; and

(e) Any information or documentation demonstrating the person’s rehabilitation.

Applications for employment must include a statement that a conviction record will not necessarily bar the applicant from employment and that the employer will consider the factors outlined above.

The law requires that written notice be sent to an applicant if criminal history is a basis for rejection, failure to certify, or rescission of a conditional offer, and that the applicant be given an opportunity to discuss the basis for rejection or rescission. 

Non-conviction records: Employers are prohibited at any time from considering (a) arrests that did not result in conviction (unless charges are pending or have been filed within the last six months); (b) a record of conviction which was dismissed, expunged or sealed; or (c) an infraction or misdemeanor for which a sentence of imprisonment in a county jail was not imposed.

Enforcement: The new law also creates an enforcement mechanism, providing that failure to comply with its procedures is an unlawful employment practice and authorizing complaints to be filed with the Nevada Equal Rights Commission. See Sections 6.5 & 6.7 of AB 384, amending Nev. Rev. Stat. 613.330 & 613.405.

Section 5, 6, and 6.3 of the AB 384 provide similar provisions relating to public employment in counties, cities, and towns.

B. Licensing

Nevada has no general law regulating consideration of conviction in licensure.  It does apply a direct relationship test in connection with some licenses.  See, e.g., Nev. Rev. Stat. § 625.410(4) (discipline permissible based on “[c]onviction of . . . any crime an essential element of which is dishonesty or which is directly related to the practice of engineering or land surveying”).

C. Juvenile adjudications

Juvenile adjudications “must not be used to disqualify the child in any future application for or appointment to the civil service.”  Nev. Rev. Stat. Ann. § 62E.010.


  1. Section 293.543(2) was amended in 2005 to codify the results of a 1996 Attorney General Opinion:

    Nevada should give full faith and credit to restorations of civil rights where certain criteria are met. The restoring jurisdiction must have also been the convicting jurisdiction. The restoration must purport to be just that, a restoration of the convicted person’s civil rights, and meet all the constitutional and statutory requirements of the restoring jurisdiction. Nevada must not have any overriding reason, such as a public policy set out in a statute or Nevada’s Constitution, for not recognizing the restoration. If all these questions can be answered affirmatively, then Nevada should recognize a restoration of civil rights by a foreign jurisdiction.

    Nev. Op. Att’y Gen. No. 96-27 (1996), available at http://ag.nv.gov/uploadedFiles/agnvgov/Content/Publications/opinions/1996_AGO.pdf.  This statute has been applied by the Secretary of State to federal offenders as well as those from other state jurisdictions.

  2. The Advisory Commission includes as statutory members a representative group of criminal justice practitioners, judges, legislators, corrections officials, and members of the public, many of them appointed by the governor.  The Attorney General sits on the Commission ex officio. See Nev. Rev. Stat. Ann. § 176.0123.
  3. In 2003 the Nevada legislature sought to limit authority of the Board of Pardons Commissioners under Nev. Rev Stat. § 213.090 by imposing on the pardon application process the same eligibility requirements and waiting periods that apply to restoration of rights to first offenders under Nev. Rev. Stat. § 213.157.  Seehttp://www.leg.state.nv.us/Session/72nd2003/bills/AB/AB55_EN.pdf.  This law was found constitutionally problematic by the Nevada Attorney General.  See Nev. Op. Atty Gen. (Nov. 18, 2003), available at http://www.pardons.nv.gov/sites/pardons/files/pdf/PardonInformalOpinion.pdf (hereinafter “2003 Attorney General Opinion”).  In 2005 the statute was amended again to restore the Board’s previous authority.  See http://www.leg.state.nv.us/Session/73rd2005/bills/SB/SB445_EN.pdf.
  4. The application form in effect in 2011 varied the eligibility waiting period by type of conviction, and also provided that good conduct should be judged by “(1) post-conviction conduct, character, and reputation; (2) seriousness and relative recency of the offense; (3) acceptance of responsibility, remorse, and atonement; and (4) need for relief.”  Criteria set forth a number of disqualifying factors based on institutional conduct; parole status; criminal charges, investigations, or appeals; and time and sentence. Id.
  5. See Board of Pardons Commissioners, “Effect of a Pardon,” available at http://www.pardons.nv.gov/About/Effect_of_a_Pardon

    Where a statute limits rights based on the underlying conduct and not the pardoned offense itself, a pardon would not remove or erase the disability of past conduct. If there is a requirement that the license applicant has not been convicted of a felony, the pardon would permit licensing. However, if the licensing standard is good moral character, the pardon does not erase the moral guilt associated with the commission of a criminal offense and the fact giving rise to that conviction may be considered in determining whether that person is of ‘good moral character.’

    Statutes containing licensing bars can be found on the Nevada Legislature’s website: www.leg.state.nv.us.

  6. Prior to July 2010, the Pardons Board was authorized by regulation to issue “Certificates of Good Conduct” under Nev. Admin. Code § 213.130 et seq.  According to a 2003 Attorney General opinion, these certificates served:  “1)  To remove a legal disability incurred through conviction; 2) to furnish evidence of good moral character where it is required by law; or 3) upon proof of the person’s performance of outstanding public services or if there is unusual and compelling evidence of his rehabilitation.”  See 2003 Attorney General Opinion, supra note 2, at p. 21.  However, per this opinion, only a pardon can remove the state firearms disability, so that the federal bar under 18 U.S.C. §921(a)(20) would still apply.  See id. at p. 22-23.  Additionally, the opinion noted that the Certificate could relieve other disabilities such as those in licensing and employment laws, but each one must be listed.  See id. at p. 21.   In July 2010, in recognition of the fact that it had not issued a Certificate of Good Conduct in many years, the Board rescinded the regulations authorizing Certificates based on its prior conclusion that these certificates were indistinguishable from pardons. 
  7. The June 2017 law reduced these waiting periods effective October 1, 2017.  For felonies the previously applicable waiting period was seven-to-15 years, and for misdemeanors, one-to-seven years.

Copyright © 2017

Restoration of Rights Series/Nebraska

Nebraska FlagI.  Restoration of Civil Rights/Firearms Rights
A.  Vote

Neb. Rev. Stat. § 29-112 provides that a person convicted of a felony loses the right to vote, to serve on a jury, and to hold “any office of honor, trust or profit.”  The right to vote is restored automatically two years after completion of sentence, including any period of parole.  Id. See also § 29-2264(1) (voting rights restored to probationers two years after discharge).1  In addition, “[a]ny person who has been convicted of a felony under the laws of any other state is not qualified to vote until two years after such person has completed his or her sentence, including any parole term.”  § 29-113.  This provision has been interpreted by the Board of Elections to apply to federal offenders as well.  The right to vote is restored to out-of-state offenders on same terms as Nebraska offenders.  Id.2.   

B.  Other civil rights

The right to serve on a jury and hold public office are restored only by a “warrant of discharge” issued by the Board of Pardons.  Neb. Rev. Stat. § 29-112.  In the case of an individual sentenced to a non-prison sentence, a warrant of discharge restoring jury and office rights is issued automatically.  See Neb. Rev. Stat. § 29-112.01 (warrant “shall be issued by such board upon receiving from the sentencing court a certificate showing satisfaction of the judgment and sentence entered against such person”).  In the case of individuals sentenced to prison, however, a “warrant of discharge” is issued only after a hearing.  See Neb. Rev. Stat. § 83-1,118(5).3  A person convicted of a felony under the laws of any other state must be restored to jury and office-holding rights “under the laws of the state in which the felony was committed.”  § 29-113.  It is not clear how federal offenders regain these rights.

C.  Firearms rights

Long gun and handgun rights are lost upon conviction of a felony.  Neb. Rev. Stat. §§ 28-1206(1), (2).  Firearms rights may be regained only if the Board of Pardons empowers the governor to expressly authorize a pardoned individual to receive, possess, or transport guns in commerce.  § 83-1,130(2).

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

The authority to grant pardons is vested in the Board of Pardons, which is composed of the governor, secretary of state, and attorney general.   Neb. Const. art. IV, § 13; Otey v. State, 485 N.W.2d 153, 163 (Neb. 1992).  The governor acts as chair.  Neb. Rev. Stat. § 83-1,126.  The scope of the pardon power is set forth in Neb. Rev. Stat. § 83-170(10).  The Board of Pardons is not subject to the Nebraska Administrative Procedure Act, and its constitutional powers cannot be limited or modified by any act of the legislature or of the Nebraska courts.  Neb. Rev. Stat. § 83-1,134; FAQ, Neb. State Bd. of Pardons, available at http://www.pardons.state.ne.us/faq.html.  The Board has the power to (1) remit fines and forfeitures, (2) grant respites, (3) grant reprieves, (4) grant pardons, and (5) grant commutations, in all cases of conviction for offenses against the laws of the State of Nebraska, except for treason and cases of impeachment.  Neb. Const. art. IV, § 13.  The Board of Parole may advise the Board of Pardons “on the merits of any application . . .  but such advice shall not be binding on them.”  Id.; Neb. Rev. Stat. § 83-194; see also 270 Neb. Admin. Code § 009 (2011).

Eligibility

For felonies, ten years from final discharge, including payment of fine; for misdemeanors, three years.  See Pardon Board Application, Neb. State Bd. of Pardons, available at http://www.pardons.state.ne.us/content/new-application.pdf (“It is the usual practice in the granting of pardons to hear only those misdemeanor cases where three (3) years has elapsed and those felony cases where ten (10) years has elapsed upon completion of sentencing, including any probation, supervised release, or parole term, with no further law enforcement contacts or court convictions within the waiting period.”).  In the case of misdemeanants sentenced to probation, the Board will consider a petition three years after sentencing.  Persons convicted under federal law or the laws of another state are ineligible for a gubernatorial pardon or a discharge.  See Part I, supra.

Effect

A pardon restores civil rights lost due to a felony conviction, including the right to vote, the right to be a juror, the right to hold public office, the right to bear arms,4 and the right to hold certain licenses (Liquor and Public Health and Welfare Licenses).  See FAQ, Neb. State Bd. of Pardons, available at http://www.pardons.state.ne.us/faq.html.  However, a felony offender may only regain firearm privileges if the Board of Pardons empowers the governor to “expressly” authorize the individual to receive, possess, or transport in commerce a firearm.  Neb. Rev. Stat. § 83-1,130(2).  It is not clear whether a person convicted in another state may avail himself of this procedure, or must instead have his rights restored in the jurisdiction of conviction in order to regain state firearms privileges in Nebraska (and presumably avoid liability under federal law as well, 18 U.S.C. § 921(a)(20)).

Process

After a person files his pardon application, the Board of Pardons will consider the application and conduct further investigation as it deems appropriate; thereafter, the Board makes the decision to grant or deny relief by majority vote.  See Neb. Rev. Stat. §§ 83-1,130(1), (3); see also § 83-1,128 (enumerating the powers of the Board).  The Board of Pardons holds open hearings quarterly, and the entire process takes about one year.  Policy and Procedure Guidelines, Neb. State Bd. Pardons, § 003.01, available at http://www.pardons.state.ne.us/app_guidelines.htmlSee also Pardon Application Instructions, available at http://www.pardons.state.ne.us/instructions.html.  “The Board may grant or deny any application, in whole or in part, without a hearing,” but “[i]t is the Board’s general policy . . . not to grant applications for pardons or commutations of sentences without a hearing.”  Id. § 004.02.  The application form may be obtained from the Board and must be accompanied by several letters “verifying the applicant’s good character from citizens of the community where the applicant has resided.”  See Pardon Application Instructions, Neb. State Bd. Pardons, available at http://www.pardons.state.ne.us/instructions.html.

The Board has subpoena power, and perjury before the Board will subject the perjurer to criminal penalties.  Policy & Procedure Guidelines, supra at § 004.03; Neb. Rev. Stat. § 83-1,128.  Any hearing must be informal, but a complete record must be kept.  Policy & Procedure Guidelines, supra at § 004.03.D; Neb. Rev. Stat. § 83-1,129(3).  The victim must be notified if the Board grants a hearing to an applicant convicted of a crime against a person.  Policy and Procedure Guidelines, supra at § 004.03 A.

The Board may, after a pardon has been granted for a felony offense, “empower the Governor to expressly authorize such person to receive, possess, or transport in commerce a firearm.”  Neb. Rev. Stat. § 83-1,130(2); see also Part II, Effect, supra.  There is no provision for giving reasons.  The pardon application form is available at http://www.pardons.state.ne.us/content/new-application.pdf.

Reprieves from Driver’s License Revocations

The Board also considers applications for reprieves from those subject to lifetime or 15-year driver’s license revocation for third or subsequent DUI/DWI offense. Eligibility after 7 years, with no intervening convictions of any kind, and proof of sobriety for seven years.  The application for reprieve is made to the DMV, which reviews it and forwards it to the Board of Pardons. If the Board grants a reprieve, a Nebraska resident may drive a vehicle equipped with an ignition interlock device (BAIID) after applying for an ignition interlock permit (IIP). A non-resident must contact his home state to determine his driving eligibility.  See http://www.dmv.ne.gov/legal/pardons.html.

Frequency of Grants

Year
Pardon petitions rec’d
Pardon hearings held
Pardons granted w/ gun rights
Pardons granted w/o guns
Pardons denied
DUI reprieves
rec’d
DUI
reprieve
hearings
DUI reprieves granted

FY02-03
120
62
43
13
55
57
26
23

FY03-04
145
95
36
33
63
30
9
9

FY04-05
186
120
56
44
76
38
16
14

FY05-06
163
81
39
33
76
45
26
22

FY06-07
111
94
49
40
37
27
13
13

FY07-08
214
178
119
39
86
38
15
15

FY08-09
168
69
48
18
64
39
11
10

FY09-10
124
75
61
9
44
26
10
9

FY10-11
239
119
100
12
76
38
9
8

FY 11-12
84
115
97
11
26
26
20
14

FY 12-13
188
110
94
  7
45
62
22
11

FY13-14
153
136
109
23
47
30
23
21

FY14-15
160
113
79
24
45
42
26
24

FY15-16
127
96
63
27
36
54
29
25

FY16-17
170
113
28
29

Source: Nebraska Pardon Board

Contact

Sonya Fauver
Administrative Assistant
Nebraska Board of Pardons
P.O. Box 94754
Lincoln, NE 68509-4754
402-479-5726 (phone)
402-471-2453 (fax)
Fauver@nebraska.gov
http://www.pardons.state.ne.us/

B.  Judicial sealing or expungement
Set-aside for probationers

Neb. Rev. Stat. § 29-2264(2) permits an offender sentenced to probation, or to pay a fine only, to petition the sentencing court to “set aside” the conviction.  “In determining whether to set aside the conviction, the court shall consider the behavior of the offender after sentencing; the likelihood that the offender will not engage in further criminal activity; and any other information the court considers relevant.”  § 29-2264(3).  “The court may grant the offender’s petition and issue an order setting aside the conviction when in the opinion of the court the order will be in the best interest of the offender and consistent with the public welfare.”  § 29-2264(4).  Set-aside has the effect of nullifying the conviction and removing “all civil disabilities and disqualifications imposed as a result of the conviction.”  Id. See also § 29-2264(1) (Order on completion of probation “shall include information on restoring other civil rights through the pardon process, including application to and hearing by the Board of Pardons.”).  A conviction that has been set aside may nonetheless be used as a predicate offense and to enhance a subsequent sentence, to impeach a witness, to deny or revoke a law enforcement training certification.  §§ 29-2264(5)(c) through (h).5

A set-aside does not result in sealing or relieve the obligation to register as a sex offender. § 29-2264(j).  

Set-aside for human trafficking

In 2018, the legislature enacted a process by which a victim of sex trafficking can motion the sentencing court to set aside “(a) a prostitution-related offense committed while the movant was a victim of sex trafficking or proximately caused by the movant’s status as a victim of sex trafficking or (b) any other offense committed as a direct result of, or proximately caused by, the movant’s status as a victim of sex trafficking.” “Any order setting aside a conviction or an adjudication under this section shall have the same effect as an order setting aside a conviction as provided in subsections (4) and (5) of section 29-2264.” See Sec. 2, LB 1132, available at: https://nebraskalegislature.gov/FloorDocs/105/PDF/Slip/LB1132.pdf.

Sealing of juvenile records

Sealing is governed by Neb. Rev. Stat. § 43-2,108.03.  Prosecutors must inform juveniles of the sealing process in writing, and the court must inform the juvenile about the effects of sealing.  § 43-2,108.02, .04(7)–(8).  Juveniles may petition for sealing under limited circumstances, including where no charges are filed and successful completion of probation or a diversion/treatment program.   Id.  The court must hold a hearing if there is opposition to sealing and may hold a hearing without opposition.  §§ 43-2,108.04(3), (4).  The court grants sealing upon a finding of satisfactory rehabilitation.  § 43-2,108.04(5).  Sealing allows the juvenile to proceed as if the offense had never occurred.  § 43-2,108.05(1)(a).

Sealing of non-conviction records
Automatic sealing of criminal history information not resulting in a conviction

Criminal history information from cases not resulting in conviction is automatically removed from the public record and available only to law enforcement. Neb. Rev. Stat. § 29-3523.6 In cases where the prosecuting attorney decides not to file charges, records are removed one year after arrest; records where charges were not filed because of completed diversion are not available to the public after two years; and records where charges were filed but later dismissed by the court, including in cases of acquittal and successful drug court program completion, are removed from the public record immediately. Neb. Rev. Stat. § 29-3523(3). 

A 2016 amendment to § 29-3523 added a provision requiring the court, “upon acquittal or entry of an order dismissing a case” to send notice to state records repository, law enforcement agencies and city and county attorneys, that any information pertaining to the case should be “sealed” and not disseminated to persons other than criminal justice agencies.  § 29-3523(4).  Courts have interpreted the immediate sealing amendment to apply only to arrests or citations that occurred on or after January 1, 2017.  Lori Pilger, Judge Says New Law Sealing Criminal Cases Isn’t Retroactive, Lincoln J. Star, June 28, 2017, http://journalstar.com/news/local/911/judge-says-new-law-sealing-dismissed-criminal-cases-isn-t/article_659d6bbb-5f75-56ea-a3ce-c81e4632be4f.html. 

The 2016 amendment also includes a provision limiting consideration of non-conviction records in employment and licensing (see Part III below).  

Expungement of arrest records resulting from law enforcement error

Any person arrested due to the error of a law enforcement agency may file a petition with the district court for an order to expunge the criminal history record information related to such error….  The county attorney shall be named as the respondent and shall be served with a copy of the petition.  The court may grant the petition and issue an order to expunge such information if the petitioner shows by clear and convincing evidence that the arrest was due to error by the arresting law enforcement agency.

§ 29-3523(6).

Remedies

Unauthorized dissemination of nondisclosable criminal history information is a Class IV misdemeanor.  Neb. Rev. Stat. § 29-3527.  Any person may file an action to compel compliance, including but not limited to mandamus.  78 Neb. Admin. Code Ch. 3, § 009 (2013).

III.  Nondiscrimination in Licensing and Employment
Ban-the-Box in public employment

A public employer may not ask about an individual’s criminal history until the employer “has determined the applicant meets the minimum employment qualification.” Neb. Rev. Stat. § 48-202.  This does not apply to police employment, to positions requiring a background check, or positions for which a criminal record is disqualifying.  The law provides that an employment application may state “conspicuously . . . that a criminal records check is required by federal or state law or the employer’s policy.”

Inquiry into sealed records in employment and licensing 

The 2016 amendment to Neb. Rev. Stat. § 29-3523 added a provision prohibiting inquiry into a sealed non-conviction or juvenile record in the context of employment or licensure: 

In any application for employment, bonding, license, education, or other right or privilege, any appearance as a witness, or any other public inquiry, a person cannot be questioned with respect to any offense for which the record is sealed. If an inquiry is made in violation of this subsection, the person may respond as if the offense never occurred.

      § 29-3523(5). 

Consideration of criminal history in licensing

Until recently, Nebraska had no general law regulating consideration of conviction in employment or occupational licensure.  However, in 2018, Nebraska enacted the Occupational Board Reform Act, which becomes effective July 1, 2019. See LB 299 (2018).  The Act establishes the policy of the state “to protect the fundamental right of an individual to pursue a lawful occupation…” which includes “the right of an individual with a criminal history to obtain an occupational license, government certification, or state recognition of the individual’s personal qualifications.” LB 299, Sec. 14(1), 15(1).  Individuals may submit a preliminary application for an occupational license at any time, including prior to obtaining required education or paying any fee (other than the preliminary application fee, which cannot exceed $100, see Sec. 15(7)), for a determination of whether the individual’s criminal conviction would disqualify the individual from licensure. Sec. 15(2)(a). The licensing board must issue a determination in writing within 90 days that includes “findings of fact and conclusions of law.” Sec. 15(3),(4). The individual may include with the preliminary application “additional information about the individual’s current circumstances, including the time since the offense, completion of the criminal sentence, other evidence of rehabilitation, testimonials, employment history, and employment aspirations.”  The board may advise the applicant of ways to remedy a disqualification, and may rescind a determination upon finding subsequent disqualifying criminal convictions. Sec. 15(4). Individuals may appeal a board’s final determination under the state administrative procedure act. Sec.15(5).  Individuals denied must wait two years before reapplying, except when they have taken remedial action the waiting period is six months. Sec. 15(6).7

The Act also requires each standing committee of the Legislature, beginning in 2019, to annually review the regulations of licensing boards within its jurisdiction and submit an annual report on the number of certifications, licenses and registrations the board has issued, revoked, denied, or assessed penalties against, and the reasons for these actions, , such that all occupational regulations under the committee’s jurisdiction are reviewed, reported upon, and recommendations given, every five years. Sec. 16.  The report must include a comparison of how other states regulate the occupation.

Nebraska law also applies a direct relationship test in connection with franchise licenses.  See Neb. Rev. Stat. § 87-404 (franchise termination protections inapplicable when “the alleged grounds are (a) the conviction of the franchisee . . . of an indictable offense directly related to the business”).


  1. Prior to March 11, 2005, all felony offenders were required to obtain a pardon before voting.  See Neb. Rev. Stat. § 29-112 (2004) (warrant of discharge issued by Board of Pardons was required to restore civil rights and privileges, including voting rights, to a felon). See also Ways v. Shively, 646 N.W.2d 621, 627 (Neb. 2002).  In the Shively decision, the Supreme Court of Nebraska construed § 29-112 together with a newer restoration provision, Neb. Rev. Stat. § 83-1,118(5) (Reissue 1999), which provided that upon a convicted offender’s release from confinement,  the Director of Correctional Services should issue a certificate of discharge restoring the person’s civil rights.  The Shively Court concluded that the more specific provisions of Neb. Rev. Stat. § 29-112 regarding restoration of voting rights, rather than § 83-1,118(5), controlled the conditions under which a convicted person’s right to vote is restored.  Id.  Following the Shively decision, § 29-112 was amended to make clear that pardon is the exclusive means of restoring civil rights.  It was amended again in 2005 to restore the right to vote automatically to all offenders two years following completion of sentence.
  2. In April 2017 Governor Pete Ricketts vetoed a bill that would have amended § 29-112 to restore the vote automatically upon completion of sentence, taking the position that the Constitution must first be amended before voting rights can be restored. “While the legislature may restore certain privileges, such as driving privileges, to convicted felons, the legislature may not circumvent the Nebraska Constitution to automatically restore a voting right in state law.”  It is not clear how this position can be reconciled with the existing statutory restoration provision in § 29-112.
  3. Neb. Rev. Stat. § 83-1,118(5):

    Upon completion of the lawful requirements of the sentence, the [Parole Board] shall provide the parolee or committed offender with a written notice regarding his or her civil rights. The notice shall inform the parolee or committed offender that voting rights are restored two years after completion of the sentence. The notice shall also include information on restoring other civil rights through the pardon process, including application to and hearing by the Board of Pardons.

  4. But see Neb. Rev. Stat. § 83-1,130(2) (Board may give governor alone authority to “expressly” restore gun rights to a person convicted of a felony and later pardoned, presumably to satisfy the provisions of 18 U.S.C. § 921(a)(20).).  See also FAQ, Neb. State Bd. of Pardons, available athttp://www.pardons.state.ne.us/faq.html.
  5. This procedure was upheld against constitutional challenge by the Nebraska Supreme Court in State v. Spady, 645 N.W.2d 539, 543-44 (Neb. 2002).  Apparently, a set-aside under Neb. Rev. Stat. § 2264 does not result in sealing or expungement of the record.  See id. at 542-43.  Nor does it result in restoration of civil rights, which is exclusive purview of Pardon Board.  Id. at 542, 543-44 (“[Section] 29-2264 does not nullify all of the legal consequences of the crime committed because certain civil disabilities . . . are not restored, as occurs when a pardon is granted.”); see also FAQ, Neb. State Bd. of Pardons, available at http://www.pardons.state.ne.us/faq.html.
  6. In some cases, non-conviction records may be disseminated for the express purpose of research “pursuant to an agreement with a criminal justice agency that specifically authorizes access to the information, limits the use of the information to research, evaluative, or statistical activities, and ensures the confidentiality and security of the information.” Neb. Rev. Stat. § 29-3523(2).
  7. A model licensing law developed by the Institute of Justice appears to have influenced this law.  See Model Occupational Licensing Review Law, http://ij.org/activism/legislation/model-legislation/model-economic-liberty-law-1/. This model law followed the Institute’s comprehensive study of licensing barriers. See Dick M. Carpenter, II, et al., License to Work: A National Study of Burdens from Occupational Licensing., http://ij.org/report/license-work-2/. Other states that have recently enacted, or that were at the time of this writing poised to enact, licensing laws similarly influenced by the IJ Model Law are Arizona, Indiana, Illinois, Kansas, Louisiana, and Tennessee.

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