Restoration of Rights/North Carolina

I.  Restoration of Civil/Firearms Rights

A.  Civil rights

Civil rights are lost upon conviction of a felony. N.C. Const. art. VI, § 2(3) (vote); id. § 8 (office); N.C. Gen. Stat. § 9-3 (jury).  All rights are automatically restored upon unconditional discharge of sentence or unconditional pardon.  N.C. Gen. Stat. § 13-1.  The agency releasing the prisoner (or probationer) must file a certificate evidencing unconditional discharge and restoration of the rights of citizenship with the court in the county of conviction (North Carolina state offenses) or the county of residence (for offenses under federal law or the law of another state).  § 13-2.

B.  Firearms

People convicted of a felony may not possess firearms.  N.C. Gen. Stat. § 14-415.1(a).  Those convicted of antitrust violations, unfair trade practices, or restraints of trade exempted from this prohibition.  § 14-415.1(e).  Firearms rights may be restored by a pardon.  § 14-415.1(d).  In addition, individuals who have lived in North Carolina for at least one year, who have a single non-violent felony conviction and no violent misdemeanors, may petition the court in their county of residence twenty years after their civil rights were restored for restoration of firearms rights under North Carolina state law.  § 14-415.4.1  Persons with qualifying out-of-state or federal convictions may petition the court in the district where they reside “only if the person’s civil rights, including the right to possess a firearm, have been restored, pursuant to the law of the jurisdiction where the conviction occurred, for a period of at least 20 years.” Id.

C.  Guides to State Relief and Collateral consequences

Professor John Rubin of the School of Government at the University of North Carolina has compiled a comprehensive guide to judicial and other relief mechanisms under state law.  It includes specialized relief provisions applicable to sex offender registration and firearms, as well as drug and juvenile offenses.  See Relief from a Criminal Conviction:  A Digital Guide to Expunctions, Certificates of Relief, and Other Procedures in North Carolina (2017 edition), https://nccriminallaw.sog.unc.edu/relief-guide-2017/.   Professor Rubin is also principally responsible for North Carolina’s on-line compilation of collateral consequences, which like his Relief guide is available at no cost to the public.  See Collateral Consequences Assessment Tool (C-CAT), http://ccat.sog.unc.edu/.

II.  Discretionary Restoration Mechanisms

A.  Executive pardon

Authority

The governor’s power is unlimited, subject only to regulations in the manner of applying.  N.C. Const. art. III, § 5(6).  The Post Release Supervision and Parole Commission has authority to assist the governor in exercising his pardon power and in his responsibility to perform such services as he requires in connection therewith.  N.C. Gen. Stat. § 143B-720(a).

Eligibility

There is a five-year waiting period from the date of release from supervision, which may be reduced if a specific need is shown.  Persons convicted under federal law or another state’s laws are not eligible to apply for a gubernatorial pardon.  There is a three-year wait to reapply after denial.

Effect

According to the website of the Governor’s Clemency Office (Office of Executive Clemency or “OEC”), there are three types of pardon in North Carolina: pardon of forgiveness (“granted with certain conditions,” but useful in seeking employment); pardon of innocence (“granted when an individual has been convicted and the criminal charges are subsequently dismissed”); and unconditional pardon (“granted primarily to restore an individual’s right to own or possess a firearm”).  See http://www.doc.state.nc.us/clemency/glossary.htm.  A pardon does not expunge or erase a criminal record; however, a person who receives a pardon of innocence may petition the court in which he was convicted for an expunction of records pursuant to N.C. Gen. Stat. § 15A-149.

Process

N.C. Gen. Stat. § 147-21 provides that all applications must be submitted to the governor in writing, and accompanied by a statement of reasons and a copy of the indictment, verdict, and judgment.  The OEC processes the requests, oversees and coordinates investigations by the Parole Commission, and prepares reports.  All applicants for clemency, with details of their offense, are listed on OEC’s website: http://www.doc.state.nc.us/clemency/pardons.htm.  By statute OEC must notify the victim that it is considering a grant of clemency; that the victim has the right to present a written statement that OEC will consider before clemency is granted; and of the decision that is made.  N.C. Gen. Stat. § 15A-838.  By executive order the DA in the county of conviction also must be notified of, and given the opportunity to comment upon, an application for clemency.  For a further description of the process see http://www.cga.ct.gov/2009/rpt/2009-R-0201.htm.

Frequency of grants

Pardons in recent years have been rare – only sixteen pardons have been granted since 2001, all of which were granted for innocence.2  Pardon applications average about 150 annually.  Recommendations are submitted by governor’s clemency staff to the governor’s legal counsel.  In the past, governors granted pardons fairly regularly, but there have been no “forgiveness” pardons since 2001.  Source: Governor’s Office of Executive Clemency.

Contact

Pat Hansen
Governor’s Clemency Office
919-715-1695
Pat.Hansen@nc.gov

B.  Judicial sealing or expunction

NOTE:  Professor John Rubin’s Guide to Relief Mechanisms, noted in Part I above, contains a wealth of current information about state expungement and sealing authorities.  https://nccriminallaw.sog.unc.edu/relief-guide-2017/ This indispensable Guide catalogues and analyzes state expungement provisions, including specialized relief provisions applicable to sex offender registration and firearms, as well as drug and juvenile offenses.

Nonviolent first offender felonies and misdemeanors

Minor nonviolent felony convictions and nonviolent misdemeanor convictions are eligible for “expunction,” as long as the person has no other convictions other than traffic violations.  The eligibility waiting period is 10 years after completion of sentence for felonies, and five years after completion of sentence for misdemeanors.  See N.C. Gen. Stat. § 15A-145.5(a), (b).   (These eligibility waiting periods were reduced from 15 years for both categories effective December 1, 2017.)  Class A through G felonies and Class A-1 misdemeanors are not eligible, nor are DWI’s and a number of drug offenses.  An applicant must have paid all restitution; have no pending charges; and must demonstrate that his or her “character and reputation are good” by filing two character affidavits by non-relatives.  § 15A-145.5(c).  A petition must be filed in the court of conviction, and the district attorney must be given an opportunity to object.  Id.   The court must find that the applicant has had no prior expunctions under this authority or under § 15A-145.1 through 145.4 (deferred adjudication or youthful offender, see infra).  Id.

Effect of expunction

If granted, the effect of expunction is that the person is “restored, in the contemplation of the law, to the status he occupied before such arrest or indictment or information.”  N.C. Gen. Stat. § 15A-145.5(c).  However, a conviction expunged on or after July 1,  2018, may be treated as a predicate offense for the purpose of calculating “prior record level” in subsequent prosecutions and sentencing.  See § 15A‑151.5 (enacted by SB-445 (2017)).

No person as to whom an order has been entered pursuant to subsection (c) of this section shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of that person’s failure to recite or acknowledge the arrest, indictment, information, trial, or conviction. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense. 

§ 15A-145.5(d).  The “non-acknowledgement” provision above does not apply when an individual is seeking certification for law enforcement employment.  § 15A-145.5(d1).

After granting expunction, the court will order that the conviction be removed (“expunged”) from the records of the court, law enforcement agencies, and other state and local government agencies.  §§ 15A-145.5(e), (f).3  “A private entity that holds itself out as being in the business of compiling and disseminating criminal history record information for compensation shall destroy and shall not disseminate any information” about a record that has been expunged if the entity has received notice of the expunction. § 15A-152(a).   In addition, “persons required by State law to obtain a criminal history record check on a prospective employee shall not be deemed to have knowledge of any convictions expunged under this section.” § 15A-152(d).

Deferred adjudication in first-offender drug cases

A first offender with no previous felony or drug-related convictions who pleads or is found guilty on a charge of drug possession may be placed on probation.  If probation is successfully completed (including any treatment ordered), the court will discharge the person and dismiss the proceedings without an adjudication of guilt.  No conviction results, including for predicate offense purposes.  N.C. Gen. Stat §§ 90-96(a); 90-113.14(a) (relating to toxic vapors offenses).  If the offense is committed under age 22, the person may apply for expunction of records under N.C. Gen Stat. §§ 15A-145.2(a) or 15A-145.3(a) (relating to toxic vapors offenses).  Sections 15A-145.2 and 15A-145.3 also provide for the expunction of certain first-time drug convictions.

Youthful offenses

First offenders who committed certain specified nonviolent felonies when under 18 may petition for expunction after four years. See N.C. Gen. Stat. § 15A-145.4.  Misdemeanors committed under age 18 (except for traffic violations) and first offender alcohol-possession misdemeanors committed under age 21 are eligible for expunction two years after the date of conviction or after completion of any period of probation, whichever is later.  See § 15A-145.  The petition must be filed in the court of conviction, and must include affidavits of good character. The petitioner must agree to perform a minimum of 100 hours of community service and complete high school or earn a GED. If the court grants the expunction petition, the individual is not required to acknowledge the criminal records on any application, except for certain state certifications.

Note on “first offender” status under § 15A-145.1 through 145.4: Based on the requirement in § 15A-145.5(c) that an applicant show no previous expunctions under §§ 15A-145.1 through 15A-145.5, the courts have interpreted the term “first offender” to extend to someone previously granted relief under § 15A-145.5.

Non-conviction records

When charges against a person are dismissed or he is found not guilty, the person may apply to the court for an expunction of records relating to his apprehension or trial.  If the court finds that he has no prior felony convictions, the court “shall order” expunction.  An additional requirement that the person have no prior expunctions – including of non-conviction records –  was repealed effective December 1, 2017.  N.C. Gen. Stat. § 15A-146(a) – (a2) (as amended by SB-445 (2017)).  Section 15A-146(a3) provides that

[n]o person as to whom such an order has been entered under this section shall be held thereafter under any provision of any law to be guilty of perjury, or to be guilty of otherwise giving a false statement or response to any inquiry made for any purpose, by reason of his failure to recite or acknowledge any expunged entries concerning apprehension or trial.

See also §§ 15A-147(a)-(b) (expunction in case of identity theft); § 15A-149 (expunction where pardon of innocence granted).

Partial expunction

Effective December 1, 2017, courts in N.C. are specifically authorized to redact conviction records to expunge dismissed charges, as long as the person has no prior felony convictions. § 15A-146(a1) (as amended by SB-445 (2017)). Previously, some judges took the position that expunction was unavailable unless all charges were dismissed.

Juvenile adjudication sealing 

The court may order the sealing of a juvenile court record. N.C. Gen. Stat. § 7B-3000(c).  Sealed court records may only be viewed with a court order.  Id.

A juvenile adjudicated undisciplined may petition the court for expunction upon turning age 18.  N.C. Gen. Stat. § 7B-3200(a).  A juvenile adjudication, with exceptions for certain classes of felonies, is eligible for expunction if the petitioner is at least age 18 and at least 18 months has elapsed since the adjudication.  § 7B-3200(b).  The petitioner must demonstrate good behavior and no subsequent adjudications or convictions.  § 7B-3200(c).  Juveniles do not need to report expunged proceedings.  § 7B-3201(a).  Certain gang crimes and cyber-bullying offenses committed under age 18 may be expunged as provided in N.C. Gen. Stat. §§ 15A-145.1 and 14-458.1(c).

C.  Certificate of Relief

Eligibility

Effective December 1, 2011, individuals with misdemeanor and minor felony conviction records were authorized to “petition the court where the individual was convicted for a Certificate of Relief relieving collateral consequences[.]”4  N.C. Gen. Stat. § 15A‑173.2(a).  As originally enacted, Certificates were available only to individuals convicted of “no more than two Class G, H, or I felonies or misdemeanors in one session of court,” and who have no other convictions for a felony or misdemeanor other than a traffic violation.  In 2018, eligibility was expanded to include multiple misdemeanors, but contracted to remove Class G felonies from eligibility.  Petitions are heard by “the senior resident superior court judge if the convictions were in superior court, or the chief district court judge if the convictions were in district court.”  Id.  The court may issue the certificate one year after the individual has completed his sentence (including any period of probation, post-release supervision, and parole), if he has complied with all requirements of his sentence, if he “is engaged in, or seeking to engage in, a lawful occupation or activity, including employment, training, education, or rehabilitative programs, or . . . otherwise has a lawful source of support,” if no criminal charges are pending against him, and if granting the petition “would not pose an unreasonable risk to the safety or welfare of the public or any individual.”  § 15A-173.2(b)(1) through (6).

Effect

A Certificate of Relief “relieves all collateral sanctions, except those listed in [N.C. Gen. Stat.] § 15A-173.3, those sanctions imposed by the North Carolina Constitution or federal law, and any others specifically excluded in the certificate.  A Certificate of Relief does not automatically relieve a disqualification; however, an administrative agency, governmental official, or court in a civil proceeding may consider a Certificate of Relief favorably in determining whether a conviction should result in disqualification.”  § 15A-173.2(d).  A Certificate of Relief does not result in “the expunction of any criminal history record information, nor does it constitute a pardon.”  § 15A-173.2(e).

Exceptions

A Certificate of Relief “shall not be issued to relieve” the collateral sanctions relating to: sex offender registration; prohibition on firearm possession; driver’s license suspension, revocation, limitation or ineligibility; ineligibility for certification as a criminal justice officer or justice officer; and ineligibility for employment as a corrections or probation officer, or a prosecutor or investigator in either the Department of Justice or in the office of a district attorney.  N.C. Gen. Stat. § 15A-173.3(1) – (5).

Procedures

Procedures for issuance, modification and revocation are set forth in N.C. Gen. Stat. § 15A‑173.4 and include the following provisions:

  • The court must provide notice of the petition to the District Attorney, who may appear and be heard at any proceeding relating to the issuance, modification, or revocation of a Certificate of Relief. § 15A‑173.4(a), (c).  Victims may also be heard.  § 15A‑173.6.
  • The issuance, modification, and revocation of Certificates of Relief shall be a public record. § 15A‑173.4(e).
  • The court may modify or revoke a Certificate of Relief for just cause, which includes subsequent conviction of a felony or misdemeanor other than a traffic violation or a material misrepresentation in the petition. § 15A‑173.4(b).

In addition, N.C. Gen. Stat. § 15A-173.2(g) provides that the denial of a petition for a Certificate of Relief “shall state the reasons for the denial, and the petitioner may file a subsequent petition 12 months from the denial and shall demonstrate that the petitioner has remedied the defects in the previous petition and has complied with any conditions for reapplication set by the court . . . in order to have the petition granted.”

Certificate as evidence of due care

N.C. Gen. Stat. § 15A-173.5 provides:

“In a judicial or administrative proceeding alleging negligence, a Certificate of Relief is a bar to any action alleging lack of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the individual to whom the Certificate of Relief was issued, if the person against whom the judicial or administrative proceeding is brought knew of the Certificate of Relief at the time of the alleged negligence.”

 

III.  Nondiscrimination in Licensing and Employment 

North Carolina’s general licensing non-discrimination law, enacted in 2013,  prohibits occupational licensing boards from automatically disqualifying an individual based on a criminal record unless the board is otherwise authorized by law to do so:

Unless the law governing a particular occupational licensing board provides otherwise, a board shall not automatically deny licensure on the basis of an applicant’s criminal history. If the board is authorized to deny a license to an applicant on the basis of conviction of any crime or for commission of a crime involving fraud or moral turpitude, and the applicant’s verified criminal history record reveals one or more convictions of any crime, the board may deny the license if it finds that denial is warranted after consideration of the following factors:

(1) The level and seriousness of the crime.

(2) The date of the crime.

(3) The age of the person at the time of the crime.

(4) The circumstances surrounding the commission of the crime, if known.

(5) The nexus between the criminal conduct and the prospective duties of the applicant as a licensee.

(6) The prison, jail, probation, parole, rehabilitation, and employment records of the applicant since the date the crime was committed.

(7) The subsequent commission of a crime by the applicant.

(8) Any affidavits or other written documents, including character references.

N.C. Gen. Stat. § 93B-8.1(b).  The law does not apply to licenses issued by The North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriffs’ Education and Training Standards Commission.

 


  1. This exception, enacted in July 2010, is responsive to the North Carolina Supreme Court’s decision in Britt v. State, 681 S.E.2d 320 (N.C. 2009), which held that the right to bear arms in the state constitution precluded applying to the plaintiff, who had been convicted in 1979, had his rights restored in 1987 and whose rehabilitation was well established, the 2004 amendment to N.C. Gen. Stat. § 14-415.1 by which its ban on the possession of firearms by a convicted felon first became absolute, thereby requiring the plaintiff to relinquish firearms of which his ownership had been lawful under the previous version of the statute.
  2. Ten of the sixteen pardons were granted by Governor Beverly Perdue (2009-2013) to the so-called “Wilmington 10” based on convictions stemming from the same incident.  See Anne Blythe, Perdue pardons Wilmington 10, News and Observer (Jan. 1, 2013)  http://www.newsobserver.com/2013/01/01/2576074/governor-pardons-wilmington-10.html.
  3. Pursuant to N.C. Gen. Stat. § 15A-151(a), the Administrative Office of the Courts maintains a confidential file relating to expunged records, the contents of which may be disclosed to state court judges and other specified state agencies only for certain specified purposes: e.g., to a judge “for the purpose of ascertaining whether a person charged with an offense has been previously granted a discharge or an expunction,” and to law enforcement agencies for employment and certification purposes.
  4. “Collateral consequence” is defined in N.C. Gen. Stat. § 15A‑173.1(1) as a “collateral sanction or a disqualification.”  “Collateral sanction” is defined as a “penalty, disability, or disadvantage, however denominated, imposed on an individual as a result of the individual’s conviction of an offense which applies by operation of law, whether or not the penalty, disability, or disadvantage is included in the judgment or sentence.”  Id. § 15A‑173.1(2).  “Disqualification” is defined as a “penalty, disability, or disadvantage, however denominated, that an administrative agency, governmental official, or court in a civil proceeding may impose on an individual on grounds relating to the individual’s conviction of an offense.”  Id. § 15A‑173.1(3).

 

Restoration of Rights Series/New York

I.  Restoration of Civil/Firearms Rights

A.  Voting

In New York, the right to vote is lost upon conviction of a felony if sentenced to a term of actual imprisonment, and restored upon expiration of sentence of imprisonment, including parole.  See N.Y. Elec. Law § 5-106(2) (“No person who has been convicted of a felony pursuant to the laws of this state, shall have the right to register for or vote at any election unless he shall have been pardoned or restored to the rights of citizenship by the governor, or his maximum sentence of imprisonment has expired, or he has been discharged from parole.”); § 5-106(3) (federal convictions); § 5-106(4) (out-of-state convictions).  These provisions “shall not apply if the person so convicted is not sentenced to either death or imprisonment, or if the execution of a sentence of imprisonment is suspended.”  § 5-106(5).  The right to vote is automatically restored upon expiration of sentence or discharge from parole, and can be restored during parole if the individual is issued a Certificate of Relief from Disabilities or Certificate of Good Conduct.1 .  The Administrative Office for U.S. Courts has taken the position that persons convicted of federal offenses who are on supervised release are entitled to register and vote.2  

Pardon of those on parole: On April 18, 2018, Governor Cuomo issued an executive order directing that all those being released from prison onto parole and those currently on parole “will be given consideration for a conditional pardon that will restore voting rights without undue delay.” The order directed the Department of Correction and Community Supervision to submit a list of all those then on parole, and a similar list each month thereafter.  “Each individual on the eligible list will be reviewed to determine whether he or she will be granted a pardon that will restore voting rights.”  The order made clear the limited nature of pardon, and noted that pardoned individuals could still apply for a Certificate of Relief from Disabilities (see below). The statement accompanying the order noted that

Parole voting restrictions have a disproportionate impact on New Yorkers of color, with African Americans and Hispanic New Yorkers comprising 71 percent of the population so disenfranchised. Civic engagement is linked to reduced recidivism and this action will promote access to the democratic process and improve public safety for all New Yorkers.

 

B.  Jury/Office

A person convicted of a felony may not serve on a jury, N.Y. Jud. Law § 510(3), and forfeits any public office they hold.  N.Y. Pub. Off. Law § 30(1)(e).  Additionally, a public official forfeits their office if convicted of a crime involving violation of the oath of office, defined as a crime an element of which is “knowing or intentional conduct indicative of a lack of moral integrity.”  See Feola v. Carroll, 10 N.Y.3d 569, 572-73, 890 N.E.2d 219, 860 N.Y.S.2d 457 (2008) (citing Duffy v. Ward, 81 N.Y.2d 127, 134-35, 612 N.E.2d 1213, 596 N.Y.S.2d 746 (1993)).  New York does not disqualify all convicted persons from holding future public office as a general matter, though specific professions may be restricted.  See Op. Att’y Gen. 83-60 (1983) (conviction of felony resulting in sentence of probation and fine does not render the individual ineligible to run for public office).  But see N.Y. Const. art. VI, § 22(h) (judges removed from office disqualified from future judicial office); In re Alamo v. Strohm, 544 N.E.2d 608 (N.Y. 1989) (officeholder who forfeits office is ineligible to stand for election to the remainder of the unexpired term).  While it is not clear whether a convicted individual may stand for a new elective office, those seeking public employment as a police officer, firefighter, or notary, for example, must obtain a Certificate of Good Conduct.  See N.Y. Exec. Law § 130 (executive pardon or CGC sufficient to overcome bar to notary public position for person with conviction).   Civil rights lost may be restored either by a governor’s pardon (rarely granted, see IIA below), or by a Certificate of Relief from Disabilities or Certificate of Good Conduct (available from sentencing court or Department of Corrections and Community Supervision (formerly the Parole Board), see IIC below).

C.  Firearms

Firearms rights are lost upon conviction of a felony or “serious offense.”  N.Y. Penal Law §§ 400.00(1)(c), 265.01(4) (rifles, shotguns, antique firearms, black powder shotguns, black powder rifles, or any muzzle loading firearm).  Rights may be regained by a pardon, or by a Certificate of Relief from Disabilities or Good Conduct.  See N.Y. Correct. Law §§ 701(2), 703-a (2); see also 1975 NY Ops Atty Gen Nov 24.  Restoration must be specified in the document, and Class A-1 and violent felonies are ineligible.  

D.  Information about sealing, rights restoration, and employment discrimination

The Legal Action Center has prepared a very helpful booklet that explains in laymen’s terms how to get a record sealed and how to obtain certificates relieving disabilities (see Part IIB) and the effect of these forms of relief.  It includes a step-by-step guide to how a private individual can go about having their record sealed, including model letters and forms.  See Legal Action Center, Lowering Criminal Record Barriers: Certificates of Relief/Good Conduct and Record Sealing (2013), available at http://www.lac.org/doc_library/lac/publications/LoweringCriminalRecordBarriers_rev3.pdf.   LAC also has a booklet explaining what New York employers may and may not ask about a person’s criminal record, how a person should describe their record, and what rights people with a criminal record have to be free of job discrimination.  See Legal Action Center, Criminal Records and Employment: Protecting Yourself From Discrimination (2013), available at  http://lac.org/wp-content/uploads/2014/11/Criminal_Records_Employment_2013.pdf.

II.  Discretionary Restoration Mechanisms

A.  Executive pardon

Authority

The pardon power is vested in the governor (except in cases of treason or impeachment).  N.Y. Const. art 4, § 4.  It may be regulated only as to the manner of applying.  The governor must report annually on the number of pardons and his reasons for granting them.

Administration

The New York State Department of Corrections and Community Supervision (DOCCS) (formerly the Board of Parole) advises the governor on clemency cases if requested.  N.Y. Exec. Law § 259-c.  Absent exceptional or compelling circumstances, a pardon will not be considered if there is an adequate administrative remedy available.  Pardon is considered only if there is no other legal remedy in three cases:  1) to set aside a conviction in cases of innocence; 2) to relieve collateral disability (“This is rarely used since relief may generally be obtained by means of a Certificate of Good Conduct or Relief from Disabilities.”); and 3) to prevent deportation or permit reentry.  http://www.ny.gov/services/apply-clemency.  The Executive Clemency Bureau within the DOCCS screens candidates for eligibility requirements, gathers materials concerning clemency applications, and responds to letters from applicants and others regarding clemency applications.  Id.   Ordinarily a pardon is not a basis for sealing or expungement (but see the new pardon initiative applicable to 16- and 17-years-olds, infra.)  See http://www.ny.gov/services/apply-clemency#overview.

On January 1, 2015 Governor Cuomo announced the establishment of a dedicated website administered by his office to serve as a resource for pardon applicants.  http://www.ny.gov/services/apply-clemency.  The website includes procedural and substantive standards for considering pardon (e.g., “Pardon applicants must demonstrate a specific and compelling need for relief and a substantial period of good citizenship” and “Unless there are exceptional and compelling circumstances, a pardon is not considered if the applicant has other administrative remedies available to them, such as a certificate of good conduct or a certificate of relief from disabilities, pursuant to provisions of Article 23 of the Corrections Law.”)

Statistics on the website reveal that the number of applications for full pardon have plummeted during Governor Cuomo’s term, down from 496 in 2011 to 21 in 2014. Guidelines for prisoner petitions for commutation are available at http://www.doccs.ny.gov/Directives/6901.pdf

Conditional pardons for youthful offenders: At the end of 2015, Governor Cuomo announced a special pardon program that would apply to approximately 10,000 people convicted of misdemeanors or non-violent felonies that were committed at age 16 or 17. See Governor Cuomo Offers Executive Pardons to New Yorkers Convicted of Crimes at Ages 16 and 17, https://www.governor.ny.gov/news/governor-cuomo-offers-executive-pardons-new-yorkers-convicted-crimes-ages-16-and-17. Pardons under this program are not based on specific need or the availability of other administrative relief, and will be recommended so long as the applicant meets certain screening requirements, including being crime-free for at least 10 years. See Pardons, New York State, http://www.ny.gov/services/apply-clemency. According to the state’s clemency website, “If you receive this pardon, the New York State Office of Court Administration has stated that it will restrict public access to your criminal history, meaning that it will not be available to private employers, landlords or other companies that seek this information.” Id.
In December 2016 Governor Cuomo issued 101 conditional pardons through the youthful offender program described above. His office has estimated that as many as 10,000 individuals may be eligible for relief.

Frequency of grants

In recent years, gubernatorial pardons have been rare, and usually in immigration cases where certificates provide no remedy.3  As of July 1, 2017, Governor Andrew Cuomo had granted only seven pardons, most of them to help their recipients avoid deportation and/or become citizens.  4  He also granted more than 100 “conditional” pardons through the youthful offender program described above.

Prior to his establishment of an immigration pardon panel in May 2010, infra, Governor Paterson had granted only three pardons, one in 2008 to rapper Ricky Walters (to avoid deportation);5 one in 2009 to Osvaldo Hernandez (to assist him in his effort to join the New York Police Department);6 and one in 2010 to Qing Hong Wu, to avoid deportation.7  The last-mentioned case provided the impetus for the immigration pardon panel.  Governor Spitzer pardoned one individual, also to avoid deportation.8  In 2003 Governor Pataki issued a posthumous pardon to satirist Lenny Bruce for his 1964 obscenity conviction based on his use of “bad words in a Greenwich Village nightclub act.”9

Paterson immigration pardons: Governor Paterson was the only New York governor in many years to have used his pardon power on anything approaching a regular basis.  On May 3, 2010, Governor Paterson announced the establishment of a special panel of state officials to review cases of noncitizens lawfully resident in New York who were seeking pardon to avoid deportation.  See Danny Hakim & Nina Bernstein, New Paterson Policy May Reduce Deportations, N.Y. Times (May 3, 2010), http://www.nytimes.com/2010/05/04/nyregion/04deport.html.10 In December 2010 he pardoned 33 such individuals, many of whom had come to this country as children.  See, e.g., Press Release, New York State Office of the Governor, Governor Paterson Announces Pardons (Dec. 6, 2010), available at http://readme.readmedia.com/Governor-Paterson-Announces-Pardons/1791096.

B.  Judicial sealing or expungement

General conviction sealing authority

Effective October 1, 2017, the state’s first general adult conviction sealing authority went into effect, allowing individuals with up to two convictions and only one felony to seal the records of conviction for all crimes other than sex offenses and class A and violent felonies after a 10-year waiting period.  See N.Y. Law  59, Part VVV, § 48 (2017) (to be codified at N.Y. Crim. Proc. Law § 160.59).

Eligibility

Individuals may seek sealing for up to two eligible convictions, only one of which may be a felony. N.Y. Crim. Proc. Law § 160.59(2)(a).  Multiple eligible convictions “committed as part of the same criminal transaction” are considered a single conviction. § 160.59(1)(a). Ineligible offenses include most sex offenses, all “violent felonies,” and all Class A felonies. § 160.59(1)(a).  Sealing is not available to individuals convicted of more than two crimes or more than one felony.  § 160.59(3)(h).  A 10-year waiting period applies, counted from the date of imposition of sentence, or the date of release from the latest period of incarceration (if applicable). § 160.59(5).  Individuals required to register as sex offenders and individuals who have exceeded the maximum allowable number of sealings under this section or the conditional sealing authority at N.Y. Crim. Proc. Law § 160.58 (applicable to diversion/drug treatment dispositions) are ineligible, as are those with pending charges or who have been convicted subsequent to the last conviction for which sealing is sought. § 160.59(3).

Procedure

Application is made to the court where the conviction for the most serious offense sought to be sealed occurred, or to the court where the individual was last convicted if all offenses for which sealing is sought are of the same class. N.Y. Crim. Proc. Law § 160.59(2)(a).  Among other requirements, the application must contain a sworn statement of reasons why sealing should be granted. § 160.59(2)(b)(v).  The application is assigned to sentencing judge if sealing is sought for a single conviction, and to the county/supreme court otherwise. § 160.59(2)(d).  The District Attorney must be served, and has 45 days to object to the application.  If there is no objection, the court may decide the application without a hearing. § 160.59(6).

Standard

N.Y. Crim. Proc. sec. 160.59(7):

In considering any such application, the sentencing judge or county or supreme court shall consider any relevant factors, including but not limited to:

(a)  the amount of time that has elapsed since the defendant’s last conviction;

(b) the circumstances and seriousness of the offense for which the defendant is seeking relief, including whether the arrest charge was not an eligible offense;

(c)  the circumstances and seriousness of any other offenses for which the defendant stands convicted;

(d) the character of the defendant, including any measures that the defendant has taken toward rehabilitation, such as participating in treatment programs, work, or schooling, and participating in community service or other volunteer programs;

 (e)  any statements made by the victim of the offense for which the defendant is seeking relief;

 (f) the impact of sealing the defendant’s record upon his or her rehabilitation and upon his or her successful and productive reentry and reintegration into society; and

 (g)  the impact of sealing the defendant’s record on public safety and upon the public’s confidence in and respect for the law.

Effect

If sealing is granted, all “official records and papers relating to the arrests, prosecutions, and convictions, including all duplicates and copies thereof, on file with the division of criminal justice services or any court shall be sealed and not made available to any person or public or private agency.” N.Y. Crim. Proc. Law § 160.59(8).  Exceptions apply:  The records remain available to enumerated “qualified agencies,” including courts, corrections agencies, and the office of professional medical conduct;11 to federal and state law enforcement for law enforcement purposes; to state entities responsible for issuing firearm licenses; to employers for screening applicants for police officer/peace officer employment; and to the FBI for firearm background checks. § 160.59(9).  Additionally, law enforcement fingerprint records are not affected by the sealing order. § 160.59(8). Sealed convictions remain “convictions” for the purpose of sentence enhancement or establishing the elements of crime. § 160.59(10).

The New York State Human Rights Law, N.Y. Exec. Law § 296(16) was amended concurrent with the enactment of the sealing authority, prohibiting public and private employers and occupational licensing agencies from asking about, or taking adverse action (i.e., denying employment or licensure) because of, a sealed conviction.  See also Part III-A, below.

Judicial diversion and conditional sealing of drug and other convictions 

N.Y. Crim. Proc. Law § 160.58 (2010) provides for conditional sealing of certain felony drug and other specified convictions, as defined in § 220 of the penal law (sale of controlled substances in the first degree, Class B felony), § 221 (criminal sale of marijuana, Class C felony), and certain offenses listed in N.Y. Crim. Proc. Law § 410.91(5) (burglary, possession of stolen property, criminal mischief) upon completion of a judicial diversion program or a drug treatment alternative to prison or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision.   Sealing may also extend to up to three prior misdemeanors.  The procedure is set forth in N.Y. Crim. Proc. Law § 160.58(3):

At the request of the defendant or the district attorney of a county in which the defendant committed a crime that is the subject of the sealing application, the court may conduct a hearing to consider and review any relevant evidence offered by either party that would aid the court in its decision whether to seal the records of the defendant’s arrests, prosecutions and convictions. In making such a determination, the court shall consider any relevant factors, including but not limited to: (i) the circumstances and seriousness of the offense or offenses that resulted in the conviction or convictions; (ii) the character of the defendant, including his or her completion of the judicially sanctioned treatment program as described in subdivision one of this section; (iii) the defendant’s criminal history; and (iv) the impact of sealing the defendant’s records upon his or her rehabilitation and his or her successful and productive reentry and reintegration into society, and on public safety.  

Pre-plea diversion options

Authority for pre-plea judicial diversion is found in N.Y. Crim. Proc. Law §§ 216.00, .05, for persons charged with Class B and lesser felonies who have not been convicted of a violent offense in the past ten years, and no more than one violent felony.

“Adjournment in Contemplation of Dismissal” (ACD) is available for those charged with a misdemeanor. § 170.55.  Upon successful completion of a period of probation, the record is may be sealed under § 160.50 (see below).  An ACD disposition is not a conviction or admission of guilt and restores status lost:

The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt. No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.

Deferred adjudication (DTAP)

Prior to the enactment of N.Y. Crim. Proc. Law § 160.58 in 2010, some New York district attorneys accomplished the same end through informal means.  For example, in Brooklyn, an individual was permitted to plead guilty and have sentencing deferred upon agreement to participate in an in-patient drug treatment under the Drug Treatment Alternative to Prison (DTAP) program. The program targets drug-addicted defendants arrested for nonviolent felony offenses who have previously been convicted of one or more nonviolent felonies.  Eligibility for this program is controlled by the prosecutor.  Qualified defendants enter a felony guilty plea and receive a deferred sentence that allows them to participate in a residential therapeutic community drug treatment program for a period of 15 to 24 months.  Those who successfully complete the program have charges dismissed, and the record sealed.  Those who fail are brought back to court by a special warrant enforcement team and sentenced to prison.  The program, including the respective roles of the court and prosecutor, is described in People v. Fiammegta, 14 N.Y.3d 90; 923 N.E.2d 1123 (2010) (in its supervision of the DTAP plea and as a measure of the due process owed defendant, the trial court was obligated to make the requisite inquiry into the merits of defendant’s discharge).  See also People v. Jenkins, 11 N.Y.3d 282; 898 N.E.2d 553 (2008) (court has broad discretion when supervising a defendant subject to DTAP, and in deciding whether the conditions of a DTAP plea agreement have been met).

Other deferred adjudication or deferred sentencing programs may also be available for people charged with minor offenses and people with mental illness, which may result in dismissal of charges and no record.

Juvenile records

If a delinquency procedure terminates in favor of the juvenile, the court must immediately order the sealing of records, unless the interests of justice require otherwise.  N.Y. Fam. Ct. Act § 375.1(1).  A juvenile may also move in writing to seal a record, except for felony acts; the court will grant the motion if “in the interest of justice.”  § 375.2(1).  All records for adjudicated youthful offenders are sealed automatically.  N.Y. Crim. Proc. Law § 720.35(2).

Sealing of non-conviction records

Sealing is automatic upon termination of the action in favor of a person (e.g. acquittal, dismissal, declined prosecution), unless the district attorney demonstrates to the satisfaction of the court or the court determines on its own motion “that the interests of justice require otherwise, and states the reasons for such determination on the record . . . .” § 160.50.

Upon the termination of a criminal action or proceeding against a person in favor of such person . . . the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution. The arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution.

N.Y. Crim. Proc. Law §160.60.   In addition, sealing is mandatory for non-criminal infractions/violations (except DWI and prostitution) unless a court directs that these records not be sealed.  See N.Y. Crim. Proc. Law § 160.55.  Additional confidentiality and suppression provisions apply to Youthful Offender adjudications and juvenile delinquency proceedings. N.Y. Crim. Proc. Law § 720.35; N.Y. Fam. Ct. Act §§ 375.2, 380.1.

These provisions are part of a broad public policy of protecting those who have been charged but not convicted, or convicted of minor offenses, from the collateral consequences arising from any criminal record.  In response to a lawsuit, in August 2007 the Office of Court Administration ceased providing information on minor violation convictions.  See N.Y.L.J. at 1, col. 5 (Aug. 10, 2007); OCA website:  https://www.nycourts.gov/apps/chrs/faqs.shtml#faqfunction.

C.  Judicial and administrative certificates

A Certificate of Relief from Disabilities (CRD), N.Y. Correct. Law §§ 701-703, or a Certificate of Good Conduct (CGC), §§ 703-a, 703-b, may be obtained to restore certain rights, and may be limited to one or more specific rights.  Their purpose is to effectuate the public policy of encouraging the licensure and employment of convicted individuals.  See People v. Adams, 747 N.Y.S.2d 909 (2002).  The Certificate of Good Conduct dates from the 1940s, and the Certificate of Relief from Disabilities was added in 1966 with the support of Governor Rockefeller as an aid to rehabilitation as opposed to recognition of it.12   A 2011 amendment to the law authorizing certificates of relief from disabilities is intended to require courts to consider this relief for eligible individuals at sentencing.  See infra.  New York practitioners claim that the certificate program is of limited value, in part because some courts are disinclined to certify rehabilitation as early as sentencing, and in part because employers and others are unwilling to rely on them.  See scholarly articles, discussed elsewhere on this site, describing certificates as “frequently inaccessible to their intended beneficiaries and misunderstood both by the officials tasked with issuing them and the employers and licensing boards that should be giving them effect.”  New York certificates fall short in practice, http://ccresourcecenter.org/2016/02/29/new-york-certificates-of-relief-fall-short-in-practice/.

Both types of certificate are given effect under Article 23-A of the Corrections Law as evidence of rehabilitation.  See discussion below.

Eligibility 

1.  Certificate of Relief from Disabilities

A CRD is available to people with no more than one felony conviction and any number of misdemeanor convictions, either from the sentencing court (for misdemeanor convictions and for felony convictions if no prison term is imposed), or from the Board of Parole (for persons sentenced to prison under New York law or who reside in New York but were convicted in another jurisdiction, including federal).  N.Y. Correct. Law §§ 700(1)(a), 703(1).  Under § 701(1) a CRD may be granted

to relieve an eligible offender of any forfeiture or disability, or to remove any bar to his employment, automatically imposed by law by reason of his conviction of the crime or of the offense specified therein.  Such certificate may be limited to one or more enumerated forfeitures, disabilities or bars, or may relieve the eligible offender of all forfeitures, disabilities and bars. Provided, however, that no such certificate shall apply, or be construed so as to apply, to the right of such person to retain or to be eligible for public office.

The court may issue a CRD at the time sentence is pronounced, in which case it may grant relief from forfeitures as well as from disabilities, or at any time thereafter.  § 702(1).  The Parole Board may issue a CRD at any time after release from prison.  § 703(1)(a).  A CRD is also available to people with federal convictions who reside in New York at sentencing, or at any time thereafter.  If issued prior to expiration of supervision, it is deemed temporary, and may be revoked.  § 703(4).  It is important to seek a CRD at sentencing in order to avoid public housing and employment bars.  The Court or Parole Board must find that the issuance of a CRD is “consistent with the rehabilitation of the eligible offender,” and “consistent with the public interest.”  §§ 702(2), 703(3).

2.  Certificate of Good Conduct

A CGC is available to people with multiple felony convictions from the Board of Parole, “or any three members thereof by unanimous vote,” after a waiting period of one to five years, depending on the seriousness of the offense(s).  N.Y. Correct. Law §§ 703-b(1), (3).  A Certificate of Good Conduct is also available to persons convicted outside New York, including federal offenders.  § 703-b(2).  It is granted only if the person has demonstrated “good conduct” for the requisite period and if (like the CRD) granting relief would be “consistent with the rehabilitation of the eligible offender” and “consistent with the public interest.”  § 703-b(1).  If granted during a period of parole, the CRD is temporary, and it may be revoked at any time until the Board’s jurisdiction is ended. If not revoked, it becomes permanent at the conclusion of parole supervision.

Persons convicted in jurisdictions outside New York State must in addition demonstrate “that there exist specific facts and circumstances, and specific sections of New York state law that have an adverse impact on the applicant and warrant the application for relief to be made in New York.”  § 703-b(2).

Effect

Certificates issued under either N.Y. Correct. Law § 703 (CRD) or § 703-b (CGC) have essentially the same effect:  they relieve an eligible person of “any forfeiture or disability,” and “remove any barrier to . . . employment that is automatically imposed by law by reason of conviction of the crime or the offense.” §§ 701(1), 703-a.  (The CRD statute contains certain exceptions that apparently do not apply to CGCs, as described in the section on “public office,” below.)  A certificate may be limited to particular disabilities, and the relief may be enlarged by the court or Board of Parole at any time, to include firearms permits.

Neither type of certificate voids the conviction as if it were a pardon.  § 706.  (As noted above in IIA, gubernatorial pardons are not generally available in New York State.)  A CRD does not authorize a job applicant with a criminal record to deny on an employment application that he has ever been convicted of a crime. Nor does a certificate preclude employers or licensing agencies from relying on the conviction as a factor in denying or revoking a license or making other discretionary decisions, §§ 701(3), 703-a(3), but a certificate does create a “presumption of rehabilitation” that must be given some effect in deciding whether there is a disqualifying “direct relationship” between a crime and a job or license under Article 23-A of the New York Corrections Law discussed in Part III below.  See  §§ 752, 753(2) (Part III infra); see also, e.g., Adams, 747 N.Y.S.2d at 916 (CRD creates a “presumption of rehabilitation” and removes the automatic bar from obtaining a license, but does not establish a prima facie entitlement to the license; the licensing agency still maintains the ultimate control whether to grant the license.); Op. N.Y. Att’y Gen. (Inf.) 81-124 (1981).

These certificates, with certain exceptions, preclude reliance on the conviction as an automatic bar or disability, but they do not preclude agencies from considering the conviction as a factor in licensing or other decisions.  N.Y. Correct. Law §§ 701(3), 703-a(3)Compare Meth v. Manhattan & Bronx Surface Transit Operating Auth., 521 N.Y.S.2d 54 (N.Y. App. Div. 1987) (transit authority improperly denied employment as a bus driver to man convicted of bribery, who had been granted certificate of relief from disabilities; authority presented no evidence of consideration of the eight factors to rebut the presumption of rehabilitation that the certificate of relief from disabilities creates) with Soto-Lopez v. N.Y. City Civil Serv. Comm’n, 713 F. Supp. 677 (S.D.N.Y. 1989) (dated manslaughter conviction alone was not directly related to a caretaker position nor did it pose an unreasonable risk to persons or property; however, unreasonable risk test met when combined with more recent conviction for sale of narcotics).

Public office: A CRD does not apply to “the right of such person to retain or to be eligible for public office.”  N.Y. Correct. Law § 701(1).  Nor does a CRD overcome automatic forfeiture resulting from convictions for violations of N.Y. Pub. Health Law § 2806(5) (nursing home operator’s license) or N.Y. Veh. & Traf. Law § 1193(f)(2) (driver’s license suspension).  However, these exceptions do not appear in the statute authorizing issuance of CGCs.  Therefore, a CGC would appear to be sufficient to overcome bars to public employment.  Compare People v. Olensky, 91 Misc. 2d 225, 397 N.Y.S.2d 565 (N.Y. Sup. Ct. 1977) (Notary Public was a “public officer” so that CRD not sufficient to enable defendant to obtain a notary public commission and work as a court reporter) with N.Y. Exec. Law § 130 (executive pardon or CGC sufficient to overcome bar to notary public position for person with conviction).  Accordingly, a first offender who is eligible for a CRD must in addition obtain a CGC if he wishes to obtain certain kinds of public employment deemed to be a “public office,” or overcome the specific disabilities in the public health and vehicle codes.   But see People v. Flook, 164 Misc. 2d 284, 285 (N.Y. Cnty. Ct. 1995) (noting that some licensing statutes require persons convicted of the designated crimes to obtain a CGC and others permit them to obtain either a CGC or a CRD, and finding no relevant distinction between the two statutes for purposes of restoration of firearms rights).

Firearms: Either type of certificate may restore firearm rights, except to those convicted of Class A-1 felonies or violent felonies, and this relief must be specified in the certificate. N. Y. Correct. Law §§ 701(2), 703-a (2).

Process

The application for a CRD from the New York courts is explained at http://www.nycourts.gov/courts/6jd/forms/dmv/DP-53.pdf, and from the Department of Corrections and Community Supervision (DOCCS) (formerly the Parole Board) at http://www.doccs.ny.gov/certrelief.html.   The court may request an investigation from the probation service and a written report.  N.Y. Correct. Law § 702(3).  If a CRD is sought from the DOCCS Board, the process may take several months.  See https://www.parole.ny.gov/pdf/parolecert.pdf.  The certificate is temporary during the period of parole supervision, and becomes permanent thereafter if not revoked.  “In granting or revoking a certificate of relief from disabilities the action of the board of parole shall be by unanimous vote of the members authorized to grant or revoke parole.  Such action shall be deemed a judicial function and shall not be reviewable if done according to law.”  § 703(5).

In August 2011 subsection (1) of N.Y. Correct. Law § 702 was amended to require a court, upon application, and prior to or at the time of imposing a sentence that does not involve commitment to state prison, to consider an individual’s fitness for a CRD.  The memorandum accompanying this change in the law states that certificates are a “powerful tool [to] promote and encourage reintegration after a conviction,” but notes that they are “underutilized” and that “only a tiny fraction” of those eligible actually hold them.  http://www.communityalternatives.org/pdf/2011-amend-Corr-L-702.pdf.  This memorandum notes that the purpose of CRDs is to “prevent eviction, loss of a job and loss of an occupational license,” and that they may accordingly be issued “prior to an individual’s demonstration of proper conduct.”  Id.   New York practitioners report that some courts are reluctant to issue certificates at the time of sentencing because of their legal effect in establishing “rehabilitation” under Article 23A.  See

The process for seeking a CGC is more demanding, since an applicant must satisfy the “good conduct” waiting period specified in § 703-b(3).  The waiting period “shall be measured either from the date of the payment of any fine imposed upon him or the suspension of sentence, or from the date of his unrevoked release from custody by parole, commutation or termination of his sentence.”  Id.  The board “shall have power and it shall be its duty to investigate all persons when such application is made and to grant or deny the same within a reasonable time after the making of the application.”  Vote is by the whole board, or of a unanimous three-member panel.  § 703-b(1).

Presumption based on federal recommendation.

Where a certificate of relief from disabilities is sought . . . on a judgment of conviction rendered by a federal district court in this state and the department is in receipt of a written recommendation in favor of the issuance of such certificate from the chief probation officer of the district, the department shall issue the requested certificate, unless it finds that the requirements of paragraphs (a), (b) and (c) of subdivision three of this section [regarding the rehabilitation of the applicant and the public interest] have not been satisfied; or that the interests of justice would not be advanced by the issuance of the certificate.

N.Y. Correct. Law § 703(7).

Additional guidance

Additional information about the process for applying for a CRD or CGC is in Judge Gleeson’s opinion in Doe v. United States, 2016 U.S. Dist. LEXIS 29162 (E.D.N.Y. 2016).   The Legal Action Center has prepared a very helpful booklet that explains in laymen’s terms how to get a record sealed and how to obtain certificates relieving disabilities, and the effect of these forms of relief.  It includes a step-by-step guide to how a private individual can go about having their record sealed, including model letters and forms.  See Legal Action Center, Lowering Criminal Record Barriers: Certificates of Relief/Good Conduct and Record Sealing (2013), available at http://www.lac.org/doc_library/lac/publications/LoweringCriminalRecordBarriers_rev3.pdf.

Frequency of grants

According to the Executive Clemency Bureau of the Division of Parole, 1,621 certificates of both kinds were issued in 2010; 1,857 granted in 2009; 3,046 granted in 2008; 1,637 granted in 2007; and 657 granted in 2006.  The percentage granted exceeds 95% each year.  There are no figures on grants made by the courts.  A 2006 report of a New York State Bar Association committee speculated that the relatively low number of certificates issued each year can be attributed to the fact that most people convicted of crimes are not informed about them.13

Contact

For information concerning certificates of relief and certificates of good conduct, applicants are directed to write to:

New York State Department of Corrections and Community Supervision
Executive Clemency Bureau
The Harriman State Campus – Building 2
1220 Washington Ave, Albany, NY
PardonsAndCommutations@doccs.ny.gov.

III.  Nondiscrimination in Licensing and Employment 

A.  Non-conviction records

The New York State Human Rights Law, N.Y. Exec. Law § 296(16), prohibits public and private employers and occupational licensing agencies from asking about, or acting adversely (i.e., denying employment or licensure) because of, any arrest that did not result in a conviction, or that terminated as a youthful offender adjudication; or that resulted in a sealed conviction, including violations, infractions, and misdemeanors and felonies sealed under the 2009 Drug Law Reform Act (for individuals who successfully completed a diversion program).  The Human Rights Law does not distinguish between current employees and applicants for employment, but insofar as its protections apply only to accusations that are “not then pending” it appears to provide limited protection to current employees who are accused of crime.14 In addition, it does not apply to police or law enforcement jobs.

B.  Human Rights Law – Violation of Article 23-A 

Article 23-A of the Corrections Law (“Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses”) prohibits “unfair discrimination” against a convicted person by public and private employers and licensing entities, “except where a mandatory forfeiture, disability or bar to employment is imposed by law, and has not been removed by an executive pardon, certificate of relief from disabilities or certificate of good conduct.”  N.Y. Corr. L. § 750 et seq.   Article 23-A may be enforced through the courts or through the New York State Human Rights Law, which makes it an unlawful discriminatory practice to deny employment in violation of Article 23-A.  .

It shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to deny any license or employment to any individual by reason of his or her having been convicted of one or more criminal offenses, or by reason of a finding of a lack of “good moral character” which is based upon his or her having been convicted of one or more criminal offenses, when such denial is in violation of the provisions of article twenty-three-A of the correction law.

N.Y. Exec. Law § 296(15).

Section 752 of Article 23-A makes it unlawful for public employers, occupational licensing authorities, and private employers with more than ten employees, to deny or terminate15 employment or licensure based on a previous conviction unless:

(1) there is a “direct relationship” between one or more of the previous criminal offenses and the specific license or employment sought; or

(2) the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

N.Y. Correct. Law. § 752.  The term “direct relationship” is defined as follows:  “the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license or employment sought.”  This prohibition does not apply if disqualification is mandated by law, and the person has not received a certificate of relief from disabilities or certificate of good conduct.  § 751.  Law enforcement positions are excluded from the definition of “employment” under this section.  Id.

Section 753(1) provides that in making a determination under § 752 a public agency or private employer “shall consider” the following factors:

(a) the public policy of this state . . . to encourage the licensure and employment of all persons previously convicted of one or more criminal offenses;

(b) the specific duties and responsibilities necessarily related to the license or employment sought;

(c) the relation of the conviction to the applicant’s ability to perform his responsibilities;

(d) the time elapsed since offense;

(e) the age of the person at the time of offense;

(f) the seriousness of the offense;

(g) any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and

(h) the interest of the employer of protecting property, and the safety and welfare of individuals or the general public.

An employer’s failure to consider each of these factors may violate § 753.  See Acosta v. Dep’t of Education of City of N.Y., 16 N.Y.3d 309, 320 (2011)(Department of Education acted arbitrarily when it failed to consider the documentation petitioner submitted which evidenced her education, rehabilitation and volunteer work over the 13 years since her teenage conviction for robbery, despite its policy of closely reviewing first time applicants; “it is difficult to conclude on this record that the ‘closer review’ purportedly applied here amounted to anything more than a pro forma denial of petitioner’s application on the basis of her prior criminal conviction,” without considering each of the eight factors set forth in § 753);  Boone v. New York City Department of Education, No. 2016 NY Slip Op 26240 (Sup. Ct. 2016) (denying petitioner a security clearance for a position as a School Bus Attendant, without due regard to the factors set forth in Article 23-A, or petitioner’s CRD, was arbitrary and capricious).  But see Arrocha v. Bd. of Educ. Of City of N.Y., 93 N.Y.2d 361 (1999) (Board of Education’s determination that teaching license applicant’s prior conviction for sale of cocaine came within statutory “unreasonable risk” exception to general rule that prior conviction should not place person under disability, was neither arbitrary nor capricious, where Board properly considered all statutory factors and determined that those weighing against granting license outweighed those in favor; age of conviction, applicant’s positive references and educational achievements, and presumption of rehabilitation were outweighed by teacher’s responsibility as role model and nature and seriousness of applicant’s offense.).

Section 753(2) provides that the public agency or private employer shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant,16 “which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein.”  This provision has been interpreted by the courts to create a presumption of rehabilitation that must be given effect by the employing or licensing agency even where an applicant’s prior conviction is directly related to the license or employment sought.   See Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 612 (1988) (because presumption of rehabilitation applies even where there is a direct relationship, the agency or employer must consider statutory factors to determine whether that relationship is sufficiently attenuated to warrant issuance of license or employment).  The authority of an agency to refuse a license based on conviction alone is discussed in La Cloche v. Daniels, 2006 N.Y. Misc. LEXIS 9379; 235 N.Y.L.J. 118 (N.Y. Sup. Ct. 2006).17

Section 754 provides that if an individual who was previously convicted of at least one offense was denied employment or licensure, the employer or licensing agency must provide  a statement of reasons for the denial, if the individual so requests.  Section 755 specifies the mode of enforcement (in case of public employer through a civil action, and private employer through division of human rights and commission on human rights). The New York State Human Rights Law also authorizes filing a civil action in court against private employers.  N.Y. Exec. Law § 297(9).

Negligent hiring protections  

The Human Rights Law also extends protections against negligent hiring lawsuits to employers who have “made a reasonable good faith determination” pursuant to the factors set forth in Article 23-A:

Further, there shall be a rebuttable presumption in favor of excluding from evidence the prior incarceration or conviction of any person, in a case alleging that the employer has been negligent in hiring or retaining an applicant or employee, or supervising a hiring manager, if after learning about an applicant or employee’s past criminal conviction history, such employer has evaluated the factors set forth in section seven hundred fifty-two of the correction law, and made a reasonable, good faith determination that such factors militate in favor of hire or retention of that applicant or employee.

N.Y. Exec. Law § 296(15).

C.  Ban the Box  

Public employment

In September 2015, Governor Andrew Cuomo announced plans to implement recommendations from the Council on Community Re-entry whereby applicants for competitive positions in state agencies will not be required to discuss or disclose prior convictions until an agency has interviewed the candidate and made an initial hiring decision. See Governor Cuomo Announces Executive Actions to Reduce Barriers for New Yorkers with Criminal Convictions, https://www.governor.ny.gov/news/governor-cuomo-announces-executive-actions-reduce-barriers-new-yorkers-criminal-convictions (Sept. 21, 2015).

New York City Fair Chance Act

The 2015 Act prohibits most entities that employ individuals in New York City from asking about a job applicant’s conviction record or running a background check (including a simple internet search) until after a job offer is made.  After making an offer, an employer may ask questions and conduct a background check, but may then only revoke that offer after determining that hiring the individual would pose a risk to persons or property, or that the conviction history is directly related to the job.  This determination must be made after evaluating the conviction history pursuant to Correction Law Art. 23-A.  Should the employer seek to revoke the job offer, it must provide the applicant with an explanation of the decision together with a copy of any background check report used in the decision, and give the applicant three business days to respond.  The 2015 Act is enforced by the NYC Human Rights Commission, whose website includes helpful information on bringing complaints.  It may also be enforced in New York State court.  See Fair Chance Act, NYC Human Rights Comm’n,  http://www1.nyc.gov/site/cchr/law/fair-chance-act.page.

D.  Additional guidance

The Legal Action Center has prepared a helpful booklet explaining in laymen’s terms what New York employers may and may not ask about a person’s criminal record, how a person should describe their record, and what rights people have to be free of job discrimination because of their criminal record.  See Legal Action Center, Criminal Records and Employment: Protecting Yourself From Discrimination (2013), available at  http://lac.org/wp-content/uploads/2014/11/Criminal_Records_Employment_2013.pdf.

 

 

 


  1. See NYS DOCCS website, https://www.parole.ny.gov/certrelief.html.
  2. In an opinion dated October 31, 2008, the General Counsel, Administrative Office for U.S. Courts, opined that federal supervised release, as a penalty imposed separately from a prison sentence, is analogous to probation as opposed to parole.
  3. See A.G. Sulzberger, The Tradition of Granting Clemency and Second-Guessing it, N.Y. Times (Dec. 2, 2009), available at http://cityroom.blogs.nytimes.com/2009/12/02/clemency:[I]n recent decades each successive governor, Democrat or Republican, has granted clemency to fewer inmates even as the prison population continued to rise to the current level of approximately 60,000, according to information provided by the Division of Parole.  According to that information, Gov. Hugh L. Carey commuted the sentences of 155 people in eight years in office, Mr. Cuomo commuted the sentences of 37 people in 12 years, and Mr. Pataki commuted the sentences of 33 people and pardoned one – the deceased comedian Lenny Bruce — in 12 years.  During his aborted term Gov. Eliot Spitzer pardoned one man, already out of prison, to prevent him from being deported.

     

  4.  See, e.g., Sarah Maslin Nir, To Stave Off a Deportation, Cuomo Pardons a 9/11 Volunteer, N.Y. Times, June 21, 2017, https://www.nytimes.com/2017/06/21/nyregion/cuomo-pardon-deportation-carlos-cardona.html?_r=0.
  5. See Kirk Semple, Hip-Hopper Is Pardoned by Governor, N.Y. Times (May 24, 2008), available at    http://www.nytimes.com/2008/05/24/nyregion/24pardon.html?_r=1&em&ex=1211774400&en=1501eee6aa64326d&ei=5087%0A&oref=slogin.
  6. See Al Baker, Soldier Says Pardon Buoys His Hopes for Police Career, N.Y. Times (Jan. 2, 2010); C.J. Chivers & William Rashbaum, Army Lets a Felon Join Up, but N.Y.P.D. Will Not, N.Y. Times (Jan. 6, 2008), available at http://www.nytimes.com/2010/01/03/nyregion/03soldier.html.
  7. Nina Bernstein, Paterson Rewards Redemption With a Pardon, N.Y. Times (Mar. 6, 2010), available at http://www.nytimes.com/2010/03/07/nyregion/07pardon.html?scp=1&sq=wu%20pardon&st=cse;  Nina Bernstein, Judge Keeps His Word to Immigrant Who Kept His, N.Y. Times (Feb. 19, 2010), available at  http://www.nytimes.com/2010/02/19/nyregion/19judge.html.
  8. See Anahad O’Connor, Spitzer Pardons Ex-Convict to Spare Him Deportation, N.Y. Times (Dec. 22, 2007), available at http://www.nytimes.com/2007/12/22/nyregion/22pardon.html?scp=2&sq=frederick%20Lake%20pardon&st=cse.
  9. See John Kifner, No Joke! 37 Years After Death Lenny Bruce Receives Pardon, N.Y. Times (Dec. 24, 2003), http://www.nytimes.com/2003/12/24/nyregion/no-joke-37-years-after-death-lenny-bruce-receives-pardon.html.
  10. See Margaret Colgate Love, The Quality of Mercy in New York: A Different Kind of State Challenge to Federal Immigration Policy, ACSBlog, http://www.acslaw.org/acsblog/the-quality-of-mercy-in-new-york-a-different-kind-of-state-challenge-to-federal-immigration.
  11. NY CLS Exec § 835(9) defines “qualified agencies” as,courts in the unified court system, the administrative board of the judicial conference, probation departments, sheriffs’ offices, district attorneys’ offices, the state department of corrections and community supervision, the department of correction of any municipality, the financial frauds and consumer protection unit of the state department of financial services, the office of professional medical conduct of the state department of health for the purposes of section two hundred thirty of the public health law, the child protective services unit of a local social services district when conducting an investigation pursuant to subdivision six of section four hundred twenty-four of the social services law, the office of Medicaid inspector general, the temporary state commission of investigation, police forces and departments having responsibility for enforcement of the general criminal laws of the state, the Onondaga County Center for Forensic Sciences Laboratory when acting within the scope of its law enforcement duties and the division of forensic services of the Nassau county medical examiner’s office when acting within the scope of its law enforcement duties. 
  12. Legislative History of Certificate Statutes, Memorandum to Alan Rothstein, Corporate Counsel for the New York City Bar Association, from Danielle D’Abate, Summer Intern for the Legal Clinic for the Homeless, August 11, 2006 (on file with authors).  See generally Joy Radice, Administering Justice: Removing Statutory Barriers to Reentry, 83 U. Colo. L. Rev. 715 (2012) (describing history and operation of the New York’s certificate statute).
  13. See Reentry and Reintegration: The Road to Public Safety, Report and Recommendations of the Special Committee on Collateral Consequences of Criminal Proceedings at 99-106 (May 2006), available at http://www.nysba.org/workarea/DownloadAsset.aspx?id=26857.
  14. Respecting current employees accused of crime, the New York Legal Aid Society reports that

    We generally advise that current employees whose cases are sealed prior to any adverse action being taken, based on the arrest, are entitled to the statute’s protection. But there is no clear authority as to whether the statute entitles persons who have been suspended to be restored to the “status quo ante” once the criminal case has been sealed.  This is a major issue because many government employers and licensing agencies are electronically notified of their employees’ and licensees’ arrests, and frequently issue suspensions pending the outcome of the criminal case.

  15. Until 2007, current employees were not covered by Article 23A.  S.1602/A.3208 extended the anti-discrimination protections to current employees and license holders but only if their convictions predate employment or licensure.  The law does not protect individuals who lie on an employment application, or who are accused of committing a crime while employed.
  16. Certificate of Relief from Disabilities, N.Y. Correct. Law §§ 700-703, or a Certificate of Good Conduct, §§ 703-a, 703-b, may be obtained to restore certain rights, and may be limited to one or more specific rights.  See discussion in Part IIC above.
  17. The La Cloche case gained notoriety as an example of arbitrary and unreasonable agency action against a convicted person.  See Clyde Haberman, He Did Time, So He’s Unfit to Do Hair, N.Y. Times, at B1 (Mar. 4, 2005); Jennifer Gonnerman, Banned From the Barbershop: The quiet death of a fighter for civil rights, The Village Voice (Nov. 9-15, 2005).

 

Restoration of Rights Series/New Mexico

I.  Restoration of Civil/Firearms Rights
A.  Vote

Persons convicted of “a felonious or infamous crime” are ineligible to vote and hold office unless “restored to political rights.”  N.M. Const. art. VII, §§ 1, 2.  See also State ex rel. King v. Sloan, 253 P.3d 33, 36-37 (N.M. 2011) (status as qualified elector ends upon conviction of felony, and ability to hold public office ceases at the same time).   The right to vote is restored automatically upon completion of sentence, and a certificate of voting rights restoration is furnished for voter registration purposes.  N.M. Stat. Ann. §§ 31-13-1.  Felony offenders are ineligible for jury service until completion of sentence.  Id. § 38-5-1.

The right to hold office is restored by a pardon from the governor, N.M. Stat. Ann. § 31-13-1(E), or by a conditional discharge under N.M. Stat. Ann. § 31-20-3.  See United States v. Reese, No. 33,950, N.M. Sup. Ct. (May 1, 2014)(completion of conditions and discharge restores all civil rights).  A pardon to restore the right to hold office is available to federal and out-of-state offenders.

B.  Firearms

It is unlawful for “a felon” to receive, transport or possess any firearm or destructive device for ten years after completion of sentence, including probation.  See N.M. Stat. Ann. § 30-7-16(A).  See also id. at (C)(2) (defining  “felon” as someone for whom “less than ten years have passed since the person completed serving his sentence or period of probation for the felony conviction,” who has not been pardoned for the felony conviction, or who has not received a deferred sentence”).  See also State v. Sundeen, 17 P.3d 1019, 1020 (N.M. 2001) (definition of “felon” requires that person have been convicted and sentenced to a year or more of imprisonment; court looks to the actual sentence imposed not the maximum sentence authorized under the statute).  Firearms rights are not lost if sentencing was deferred pursuant to § 31-20-9, and the person has successfully completed the period of deferment.  § 30-7-16; N.M. A.G. Op. No. 85-29 (1985).  If lost, firearms rights may be regained prior to the ten-year period through a governor’s pardon, though the governor may also decline to restore firearms rights in an otherwise unconditional pardon.  See N.M. A.G. Op. No. 92-09 (1992); 1992 N.M. AG Lexis 9.  The governor may, in his discretion, release New Mexico offenders from federal firearms disabilities as well as the provisions of § 30-7-16; however, the governor cannot release those convicted under federal law or by another state from federal firearms restrictions. See id.; see also Beecham v. United States, 511 U.S. 368 (1994).  Those who successfully complete probation pursuant to a deferred adjudication disposition automatically regain civil rights, including firearms rights, and are thus not subject to federal prosecution under the federal firearms laws. United States v. Reese, No. 33,950, N.M. Sup. Ct. (May 1, 2014).

C.  Juvenile dispositions

Juvenile dispositions do not “impose any civil disabilities ordinarily resulting from conviction of a crime nor shall it operate to disqualify the child in any civil service application or appointment.”  N.M. Stat. Ann. § 32A-2-18.

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

The pardon power rests exclusively with the governor.  N.M. Const. art. V, § 6 (“Subject to such regulations as may be prescribed by law, the governor shall have power to grant reprieves and pardons, after conviction for all offenses except treason and in cases of impeachment.”); see also N.M. Stat. Ann. § 31-13-1(E).  The governor’s power extends to all state offenses but does not include convictions for violations of municipal ordinances.  See Pardon Guidelines § I, available at http://www.governor.state.nm.us/uploads/files/Pardon%20Guidelines.pdf.  The general rules on pardons applied by Governor Susana Martinez are summarized on the New Mexico governor’s website at http://www.governor.state.nm.us/Pardon_Request.aspx. 

Administration

The New Mexico Parole Board is authorized to investigate requests for pardon, at the request of the governor.  N.M. Stat. Ann. § 31-21-17.

Eligibility

Those who have completed their sentences and have been discharged from supervision may apply for a pardon, or for a pardon to restore civil rights.  Pardon Guidelines, supra II; see also N.M. Stat. Ann. § 31-13-1(E).  Per the guidelines established by Governor Martinez after her election in 2010, applicants seeking restoration of civil rights must remain free from arrest for five to twenty years following discharge from supervision, depending upon the seriousness of the offense.  Pardon Guidelines § IV.1  Governor Martinez will not accept pardon applications for first degree felony convictions, or for misdemeanor domestic violence.  Id.  Similarly, “[s]exual offenders, habitual offenders (including multiple convictions for Driving Under the Influence of Intoxicating Liquors and/or Drugs, Assault or Battery Against a Household Member), multi-felony offenders, or offenders convicted of a crime of violence against a child are not eligible for a pardon.”  Id. § III.2  Misdemeanor or petty misdemeanor convictions are not eligible for a pardon, “except on application for the restoration of the right bear arms.” Id.

Effect

A pardon restores rights of citizenship and relieves other legal disabilities under state law.  A pardon does not expunge arrest or conviction records, and does not preclude use of a conviction as a predicate offense to enhance a subsequent sentence.  Shankle v. Woodruff, 324 P.2d 1017, 1020-21 (N.M. 1958) (holding pardon does not prevent use of prior conviction for habitual offender sentencing).  (Prior to the new guidelines, restoration of gun rights via a pardon had to be specifically requested and required an additional one year wait.)  The Pardon Guidelines explain that a pardon “does not remove any disabilities imposed by federal law.”

Process

The pardon application form (updated as of May 2017) is available on governor’s website: http://www.governor.state.nm.us/uploads/files/Pardon%20Notice%20and%20Application.pdf.    Completed application forms must be submitted to the governor’s office by mail (not electronically).   The governor may then forward it to the Parole Board for investigation, and may request a recommendation from the Parole Board, the attorney general, the sentencing judge, the prosecuting attorney, and/or the corrections secretary.  See Pardon Guidelines, supra § III.b, V.b, and V.c.  If the governor determines that the Parole Board’s involvement is necessary, the Board will call for a field investigation by the Corrections Department.  Id. § V.b.  Applicants must include a letter stating the facts of the crime and the reasons for requesting pardon, and a copy of the judgment and sentence.  See Application Form.

All victims of crimes enumerated in the Victims of Crime Act,  N.M. Stat. Ann. § 31-26-1 et seq., “will be notified and his/her opinion will weigh heavily on the Governor’s decision.”  Pardon Guidelines § III.e.

If an applicant is denied a pardon, the applicant is not eligible to reapply until four years following the date of the application.  Pardon Guidelines § V.f.  Applicants who were denied a pardon by a prior administration are eligible to reapply two years after the date of the original application.  Id. § V.e.

Criteria and Standards

An “application for a pardon to restore civil rights shall include proof of the applicant’s ability to act as a responsible and contributing member of society.”  Pardon Guidelines, supra III.c.  Applicants should include any significant achievements, such as employment and educational accomplishments, and should provide evidence of good citizenship and details about charitable and civic activities or other contributions made to the community.  Id.  In addition to a clear record, “[d]ue consideration will be given to consistent employment history, lack of criminal record since discharge (including municipal, state and federal offenses).”  Id.

Frequency of Grants

Pardons are relatively infrequent.  Governor Susana Martinez’ website states that pardons will be granted only in “extraordinary circumstances.”  See http://www.governor.state.nm.us/Pardon_Request.aspxFormer Governor Bill Richardson issued 80 pardons in his eight years in office (2002-2010).  He also restored rights to one individual with a federal conviction, and commuted one prison sentence.  No figures on the number of applications are available.  Between 1995 and 2002, 110 pardons were granted out of 2000 eligible applicants.  Source: Governor’s Office.

Contact

Marcus Blais
Assistant General Counsel
Office of the Governor
State Capitol Building, Suite 400
Santa Fe, NM 87501
505-476-2200.

B.  Judicial sealing or expungement
Deferred imposition of sentence

N.M. Ann. § 31-20-3 provides for deferred imposition of sentence after a guilty plea (resulting in conviction under New Mexico law), and restoration of all civil rights upon discharge.   See United States v. Reese, 326 P.3d 454 (N.M. 2014)(completion of conditions and discharge restores all civil rights).  In Reese, the New Mexico Supreme Court stated that “[u]nder New Mexico Law, a dismissal order following the completion of a deferred sentence is effectively a legislatively created judicial pardon.”  Slip op. at 7. However, there is no statutory authority for expungement.

Conditional discharge

Conditional discharge without an adjudication of guilt is available, at the court’s discretion, after successful completion of probation in all cases except those involving a first degree felony so long as the person has no prior felony convictions.3 See N.M. Ann. § 31-20-3 (qualifying offenses); § 31-20-13 (conditional discharge authority).   “A conditional discharge order may only be made available once with respect to any person.”  § 31-20-13.  No statutory authority exists for expungement of records in cases resulting in a conditional discharge under § 31-20-13, and courts have held that § 31-20-13 does not provide implicit authority to grant expungement in such cases.  See State v. C.L., 242 P.3d 404, 406-07 (N.M. Ct. App. 2010).

Though a conditional discharge does not result in an adjudication of guilt or a conviction, it may be used for subsequent habitual offender sentencing.  See § 31-18-17.  Gun rights are apparently not lost under state law following discharge, see § 30-7-16(c)(2), nor are federal gun rights lost under 18 U.S.C. § 921(a)(20), see United States vs. Valerio, 441 F.3d 837, 841 (9th Cir. 2006).

Conditional discharge for first-time drug possession

In addition to the general conditional discharge authority under N.M. Stat. Ann. § 31-20-13, first time drug possession offenders may also receive a conditional discharge under distinct authority at § 30-31-28(C).  Conditional discharge under § 30-31-28(C) operates in substantially the same manner as discharge under the general statute, and is only available once.  Records of proceedings resulting in conditional discharge as a first-time drug possession offender may be expunged, but only if the offender was 18 or younger at the time of commission.  30-31-28(D).  Discharge under section 30-31-28 “shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime including the penalties prescribed under this section for second or subsequent convictions or for any other purpose.”  § 30-31-28(C).

Juvenile Records

Juvenile records are generally unavailable to the public. N.M. Stat. Ann. § 32A-2-32.  Sealing is available under N.M. Stat. § 32A-2-26.  Upon motion to the court made by a person over 18 years old (or younger, upon a showing of good cause), the court is required to seal all records so long as two years have passed since release from custody/supervision (or entry of judgement), and there have been no subsequent adjudications or convictions for any felony or misdemeanor involving moral turpitude during that time, and no charges are pending.  § 32A-2-26(A).  A sealed record is treated as though proceedings never took place, and a person may deny the existence of any sealed record.  § 32A-2-26(C).  See also § 31-30-28, discussed supra, allowing for expungement of drug possession proceedings.

Arrest Records

State Department of Public Safety is authorized to expunge arrest records for certain misdemeanors or petty misdemeanors, and must expunge if no final disposition can be located:

A person may petition the department [of public safety] to expunge arrest information on the person’s state record or federal bureau of investigation record if the arrest was for a misdemeanor or petty misdemeanor offense and the arrest was not for a crime of moral turpitude. If the department cannot locate a final disposition after contacting the arresting law enforcement agency, the administrative office of the courts and the administrative office of the district attorneys, the department shall expunge the arrest information. 

N.M. Stat. Ann. § 29-3-8.1(a).  The New Mexico Supreme Court has held that while courts have a degree of inherent authority to direct expungement of arrest records, a case must be “egregious” in order to justify this relief.  See Stump v. Albuquerque Police Dept.,  No. S-1-SC-35912 (March 23, 2017).  The legislature has passed four bills on the topic since 2005, but two were vetoed by Gov. Bill Richardson and the others by current Gov. Susana Martinez.

III.  Nondiscrimination in Licensing and Employment
A.  Criminal Offender Employment Act (1974)

N.M. Stat. Ann. §§ 28-2-1 et seq.  Section 28-2-2 describes the goal of the Act as follows:  “The legislature finds that the public is best protected when criminal offenders or ex-convicts are given the opportunity to secure employment or to engage in a lawful trade, occupation or profession and that barriers to such employment should be removed to make rehabilitation feasible.”  In determining eligibility for public employment or a license, the  “agency having jurisdiction may take into consideration a conviction, but the conviction shall not operate as an automatic bar to obtaining public employment or license or other authority to practice the trade, business or profession.”  § 28-2-3(A).

A person may be disqualified for public employment or licensure based on prior conviction only if: 1) conviction relates directly to the position sought; 2) or the board or other agency determines after investigation that the person so convicted has not been sufficiently rehabilitated to warrant the public trust; or 3) an applicant for a teaching certificate or employment at child-care facility has been convicted of drug trafficking or sex offenses, regardless of rehabilitation.  N.M. Stat. Ann. § 28-2-4(A)(1)-(3); see also Weiss v. N.M. Bd. of Dentistry, 798 P.2d 175, 179-81 (N.M. 1990) (proof of felony conviction of making false claim for reimbursement, as distinguished from proof of the conduct underlying the conviction, was sufficient basis for revoking license to practice dentistry under Dental Act and Criminal Offender Employment Act because conviction directly related to dentistry profession and Board made finding that licensee had not been sufficiently rehabilitated to warrant public trust).  Completion of parole or probation or a three-year period following release from incarceration creates a presumption of rehabilitation.  N.M. Stat. Ann. § 28-2-4(B).  An agency must state the reasons for disqualification in writing if a decision is based on the relationship between crime and employment, a finding that the convicted person has not been sufficiently rehabilitated, or on nature of offense in case of teaching or child-care licensure. Id.; see also Weiss, 798 P.2d at 181. Although the requirement of non-rehabilitation as a condition for denying or revoking a license is set out only in § 28-2-4(A)(2) for cases where there is no direct relationship, the New Mexico Supreme Court has held that in light of the purpose of the Criminal Offender Employment Act, a finding on rehabilitation should be made even where a conviction directly relates to the employment sought. Id. at 181.

B.  Ban-the-Box for public employment

In 2010, a “ban-the-box” provision applicable to state employment was added to the Act:  “A board, department or agency of the state or any of its political subdivisions shall not make an inquiry regarding a conviction on an initial application for employment and shall only take into consideration a conviction after the applicant has been selected as a finalist for the position.”  N.M. Stat. Ann. § 28-2-3(A).  Records of arrest not resulting in conviction, and misdemeanor convictions not involving “moral turpitude,” may not be considered in any application for public employment or licensure.  § 28-2-3(B).

C.  Caregiver employment

A wide variety of offenses (including violent offenses, drug, and fraud offenses) disqualify from caregiver employment (including hospitals).  N.M. Stat. Ann. § 29-17-5.  A care provider, such as a hospital, may continue to employ a caregiver despite a disqualifying felony conviction, if the Department of Health, upon a request for reconsideration, determines that “the employment presents no risk of harm to a care recipient or that the conviction does not directly bear upon the applicant’s, caregiver’s or hospital caregiver’s fitness for the employment.”  § 29-17-5(F).  But see Spencer v. Health Force, Inc., 107 P.3d 504, 512 (N.M. 2005) (reversing summary judgment for care provider on negligent hiring claim, where care provider failed to conduct a criminal background check on caregiver with extensive criminal record, and caregiver gave patient a fatal injection of heroin).

  1. Under prior policy the maximum waiting period was ten years.
  2. Prior to these guidelines, such offenders were ordinarily not granted pardons.  Additionally, although the previous governor agreed to entertain pardon applications from individuals who had successfully completed a deferred sentence due to the applicability of federal firearms laws to state offenders, no specific guidance on such cases is provided in the new guidelines.
  3. A conditional discharge under § 31-20-13 is distinct from deferred sentencing under § 31-20-3.  Though both provisions allow for discharge and dismissal following a period of probation, a deferred sentence results in an adjudication of guilt (and, therefore, a conviction), while a conditional discharge is not accompanied by an adjudication of guilt and does not result in a conviction.  See State v. Herbstman, 974 P.2d 177, 180 (N.M. Ct. App. 1999).

Copyright © 2017

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.

Copyright © 2017

Restoration of Rights Series/Montana

Montana Flag I.  Restoration of Civil/Firearms Rights
A.  Vote, Office

Under Mont. Code Ann. § 46-18-801(1), a conviction does not result in loss of civil rights except as provided in the Montana Constitution, or as specifically enumerated by the sentencing judge “as a necessary condition of the sentence directed toward the objectives of rehabilitation and the protection of society.”  A convicted person is ineligible to vote only if “serving a sentence for a felony in a penal institution;” the right to vote is regained upon release from incarceration.  Mont. Const. art. IV, § 2.  A felony offender may not hold public office until final discharge from state supervision.  Id. art. IV, § 4.  Full rights are automatically restored “by termination of state supervision for any offense against the state.”  Mont. Const. art. II, § 28.  Accord Mont. Code Ann. § 46-18-801(2) (“Except as provided in the Montana constitution, if a person has been deprived of a civil or constitutional right by reason of conviction for an offense and the person’s sentence has expired or the person has been pardoned, the person is restored to all civil rights and full citizenship, the same as if the conviction had not occurred.”).

B.  Jury

The state constitution does not provide for disqualification from jury service, but a statute does.  See Mont. Code Ann. § 3-15-303(2) (person who has been “convicted of malfeasance in office or any felony or other high crime” is not competent to sit as juror).  Presumably this disability is removed upon completion of sentence.  See  § 46-18-801(2).1

C.  Firearms

Firearms rights are lost under state law only where the conviction involves use of a dangerous weapon.  Mont. Code Ann. § 45-8-313(1).  In such cases, the sentencing court shall impose lifetime supervision as part of sentence imposed, “for the purpose of restricting the person’s right to purchase and possess firearms.”  § 45-8-314(1).  Because Montana offenders regain civil rights when supervision ends, federal law firearms disabilities are generally coincident with state law firearms disabilities by virtue of 18 U.S.C. § 921(a)(21).  An individual who has lost his firearms rights may “apply to the district court for the county in which the person resides for a permit to purchase and possess one or more firearms,” and “shall show good cause for the possession of each firearm sought to be purchased and possessed.”  § 45-8-314(2)(a).  In addition, a county sheriff may deny a concealed weapon permit only if the person has been convicted of a crime punishable by a term of imprisonment of more than one year; a violent, sex or drug offense; or a specified gun or substance abuse offenses.  §§ 45-8-321(1)(c), (d), and (f).  However, unless supervision is also terminated in these cases, civil rights would not be restored and the federal disability would remain.

II.  Discretionary Restoration Mechanisms:
A.  Executive pardon
Authority

The pardon power is vested in the governor, but the legislature may control the process.  Mont. Const. art. VI, § 12.  Prior to March 2015, the governor could issue a pardon only upon the favorable recommendation of the Board of Pardons and Parole, except in capital cases, though he was not bound to accept each Board favorable recommendation.  Mont. Code Ann. §§ 46-23-104(1), 46-23-301(3).  On March 20, Governor Steve Bullock signed HB 43 converting the Board’s role in clemency cases to an advisory one.  While the governor is still required to premise action on a Board recommendation, after a hearing, he may grant clemency even if the recommendation is negative. See § 46-23-104(4).  The 2015 change in the Board’s role now requires the governor to deny all applications that he does not grant. § 46-23-301(4).  He may also direct the Board to conduct an investigation when it has declined to do so. § 46-23-301(3)(b).2  The governor must report to the legislature each pardon and the reasons for it.  § 46-23-316.

Administration

The Board has seven members.  Mont. Code Ann. § 2-15-2302(2).  All are appointed by the Governor, and serve effectively as volunteers.  One member must be an enrolled member of a state-recognized or federally recognized Indian tribe located within the boundaries of the state of Montana.  Id.  All decisions are by majority vote.  § 2-15-2303(8).  The Board may appoint two or three-member hearing panels.  § 46-23-103(4).  A majority of the Board constitutes a quorum and all decisions are by majority vote.  Rules are set forth at Mont. Admin. R. 20-25-901 to 904, posted at http://bopp.mt.gov/about/adminrules/default.mcpx.  History of the Board (including merging of pardon and parole function in 1955) at http://bopp.mt.gov/history/history.mcpx..

Eligibility

There are no eligibility requirements for executive pardon, except that federal and out-of-state offenders are ineligible.  Misdemeanants may apply.  The Board may not postpone consideration of an application for executive clemency on grounds that the applicant has not exhausted the appeal and sentence review processes.  37 Mont. Op. Att’y Gen. 183 (1977).

Effect

Executive pardon removes “all legal consequences” of conviction, Mont. Code Ann. § 46-23-301(1)(b), including licensing bars, g., § 37-60-303 (private investigators and patrol officers).  See also Mont. Admin. R. 20-25-901A(1) (“Pardon is a declaration of record that an individual is to be relieved of all legal consequences of a prior conviction.”).

Process

See generally Mont. Code Ann. §§ 46-23-301 to 46-23-307, 46-23-315, 46-23-316 (governing executive clemency process), and Mont. Admin. Rules 20-25-901 to 20-25-904.  The Board may hold a hearing in meritorious cases where all sides are heard and a record made, though it is required to hold hearings only in capital cases.  Mont. Admin. R. 20-25-902(1).  Under 2015 changes to the system, if the Board declines to investigate or hold a hearing, the governor may direct it to do so.  § 46-23-301(3)(b).  The hearing must be publicized at least once a week for two weeks.  Mont. Code Ann. §§ 46-23-303, 46-23-304.  Favorable recommendations must be forwarded to the governor Id. § 46-23-307.  If a majority of the Board recommends denial in a non-capital case, the case may not be sent to the governor.  Id. § 46-23-301(3).

NB:  Board regulations do not appear to contemplate applications for clemency by persons no longer under   sentence, but, according to the Board director, the hearing requirement does apply to pardon applicants. Published standards appear to apply only to commutation cases.

Report

Mont. Code Ann. § 46-23-316. The governor shall

report to the legislature each case of remission of fine or forfeiture, respite, commutation, or pardon granted since the previous report, stating the name of the convict, the crime of which the convict was convicted, the sentence and its date, the date of remission, commutation, pardon, or respite, with the reason for granting the same, and the objection, if any, of any of the members of the board made to the action.

Frequency of grants

Pardons in Montana are infrequently recommended by the Board and even less frequently granted.   Governor Steve Bullock has granted only three pardons since taking office in January 2013 while denying 73.  Statistics can be found at the Board’s website at http://bopp.mt.gov/history/statistical_data.mcpx.  The change in the Board’s authority in 2015 does not appear to have changed this ratio.  Brian Schweitzer granted 16 pardons in his eight years in office (2005-2013) for crimes ranging from issuing fraudulent checks to aggravated assault.  Nine of those pardons came during his first term in office.   According to the Montana Department of Corrections 2011 Biennial Report, during fiscal years 2006-2010, the Board received an average of 13 requests a year and approved about three (i.e., recommended approval in about one-fifth of applications filed).  See http://cor.mt.gov/content/Resources/Reports/2011BiennialReport.pdf, at A27.   More recently, Board statistics indicate that the number of pardon requests has almost doubled.   The governor’s report to the legislature, describing each case in which pardon granted, is available from the Board.  Source:  Montana Board of Pardons and Parole.

Contact

Board of Pardons and Parole
1002 Hollenbeck Road
Deer Lodge, MT 59722
Phone: 406.846.3594
Fax:406.846.3512
jpribnow@mt.gov

B.  Judicial Sealing or Expungement
Misdemeanor expungement

Effective October 1, 2017, individuals convicted of misdemeanors will become eligible to have their convictions expunged if they have satisfied all terms of their sentence.  Under Section 1 of House Bill 168, signed into law on April 13, 2017, district courts are authorized to expunge the record of any misdemeanor conviction.  Although no more than one expungement order is permitted during a person’s lifetime, it appears that multiple misdemeanors from different counties may be expunged in a single proceeding.  If expunged, the record is destroyed, and only a person’s fingerprints remain in official files. Under Section 2, expungement is “presumed” for all but certain specified serious offenses (involving violence or driving while impaired), unless “the interests of public safety demand otherwise” — as long as five crime-free years have passed since completion of sentence, or if the petitioner is seeking opportunities for military service that are otherwise closed to him and is not currently charged with a crime. Under Section 3, dealing with the crimes for which expungement is not presumed, expungement may be granted after a hearing, in which the court “must consider, in addition to any other factors, the age of the petitioner at the time the offense was committed, the length of time between the offense and the request, the rehabilitation of the petitioner, and the likelihood that the person will reoffend.”  In cases where expungement is not presumed, the prosecution office that prosecuted the offense for which expungement is being requested must be notified of the request and be given an opportunity to respond and argue against the expungement.

Deferred adjudication and sealing for first offenders

For first felony offenders and misdemeanants, a court may defer imposition of sentence from one to three years during which the offender will be on probation.  Mont. Code Ann. § 46-18-201.  Following termination of the relevant time period, Mont. Code Ann. § 46-18-204 authorizes the court to permit the defendant to withdraw a plea of guilty or nolo contendere or to strike the verdict of guilty from the record and order that the charge or charges against the defendant be dismissed.  “After the charge is dismissed, all records and data relating to the charge are confidential criminal justice information, as defined in 44-5-103, and public access to the information may be obtained only by district court order upon good cause shown.”  Id.  If the sentence is dismissed then it should not be considered in determining whether the defendant is a persistent felony offender.  State v. Tomaskie, 157 P.3d 691, 693-694 (Mont. 2007).  Sealing is unavailable if a mandatory sentence applies, except in certain situations. See § 46-18-222.  (Prior to 1989, the requirement was that records be “expunged, which was understood to require that all documentation and physical or automated entries concerning the expunged offense be physically destroyed or obliterated.”  42 Mont. Op. Att’y Gen. 384 (1988).)

Juvenile records

Most youth court records are publicly available until the juvenile’s 18th birthday (or at the termination of jurisdiction if it extends beyond age 18), at which point they must be automatically sealed, along with law enforcement and agency records.  Mont. Code Ann. §§ 41-5-215(1), 41-5-216(1).  When a record is sealed, all agencies other than the Department of Corrections must destroy records in their possession.  § 41-5-216(2).  Additionally, § 41-5-216 “does not prohibit the destruction of records with the consent of the youth court judge or county attorney after 10 years from the date of sealing.” § 41-5-216(3).  After records are sealed, they are not open to inspection except, upon order of the youth court, for good cause, including when a youth commits a new offense.  § 41-5-216(5).  A juvenile may move the court to limit availability of court records prior to turning age 18.  Privacy Rules § 4.60. 

Nonconviction records

Upon the defendant’s request, or upon the order of the court, all records in cases where no charges were brought, where no conviction resulted, or the conviction was invalidated must be returned to the defendant or destroyed. Mont. Code Ann. § 44-5-202. See also https://dojmt.gov/enforcement/criminal-record-expungement-and-sealing.

III.  Nondiscrimination in Licensing and Employment:

Under a 1975 statute, criminal convictions may not operate as an automatic bar to licensure for any occupation in the state of Montana.  Mont. Code Ann. § 37-1-201 provides that:

It is the public policy of the legislature of the state of Montana to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the assumption of the responsibilities of citizenship. The legislature finds that the public is best protected when offenders are given the opportunity to secure employment or to engage in a meaningful occupation, while licensure must be conferred with prudence to protect the interests of the public. The legislature finds that the process of licensure will be strengthened by instituting an effective mechanism for obtaining accurate public information regarding a license applicant’s criminal background.

(The final sentence was added to this provision in 2007.)  Mont. Code Ann. § 37-1-203 provides:

Criminal convictions shall not operate as an automatic bar to being licensed to enter any occupation in the state of Montana. No licensing authority shall refuse to license a person solely on the basis of a previous criminal conviction; provided, however, where a license applicant has been convicted of a criminal offense and such criminal offense relates to the public health, welfare, and safety as it applies to the occupation for which the license is sought, the licensing agency may, after investigation, find that the applicant so convicted has not been sufficiently rehabilitated as to warrant the public trust and deny the issuance of a license.

While this statute does not itself apply to license revocation proceedings, Erickson v. State ex rel. Bd. of Med. Exam’rs, 938 P.2d 625, 629 (Mont. 1997), its provisions may be incorporated by reference into particular licensing statutes, Ulrich v. State ex rel. Bd. of Funeral Serv., 961 P.2d 126, 131-132 (Mont. 1998).  In Ulrich, the Montana Supreme Court upheld the finding of a hearing examiner that a conviction for forgery and theft did not “relate[] to the public health, welfare, and safety as it applies to the occupation” of mortician, and that the applicant in that case was “sufficiently rehabilitated so as to warrant the public trust.” 961 P.2d at 134.  Completion of probation or parole supervision without any subsequent criminal conviction “is evidence of rehabilitation.”  Mont. Code Ann § 37-1-205.

A licensing agency must give reasons for denying a license on grounds related to a felony conviction.  Mont. Code Ann § 37-1-204 (“When a licensing agency prohibits an applicant from being licensed wholly or partially on the basis of a criminal conviction, the agency shall state explicitly in writing the reasons for the decision.”).

No law regulates public or private employment.  However, the Montana Human Rights Commission takes the position that pre-employment inquiries regarding arrests raise suspicion of intent to unlawfully discriminate unless related to bona fide lawful affirmative action plan or inquiry is required for record-keeping purposes.  Mont. Admin. R. 24.9.1406(2)(h).


  1. According to the 1996 survey of the Office of the Pardon Attorney, the “Montana Attorney General advised that under a similarly worded previous version of Mont. Code Ann § 46-18-801 the right to sit on a jury was restored only by a pardon.”  Civil Disabilities of Convicted Felons: A State-by-State Survey (Office of the Pardon Attorney, Dep’t of Justice, 1996), available at https://www.ncjrs.gov/pdffiles1/pr/195110.pdf.
  2. This change in the law was prompted by the Board’s refusal to change its position in a case involving claims of innocence.  See “Bill to restrict Montana Parole Board’s power over clemency gets wide support,” http://missoulian.com/news/state-and-regional/bill-to-restrict-montana-parole-board-s-power-over-clemency/article_e8c03e6e-25e9-55a0-a61c-111229c42897.html.   There has also been some more general concern among legislators that the Board’s parsimonious policy on recommending clemency might be frustrating the governor’s exercise of the power.  See John S. Adams, Lawmakers Considering Changes to Pardon and Parole Board, Great Falls Tribune, August 2, 2014, http://www.greatfallstribune.com/story/news/politics/2014/08/03/lawmakers-considering-changes-pardon-parole-board/13536729/.

Copyright © 2017

Restoration of Rights Series/ Missouri

Missouri FlagI.  Restoration of Civil/Firearms Rights
A.  Civil Rights

Persons convicted of any felony offense may not vote while incarcerated or while on parole or probation, but the right to vote is automatically restored upon final discharge from sentence.  Mo. Rev. Stat. § 115.133.2.  Misdemeanants are also disenfranchised while serving a prison sentence.  § 115.133.2(1).  Persons convicted of “a felony or misdemeanor connected with the right of suffrage” are permanently disenfranchised unless pardoned.  § 115.133.2(3). See also Mo. Const. art. VIII, § 2 (persons convicted of felony or crime connected with suffrage may be excluded from voting); Mo. Rev. Stat. § 561.026.  A felony offender or offender convicted of misconduct in office or dishonesty forfeits any elective or appointive public office.  Mo. Rev. Stat. § 561.021.1.  The right to hold office is restored upon completion of sentence (unless the crime was “connected to the exercise of the right of suffrage,” in which case disqualification is permanent).  §§ 561.021.2; 561.021.3.  A felony offender is permanently disqualified from jury service unless pardoned.  § 561.026(3).  See also § 494.425(4) (person convicted of felony disqualified from serving as petit or grand juror unless person’s civil rights have been restored).

B.  Firearms

Possession of firearms is unlawful for a person “convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony.”  Mo. Rev. Stat. § 571.070.1(1).1  Antique weapons are not prohibited.  § 571.070.3.  A pardon or expungement will restore firearms privileges.2See infra Part II.  

C.  Other Collateral Consequences

State collateral consequences are catalogued in United States v. Brown, 408 F.3d 1016 (8th Cir. 2005) (holding that because Missouri does not restore all civil rights automatically, state offender subject to prosecution under federal firearms statute).

II. Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

The pardon power is vested in the governor, except in cases of treason or impeachment, under rules and regulations prescribed for the manner of applying.  Mo. Const. art. IV, § 7.  The governor may grant pardons under conditions and with restrictions as he deems proper.  Id.  Pursuant to Mo. Rev. Stat. § 217.800.2, all pardon applications must be referred to the Board of Probation and Parole for investigation and recommendation.  The Board’s advice is not binding on the governor, and his power is not dependent upon a favorable Board recommendation.  See James G. Lindsay, Pardons in Missouri: Procedure and Policy, 48 UMKC L. Rev. 33 (1979).

Administration

The Board of Probation and Parole consists of seven members appointed by the governor to six-year terms, no more than four from the same political party.  Mo. Rev. Stat. § 217.665.  All members are  full-time salaried employees.  Id.  Chair is designated by the governor.  Id.

Eligibility

The Board policy published online outlines eligibility requirements and details investigative procedures applicable to clemency applications.  See http://doc.mo.gov/PP/Executive_Clemency.phpSee also Policy and Procedure Manual of the Board of Probation and Parole, Nos. P2-1.3 through P2-1.6 (as of May 2012, not available online.)  Pardon is available three years after  discharge from sentence, without intervening convictions or charges pending.  See http://doc.mo.gov/PP/Executive_Clemency.php.  Those denied must wait three years to reapply.  Id.  Applicants whose sentences were suspended pursuant to Mo. Rev. Stat. § 610.105 are not eligible to apply for pardon, since they are not regarded as having a conviction (see below).  Id.  Persons convicted under the law of another state are ineligible for a gubernatorial pardon.  The Board has not established substantive criteria for pardon. 

Effect

According to Board officials, each full pardon document signed by the governor states that the grant “obliterates” effect of conviction, relieves of all obligations associated with the conviction, restores all rights and relieves legal disqualifications.  However, a pardon does not “expunge” the record.  See Policy and Procedure Manual of the Board of Probation and Parole, supra, at P2-1.3; http://doc.mo.gov/PP/Executive_Clemency.php  (criminal history record still maintained as open record and will be available to public). A prior conviction that is the subject of a pardon cannot be used as the basis for subjecting a person to an extended term of imprisonment under Missouri’s persistent offender law (see Mo. Rev. Stat. § 558.016).  See Guastello v. Dep’t of Liquor Control, 536 S.W.2d 21 (Mo. 1976) (analyzing prior version of law; also noting that while fact of conviction obliterated by pardon, fact of guilt remains).  A convicted person who is required to register as a sex offender for life because of his conviction can be released from the registration requirement if he is pardoned of the offense(s) that required registration.  § 589.400.3(2).  A bill that would have required that a pardon explicitly state that the person is relieved of his/her duty to register as a sex offender passed the House in 2016 but was not acted on in the Senate. 

Process

“All applications for pardon, commutation of sentence or reprieve shall be referred to the board for investigation.”   Mo. Rev. Stat. § 217.800.  The board “shall investigate each such case and submit to the governor a report of its investigation, with all other information the board may have relating to the applicant together with any recommendations the board deems proper to make.”  Id.3  The published policy from the Board outlines eligibility requirements and thoroughly details investigative procedures applicable to clemency applications.  See Policy and Procedure Manual of the Board of Probation and Parole, supra, at P2-1.4, P2-1.6.  The Board’s online policy notes that investigation of persons not incarcerated will include reason(s) for requesting clemency, including specific collateral consequences of conviction; circumstances of present offense; other criminal record information; victim impact information; conduct since discharge in social, employment, and financial areas; significant positive achievements; testimonials from friends, employers, and general references; and comments/recommendations from the judge, prosecuting attorney, and law enforcement agency.  See http://doc.mo.gov/PP/Executive_Clemency.php.  There is no provision for a public hearing.  The Board recommendation is communicated in writing to the governor.  See § 217.800.2 (report of investigation and recommendation submitted).  Board meetings on clemency matters may be closed to the public.  § 217.670.5.  Generally, the clemency process takes a minimum of 18-24 months to complete.  See http://doc.mo.gov/PP/Executive_Clemency.php.  No fees are charged for filing for clemency.  Id.

Frequency of Grants

Governor Jay Nixon (2009-2017) granted 110 pardons, 65 of them in his final year.  Missouri governor tops 100 pardons, absolves clergy protest, http://www.sfgate.com/news/article/Missouri-governor-sets-three-decade-high-mark-for-10839848.php.   Most of the pardoned convictions were minor offenses committed decades before, but 16 of his final grants went to religious leaders who had been convicted of trespassing for protesting in the Missouri Senate in support of Medicaid expansion.  (He also commuted the sentence of one person, raising his total to 110 clemency actions.) Applications have increased dramatically in recent years, as a result of heightened employment restrictions since 9/11 and extension of firearms restrictions to long guns in 2008.   Earlier governors had pardoned sparingly.  For example, Governor Blunt (2005-2009) issued 14 pardons in four years, all to people convicted of minor offenses decades in the past, and denied 1338 pardon applications.  Source: Board of Probation and Parole.4

Contact

Linda Welch
Administrative Assistant, Board of Probation and Parole
1511 Christy Drive
Jefferson City, MO 65101
Phone: (573) 751-8488, 573-526-6551
Fax: (573) 751-8501
Email:
Welch@doc.mo.gov

B.  Judicial sealing or expungement
1.  Expungement of convictions
A.  Eligibility

Prior to January 1, 2018, the only offenses eligible for expungement were bad check convictions (both felony and misdemeanor) and certain public order misdemeanors (trespassing, gambling, disturbing the peace).   Mo. Rev. Stat. § 610.140 (2015).   The eligibility waiting period for misdemeanors was 10 years from completion of sentence, for felonies 20 years.  § 610.140(5) (2015).   The court must find that the petitioner has no intervening convictions, that “the circumstances and behavior of the petitioner warrant the expungement,” and that “expungement is consistent with the public welfare.”   Effective January 1, 2018, the availability of expungement will be greatly expanded under a law enacted in July of 2016.   The new law allows expungement of all non-Class A felonies and all misdemeanors, subject to a lengthy list of exceptions for violent offenses, sex offenses, and other more serious crimes, and driving offenses involving liquor or commercial drivers licenses. Mo. Rev. Stat. § 610.140(2) (as revised and reenacted by SB-588 (2016)).  The waiting period for misdemeanors is three crime-free years after completion of sentence, and seven for felonies.  § 610.140(5)(1).  A person may expunge one felony and two misdemeanors in their lifetime, regardless of the court in which expungement is sought. § 610.140(12). 

In addition to the basic eligibility requirements, an application must state that the petitioner’s “habits and conduct demonstrate that the petitioner is not a threat to the public safety of the state” and that “expungement is consistent with the public welfare and the interests of justice warrant the expungement.”   Such a pleading “shall create a rebuttable presumption that the expungement is warranted” so long as the more objective eligibility criteria are satisfied.  The burden then shifts to the prosecutor.  The victim may also testify.   If the presumption is not rebutted by the prosecutor, the court “shall” order expungement.  A petition for expungement must be acted on within six months of its filing. 

A person may apply to have one or more offenses expunged so long as such person lists all the offenses he or she is seeking to have expunged in the same petition and so long as all such offenses are eligible.  A person may be granted more than one expungement under this section provided that no person shall be granted more than one order of expungement from the same court. § 610.140(10). 

In addition, first-time alcohol-related misdemeanor offenses may be expunged after 10 years (except for those related to driving commercial motor vehicles while under the influence).  Mo. Rev. Stat. § 577.054(1).  See also §§ 217.360(3) (person convicted of delivery/concealment of intoxicating liquor may seek to expunge the record, unless delivery/concealment occurred in or about correctional facility); 311.326 (purchase/possession of liquor by a minor, can seek expungement one year after age 21).

B.  Effect

Prior to January 1, 2018, expunged records considered “confidential,” and only available to the parties or by court order.

Entries of a record ordered expunged shall be removed from all electronic files maintained with the state of Missouri, except for the files of the court. The records and files maintained in any administrative or court proceeding in a municipal, associate, or circuit court for any offense ordered expunged under this section shall be confidential and only available to the parties or by order of the court for good cause shown. The central repository shall request the Federal Bureau of Investigation to expunge the records from its files.

§ 610.140(6).  Records in the possession of any entity named in the petition shall be “destroyed,” except for court records. 

“The order shall not limit any of the petitioner’s rights that were restricted as a collateral consequence of such person’s criminal record, and such rights shall be restored upon issuance of the order of expungement.”  Except as provided below, expungement restores a person “to the status he or she occupied prior to [conviction] as if such events had never taken place.”  A person whose record has been expunged may deny the conviction in response to an inquiry, and “no such inquiry shall be made for information relating to an expungement, except the petitioner shall disclose the expunged offense to any court when asked or upon being charged with any subsequent offense.”  Expunged convictions may be used to enhance subsequent sentence, and are given predicate effect.  § 610.140(7). 

A person must disclose any expunged offense in an application for a professional license, any license or employment relating to alcoholic beverages, or employment with any state-operated lottery, or any emergency services provider, including any law enforcement agency.  “Notwithstanding any provision of law to the contrary, an expunged offense shall not be grounds for automatic disqualification of an applicant, but may be a factor for denying employment, or a professional license, certificate, or permit.”  § 610.140(8). 

Effective January 2018, expunged records, including court records, will be “closed.” Mo. Rev. Stat. § 610.140(7) (as amended by SB-588 (2016)).  Closed records are generally not available to the public, but will remain available to criminal justice agencies and to a number of public entities for use in screening out applicants for licenses or employment in sensitive areas such as private security, law enforcement, and care of children, the elderly, and the disabled.  § 610.120.  While the new law retains the provision stating that conviction shall not be grounds for automatic disqualification, it does not apply in connection with employment with banks, insurers, and any employer that is required by state or federal law to exclude applicants with certain convictions. § 610.140(9), subsections (4) through (6). 

Closed records will also be available to law enforcement for use in issuing firearm purchase and possession permits.  § 610.120.  However, per both the old and new laws, “[t]he [expungement] order shall not limit any of the petitioner’s rights that were restricted as a collateral consequence of such person’s criminal record, and such rights shall be restored upon issuance of the order of expungement.”  § 610.140(8). So, notwithstanding the fact that expunged records may be accessed for firearm permitting purposes, it appears that expungement remains effective at restoring firearm rights lost as a result of conviction. 

2.  Non-conviction records, including deferred sentencing

Mo. Rev. Stat. § 610.105 authorizes automatic “closure” of records in all cases disposed of favorably to the defendant (nolle prossed, acquitted, dismissed), or where imposition of sentence is suspended pursuant to § 557.011.2(3), upon conclusion of the case.  Any felony or misdemeanor for which probation may be imposed is eligible for suspended imposition of sentence.  See § 557.011.2(3).  If sentence and judgment are suspended after a guilty plea, there is no conviction for purposes of collateral consequences.  Upon successful completion of probation, the record becomes a “non-conviction record” and need not be reported as a conviction.  § 610.110.  See also Yale v. City of Independence, 846 S.W.2d 193, 195 (Mo. 1993):

The obvious legislative purpose of the sentencing alternative of suspended imposition of sentence is to allow a defendant to avoid the stigma of a lifetime conviction and the punitive collateral consequences that follow. That legislative purpose is further evidenced in statutes concerning closed records. . . . [I]f imposition of sentence is suspended, the official records are closed following successful completion of probation and termination of the case.  Closed records are made available only in limited circumstances and are largely inaccessible to the general public. . . . Thus, with suspended imposition of sentence, trial judges have a tool for handling offenders worthy of the most lenient treatment.  Worthy offenders have a chance to clear their records by demonstrating their value to society through compliance with conditions of probation under the guidance of the court.

However § 610.105 does not require or authorize expungement, and “the court’s judgment or order or the final action taken by the prosecutor . . . may be accessed.”  § 610.105(1).  See also Mo. Op. Att’y Gen. No. 101 (Sept. 28, 1977), available at https://www.ago.mo.gov/docs/default-source/opinions/1977/101_1977.pdf?sfvrsn=2.   In addition, the complete record remains available to law enforcement and other governmental entities (e.g., department of revenue for driver license administration and the department of health and senior services facilities for licensing decisions).  Mo. Rev. Stat. § 610.120.5

Effective January 1, 2018, SB-588 (2016) (discussed above) non-conviction records are subject to the same eligibility rules and procedures as convictions, and to the same three-year waiting period as misdemeanors. 

[A] petition to expunge records related to an arrest for an eligible offense, violation, or infraction may be made in accordance with the provisions of this section to a court of competent jurisdiction in the county where the petitioner was arrested no earlier than three years from the date of arrest; provided that, during such time, the petitioner has not been charged and the petitioner has not been found guilty of any misdemeanor or felony offense. (§ 610.140(6).)

For effect of expungement, see § 610.140(6), discussed above.  Arrest records not eligible for expungement under the new law may be “closed” under the old authority in Mo. Rev. Stat. § 610.105. 

3.  Arrests based on false information; motor vehicle cases

An arrest record may be expunged pursuant to Mo. Rev. Stat. § 610.122 if (1) the court determines that the arrest was based on false information and there is no probable cause, at the time of the action to expunge, to believe the individual committed the offense; no charges will be pursued as a result of the arrest; and the subject of the arrest did not receive a suspended imposition of sentence for the offense for which the arrest was made or for any offense related to the arrest; or (2) The court determines the person was arrested for, or was subsequently charged with, a misdemeanor driving offense (except for DUI), and each such charge was subsequently nol prossed or dismissed, or the person was found not guilty.  Expungement under this section results in the destruction of the record and removal from state electronic databases and FBI files. § 610.124. This relief is not available to a person holding a commercial driver’s license.  A record of arrest shall only be eligible for expungement under this section if the person has no prior or subsequent misdemeanor or felony convictions, and no civil action is pending relating to the arrest or the records sought to be expunged. 

4.  Sealing of Juvenile Court Records

Records of juvenile court proceedings are generally not open to inspection or disclosure except by order of the court to persons having a legitimate interest therein, unless a child charged with class A felony or murder.  Mo. Rev. Stat. § 211.321.1.  The court may, on its own motion or upon application, order destruction of records and seal the official court file and peace officers’ records at any time after the child has reached his seventeenth birthday if the court finds that it is in the best interest of the child (or at any time after the closing of the child’s case if court’s jurisdiction extends beyond the child’s age 17).  § 211.321.5.  Records of suspension or revocation of a juvenile’s driving privileges may be expunged two years after suspension/revocation or when the person reaches age 21 under certain circumstances (e.g., first-time offense, blood alcohol content of 0.02%, not driving commercial motor vehicle).  § 302.545.

III.  Nondiscrimination in Licensing and Employment
A.  Collateral consequences in licensure and public employment

Mo. Rev. Stat. § 561.016.1 generally adopts the approach of the Model Penal Code in limiting the collateral consequences of a conviction to those imposed by the constitution or statute, embodied in the judgment of the court, or (in the case of discretionary consequences) those “reasonably related to the competency of the individual to exercise the right or privilege of which he is deprived:”

No person shall suffer any legal disqualification or disability because of a finding of guilt or conviction of a crime or the sentence on his conviction, unless the disqualification or disability involves the deprivation of a right or privilege which is: (1)  Necessarily incident to execution of the sentence of the court; or (2) Provided by the constitution or the code; or (3) Provided by the statute other than the code, when the conviction is of a crime defined by such statute; or (4) Provided by the judgment, order or regulation of a court, agency or official exercising a jurisdiction conferred by law, or by the statute defining such jurisdiction, when the commission of the crime or the conviction or the sentence is reasonably related to the competency of the individual to exercise the right or privilege of which he is deprived.6

This provision applies to public employment. See, e.g., Hardy v. Fire Standards Comm’n of St. Louis Cnty., 992 S.W.2d 330 (Mo. App. 1999) (county rules denying employment as a firefighter to any person convicted of a felony or misdemeanor involving moral turpitude conflicted with statute limiting the disqualifications of convicted felons to those where the crimes convicted of reasonably relate to the felon’s competency to do the job at issue, and thus, rules were void unless they could be enforced in such a way as to be in compliance with the statute); Mager v. City of St. Louis, 699 S.W.2d 68 (Mo. App. 1985) (municipal ordinance prohibition against employment of convicted felons by liquor licensees was contrary to limitations in § 561.016 insofar as it sought to disqualify convicted felons from employment when their crimes, convictions, or sentences were not reasonably related to their competency to be employed by liquor licensees).  The Statute is intended to remove much of the stigma of conviction, and increase the legitimate discretion of licensing boards by eliminating arbitrary or inflexible barriers imposed by criminal conviction.  See Chandler v. Allen, 108 S.W.3d 756 (Mo. App. 2003) (sex offender properly dismissed from job in deli on public safety grounds; Section 561.016 only relates to employment in certain regulated areas where license is required, which was not applicable to employment in deli).

B. Ban-the-box in public employment

In April 2016, Governor Nixon signed an executive order directing “all departments, agencies and boards and commissions in the Executive Branch subject to the authority of the Governor” to remove from all initial employment applications “questions relating to an individual’s criminal history unless a criminal history would render an applicant ineligible for the position.” See Executive Order 16-04 (April 11, 2016), available at https://governor.mo.gov/news/executive-orders/executive-order-16-04.  It would appear that this order limits initial inquiries about criminal history to situations where it would disqualify an applicant from employment under statute or regulation. 

C.  Licensing boards and other state agencies

“Except as otherwise specifically provided by law, no license for any occupation or profession shall be denied solely on the grounds that an applicant has been previously convicted of a felony.”  Mo. Rev. Stat. § 324.029.  Per Mo. Rev. Stat. § 314.200, no governmental board or other agency may deny an occupational or professional license to an applicant primarily on the basis that an applicant’s felony or misdemeanor conviction precludes the applicant from demonstrating good moral character, where the conviction resulted in the applicant’s incarceration and the applicant has been released by pardon, parole, or on probation and there is no evidence that the applicant has violated the conditions of his probation.  Conviction may be considered as “some evidence of an absence of good moral character,” but an entity should also consider the nature of the crime committed in relation to the license sought, the date of the conviction, the conduct of the applicant since the date of the conviction, and other evidence as to the applicant’s character.  Id.  See also United States v. Brown, 408 F.3d at 1019 (citing Mo. Rev. Stat. § 314.200 and stating “good moral character’ determination may not be primarily based on felony conviction”).  See also Section IIB (1) on the effect of expungement on licensing. 


  1. Prior to 2008, only persons convicted of a “dangerous felony” were prohibited from possessing a firearm; only “concealable” weapons were banned; and only for five years after conviction or release from confinement.  See L. 2008, H.B. No. 2034, § A.  A bill was introduced in the Missouri legislature in January 2012 (HB 1482) that would create an exception to the unlawful possession law for those in possession of a rifle or shotgun who were not convicted of a “violent felony” (ie, one that involved a weapon, use of force, or arson), but there does not appear to be much support for this bill.  
  2.   The Missouri court of appeals has held that a guilty plea separately bars an individual from possessing a concealed weapon, even if pardoned.  See Stallsworth v. Sheriff of Jackson County, Ct. App. W. Dist. May 31, 2016, http://www.courts.mo.gov/file.jsp?id=101635.
  3. A copy of the Application for Executive Clemency (which includes pardons) can be found online at: http://doc.mo.gov/Documents/prob/CLEMENCY_APPLICATION.pdf.  The application should be mailed to the Missouri Board of Probation and Parole, P.O. Box 236, Jefferson City, MO, 65102.
  4. Earlier governors’ pardoning records are also available from the Board:  Holden (2001-2005) issued 45 pardons, denied 840; Wilson (2000-01) granted 46 pardons and denied 347; Carnahan (1993-2000) granted 42 pardons and denied 607; Ashcroft (1985-1993) granted 34, denied 985; and Bond (1981-85) granted 73, denied 436.
  5. See also Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262 (11th Cir. 2004) (misdemeanor drug possession conviction rendered non-citizen subject to deportation even though the conviction had been expunged pursuant to Mo. Rev. Stat. § 610.105).
  6. Comments to the 1973 Proposed Code, included in § 561.016, explain that “reasonable relationship” test is the “most important provision” in the section:

    The present law sometimes contains blanket restrictions against employment in certain regulated areas of persons convicted of crimes. Sometimes conviction is relevant to the public safety interests underlying the regulation, but often it is not. By eliminating irrational barriers to employment, we assist offenders in reintegrating themselves into the community.  Thus, instead of providing that no liquor license shall be issued to any [convicted] person . . .  the Code provides a reasonable rule which would authorize a licensing agency to refuse to grant a license to an applicant whose criminal record and other circumstances indicate that he would endanger the particular group or industry protected by the agency’s licensing power.

    The Commentary goes on to opine that “there should be very few of these statutes containing special penalties [referred to in subsection (3)] if the Code is enacted and the present disqualification and disability statutes are repealed and replaced by the Code provisions.”

Copyright © 2017

Restoration of Rights Series/Mississippi

I.  Restoration of Civil/Firearms Rights
A.  Voting

Disenfranchisement occurs only upon conviction of one of the crimes listed in the Mississippi Constitution as disqualifying.  See Miss. Const. art. 12, § 241 (murder, rape, bribery, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy).  Most statutory offenses involving an unlawful taking of property are disqualifying. See Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998).1  The right to vote, if lost, may be regained only by pardon, or by a two-thirds vote of legislature.  Miss. Const. art. 5, § 124 (executive’s power to pardon limited in cases of treason and impeachment); art. 12, § 253.2

Only convictions obtained in Mississippi state courts are disqualifying.  See Middleton v. Evers, 515 So.2d 940, 944 (Miss. 1987) (disqualification not applicable if person was convicted in another state); Op. Miss. Atty.Gen. No. 2005-0193 (Wiggins, April 26, 2005).  The Mississippi Attorney General’s office advises that only felony convictions are disqualifying.  See McLaughlin v. City of Canton, 947 F.Supp. 954 (S.D. Miss. 1995) (misdemeanor “false pretenses” conviction does not constitute a conviction for fraud within the constitution, and is thereby not disqualifying; equal protection issues discussed in dicta).3

B.  Jury and Office

Persons convicted of an “infamous crime,” defined as an offense “punished with death or confinement in penitentiary,” are ineligible for jury service.  See Miss. Code Ann. §§ 13-5-1; 1-3-19.  Jury eligibility is restored five years after conviction, provided the person is a qualified elector.  § 13-5-1.

The right to hold office is lost upon conviction of certain felonies, and restored only by pardon.  Miss. Const. art. 4, § 44(1)-(3); Miss. Code Ann. § 99-19-35 (“A person convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement, or bigamy, shall not be allowed to practice medicine or dentistry, or be appointed to hold or perform the duties of any office of profit, trust, or honor, unless after full pardon for the same.”).  A person convicted in another state, or in federal court would not fall within the scope of this prohibition.  State ex rel. Mitchell v. McDonald, 145 So. 508 (Miss. 1933); Op. Miss. Att’y Gen., 1990 WL 547896 (Harris, Aug. 29, 1990).

C.  Firearms

Persons convicted of a felony may not possess a firearm unless pardoned, granted federal relief under 18 U.S.C. § 925(c), or granted a “certificate of rehabilitation” by a court.  See Miss. Code Ann. § 97-37-5(1), discussed in Part II, infra.

II.  Discretionary Restoration Mechanisms:
A.  Executive pardon
Authority

The governor has full clemency authority in all criminal cases (except treason and impeachment), subject to rules and regulations prescribed by law.  Miss. Const. art. 5, § 124.  Mississippi law gives the Parole Board “exclusive responsibility” for investigating pardon cases at the governor’s request.  Miss. Code Ann. § 47-7-5(3).  See also § 47-7-31.  The Board is composed of five full-time salaried members appointed by the governor, who also appoints the chair.  § 47-7-5(1).  The Board reports annually to the governor and legislature.  § 47-7-15.

Eligibility

According to the Governor’s Office, informal policy requires applicants to wait seven years after the completion of sentence.  Federal and out-of-state offenders are not eligible for a state pardon.

Effect

Pardon restores civil rights and removes employment disabilities, including gun rights.  Legislative relief does not restore gun rights.  Statutes barring convicted people from jobs in education and health care give specific effect to pardon.  See, e.g., Miss. Code Ann. §§ 37-9-17(3) (teachers and school administrators); 37-29-232(3) (admission to health care professional training program).  See also 45-33-47(4) (pardon relieves obligation to register as sex offender).  A pardon does not expunge a conviction. See Hentz v. Mississippi, 152 So. 3d 1139 (Miss. 2014), http://law.justia.com/cases/mississippi/supreme-court/2014/2013-ca-01217-sct.html.

Process

Under the Mississippi Constitution, all applicants for executive clemency must post notice in a newspaper in the county of conviction 30 days prior to making application to governor, setting forth the reasons why clemency should be granted.  Miss. Const. art. 5, § 124.4  Facially meritorious cases filed with the governor’s office are sent to the Parole Board for investigation.  The Board generally requires letters of recommendation from the community and family, and a statement of unusual circumstances.  The application form is available at http://www.cjpf.org/clemency/MississippiApp.pdf.  The Board holds a hearing on meritorious applications at which the victim (if any) may be present.  See Miss. Code Ann. § 99-45-1.

Frequency of Grants

Governor Bryant indicated at the outset of his administration, doubtless influenced by the scandal connected with the irregular pardons issued by Governor Haley Barbour at the end of his term, that he intended to use the pardon power sparingly and only in cases of wrongful conviction.  See Huma Khan, Pardon No More? Mississippi’s New Governor Eyes Tougher Rules for Clemency, ABCNEWS.com ( 16, 2012), http://abcnews.go.com/blogs/politics/2012/01/pardon-no-more-mississippis-new-governor-eyes-tougher-rules-for-clemency.   He has not modified this position.  Governor Barbour granted no more than a handful of pardons until the very end of his tenure in 2012, when he issued 215 clemency grants.  Of these final grants, 189 were full pardons granted to persons no longer in prison, most (though not all) of whom had completed their sentences.  According to the Parole Board, it received more than 500 applications during Governor Barbour’s eight-year tenure.  Of those, just over 250 met the required standards for consideration and were sent on to the governor’s office.  At the end of his term, Barbour granted clemency to 185 applicants, apparently not all of whom had applied for pardon through the established procedure, and denied it to 69 others. http://www.reuters.com/article/2012/01/20/us-usa-mississippi-pardons-idUSTRE80J25K20120121.  According to the Mississippi Attorney General’s office, there are several dozen legislative pardons granted pursuant to Bills of Suffrage each year, and some of those granted end-of-term pardons by Governor Barbour had previously received such restorations.5  Source:  Mississippi Attorney General’s Office.

Contact

Mississippi Parole Board (601) 576-3520; also Paul Hirst, Governor’s Office at (601) 350-3150; Phil Carter, Attorney General’s Office, (601) 359-3680, pcart@ago.state.ms.us

 

B.  Judicial sealing or expungement
1.  Expungement

Any first misdemeanor conviction other than a traffic offense may be expunged by petitioning the convicting court. Miss. Code Ann. § 99-19-71(1).  A person may also expunge a single enumerated minor felony conviction in the same manner.  § 99-19-71(2)(a).6  § 99-19-71(2)(a).  Effective July 2013, a person may also expunge a single more serious felony conviction committed before the age of 21.  § 99-19-71(2)(b) (as amended by  Laws, 2013, Ch. 557, § 1).  Certain serious felonies including rape, murder, armed robbery, and child pornography are not eligible for underage expungement under section 99-19-17(2)(b), however.  Additionally, the court may deny an underage felony expungement for “any felony that, in the determination of the circuit court, is a violent crime or a felony that is related to the distribution of a controlled substance and in the court’s discretion it should not be expunged.”  Expungement is not available for public officials convicted of offenses related to official duties.  § 99-19-71(5).

For both types of felony expungement there is a five year waiting period after completion of sentence.  §§ 99-19-71(2)(a), (b).  The District Attorney must be given 10 days’ notice before any hearing.  § 99-19-71(2)(c).  The court may grant such a petition if it determines the applicant is rehabilitated.  Id.  “Upon entering an order of expunction under this section, a nonpublic record thereof shall be retained by the Mississippi Criminal Information Center solely for the purpose of determining whether, in subsequent proceedings, the person is a first offender.”  § 99-19-71(3).  Expunged records are retained for law enforcement purposes.  Id.

Effect

Miss. Code Ann. § 99-19-71(3):

The effect of the expunction order shall be to restore the person, in the contemplation of the law, to the status he occupied before any arrest or indictment for which convicted. No person as to whom an expunction order has been entered shall be held thereafter under any provision of law to be guilty of perjury or to have otherwise given a false statement by reason of his failure to recite or acknowledge such arrest, indictment or conviction in response to any inquiry made of him for any purpose other than the purpose of determining, in any subsequent proceedings under this section, whether the person is a first offender.

At the same time, “[t]he existence of an order of expunction shall not preclude an employer from asking a prospective employee if the employee has had an order of expunction entered on his behalf.”  Id.   A person as to whom an order has been entered, upon request, shall be required to advise the court, in camera, of the previous conviction and expunction in any legal proceeding wherein the person has been called as a prospective juror.   The court shall thereafter and before the selection of the jury advise the attorneys representing the parties of the previous conviction and expunction.  Id.

2.  Nonconviction records

Records of misdemeanor cases in which no charges were brought or charges were dismissed may be expunged.  Miss. Code Ann. §§ 99-15-59 (misdemeanor).  See also 99-15-26(5) (deferred adjudication, below).

3.  Deferred adjudication

Deferred adjudication is authorized for felonies and misdemeanors, except crimes against the person and drug trafficking crimes. Miss. Code Ann. § 99-15-26(1)-(5)(“Dismissal of action upon successful completion of certain court-imposed conditions”). Expungement required upon successful completion.  § 99-15-26(5)(“upon petition therefore, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case”)

4.  Juvenile adjudications

A youth may apply to a court to initiate sealing of records if the youth qualifies.  Miss. Code Ann. § 43-21-263(2).  A youth qualifies upon reaching age 20 if the case was dismissed or the court set aside the adjudication.  § 43-21-263(1).  A judge has complete discretion over whether to seal and unseal records.  Only a judge can initiate the record destruction process, which is distinct from sealing.  §§ 43-21-263(2), 265.

5.  Judicial certificate of rehabilitation

Miss. Code Ann. § 97-37-5(1) provides that a felony offender will no longer be subject to prosecution as a felon in possession if he has received a certificate of rehabilitation from the court of conviction.  Section 97-37-5(3) authorizes the court to issue a certificate of rehabilitation, “upon a showing to the satisfaction of the court that the applicant has been rehabilitated and has led a useful, productive and law-abiding life since the completion of his sentence and upon the finding of the court that he will not be likely to act in a manner dangerous to public safety.”  Certificates are referred to in Miss. R. Evid. 609(c) as sufficient to rehabilitate a testimonial witness, indicating that it may be issued under a common law authority not exclusively created for firearms restoration.

III.  Nondiscrimination in Licensing and Employment

While Mississippi has no general law regulating consideration of conviction in connection with licensing and employment, it does apply a direct relationship test in connection with some licenses.  See, e.g., Miss. Code Ann. § 73-67-27(1)(e) (massage therapy license may be denied or revoked if person has conviction or charges “that directly relates to the practice of massage therapy or to the ability to practice massage therapy”).

 


 

  1. Until the Fifth Circuit’s 1998 decision in Cotton v. Fordice, the constitutional list of crimes was given a narrow literal reading by the state Attorney General.  Since that decision, the Attorney General has expanded the list of statutory theft-related crimes that are disqualifying.  See Op. Miss. Att’y Gen. No. 2001-0278 (Scott, May 11, 2001) (car-jacking); Op. Miss. Atty.Gen. No. 99-0186 (Vowell, April 30, 1999) (timber larceny).   Similarly, since 1998 the category of “false pretenses” offenses has also been more expansively interpreted to include statutory offenses.  However, the Attorney General has made clear that crimes involving drugs or other controlled substances generally do not “fall under one of the twenty-one (21) crimes listed above and therefore would not be disqualifying,” though “we caution that an independent determination would have to be made on each specific crime.”  See Op. Miss. Att’y Gen. No. 2004-0171 (Karrem, April 23, 2004).  Other distinctions are explained in Op. Miss. Att’y Gen. Nos. 2000-0454 (Scott, August 18, 2000) (conviction for receiving stolen property or felony shoplifting results in disenfranchisement, but conviction for burglary does not);  2000-0169 (Salazar, April 7, 2000) (forgery does, prescription forgery does not); 2001-0278, supra (rape does, sexual battery does not).
  2. Miss. Code Ann. § 99-19-37(11) establishes administrative procedures for restoring the vote automatically to any convicted person who served honorably in World War I or World War II, referring to legislative authority in section 253 of the Mississippi constitution.
  3. Prior to 1995, the Mississippi Attorney General had historically opined that misdemeanor offenses falling within the constitutional list of crimes were disqualifying.  See, e.g., Op. Miss. Att’y Gen Nos. 1992-0153 (March 3, 1992); 1985-744 (Pittman, November 22, 1992).
  4. On March 8, 2012, the Mississippi Supreme Court upheld the validity of certain pardons issued by outgoing Governor Barbour despite the beneficiaries’ failure to comply with the notice requirement in the Mississippi constitution, holding that compliance with constitutional provisions that were procedural in nature and committed solely to another branch of government was not justiciable.  See In re Hooker, 87 So. 3d 401 (Miss. 2012).
  5. See Marc Mauer & Tushar Kansal, Barred for Life: Voting Rights Restoration in Permanent Disenfranchisement States, Sentencing Project (Feb. 2005) at 16,available at http://www.sentencingproject.org/pdfs/barredforlife.pdf (reporting that  between 2001 and 2004, 55 “bills of suffrage” passed while 57 were defeated).
  6. Prior to 2010, expungement was available only for misdemeanor convictions.  See Laws, 2010, ch. 460, § 1.  In 2010, the legislature added felony bad check offenses, possession of a controlled substance or paraphernalia, false pretense, larceny, malicious mischief, and shoplifting.  Earlier, in 2003, § 99-19-71 was amended to eliminate a requirement that a misdemeanor conviction must have occurred before the person reached age 23.  See Laws 2003, Ch. 557, § 4.

 

 

 

 

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