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).
“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.
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
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.
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).
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.
“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_Pardon. In 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)).
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
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/.
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.
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.
Executive Secretary, Board of Pardons Commissioners
1677 Old Hot Springs Road, Suite A
Carson City, NV 89706
Phone: 775-687-5049, ext. 225
B. Judicial sealing or expungement
1. Authority for sealing
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.
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.
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.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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