Restoration of Rights Series/California

California-Outline-and-Flag

Restoration of Civil/Firearms Rights

A.  Civil Rights

Vote

The right to vote is suspended while a person is “imprisoned or on parole for the conviction of a felony.”Cal. Const. art. II, § 4;Cal. Elec. Code § 21011 A person whose prison sentence is suspended does not lose the right to vote unless and until actually incarcerated in state or federal prison. A person regains voting rights automatically upon completion of any period of parole.  Those serving a term of felony probation, “mandatory supervision,” or “post-relief community supervision” may also vote.2 Presumably, federal offenders on supervised release would be regarded as similarly situated.

3: Jury

Persons convicted of a felony or malfeasance in office may not serve on a jury.  Cal. Civ. Proc. § 203(a)(5).  The California Constitution disqualifies from office anyone convicted of vote-buying, and authorizes laws disqualifying from public office anyone convicted of bribery, perjury, forgery, malfeasance in office, and other “high crimes.”  Cal. Const. art VII, § 8; See Cal. Gov’t § 1021; Cal. Penal §§ 67, 68, 74, 88, 98.  If lost, these civil rights may be regained only by a governor’s pardon.

B.  Firearms

A person convicted of a felony in any jurisdiction, or of a misdemeanor offense involving the violent use of a firearm, cannot own, purchase, receive, possess or exercise custody or control over any firearm. See Cal. Penal §§ 29800, 29805. Federal offenders lose rights under state law only if their offense would be a felony under California law or if they spent at least 30 days in prison.  § 29800(c). The right to possess a firearm is restored by pardon based on a certificate of rehabilitation except when the underlying offense involved the use of a dangerous weapon. § 4852.174  See People v.Frawley, 98 Cal. Rptr.2d 555, 563-64 (Cal. App. 2000);People v. Ratcliff, 273 Cal. Rptr. 253, 259 (Cal. App. 1990).   When granting a pardon, the governor may also provide for a restoration of firearm rights, except where the person was convicted of a felony involving a dangerous weapon.  Cal. Penal § 4854.  Federal offenders may regain right to possess firearms only through full and unconditional presidential pardon, and those convicted of out-of-state convictions may regain rights by pardon expressly restoring firearms rights. See 66 Op. Cal. Att’y Gen. 343 (1983).  Set-aside of conviction does not restore gun rights under state law. See Frawley, 98 Cal. Rptr.2d at 791 (set-aside remedy under Cal. Penal § 1203.4does not “expunge” a conviction so as to remove state firearms disabilities).  It is not entirely clear whether a California set-aside relieves federal firearms liability.5 See also infra Part II B.

Certain misdemeanor offenses, including domestic violence, may result in loss of firearms rights for a period of 10 years.  Cal. Penal § 29805.  Special relief provisions for law enforcement personnel and those convicted prior to enactment in 1991.  §§ 29855, 298606

C.  Summary of California Relief Mechanisms

California offers a variety of routes to restoration of rights, depending on the particular type of conviction or disposition, the individual’s circumstances (including residence), and the reasons for seeking relief.  These are listed below, and most are discussed in the pages that follow.  Individuals uncertain about which type of relief best suits their needs and circumstances should seek advice of a legal aid lawyer familiar with the range of possible routes to relief.

“Wobbler” felony reduction – PC § 17(b) Misdemeanor reduction – PC § 17(d)Early termination of probation – PC § 1203.3 Set aside & dismissal – probation imposed* – PC § 1203.4 Set aside & dismissal – no probation imposed* – PC § 1203.4a Set aside & dismissal – PC § 1170(h) sentence* – PC § 1203.41 Sealing misdemeanor adult conviction by minor – PC § 1203.45 Certificate of Rehabilitation & Pardon – Cal. Penal §§ 4852.01 .Direct Pardon (notably for out-of-state residents) –  Cal Penal § 4852.16Restoration remedy for veterans – PC § 1170.9 Certificate describing arrest as detention – PC § 851.6 Record sealing – juvenile misdemeanor arrest – PC § 851.7 Record sealing & destruction following arrest – factual innocence – PC § 851.8 Record sealing following acquittal – factual innocence – PC § 851.85 Record sealing following conviction – factual innocence – PC § 851.86 Record sealing following non-drug DEJ (NEW 01/01/2014) – PC § 851.87 Record sealing & registration following identity theft – PC § § 530.6/530.7 Record sealing following drug diversion – PC § 851.90 Juvenile Record Sealing & Other Juvenile Record Remedies – W & I Code §§ 781, 1772, 1179, PC § § 851.7, 1203.47Automatic destruction of records of some marijuana arrests/convictions – HS § 11361.5

* Also known as “expungement”

II.  Discretionary Restoration MechanismsA.  Governor’s PardonAuthority

For persons convicted of no more than one felony, the pardon power rests exclusively with the governor, who may request investigation and advisory recommendation from the Board of Parole Hearings (formerly the Board of Prison Terms).Cal. Const. art. V, § 8(a);Cal. Penal §§ 4800, 4812-4813. “The Governor may not grant a pardon or commutation to a person twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring.” Cal. Const. art. V, § 8.  The governor is required by statute to refer applications from persons convicted of two or more felonies to the BPH (though he is not bound by its recommendation). Cal. Penal § 4802.  The BPH, “after investigation, shall transmit its written recommendation upon such application to the Governor, together with all papers filed in connection with the application.”  § 4813.  Governor required by the constitution to report to the legislature “each reprieve, pardon, and commutation granted, stating the pertinent facts and the reasons for granting it.”Cal. Const. art. V, § 8; Cal. Penal § 4852.16.

Administration

By statute, the Board of Parole Hearings consists of 17 commissioners appointed by the governor to staggered three-year terms, which may be renewed. Commissioners are full-time employees, and can be removed by the governor only for misconduct or incompetence or neglect, after a full hearing.7 Cal. Gov. Code § 12838.4 Board of Parole Hearings, Dep’t of Corrs. & Rehab., http://www.cdcr.ca.gov/BOPH/.  Currently, only 12 commissioners sit on the Board. Board of Parole Hearings, Dep’t of Corrs. & Rehab, http://www.cdcr.ca.gov/BOPH/(last visited March 17, 2016).

Eligibility

Instructions issued by the Governor’s Office describe a pardon  as follows: :

A gubernatorial pardon is an honor that may be granted to people who have demonstrated exemplary behavior following their conviction. A pardon will not be granted unless it has been earned. Obtaining a pardon is a distinct achievement based upon proof of a productive and law-abiding life following conviction. Historically, governors have granted very few pardons.

Office of the Governor,How to Apply for a Pardon, available athttp://gov.ca.gov/docs/How_To_Apply_for_a_Pardon.pdf (revised Sept. 5, 2013).

Absent extraordinary and compelling circumstances, an application will not be considered unless the applicant has been discharged from probation or parole for at least 10 years without further criminal activity during that period. Federal offenders and persons convicted under the laws of a state other than California are ineligible for a gubernatorial pardon, and may regain their civil rights (other than the right to vote) only through a pardon or similar action in the jurisdiction of their conviction.

Process

There are two procedural routes to pardon.  For those who reside in the state, the pardon process ordinarily starts with an application for a Certificate of Rehabilitation in the county of residence. Convicted persons who reside outside the state, or who are otherwise ineligible for a COR (e.g. misdemeanants, certain sex offenders) may apply directly to the governor.  See How to Apply for a Pardon,supra.

Certificate of Rehabilitation

The process for petitioning for a Certificate of Rehabilitation (COR) is described in Part II-B-3, infra.  If a COR is issued, the court forwards to governor (and Supreme Court in the case of person convicted of more than one  felony) with a recommendation that the individual be pardoned.  Cal. Penal § 4852.14. The forwarded certificate itself serves as an application for pardon. §4852.16. Upon receipt of COR and recommendation from court, governor may request that BPH investigate and make a recommendation. § 4812. 8. DA and court are asked for views.§ 4803.  Indigent persons seeking a pardon through a certificate of rehabilitation are entitled to representation by a public defender. § 4852.08; Ligda v. Superior Court of Solano County, 85 Cal. Rptr. 744, 752 (Cal. Ct. App. 1970).

If the applicant was twice convicted of a felony, the governor must receive a recommendation from a majority of the Supreme Court before granting.§ 4852.16  No requirement that governor seek Court’s recommendation, and governor is not bound to grant if Court so-recommends.  If recommendation is sought, Court holds a hearing and application is treated like a case and assigned a number.  Cal. Sup. Ct., Internal Operating Practices and Procedures, § XIVA, XV.  BPH is obligated to make a recommendation in these cases as well, but this does not limit the governor’s ability to act. § 4813.  Notice must be given to DA at least 10 days before action.  § 4804.

“Direct pardon”

(Persons ineligible for Certificate of Rehabilitation) – Process explained in “How to Apply for a Pardon,”supra.  Application available athttps://www.gov.ca.gov/docs/Application_for_Pardon.pdf.  Applications are made directly to the governor, and court of conviction, DA, BPH, and the Supreme Court serve the same roles described above.   See Cal. Penal §§ 4801 – 4813.  There is no right to a public defender in direct pardon cases.

Effect

A pardon restores civil rights lost, but does not seal or expunge the record of conviction.  The conviction may still be considered in certain licensing proceedings.Cal. Penal §§ 4852.15,4853. 9

The right to possess a firearm is restored upon a full and unconditional pardon based upon a COR, except when the underlying offense involved the use of a dangerous weapon.  Cal. Penal § 4852.17.  A “direct” pardon only restores firearms rights if specified, and the same exception for dangerous weapon offenses applies.  See §4854.   Only a pardon restores civil rights  See Office of the Governor,How to Apply for a Pardon, available athttp://gov.ca.gov/docs/How_To_Apply_for_a_Pardon.pdf, comparing the effect of pardon and COR.  A pardon based on a COR  must be recorded on the person’s criminal record and reported to the FBI. § 4852.17.

Frequency of Grants

As of April 15, 2017, Governor Jerry Brown had issued 929 pardons during his third and fourth terms as governor. See Gov. Jerry Brown issues pardons, commutes sentences hours before Easter Sunday, http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-gov-jerry-brown-issues-pardons-1492284380-htmlstory.htmlMost of Governor Brown’s pardons went to ordinary citizens of California, though one “celebrity” pardon was granted in 2015.  See Robert Downey Jr. among Jerry Brown’s 91 Christmas pardons, The Sacramento Bee, http://www.sacbee.com/news/politics-government/capitol-alert/article51502260.html(Dec. 24 2015).  (During his first two terms (1976-1984) he issued 403 pardons.)  Brown’s pardons are generally issued at Easter and Christmas.  A majority of the convictions pardoned have been drug offenses, almost all more than two decades old, and all recipients residing in the state first received a certificate of rehabilitation from a court, in accordance with the established process. There are several thousand pardon applications filed each year through court-issued certificates of rehabilitation.

The pardoning record of recent previous governors is as follows:  Governor Schwarzenegger issued only 16 pardons during his two terms, two to the same person.  Governor Davis granted none; Governor Wilson granted 13; Governor Deukmejian, 328; Governor Jerry Brown, 403; Governor Reagan, 575.   Source: California Board of Parole Hearings.

Contact

Office of the Governor
(916) 445-0873.

B.  Judicial set-aside and sealing1.  Set-Aside of ConvictionEligibility

Probationers:  In any case where a person sentenced to probation (including felony offenders, but not including any sex offenders) has successfully completed the sentence and has no charges pending, “or in any other case in which a court, in its discretion and in the interests of justice, determines that a defendant should be granted the relief available under this section,” the person may apply to the court to withdraw the plea and the court must (“shall”) “set aside” the verdict of guilty.Cal. Penal § 1203.4(a)(1).  This has the effect of releasing the offender “from all penalties and disabilities resulting from the offense of which he or she has been convicted.” § 1203.4(a) also provides that “the probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon.”   No relief shall be granted under § 1203.4unless the prosecuting attorney has been given 15 days’ notice of the petition for relief.  § 1203.4(e)(1).

Misdemeanants not sentenced to probation, and those convicted of infractions (including traffic infractions, possession of small amounts of marijuana), may apply for change of plea and dismissal of charges one year from entry of judgment, which the court “shall” grant if the petitioner can show, in addition to successful completion of probation and no charges pending, that they have, “since the pronouncement of judgment, lived an honest and upright life and ha[ve] conformed to and obeyed the laws of the land.” Cal. Penal § 1203.4a(a). In 2011 a provision was added providing that the court “may” grant relief to misdemeanants who do not satisfy the “honest and upright life” standards in (a).  § 1203.4a(b).  Anomalous higher standard under this provision compared to § 1203.4 is noted in People v. Bradley,57 Cal. Rptr. 82, 84 (Cal. Ct. App. 1967).

Minor felony offenders sentenced to county jail: In October 2013 Governor Brown signed into law a new authority for courts to set aside the conviction of defendants sentenced to county jail for a felony under the so-called Realignment legislation enacted in 2011.  A defendant so sentenced may withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty, after the lapse of one or 2 years following the defendant’s completion of the sentence, provided that the defendant is not currently serving a sentence or charged with the commission of any offense. Cal. Penal § 1203.41(a).

Proposition 47:  Proposition 47 substantially expanded the number of offenses that are eligible for set-aside by reducing certain felonies to misdemeanors, and limiting sentences that may be imposed. A number of individuals previously convicted of felonies are permitted under this 2014 authority to return to court to have their convictions reduced to misdemeanors, and therefore become eligible for set-aside under Cal. Penal § 1203.4aCalifornia’s Proposition 47 and collateral consequences: Part II (reentry and restoration of rights), Collateral Consequences Resource Center,http://ccresourcecenter.org/2014/12/01/californias-proposition-47-collateral-consequences-part-ii-reentry-restoration-rights (Dec. 1, 2014).

Proposition 64:  Approved in November 2016, Proposition 64 (“Adult Use of Marijuana Act”) made a number of prior marijuana convictions eligible for set-aside, either directly or by reducing felony convictions to misdemeanors.  Seethe helpful memorandum prepared by Judges Richard Couzens and Tricia Bigelow on “Resentencing Procedures and Other Selected Provisions” (November 2016),  http://www.courts.ca.gov/documents/prop64-Memo-20161110.pdf.

Effect of set-aside

While these statutes are frequently characterized as authorizing “expungement,” the setting aside of a conviction does not seal or otherwise limit public access to the record.   UnderCal. Penal § 1203.4(a)(1), “the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.”  See, e.g., People v. Field,31 Cal. App. 4th 1778 (1995) (“Expungement, however, does not obliterate a conviction for all purposes, and records of an expunged conviction are accessible to the public”).

Under California law, convictions that are set aside may be used when sentencing petitioner for subsequent convictions, for prosecution for possession of firearm by ex-felon, for purposes of California’s “three strikes” law, and for denial of professional licenses. See Doe v. Brown, 177 Cal. App. 4th 408, 423 (Cal. App. 2009)(sex offender whose conviction set aside pursuant to § 1203.4 still required to register); People v. Frawley, 98 Cal. Rptr.2d 555, 563-64 (Cal. App. 2000) (set-aside does not “expunge” conviction so as to restore firearms rights); see also Jennings v. Mukasey, 511 F.3d 894 (9th Cir. 2007)(set-aside under § 1203.4 does not “expunge” a prior conviction for purposes of eliminating liability under 18 U.S.C. § 922(g), the federal felon in possession statute).  In addition, setting aside alien’s plea of guilty, substitution of plea of not guilty and dismissal of information pursuant to § 1203.4(a) does not expunge conviction for purposes of avoiding deportation. Garcia-Gonzales v. Immigration and Natur. Service, 344 F.2d 804, 806 (9thCir. 1965), cert. denied, 382 U.S. 840 (1965).   Finally, the 9th Circuit has held that state convictions that were “set aside” were not “expunged” for purposes of calculating defendant’s criminal history under United States Sentencing Guidelines.  U.S.  v. Hayden, 255 F.3d 768, 770 (9th Cir. 2001) (California set-aside does not amount to expungement under USSG 4A1.2(j)), cert. denied, 534 U.S. 969, 122 S. Ct. 383 (2001).

That said, there are substantial employment benefits for individuals in having a conviction set aside. See Cal. Labor Code § 432.7(a); Part IIIinfra.  In addition, under regulations of the California Fair Employment and Housing Commission, it is unlawful for a public or private employer to inquire into or seek information about a conviction that has been set-aside and dismissed pursuant to this authority. See Cal. Code Regs. tit. 2 § 11017(d)(1).State business and occupational licensing boards may not deny an applicant solely on the basis of a conviction that was set-aside and dismissed. Cal. Bus. & Prof. Code § 480(c).

Set-aside procedure

The procedure for obtaining a set-aside is explained at this advocacy website: Starting Over Strong, http://www.startingoverstrong.com/Home_Page.php A Cost-Benefit Analysis of Criminal Record Expungement in Santa Clara County, Stanford University, Public Policy Program, https://publicpolicy.stanford.edu/publications/cost-benefit-analysis-criminal-record-expungement-santa-clara-county.

2.  SealingUnder-age first offender misdemeanants

Misdemeanants who were under 18 at the time their crime was committed, and who are eligible for or who received relief under either 1203.4 or 1203.4a, may petition the court to have the record sealed. Cal. Penal § 1203.45(a).

Juvenile adjudications

Most juvenile adjudications may be sealed after 5 years upon petition to the court, by the individual or the probation department, after jurisdiction is terminated or after the child reaches age 18.  Court must find that 1) the child has not subsequently been convicted of a felony or a misdemeanor crime of moral turpitude; and 2) that “rehabilitation has been attained to the satisfaction of the court.”  See Cal. Welf. & Inst. § 781(a)(1)(A).  DA must be notified.  A sealing order may direct that a person be removed from sex offender registry.  § 781(a)(1)(C).  “The records shall be confidential and shall be available for inspection only by the court, jury, parties, counsel for the parties, and any other person who is authorized by the court to inspect them.”  § 781(b).  “Unless for good cause the court determines that the juvenile court record shall be retained, the court shall order the destruction of a person’s juvenile court records that are sealed pursuant to this section” after five years.  § 781(d).  DMV records remain available to insurers.  § 781(c).  Records of certain serious offenses committed after reaching age 14 may not be sealed.  § 781(a)(1)(D).   “Once the court has ordered a person’s records sealed, the proceedings in the case shall be deemed never to have occurred, and the person may properly reply accordingly to any inquiry about the events, the records of which are ordered sealed.” § 781(a)(1)(A).  Effective January 1, 2015, the juvenile court or probation officer must inform any person brought within their jurisdiction of the availability of sealing, and must develop explanatory materials.  See § 781(h).

Nonconviction records

Cal. Penal § 851.8(d):  In any case where a person has been arrested and an accusatory pleading has been filed, but where no guilty plea or conviction has occurred, the court may, with the concurrence of the prosecuting attorney, order that the records be sealed and destroyed.  Most juvenile misdemeanor arrest records may be sealed pursuant to § 851.7(a).

Expungement of certain marijuana convictions and arrests

Cal. Health & Safety Code §11361.5:  Authorizes destruction of arrest and conviction records for possession or transportation of small amounts of marijuana violations of marijuana laws, either by adult and juvenile offender, two years from the date of conviction or arrest if no conviction. Where violation occurs on school property by a person under the age of 18, “the records shall be retained until the offender attains the age of 18 years at which time the records shall be destroyed as provided in this section.”

** See Part III for discussion of prohibition on employer inquiry into and consideration of non-conviction records, sealed records, convictions that have been set aside

3.  Certificate of RehabilitationEligibility

A California resident convicted of a state law offense may apply to the Superior Court of his county of residence for a Certificate of Rehabilitation (COR).  Cal. Penal §§ 4852.01 through .06, 4852.19.  The COR is an order embodying a court’s finding that the defendant is rehabilitated and its recommendation that he be pardoned.  § 4852.13; see Section IIA, supra.  To obtain a COR, a convicted person must complete his or her sentence and period of parole, remain a resident of the state for a specified period with no further violations of the law, demonstrate good conduct, and satisfy other statutory requirements.  §§ 4852.01, 4852.03, 4852.05, 4852.06.   Prison wardens are required to advise prisoners of their right to apply for a COR upon their release from prison. § 4852.21.

A person may apply to court after completion of “period of rehabilitation” running from release from prison or release on probation:  five years’ residence in CA plus four years for serious offenses and two years for less serious offenses.  Court may order additional years in case of concurrent sentences.  (Sex offenders who are required to register, except for indecent exposure, have an additional five-year waiting period, for a total necessary rehabilitation period of 10 years.)  § 4852.03.  Effective January 1, 2014, a trial court hearing an application for a COR before the applicable period of rehabilitation has elapsed may grant the application if the court, in its discretion, believes relief serves the interests of justice. § 4852.22.

Persons convicted of misdemeanors are ineligible to obtain a COR, except for certain sex offenders.  See Newland v. Board of Governors 19 Cal. 3d 705, 712-714 (Cal. 1977).

Effect

Sections 480(b) and490 of the California Business & Professional Code provide that no one who has been granted a COR shall be denied an occupational license “solely” on the basis that he has been convicted of a felony.  See Part III, infra.  See alsoCal. Ed. Code § 44346.1(d) (teacher’s certificate; mandatory bar converted to discretionary). A COR mitigates the effect of some statutory employment barriers by removing mandatory bars, serving as a basis for waiver, and evidencing rehabilitation.  See, e.g., Cal. Health & Safety § 1522(g)(1)(A)(ii) (waiver for licensed community care facility employment; certain offenses excepted);Cal. Admin. Code tit. 10, § 3723 (factors into rehabilitation determination for real estate appraiser license); Cal. Ed. Code § 44830.1(f) (public school employment; may not deny solely on the basis of conviction if COR issued).  See also Doe v. Saenz, 45 Cal. Rptr. 3d 126, 142-43 (Cal. App. 2006) (limitation of certificate to certain serious offenses in connection with employment in community care and childcare facilities violates Equal Protection).

A COR provides relief from sex offender registration obligations for less severe offenses.  SeeCal. Penal § 290.5.

A COR does not restore civil rights, seal or expunge a criminal record, or allow an applicant for employment to claim they have not been convicted of a crime.  See Office of the Governor, How to Apply for a Pardon, available athttp://gov.ca.gov/docs/How_To_Apply_for_a_Pardon.pdf.

Procedure for Applying

The petition for COR must be filed in the superior court of the applicant’s current county of residence.  Cal. Penal § 4852.06.  The petition form can usually be obtained from the court clerk, probation department, or public defender’s office. The petitioner is required to notify the district attorney in their county of residence and the district attorney of each county in which the petitioner was convicted of a felony. The notice must identify all crimes for which the person is requesting a COR. The form for sending these notices can also be obtained from the court clerk, probation department, or public defender.  Once a petition is filed, the court will schedule a hearing. Before the hearing, the court may require an investigation by the district attorney. § 4852.10.  At the hearing, the court may require testimony and records pertaining to the petitioner, including information about the conviction offense and the person’s conduct while incarcerated and since release.

The petition form and additional information is available here: http://www.sdcourt.ca.gov/pls/portal/docs/PAGE/SDCOURT/GENERALINFORMATION/FORMS/CRIMINALFORMS/PKT016.PDF.

Representation

Persons applying for a COR are entitled to assistance in processing their petitions from the county probation office(s), state parole office(s), and for persons under the age of 30, from the California Youth Authority. The person may also be represented by counsel of his or her own selection. If the person does not have counsel, he or she may be represented by the public defender, the probation department, or the court may assign counsel. Cal. Penal § 4852.08.

Standards

Cal. Penal § 4852.13(a):

Except as otherwise provided in subdivision (b), if after hearing, the court finds that the petitioner has demonstrated by his or her course of conduct his or her rehabilitation and his or her fitness to exercise all of the civil and political rights of citizenship, the court may make an order declaring that the petitioner has been rehabilitated, and recommending that the Governor grant a full pardon to the petitioner. This order shall be filed with the clerk of the court, and shall be known as a certificate of rehabilitation.

(Exception in subsection (b) for registered sex offenders “if the court determines    that the petitioner presents a continuing threat to minors . . .

4. Felony treated as misdemeanor (“Wobbler” offenses)

A crime that is otherwise a felony (“punishable by either imprisonment in the state prison or the county jail”) may be treated as a misdemeanor “for all purposes” if the court imposes punishment other than a state prison term, or “grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” Cal. Penal § 17(b)(1) and (b)(3).  Also, the prosecutor may file a complaint treating the offense as a misdemeanor. § 17(b)(4).  Upon a request by California’s Commission on Peace Officer Standards and Training, the California Attorney General opined that the Commission’s power to revoke a peace officer license when an officer is convicted of a felony did not extend to convictions under § 17(b) which are to be treated as misdemeanors “for all purposes” unless the conduct itself involved moral turpitude or some other indication of the applicant’s unfitness to be a peace officer. 76 Op. Cal. Att’y Gen. 270, 275 (1993).  However, while a blanket prohibition would be inappropriate in light of the purposes of § 17(b), case-by-case analysis of an applicant’s conduct would permit denial of licensure by the California Commission on an individual basis.

III.  Nondiscrimination in Licensing and EmploymentA.  Licensing

Cal. Bus. & Prof. Code, §§ 480et seq. contains detailed provisions for considering conviction in the context of licensing. The list of boards covered by these provisions is at http://www.dca.ca.gov/about_dca/entities.shtml.

Denial of License – Effect of Certificate of Rehabilitation/Set-aside

Cal. Bus. & Prof. § 480(b) prohibits denial of a license based on a felony conviction if the person has received a certificate of rehabilitation, or based on a misdemeanor conviction if the person is deemed rehabilitated:

(b) Notwithstanding any other provision of this code, a person shall not be denied a license solely on the basis that he or she has been convicted of a felony if he or she has obtained a certificate of rehabilitation under Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code or that he or she has been convicted of a misdemeanor if he or she has met all applicable requirements of the criteria of rehabilitation developed by the board to evaluate the rehabilitation of a person when considering the denial of a license under subdivision (a) of Section 482.

Sections 481 and 482provide that each Board must develop criteria for determining rehabilitation, for considering rehabilitation, and for determining substantial relationship.   For example, criteria for determining rehabilitation for real estate appraiser license in Cal. Code Regs. tit. 10 § 3723, include passage of time, restitution to victim, judicial relief (certificate of rehabilitation), evidence of involvement in community and stability of family life, abstinence from controlled substances, testimony of affiant.  For procedure for denial oflicense based onconviction, see Cal. Bus. & Prof. §§ 485-489.

Cal. Bus. & Prof. Code § 480(c) provides that a license may not be denied solely on the basis of a conviction that has been set-aside and dismissed under Cal. Penal §§ 1203.4, 1203.4a, or 1203.41.

Suspension and Revocation of Licensee – Substantial Relationship Standard

Cal. Bus. & Prof. § 490: A board may suspend or revoke a license on the ground that the licensee has been convicted of a crime only if the crime is “substantially related” to the qualifications, functions, or duties of the business or profession for which the license was issued.  Compare Petropopulos v. Department of Real Estate, 47 Cal. Rptr 3d 812, 822-23 (Cal. App. 2006), modified on denial of rehearing (misdemeanor domestic battery not substantially related to real estate license) with Robbins v. Davi, 95 Cal. Rptr. 3d 792, 797 (Cal. App. 2009) (misdemeanor building code violations substantially related to license as real estate broker).  See § 494 for procedures foruspension andevocation.

Recognition of prison training in qualifications for license

Cal. Bus. & Prof. § 23.9:

[A]ny individual who, while imprisoned in a state prison or other correctional institution, is trained, in the course of a rehabilitation program approved by the particular licensing agency concerned and provided by the prison or other correctional institution, in a particular skill, occupation, or profession for which a state license, certificate, or other evidence of proficiency is required by this code shall not, when released from the prison or institution, be denied the right to take the next regularly scheduled state examination or any examination thereafter required to obtain the license, certificate, or other evidence of proficiency and shall not be denied such license, certificate, or other evidence of proficiency, because of his imprisonment or the conviction from which the imprisonment resulted, or because he obtained his training in prison or in the correctional institution, if the licensing agency, upon recommendation of the Adult Authority or the Department of the Youth Authority, as the case may be, finds that he is a fit person to be licensed.

B.  EmploymentConsideration of certain criminal records

Under amendments toCal. Labor Code § 432.7(a) that took effect January 1, 2014, public and private employers are prohibited in most situations from inquiring into or considering any arrest or detention that did not result in conviction, resulted in referral to any pretrial or post-trial diversion program, any conviction that has been ordered sealed, or judicially dismissed (set aside) pursuant to Cal. Penal §§ 1203.4, 1203.4a, 1203.41, or 1203.345, or (as of 2016) any arrests, dispositions, or other actions that occurred under juvenile court jurisdiction.  See Part II,supra; s Cal. Code Regs. tit. 2 § 11017.1(b). Cal. Labor Code § 432.8further specifies that employers may not inquire about non-felony marijuana convictions more than two years old.  These prohibitions on inquiry do not apply if the employer is required by law to obtain that information, the applicant would be required to possess or use a firearm in the course of his or her employment, an individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been sealed, statutorily eradicated, or judicially dismissed following probation, or if the employer is prohibited by law from hiring an applicant who has been convicted of a crime.

See also Cal. Labor Code § 432.7 (g)(1)-(3) (law enforcement agencies and others authorized to receive criminal history information may not disclose “with intent to affect a person’s employment” any information about arrest not resulting in conviction, or about referral to pretrial or post-trial diversion program).

In 2017 the regulations of the California Fair Employment and Housing Commission were amended to provide that consideration of criminal history by employers may violate the state’s Fair Employment and Housing Act if such consideration has “an adverse impact on individuals on a basis protected by the Act, including, but not limited to, gender, race, and national origin.”  Cal. Code Regs. tit. 2 § 11017.1(d) – (g).10 If such an adverse impact can be shown, an employer has the burden of showing that the practice at issue is “job-related” and “consistent with business necessity;” and, even then, the employer may still be in violation if “less discriminatory alternatives” would achieve the employer’s legitimate goals.

Ban-the-Box

Under Cal. Labor § 432.9, a state or local agency “shall not ask an applicant for employment to disclose, orally or in writing, information concerning the conviction history of the applicant . . . until the agency has determined the applicant meets the minimum employment qualifications, as stated in any notice issued for the position.”  This section does not apply to any position for which a background check is mandated by law, to any person working on a temporary or permanent basis for a criminal justice agency.  This provision is effective July 1, 2014.  Under policies put in place under Governor Schwarzenegger, questions asking about criminal convictions were removed from the state employment form.  Even where a criminal record is “pertinent” to a particular job, the Criminal Record Supplemental Questionnaire restricts inquiries to felonies and domestic violence misdemeanors.

In 2014 The Fair Chance Employment Act was enacted (codified at Cal Pub Contract Code § 10186), prohibiting state contractors providing onsite construction-related services from inquiring about the criminal history of applicants for construction jobs on an initial application.

Notice of reasons for denial of public employment

Cal. Gov. Code § 11546.6requires that a person, who is rejected as a result of a criminal background check by a state agency for employment, contract, or volunteer work involving confidential or sensitive information, be provided with a copy of his or her criminal record. Additionally, this law requires the state to institute a written appeals process for rejected individuals to challenge ineligibility determinations based on the individual’s criminal record.

C. Regulation of background-checking

California’s Investigative Consumer Reporting Agencies Act, Cal. Civ. C. § 1786 et seq. (the California analogue to FCRA), provides:

No consumer credit reporting agency shall make any consumer credit report containing any of the following items of information:
….

(6)  Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that in the case of a conviction a full pardon has been granted, or in the case of an arrest, indictment, information, or misdemeanor complaint a conviction did not result.

§ 1785.1311

Background check companies “may not make an inquiry for the purpose of preparing an investigative consumer report on a consumer for employment purposes if the making of the inquiry by an employer or prospective employer of the consumer would violate applicable federal or state equal employment opportunity law or regulation.” Cal. Civ. C. § 1786.20(c). Note that by inquiring into and reporting misdemeanors dismissed pursuant to Cal. Penal §§ 1203.4, 1203.4a, the background check company is going beyond what a private employer can do.

Effective in January 2013, every entity that conducts a criminal background check under the mandate of a state or local occupational or licensing law must automatically provide the subject of the background check with a copy of his or her state and federal rap sheet whenever the agency makes a negative decision based on the record.  SeeCal. Penal § 1110512

Effective January 2017, “imprisoned” in section 2101 is defined as “currently serving a state or federal prison sentence,” making it clear that those serving felony sentences in county jails retain their voting rights.  Cal. Elec. Code § 2101(c)(1) (as amended by AB-2466 The Criminal Justice Realignment Act of 2011 (CJRA) created three new categories of sentencing for people convicted of low-¬level felonies: mandatory supervision, post–release community supervision (PRCS), and a term in county jail. In 2014, a California court held that those on mandatory supervision and PRCS must be permitted to vote, and the State agreed to recognize the voting rights of more than 50,000 people in these two categories. See Briefs and Orders in Scott v. Bowen at https://www.brennancenter.org/legal-work/scott-v-bowen; Press Release, California Secretary of State, Secretary Padilla Ends Appeal of Scott v. Bowen Case (Aug. 4, 2014),http://www.sos.ca.gov/administration/news-releases-and-advisories/2015-news-releases-and-advisories/secretary-padilla-ends-appeal-scott-v-bowen-case/.  In 2016, AB 2466 amended the Elections Code to reflect the decision in Scott v. Bowen and clarified that the third category of CJRA sentencing – a term in county jail – likewise does not strip people of the right to vote.   Seenote 1, supra  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.  (Opinion on file with author.) § 4852.17:

Whenever a person is granted a full and unconditional pardon by the Governor, based upon a certificate of rehabilitation, the pardon shall entitle the person to exercise thereafter all civil and political rights of citizenship, including, but not limited to: (1) the right to vote; (2) the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 17800 and 23510 and Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.

In 2007, the federal court of appeals for the 9th Circuit followedFrawley in holding that a set-aside under § 1203.4 does not “expunge” a prior conviction for purposes of eliminating liability under 18 U.S.C. § 922(g), the federal felon in possession statute.  See , 511 F.3d 894 (9th Cir. 2007).  However, that court had earlier held in U.S. v. Laskie, 258 F.3d 1047 (9th Cir. 2001) that a Nevada conviction that had been set aside could not serve as predicate felony for federal firearms prosecution.Law enforcement personnel with a single misdemeanor domestic violence conviction may petition the court to regain firearms rights, but only once.  § 29855(a).  “In making its decision, the court shall consider the petitioner’s continued employment, the interest of justice, any relevant evidence, and the totality of the circumstances. The court shall require, as a condition of granting relief from the prohibition under this section, that the petitioner agree to participate in counseling as deemed appropriate by the court.”  § 29855(e).  Persons subject to this prohibition by virtue of a conviction prior to the date of enactment may also petition the court for relief, but here again only once. § 29860(a). In making its decision, the court may consider the interest of justice, any relevant evidence, and the totality of the circumstances. It is the intent of the Legislature that courts exercise broad discretion in fashioning appropriate relief under this paragraph in cases in which relief is warranted.” § 29860(e).  Effective July 1, 2005, a new California Department of Corrections and Rehabilitation (CDCR) assumed responsibility for all correctional services.  The BPH was created by collapsing three boards into one – the BPT, Youthful Offender Parole Board, and the Narcotic Addict Evaluation Authority.  See CA SB 737 (enrolled May 10, 2005).   Cal. Penal § 4812:

[T]he board shall examine and consider all applications so referred and all transcripts of judicial proceedings and all affidavits or other documents submitted in connection therewith, and shall have power to employ assistants and take testimony and to examine witnesses under oath and to do any and all things necessary to make a full and complete investigation of and concerning all applications referred to it.

Cal. Penal § 4852.15:

Nothing in this chapter shall be construed to abridge or impair the power or authority conferred by law on any officer, board, or tribunal to revoke or suspend any right, privilege, or franchise for any act or omission not involved in his or her conviction, or to require the reinstatement of the right or privilege to practice or carry on any profession or occupation the practice or conduct of which requires the possession or obtaining of a license, permit, or certificate. Nothing in this chapter shall affect any provision of Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code or the power or authority conferred by law on the Board of Medical Examiners therein, or the power or authority conferred by law upon any board that issues a certificate permitting any person to practice or apply his or her art or profession on the person of another. Nothing in this chapter shall affect any provision of Chapter 4 (commencing with Section 6000) of Division 3 of the Business and Professions Code or the power or authority in relation to attorneys at law and the practice of the law in the State of California conferred by law upon or otherwise possessed by the courts, or the power or authority conferred by law upon the State Bar of California or any board or committee thereof.

However, per Cal. Bus. & Prof. § 480(b), a license may not be denied solely on the basis of a felony if the applicant possesses a Certificate of Rehabilitation (COR). See also Part III-A, infra.

This provision tracks closely with the EEOC’s guidance on consideration of criminal records under Title VII of the federal Civil Rights Act which endorses a disparate impact theory of liability based on criminal history consideration that negatively impacts groups, such as racial minorities, protected under the Act.  See EEOC, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 915.002 (April 25, 2012), http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf .   Because the California’s ICRRA antedates the federal FCRA, its stricter limitations on credit reporting companies are not preempted by 15 U.S.C.§ 1681t(a).  See Love et al, Collateral Consequences of Criminal Conviction § 5:31. See Madeline Neighly & Maurice Emsellem, National Employment Law Project, Wanted: Accurate Background Checks for Employment 24 (July 2013), available at http://www.nelp.org/content/uploads/2015/03/Report-Wanted-Accurate-FBI-Background-Checks-Employment.pdf:

[I]n FY 2011/12, California exceeded one million FBI criminal background checks for employment and licensing purposes, thus representing a considerable share of the nearly 17 million rap sheets generated by the FBI for employment screening. California laws mandating FBI background checks cover a range of occupations, with the highest volume of FBI background checks produced for school employees, social services workers, private security guards, healthcare workers, and law enforcement personnel. California lawmakers and state officials have taken their responsibility seriously to ensure that the large numbers of FBI checks conducted for employment and licensing purposes are up to date and that workers have the information they need to verify accuracy. While the California state repository only has dispositions for 57 percent of all arrests, the California Department of Justice timely ensures the completeness and accuracy of records that are requested for employment and licensing decisions.

Restoration of Rights Series/Arkansas

ArkansasI.  Restoration of Civil/Firearms Rights
A.  Vote

The right to vote is lost upon conviction of a felony, and automatically restored upon completion of sentence, including any term of probation or parole.  Ark. Const. art. III, §§ 1 (lawful registration to vote required for electors), 2 (prohibiting restrictions on suffrage “except for the commission of a felony, upon lawful conviction thereof); amended by Ark. Const. art. 51, § 11(a)(4) (requiring city registrars to cancel the registration of voters “[w]ho have been convicted of a felony and have not discharged their sentence or been pardoned”).  This provision applies to felony convictions from any jurisdiction. See Merritt v. Jones, 533 S.W.2d 497, 500 (Ark. 1976) (conviction from another jurisdiction is a “felony” if punishable in that jurisdiction by imprisonment in a penitentiary, or death).1

B.  Jury/Office

Arkansas law disqualifies from jury service those “who have been convicted of a felony and not pardoned.”  Ark. Code Ann. § 16-31-102(a)(4).  The Arkansas Constitution disqualifies anyone “convicted of embezzlement of public money, bribery, forgery or other infamous crime” from election to the General Assembly and holding any office of trust or profit in this State.  Ark. Const. art. V, § 9.  Infamous crimes “include elements of deceit and dishonesty.” Unlike the right to serve on a jury, a pardon does not restore eligibility to hold office, see State v. Oldner, 206 S.W.3d 818, 826 (Ark. 2005); Ridgeway v. Catlett, 379 S.W.2d 277 (Ark. 1964), which can be restored only through expungement process set forth in Ark. Code. Ann. §§ 16-93-301 et seq. (first-time felony offender probation and expungement), or a similar expungement statute from another jurisdiction. § 7-6-102(d);   see Powers v. Bryant, 832 S.W. 2d 232 (1992) (coram nobis proceeding that declared conviction “null and void” meant person had not been “convicted” under art. 5, § 9); Tyler v. Shackleford, 799 S.W.2d 789, 790 (Ark. 1990) (same for convictions expunged under federal law). See discussion in Part III, below.

C.  Firearms

No person convicted or adjudicated guilty of a felony (including suspended sentences and probation) may possess or own any firearm unless: 1) the person’s conviction is dismissed and expunged under § 16-93-301 et seq. (first offender) or § 16-98-303(g) (drug court) (see infra Part II B); 2) the person is granted a pardon expressly restoring the ability to possess a firearm; or 3) the governor accepts the recommendation of the chief law enforcement officer in the person’s residence to “restore” the ability to possess a firearm (available only if the underlying felony or adjudication did not involve a weapon and occurred more than 8 years ago). See Ark Code. Ann. § 5-73-103; see also Irvin v. State, 784 S.W.2d 763 (Ark. 1990) (under prior version of statute that made expungement mandatory, no prior conviction for purposes of statute despite fact that state officer had not completed ministerial duties necessary for expungement) .

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

The governor has full clemency authority, except in cases of treason and impeachment, “under such rules and regulations as shall be prescribed by law.” Ark. Const. art. VI, § 18.  By statute, all applications for clemency “shall be referred to the Parole Board for investigation.”  Ark. Code Ann. § 16-93-204(a).2  The Parole Board “shall thereupon investigate each case and shall submit to the Governor its recommendation, a report of the investigation, and all other information the board may have regarding the applicant.” § 16-93-204(b).  While the governor is thus required to seek the non-binding advice of the Parole Board, his own power does not depend upon receiving a favorable recommendation.  Under Constitution, governor must report to legislature on all grants and give reasons.  Ark. Const. art. VI, § 18.  (Pending legislation requiring detailed reasons has stalled.)

Administration

Parole Board consists of seven full-time members appointed by governor to seven-year terms. Four constitutes a quorum. Grounds for removal for cause may not include any proper official action.  Ark. Code Ann. § 16-93-201(a).

Eligibility

Only state offenders are eligible for a governor’s pardon, but there is no waiting period for in-state convictions.

Effect

Pardon restores jury eligibility but not right to hold public office. See Part I, Pardon removes conviction-related barriers to licensing and employment.   Under state habitual offender statute, a pardoned conviction cannot be used to enhance a later sentence.  Duncan v. State, 494 S.W. 2d 127 (1973).

Expungement follows automatically upon receipt of pardon for all but a few serious offenses:  “Upon issuing a pardon, the Governor shall notify the sentencing court, and the court shall issue an order expunging the records relating to the conviction of the person pardoned.” Ark. Code Ann. § 16-90-605(a).  Exceptions where victim under 18, sex offenses, and where death or serious physical injury results.  16-90-605(c).  For effect of expungement see below.

Firearms

Pardon must specifically restore firearms privileges.  The governor may separately restore firearm privileges, upon the recommendation of the chief law enforcement officer of the jurisdiction in which the convicted person resides, if the offense occurred more than eight years before and did not involve the use of a weapon. Ark. Code Ann. § 5-73-103(a)(1), (b), (d).

Process

See http://www.paroleboard.arkansas.gov/.  Policies and procedures are at http://www.paroleboard.arkansas.gov/clemency/pages/default.aspx.   The application form is at http://www.paroleboard.arkansas.gov/Websites/parole/images/PardonApplication050415.pdf.

Before considering an application for pardon, Parole Board must request a (non-binding) recommendation of sentencing court, prosecuting attorney, and sheriff of county of conviction. Ark. Code Ann. §§ 5-4-607(d)(1);16-93-204(d)(1).  (Notice to victim and solicitation of recommendation required only in connection with capital murder cases and class Y, A, and B felonies. § 16-93-204(d)(2).)   Ordinarily no formal hearing is required in pardon cases.  If a majority of Board votes to recommend pardon, sends written recommendation to governor.  Board must give 30-days public notice of intention to make favorable recommendation to governor, and must also send notice to judge and prosecutor.  § 16-93-204(e).

Before acting, governor must give 30 days notice (including statement of reasons) to Secretary of State, judge, prosecuting attorney, sheriff, and, if applicable, the victim.  § 16-93-207(a)(1).  A failure to give proper notice renders grant void.  Id at (a)(2).  If Governor does not act on a Board recommendation within 240 days, application deemed denied.  If an application is denied by the Governor in writing, applicant must wait four years from time of original application before reapplying; if denial by inaction, applicant may reapply immediately. § 16-93-207(c).

Frequency of Grants

Pardons are processed by the Board at monthly hearings, and acted on by the governor on a regular basis.  Since 2004, between 400 and 500 pardon applications have been received each year.  In the past a substantial percentage of applications were granted, but Governor Asa Hutchinson has granted only about 10% of applications received.  See http://www.paroleboard.arkansas.gov/past-recommendations/.  As of July 1, 2017, Governor Hutchinson had granted about 175 pardons since taking office in 2015. See http://governor.arkansas.gov/clemency-extraditions. Governor Beebe (2007-2014) granted over 700 pardons during his tenure (many without restoring firearms, and some restoring firearms only).  While sentence commutations in recent years have occasionally given rise to controversy and legislative limits on the pardon power, no similar concerns have been expressed about post-sentence pardons, with one conspicuous exception.3  In July of 2004, Governor Huckabee was reported to have pardoned a total of 567 persons since taking office in 1996. See Bob McCord, “Huckabee’s Pardons,” Arkansas-Times (July 29, 2004), http://www.arktimes.com/arkansas/huckabees-pardons/Content?oid=948418.  He granted another 200 pardons after that time.

Year
Applications rec’d
Recommended fav.
Pardons Granted
Firearms only

2004
408
114
148
10

2005
480
204
117
11

2006
530
210
115
24

2007
503
196
46
20

2008
447
245
92
14

2009
404
232
129
7

2010
308
119
76
10

2011
366
175
100
6

Contact

Counsel for Clemency and Corrections
Office of the Governor
501-682-8184, -6447

B.  Judicial sealing or expungement
Comprehensive Criminal Record Sealing Act of 2013

In 2013 the Arkansas legislature enacted an entirely new chapter of Title 16 of the Arkansas Code to simplify and reconcile its laws on sealing of criminal records.  See Ark. Code Ann. § 16-90-1401, et seq.  Effective January 1, 2014, the Comprehensive Criminal History Sealing Act of 2013 repealed a number of authorities for expungement and sealing of conviction records that had accumulated over 40 years.4  Certain authorities for non-conviction dispositions were left undisturbed, including the authority in § 16-93-314 authorizing dismissal of charges for first offenders granted probation, and diversionary dispositions (including deferred adjudication) for persons sentenced to probation, first felony offenders, and juveniles.5  The new sealing law is intended to supersede all other provisions for sealing of criminal records except under the Arkansas Drug Court Act, § 16-98-301, and those applicable to juvenile records under § 16-90-1403.

Eligibility

Conviction records: This law expanded slightly the classes of offenders eligible for sealing relief to include minor felony offenders: Class C and D felonies and certain drug convictions are now eligible for sealing after five years (if no more than one prior felony), § 16-90-1406; and, misdemeanor convictions are eligible for sealing immediately after completion of sentence, § 16-90-1405.  Special provision for sealing certain drug convictions immediately upon completion of sentence are set forth in § 16-90-1407.  Serious violent and sexual offenses are ineligible for sealing, as are motor vehicle violations committed by a holder of a commercial driver’s license.  16-90-1408.

Non-conviction records: A person may petition a district circuit court to have arrest records sealed if no charges are filed within one year, §16-19-1409, and records in which charges are dismissed or no conviction is obtained. 16-90-1410.

Pardoned offenses: § 16-90-1411.  Certain serious offenses excepted even if pardoned.

Victims of human trafficking: See below.

Procedures

Procedures for sealing are set forth in § 16-90-1413, and include filing a uniform petition, which must be served on the prosecuting attorney.  A hearing will be scheduled in the case of misdemeanors only if the prosecutor objects, but must be scheduled in every case where felonies are concerned.  Provisions on release of sealed records in certain circumstances are set forth in §16-90-1416 (to criminal justice agencies in case of application for employment, to courts and prosecutors).

Standards and Burden of proof

There is a presumption in favor of sealing in misdemeanor and violation cases (court “shall seal” the record unless the court “is presented with and finds that there is clear and convincing evidence that a misdemeanor or violation conviction should not be sealed”). § 1415(a).  The court “may seal” the record of eligible felonies, including drug possession cases, “if the court finds by clear and convincing evidence that doing so would further the interests of justice,” considering certain factors related to the likelihood of recidivism (including the person’s other criminal history, the pendency of other charges, and input from the victim. §1415(b) and (c). The court “shall seal” the nonconviction records, including records of cases in which charges dismissed, unless it finds there is a public safety risk.  § 1415(d).  An appeal of the grant or denial of the petition to seal may be taken by either party. § 1415(f).

Effect of sealing

§ 16-90-1417:  A person whose record has been sealed under this subchapter shall have all privileges and rights restored, and the record that has been sealed shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law.  Sealing does not restore the right to carry a firearm if that right was removed as the result of a felony conviction.  A sealed convictionshall be deemed as a matter of law never to have occurred, and the person may state that the underlying conduct did not occur and that a record of the person that was sealed does not exist.”  § 16-90-1417(b)(1).  That notwithstanding, a sealed conviction may be used as a predicate and to enhance a subsequent sentence.  Id. at (b)(2).

Human trafficking victims

A person convicted of a prostitution offense as a result of being a victim of human trafficking may petition for sealing at any time.  Ark. Code Ann. § 16-90-1412.  Sealing is mandatory so long as the court finds by a preponderance of the evidence that the conviction was the result of being a victim of human trafficking.  In addition to restoring the individual’s rights in the manner specified above, the petitioner’s name is redacted from all records and files related to arrest and conviction. 

Expungement available in only two situations:

Juvenile offenses: An individual who was convicted of a nonviolent felony committed when the individual was less than 18 years old may petition for expungement. Ark. Code Ann. § 16-90-602.

Drug court: Under Ark. Code Ann. § 16-98-303, each district may establish its own drug court.  May be pre-adjudication or post-adjudication, and all but violent and sex offenses eligible.  Upon successful completion, court may order expungement, with concurrence of prosecuting attorney, if after considering the offender’s past criminal history the judge feels expungement and dismissal of the case is appropriate.  Court may also expunge a case from another Arkansas court, with the concurrence of that court.  Burglary, breaking and entering, and fourth DUI are ineligible for expungement.  § 16-98-303(g).  Those convicted of or currently charged with violent felonies, and those required to register are sex offenders, are not eligible for drug court programs.  § 16-98-303(c)(1).

C.  Administrative certificate: N/A
III.  Nondiscrimination in Licensing and Employment:
A.  Criminal Offender Rehabilitation Act

“It is the policy of the State of Arkansas to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the assumption of the responsibilities of citizenship. The public is best protected when offenders are given the opportunity to secure employment or to engage in a meaningful trade, occupation, or profession.” Ark Code Ann. § 17-1-103(a).  Licensing boards “may take into consideration conviction of certain crimes which have not been annulled, expunged, or pardoned. However, such convictions shall not operate as an automatic bar to registration, certification, or licensing for any trade, profession, or occupation.” § 17-1-103(b).  Arrest records not leading to conviction, convictions that have been pardoned or expunged, and misdemeanor convictions (except misdemeanor sex offenses) may not be “used, distributed, or disseminated” in connection with an application for a license. § 17-1-103(b)(2).   Completion of parole or probation supervision plus five years after release from prison will be “prima facie evidence of rehabilitation.” § 17-1-103(e).

Boards and agencies shall “state explicitly in writing the reasons for a decision which prohibits the applicant from practicing the trade, occupation, or profession if the decision is based in whole or in part on conviction of a felony.”  § 17-1-103(c).  Complaints are adjudicated under Arkansas APA. § 17-1-103(e).  Does not apply to teacher licensure or certification, or nursing licensure and certification, which are governed by §§ 6-17-410 and 17-87- 312 respectively.  § 17-1-103(g).  Secretary of State must make section known to any affected agency.  § 17-1-103(f)(2).  See also Bolden v. Watt, 719 S.W.2d 428 (Ark. 1986) (criminal offender act benefits DWI offender seeking licensure as taxi driver, in spite of specific prohibition in taxi licensing law, since individual could be prevented from obtaining particular job because of direct connection between nature of conviction and job).

B.  Teachers License

Ark. Code Ann. § 6-17-410 provides for revocation or denial of teaches license for conviction of a wide variety of crimes.  However, under § 410(f)(2) the revocation provisions of subsection (c) of this section may be waived taking into account:

(A) The age at which the crime or incident was committed;

(B) The circumstances surrounding the crime or incident;

(C) The length of time since the crime or incident;

(D) Subsequent work history;

(E) Employment references;

(F) Character references; and

(G) Other evidence demonstrating that the applicant does not pose a threat to the health or safety of school children or school personnel.

C.  Nursing license

Ark. Code Ann. § 17-87-312(g)(2) provides substantially the same scheme as for teachers.

D.  Elder Care License

Ark Code  Ann. § 20-33-213 imposes mandatory record checks, and § 20-38-105(b) bars licensure for wide variety of offenses for limited periods of time (five years for misdemeanors, ten years for felonies) as long as applicant has not been convicted in the meantime.  § 20-38-105(d).   Permanent disqualification for smaller group of violent offenses, including expunged convictions.  § 20-38-105(c).

E.  Scholarships

Ark. Code Ann. § 6-82-107:  “A criminal conviction shall not be used as a basis to disqualify a person from eligibility for a scholarship, grant, loan forgiveness program, or other benefit subsidized by state funds under this chapter unless there is a specific statutory reason for denial that relates to the basis of assistance.”


  1. When Merrit was decided, Arkansas law defined a felony as a crime punishable by imprisonment in a penitentiary or death.  Today, § 5-1-106 defines a felony as any crime so designated by statute.
  2. The Arkansas legislature reconstituted the Post Prison Transfer Board as the Parole Board in 2005, and made other modifications in parole and pardon policy.  See Acts 1033,  85th Gen. Sess., 2005.
  3. The Board recommended that Governor Beebe pardon his son, who had been convicted of a minor marijuana offense in 2003, reasoning that the case was similar to others it had recommended favorably.  See Lucy McCalmont, “Arkansas governor to pardon own son,” Politico (Nov. 13, 2014), http://www.politico.com/story/2014/11/arkansas-gov-mike-beebe-pardon-son-112857.html.
  4. See § 16-90-1401 (“The General Assembly recognizes that historically the laws of this state involving the procedure a person must follow to have his or her prior criminal history information sealed have been confusing, from the standpoint of both practicality and terminology. . . . It is the intent of the General Assembly to provide in clear terms in what instances and, if applicable, how a person may attempt to have his or her criminal history information sealed.”)
  5. See also the Community Punishment Act of 1993 (“Act 531”), Ark. Code Ann. § 16-93-1201 et seq.; First Offenders Act of 1975 (“Act 346”), Ark. Code Ann. § 16-93-314 (authorizing dismissal of charges after completion of probationary sentences); Ark. Code Ann. § 5-4-312 (authorizing the court to suspend any sentence to community corrections).

Copyright © 2017

Restoration of Rights Series/ Arizona

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

Conviction of a felony suspends the right to vote, to hold office, and to sit on a jury. Ariz. Const. art. VII, § 2(C); Ariz. Rev. Stat. §§ 13-904(A)(1)-(3); 16-101(A)(5); 21-201(3). See also Ariz. Rev. Stat. § 14-5651(C)(3) (fiduciary, including court-appointed guardians and personal representatives unrelated to a decedent,).  For a first felony offender (state or federal), civil rights, other than those pertaining to firearms, are automatically restored upon completion of the term of probation, or upon an unconditional discharge from imprisonment and upon completion of payment of any fine or restitution. Ariz. Rev. Stat. § 13-912.1 Repeat offenders, including federal offenders, must apply for judicial restoration or pardon (see II A and B, below). Out-of-state recidivists apparently must seek restoration in the jurisdiction of their conviction. See Flynn Patrick Carey, Extending the Home Court Advantage: A Call to Update the Arizona Civil Rights Restoration Scheme, 48 Az. L. Rev. 1129 (2006); see also State v. Prince, 226 Ariz. 516, 530, 250 P.3d 1145, 1159 (2011) (“a juror convicted of an out-of-state felony whose civil rights have not been restored is disqualified from jury service by § 21-201(3)”).

B.  Firearms

Conviction of a felony suspends “[t]he right to possess a gun or firearm.” Ariz. Rev. Stat. § 13-904(A)(5).2  Firearms rights may be regained by application to court, on a timetable that depends on the nature of the offense, or by pardon. See Ariz. Rev. Stat. § 13-904(C); Ariz. Admin. Code § R5-4-101(6) (2008).3 Persons convicted of a “dangerous offense” may regain firearms rights only through a pardon. See id.; see also Part II B infra. Out-of-state and federal offenders must seek relief from firearms disabilities in the jurisdiction of their conviction. See Carey, Extending the Home Court Advantage: A Call to Update the Arizona Civil Rights Restoration Scheme, supra, 48 Az. L. Rev. at 1148-49.

C.  Other Collateral Consequences

Many of the collateral consequences of conviction applicable under Arizona law have been collected by the Law, Criminal Justice and Security Program of the University of Arizona Law School.  See Kate Adamson et al., Collateral Consequences of Criminal Conviction in Arizona, The Law, Criminal Justice and Security Program, University of Arizona (2007), available at http://www.reentry.net/public2/library/attachment.139610. See also Part III, infra.

II.  Discretionary Restoration Mechanisms
A.  Pardon
Authority

The governor has the authority to grant pardons “after conviction,” except in cases of treason or impeachment, “upon such conditions and with such restrictions and limitations as may be provided by law.” See Ariz. Const. art. V, § 5. The governor may not act except upon a favorable recommendation from the Board of Executive Clemency. See Ariz. Rev. Stat. § 31-402(A) (“no reprieve, commutation or pardon may be granted by the governor unless it has first been recommended by the [Board of Executive Clemency]”). The governor is required to publish reasons for each grant, and must report to legislature at the beginning of every regular session.  Ariz. Rev. Stat. §§ 31-445, -446.

Administration

Board of Executive Clemency consists of five persons appointed by the Governor to five-year terms. Ariz. Rev. Stat. § 31-401 (effective September 28, 2012, governor will not be required to appoint a selection committee to develop candidate lists for vacancies on the Board).  Chairperson selected by Governor. Id. § 31-401(F). Board members serve on a full-time basis, and must meet at least once a month. Id. § 31-401(B), (H). Three members constitute a quorum, except that the chairperson may designate two as a quorum. Id. § 31-401(I). The powers and duties of the Board are set forth in § 31-402. The Board’s website is at https://boec.az.gov/.

Eligibility

“Unless prohibited by law, an individual who was convicted of an Arizona felony offense may apply for a pardon.” Ariz. Admin. Code § R5-4-201(A). Persons convicted under federal law or convicted under the law of another state are ineligible for a Governor’s pardon. See id.

Effect

A state pardon “absolves an individual of the legal consequences of a crime for which the individual was convicted.” Ariz. Admin. Code § R5-4-101(6); 68 Ariz. Op. Att’y Gen. 17 (Aug. 19, 1968). In addition, a pardon is “an honor and a privilege that is reserved for those that have demonstrated crime free behavior for a period following a criminal conviction.” A pardon relieves most remaining legal disabilities and “sends a very powerful message to society that you have led a useful, productive, and law-abiding life following your conviction.”  68 Ariz. Op. Att’y Gen. 17.  Pardon restores firearms rights only if specified in the pardon document (but firearms rights may be restored by the court, see Part I).

Process

Board is required to meet at least once a month. Ariz. Rev. Stat § 31-401(H). An eligible individual “shall submit to the Board a completed application form obtained from the Board.” Ariz. Admin. Code § R5-4-201(B). The application form can be downloaded at https://boec.az.gov/sites/default/files/documents/files/Completed%20Pardon%20Application%20fillable%20rev.%20Jan.%209%202015.pdf. The Board, at its discretion, may require the applicant to submit additional information and documents. Id. § R5-4- 201(C). Prisoners may also apply for a pardon, and for such applications the Board will request that Arizona’s Department of Corrections review the application and verify whether the prisoner is eligible to apply. Id. § R5-4-201(D). Ariz. Rev. Stat. § 31-442 requires applicant to give notice of intention to apply for pardon to county attorney ten days before Board is to act, and (“unless dispensed with by the governor”) publication of that notice in a paper for a 30-day period in county of conviction.  An earlier version of the Board’s website set forth the standards considered by the Board (including reasons for applying, efforts toward rehabilitation, and whether a person has been granted a set-aside by the court). It also stated that the pardon process “can be a lengthy process that takes effort on your part.”

Hearing

“After receiving a complete application from an eligible applicant, the Board shall schedule a hearing and provide advanced written notice to the applicant of the date and location of the hearing.” Ariz. Admin. Code § R5-4-201(E). Board may require court of conviction and county attorney to provide facts proved at trial and any other facts that bear on propriety of granting or refusing pardon. Ariz. Rev. Stat § 31-441.

Under its regulations, Board is required to notify applicant within 10 work days of decision to deny or affirm recommendation for pardon to Governor.  Ariz. Admin. Code § R5-4-201(E).  “If the Board votes to recommend a pardon, the Presiding Officer shall designate a Board member to prepare and send to the governor a letter of recommendation.  The letter of recommendation may include a statement of individual Board members’ reasons for voting to recommend a pardon. Board members who voted not to recommend a pardon may prepare and send letters of dissent to the governor.” Id. § R5-4-201(G). If denied by Board or governor, applicant may not reapply for three years. Id. § R5-4-201(I).

Frequency of Grants

There were very few pardon applications through mid-1980s, but those recommended by Board were generally granted. From 1988 through 2009, Arizona governors issued 55 pardons. Governor Jan Brewer (2009-2014) granted 12 pardons during her six year tenure, all during her final month in office. Source: Arizona Board of Executive Clemency; see also Bob Ortega, Arizona Prisoners Rarely Granted Clemency, The Republic, May 12, 2012, available at http://www.azcentral.com/news/articles/2012/04/12/20120412arizona-prison-clemency.html.4 Current Governor Doug Ducey has granted no pardons since taking office in 2015.  During that year, the Board recommended just 3 pardons on 21 hearings.  Annual Report 2015, Arizona Board of Executive Clemency, https://boec.az.gov/sites/default/files/documents/files/Annual%20Report%20PDF%202015.pdf.

Contact

Executive Director
Arizona Board of Executive Clemency
1645 West Jefferson, Suite 101
Phoenix, AZ 85007
Tel: (602) 542-5656
Fax: (602) 542-5680
http://www.azboec.gov/

B.  Judicial restoration and set-aside
Judicial restoration of civil rights to repeat offenders

A person convicted under Arizona law of two or more felonies and sentenced to a term of imprisonment for the most recent offense may apply to have his civil rights restored by the sentencing judge two years after unconditional discharge from imprisonment. Ariz. Rev. Stat. §§ 13-906, 13-908. A repeat offender completing a term of probation may have his rights restored by the court that discharged him from probation. § 13-905(A). See also Ariz. R. Crim. P. 29.1. (“Prior to his or her absolute discharge, a probationer shall receive from his or her probation officer, or the court if there is no probation officer, a written notice of the opportunity to have his or her civil rights restored, to withdraw his or her plea of guilty or no contest, or to vacate his or her conviction.”). A person whose civil rights were lost by virtue of a federal felony conviction may apply for restoration of civil rights to the presiding judge of the superior court of his county of residence, but those sentenced to a term of imprisonment must first wait two years. Id. §§ 13-909(A), 13-910(A)-(B). There are no explicit provisions in Arizona law for restoration of any rights under Arizona law that may have been lost as a result of a felony conviction in another state. See id. §§ 13-904 et seq.; see also Carey, Extending the Home Court Advantage:  A Call to Update the Arizona Civil Rights Restoration Scheme, supra, 48 Az. L. Rev. at 1148-49

Judicial set-aside

Arizona law also permits all state offenders except those convicted of serious violent offenses, to have their convictions “set aside” or “vacated” by the sentencing court, and the charges against them dismissed, upon successful completion of probation or sentence and discharge. Ariz. Rev. Stat. § 13-907(A). Convicted persons are entitled to be informed of their “right” to a set-aside at the time of discharge.  Id. See also Ariz. R. Crim. P. 29.1, supra, requiring notice to probationers at time of discharge of right to have conviction “vacated.” This relief restores all rights and generally releases the person “from all penalties and disabilities resulting from the conviction.” See Ariz. Rev. Stat. § 13-907(C). However, it does not eliminate the conviction, and thus does not relieve the offender from having to report the conviction if asked. Id. § 13-907; see also Russell v. Royal Maccabees Life Ins. Co., 974 P.2d 443, 449 (Ariz. Ct. App. 1999) (finding expungement does not obliterate the fact of conviction and offender must report conviction in application for insurance). The fact that a conviction is set aside or vacated does not release the person from certain motor vehicle restrictions, if applicable, and the conviction may still be used as a predicate offense in any subsequent prosecution. Ariz. Rev. Stat. § 13-907(C). Set-aside is unavailable to anyone convicted of a criminal offense involving the infliction of serious physical injury, the use of a deadly weapon or dangerous instrument, a victim less than 15 years old, certain traffic laws, or a violation of the state’s laws defining sexual offenses. Id. § 13-907(D). Set-aside does not relieve duty to register as sex-offender. See Ariz. Rev. Stat. § 13-3821; Ariz. Op. Atty. Gen. No. I00- 0300, 2000 WL 33156113 (Ariz. A.G. Dec. 18, 2000).

Restoration of firearms rights

The automatic restoration of civil rights provision for first offenders “does not apply to a person’s right to possess weapons as defined in Ariz. Rev. Stat. § 13-3101,” Ariz. Rev. Stat. § 13-912(B); instead, the first offender must make an application to the court pursuant to Ariz. Rev. Stat. §§ 13-905 (following discharge from probation) or 13-906 (at least two years following discharge from prison). Persons convicted of a “serious offense” (generally common law felonies, crimes against children, and sexual offenses) must wait ten years for restoration. § 13-906(C).  Persons convicted of a “dangerous offense” (namely the discharge or use of a deadly weapon or the intentional infliction of serious physical injury upon another) are ineligible for judicial restoration, id., and may regain firearm rights only by pardon.  See also Ariz. Const. art. V, § 5; Ariz. Rev. Stat. § 31-443; Ariz. Op. Atty. Gen. No. I79-305 (R79-155), 1979 WL 23372, *1 n.4 (Ariz. Atty Gen. Dec. 31,1979) (noting that governor’s pardon power is “in addition” to a restoration of rights under § 13-905). See also Ariz. Rev. Stat. § 13-912.01 (restoration for persons adjudicated delinquent upon completion of probation). For juveniles adjudicated delinquent, if the person’s adjudication was for a dangerous or serious offense, the person may not file for the restoration of the right to possess or carry a gun or firearm until the person attains thirty years of age. Id. § 13-912.01(C). If the person’s adjudication was for any other felony offense, the person may not file for the restoration of the right to possess or carry a gun or firearm for two years from the date of discharge. Id.

Non-conviction records

Non-conviction records may not be sealed or expunged, but may be amended to notate that a person has been cleared of any arrests or indictments that did not lead to conviction. Ariz. Rev. Stat. § 13-4051; State v. Mohajerin, 226 Ariz. 103, 108, 244 P.3d 107, 112 (Ariz. Ct. App. 2010) (noting § 13-4051 does “not authorize a person’s criminal records to be expunged or hidden from law enforcement officials”). To obtain relief, “a petitioner must demonstrate both that his arrest or charge was ‘wrongful’ and that justice requires the entry of a notation of clearance . . . .” Mohajerin, 226 Ariz. At One of the ways to meet this standard is to show the allegations against petitioner are false. Id.

Juvenile adjudications

Individuals 18 years of age and older may apply to have many juvenile delinquency or incorrigibility adjudications set aside upon discharge from probation or absolute discharge unless the individual has a subsequent criminal conviction, criminal proceedings pending, has not successfully completed terms of probation, has not been discharged from department of juvenile corrections upon completion of individual treatment plan, or has not paid all restitution or assessments. Ariz. Rev. Stat. § 8-348 (A), (C). This does not apply if the adjudication involved any of the following:

(1) infliction of serious injury; (2) the use or exhibition of a deadly weapon or dangerous instrument; (3) sexual offenses; (4) driving under the influence or with a suspended license; or (5) a civil traffic violation. Id. § 8-348 (D). May be used as a predicate in subsequent criminal proceeding.  Id. §§ 8-207, 13-501.

Set-aside “relieves all penalties and disabilities from the adjudication,” with exceptions for those imposed by the Department of Transportation.

C.  Administrative certificate: N/A
III.  Nondiscrimination in licensing and employment

A person may not be disqualified from public employment “solely because of a prior conviction for a felony or misdemeanor,” nor may a person “whose civil rights have been restored” be disqualified from an occupation for which a license is required “solely because of” a prior conviction. Ariz. Rev. Stat. § 13-904(E). A person may be disqualified from public employment or denied a license by reason of conviction only if “the offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.” Id.5 Subsection (E) does not apply to positions in law enforcement. Id. § 13-904(F). Any complaints concerning a violation of this subsection shall be adjudicated in accordance with the Arizona administrative procedures act, including judicial review. Id. § 13-904(G).  See also Rehabilitating the Ex-felon: Impact of Arizona’s pardons and civil rights restoration statutes, Law & Soc. Ord., 1971, p. 793. No provisions governing private employment.

Licensing schemes have been interpreted to incorporate the standards of Ariz. Rev. Stat. § 13-904(E). See, e.g., Curtis v. Richardson, 212 Ariz. 308, 131 P. 3d 480 (Ariz. Ct. App. 2006) (felony conviction for possession of illegal drugs was “reasonably related” to the functions of a real estate salesperson, since the real estate industry places heavy reliance not only on an agent’s competence, honesty, and financial integrity, but also on how the person represents the industry).

Statutes governing the operation of licensing boards are variously worded. See, e.g., Cosmetology, Ariz. Rev. Stat. § 32-572(B) (“conviction of a crime or act shall not be a cause of refusal to issue or renew a license unless the crime or act is substantially related to the qualifications, functions or duties of the license for which application is made”); Nursing, id. § 32-1632(2) (“absolute discharge from the sentences for all felony convictions five or more years before the date of filing an application”); Physician’s Assistant, id. § 32- 2507(A)(1), (2) (requiring public profile describing conviction of a felony or a misdemeanor, or charges to which licensee pled no contest, involving moral turpitude within the last five years); Real Estate, id. § 32-2153(B) (denial of license for “a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense”); Pest Control, id. § 32-2312(D) (“felony conviction may demonstrate a lack of good moral character”); Funeral Services, id. § 32-1301(27)(a), (b) (“Good moral character” means that a person has not been convicted of a class 1 or 2 felony, or “has not, within five years of application for licensure or registration, been convicted of a felony or misdemeanor if the offense has a reasonable relationship to the person’s proposed area of licensure or registration”). See also Pharmacists, Ariz. Rev. Stat. § 32-1927(A)(1) (under 2005 amendment, specific reference to conviction was replaced by “unprofessional conduct” as basis for discipline; however, § 32-1901.01(B)(8) defines “unprofessional conduct” to include “[c]omitting a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude or any drug related offense”).


  1. The ACLU challenged the obligation to satisfy financial obligations before re-enfranchisement under the 14th and 24th Amendments in Coronado v. Napolitano, No. 08-17567 (9th Cir.). Coronado was consolidated with Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010). In Harvey, the Ninth Circuit upheld the statute finding it neither violated the U.S. Constitution’s Equal Protection Clause, the bar against poll taxes in the 24th Amendment, or the Privileges or Immunities Clause nor the Arizona Constitution’s Privileges or Immunities and Free and Equal Elections Clauses.  Id. at 1078-80. For an analysis of the impact of fees, fines, and restitution on felony disenfranchisement see Erika Wood & Neema Trevedi, The Modern Day Poll Tax: How Economic Sanctions Block Access to the Polls, 41 Clearinghouse Rev., 30 (May-June 2007), available at http://brennan.3cdn.net/c82128f55efee5440d_g8m6btpex.pdf.
  2. Prior to 1994, Arizona law suspended firearms rights only for persons “convicted . . . of a felony involving violence or possession and use of a deadly weapon or dangerous instrument and whose civil rights have not been restored.” See Ariz. Rev. Stat. §§ 13-904, 13-3101 (1991). In 1994, Section 13-904 was amended to add “the right to possess a gun or firearm” to the list of civil rights automatically suspended by a felony conviction. The stricter 1994 law, which did not specifically address the issue of retroactivity, has been held by Arizona state courts to apply to persons who were convicted before its passage but whose right to restoration vested after its passage.  See State v. Olvera, 191 Ariz. 75, 952 P.2d 313 (Ariz. Ct.App. 1997) (finding amendment to Ariz. Rev. Stat. § 13-904 merely changed defendant’s status to a “prohibited possessor felon” under Ariz. Rev. Stat. § 13-3101 and did not amount to punishment for earlier convictions, therefore defendant’s right to be free from ex post facto laws was not violated); State v. Gallegos, No. 1 CA-CR 07-0633, 2008 WL 3892039 (Ariz. Ct. App. May 13, 2008) (finding that amendments to Ariz. Rev. Stat. §§ 13-904, 13-3101 applied to defendant because his right to apply for restoration did not vest until he completed his probation, which occurred after the 1994 amendments). Federal courts in Arizona do not necessarily disagree, although when a defendant’s rights have vested and been restored (i.e., pre- or post-1994) appears to be a key factor. In both United States v. Simpson, 442 F.3d 737, 740-41 (9th Cir. 2006) and U.S. v. Meza-Corrales, 183 F.3d 1116, 1129-30 (9th Cir. 1999), the Ninth Circuit found that where a felon’s right to restoration had vested and rights had already been restored prior to the 1994 amendments, Ariz. Rev. Stat. §§ 13-904 and 13-3101 did not restrict a past felon’s right to possess firearms and, therefore, the defendant could not be convicted as a felon in possession under 18 U.S.C. § 922(g). Indeed, the Meza-Corrales court, relying on Olvera, opined that Arizona courts had not interpreted Ariz. Rev. Stat. § 13-904 to restrict a past felon’s right to possess firearms where his civil rights had otherwise been fully restored.  See Meza-Corrales, 183 F.3d at 1129-30, n.6.
  3. Defining “pardon” as “an action by the governor that absolves an individual of the legal consequences of a crime for which the individual was convicted.”
  4. The governor approves even fewer commutation applications. Under Board requirements, prison inmates can apply for commutation once they have served two years of their sentence and are not within one year of their parole eligibility/mandatory release date for sentences more than three years. Exceptions are special orders of the court under § 13- 603L requesting the Board entertain an inmate petition within 90 days of admission, sentences of three years or less, and imminent danger of death petitions. See https://boec.az.gov/sites/default/files/documents/files/Revised%20Commutation%20App%20May%2025%202016_1.pdf. In 2003 and 2004, the Board reviewed over 400 commutation applications each year, and forwarded 40 and 32 petitions respectively to the Governor’s Office with favorable recommendations. The Governor approved three commutations in 2003 and one in 2004.  See generally Amanda J. Crawford and Ryan Konig, Clemency voice goes unheeded: Board’s advice on sentences largely ignored by governor, The Arizona Republic, May 22, 2005. Since 1988, no Arizona governor has commuted a death sentence. In the 31 executions since 1992, the Board has never recommended a commutation. Bob Ortega, Arizona Prisoners Rarely Granted Clemency, supra, at http://www.azcentral.com/news/articles/2012/04/12/20120412arizona-prison-clemency.html. Up until 1993, fewer than 60 inmates a year, on average, applied for commutation. See id.  In 1993, Arizona adopted so-called “truth in sentencing” laws, which more or less abolished parole. Under these laws, offenders must serve at least 85% of their sentence before becoming eligible for community supervision. Some felonies require 100% of the sentence be served. Along with mandatory sentencing minimums, these laws have made commutation the only avenue for most offenders to seek a reduced sentence. See id. As a result, in recent years commutation applications have skyrocketed—applications soared to more than 1,200 in 2005.  Id.  From April 1988 to May 2012, only 104 commutations were granted by Arizona governors.  Id.  Of the 24 commutations granted by Governor Brewer, 19 were “imminent danger or death” cases. Id. Board continues to recommend between 6% and 12% favorably despite the governor’s continued declination to grant more than a handful. Source: Arizona Board of Executive Clemency. Note that “any recommendation for commutation that is made unanimously by the members present and voting and that is not acted on by the governor within ninety days after the board submits its recommendation to the governor automatically becomes effective.” Ariz. Rev. Stat. § 31-402(D).
  5. Section 13-904(E) provides:

    A person shall not be disqualified from employment by this state or any of its agencies or political subdivisions, nor shall a person whose civil rights have been restored be disqualified to engage in any occupation for which a license, permit or certificate is required to be issued by this state solely because of a prior conviction for a felony or misdemeanor within or without this state. A person may be denied employment by this state or any of its agencies or political subdivisions or a person who has had his civil rights restored may be denied a license, permit or certificate to engage in an occupation by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.

Copyright © 2017

Restoration of Rights Series/Alaska

Alaska flagI.  Restoration of Civil/Firearms Rights
A.  Civil Rights
Vote/Jury

The rights to vote and to serve on a jury are lost upon conviction of a felony and automatically restored upon completion of sentence (“unconditional discharge”).  Alaska Stat. §§ 09.20.020; 15.05.030(a); 33.30.241.  See also 12.55.185.18 (defining unconditional discharge as release “from all disability arising under a sentence, including probation and parole”). The commissioner of corrections must establish procedures for notifying those unconditionally discharged about the voter registration requirements and procedures.  § 15.05.030(b).

Office

Restoration of vote also restores right to hold office.  Alaska law contains several general prohibitions against holding public office by a person who is not a qualified voter:  Alaska Stat. §§ 15.25.030(10) (candidacy for public office); § 39.05.100 (appointment to a board or commission of state government must be “registered voter”).  See the more specific provisions relating to service on school board (§ 14.08.045(a)(4) (conviction of felony involving moral turpitude or offense involving violation of oath of office) and as judge (§ 22.30.070(b) (on recommendation of commission, supreme court may reprimand, censure, or suspend judge convicted of crime punishable as a felony under state or federal law, or of crime involving moral turpitude).

B.  Firearms

A felony offender may not possess a concealable weapon for 10 years following discharge (privilege is lost permanently if offense is one against the person), unless conviction set aside or pardoned. Alaska Stat. §11.61.200(a)(1),(b)(1).  During the period of disability a convicted person may not live in a building where concealable firearms are kept without permission of court or law enforcement. § 11.61.200(a)(10). Once 10-year period has expired, state offender is relieved of federal firearms bar since all civil rights restored. See 18 U.S.C. § 921(a)(20).

C.  Licensing

A professional license may be denied or revoked upon conviction.  See, e.g., § 21.27.410(a)(7)(insurance agent); § 08.04.450(5), (6)(accountant); § 08.68.270(2)(nurse); § 08.88.171(a)(real estate broker). See also Deborah Periman, The Hidden Impact of a Criminal Conviction: A Brief Overview of Collateral Consequences in Alaska 6 – 27 (Dec 2007), http://justice.uaa.alaska.edu/occasionalpapers/op01.collateral.pdf.

D. Other collateral consequences

For a review of collateral consequences in Alaska, see Alaska Prisoner Reentry Task Force, “Alaska’s 5-Year Prisoner Reentry Strategic Plan, 2011–2016,” http://www.correct.state.ak.us/TskForce/documents/Five-Year%20Prisoner%20Reentry%20Plan.pdf, discussed in Part III,  See also Periman, The Hidden Impact of a Criminal Conviction: A Brief Overview of Collateral Consequences in Alaska 6 (Dec 2007), http://justice.uaa.alaska.edu/occasionalpapers/op01.collateral.pdf.

E.  State Policy on Rehabilitation

Rehabilitation and reintegration of the convicted have been components of public policy in Alaska since statehood; the principle of reformation is one of the five considerations on which the Alaska Constitution requires that administration of the criminal justice system be based. (The others are public safety, community condemnation of the offender, rights of victims, and restitution from the offender. See Alaska Constitution art. I, § 12.)

II.  Discretionary Restoration Mechanisms
A.  Pardon
Authority

The pardon power, except in cases of impeachment, is vested in the Governor alone, “subject to procedure prescribed by law.”  Alaska Const. art. III, § 21; Alaska Stat. § 33.20.070.  By statute, the governor “may not grant executive clemency to a person” unless the case has first been referred for investigation to the Board of Parole and at least 120 days have passed.  § 33.20.080(a).  The Board is required to investigate each case so referred and report to governor within 120 days.   Id.  It must also, within five days of receipt of notice from governor, notify the Department of Law, the office of victim’s rights, and the victim if a crime of violence or arson. § 33.20.080(b).1  Non-statutory Governor’s Executive Clemency Advisory Committee (“ECAC”) (composed of a member of the governor’s staff, a representative from the Department of Law, and a public member) reviews investigative reports and advises the governor.  The governor is not bound by the Committee’s advice.

For a thorough review of the history and practice of pardoning in Alaska, see Ronald S. Everett & Deborah Periman, “The Governor’s Court of Last Resort:” An Introduction to Executive Clemency in Alaska, 28 Alaska L. Rev. 58 (2011). The records of the Parole Board indicate that there have been only 188 grants of clemency since statehood in 1959, of which more than half (96) were granted between 1959 and 1966 by Alaska’s first governor.  There have been no grants at all since 2006.  See id. at 83.

Eligibility

A person may not apply for pardon unless and until he or she has been found eligible to apply by Parole Board staff.  The application process begins with filing an Eligibility Determination form.  See http://www.correct.state.ak.us/Parole/documents/Clemency%20Eligibility%20Determination%20Form.pdf.  The Parole Board website states that the clemency process is presently undergoing review, so that the previously applicable handbook describing standards for pardon has been withdrawn.   Persons convicted under federal law or convicted under the law of another state are ineligible for a Governor’s pardon.

Effect

Pardon is the only way to regain lost rights and remove disabilities under Alaska law.  Pardon has the effect of “setting aside” the conviction, so that individual is deemed not to have been convicted (though conviction remains on the record).  A pardoned conviction may not be taken into account in subsequent sentencing, or by licensing board, though conduct underlying the conviction may be.  Conviction is no longer a bar, but offense conduct may be considered in context of determining good moral character.  A pardon will restore gun rights. Alaska Stat. § 11.61.200(b) & (g).

Process

Aside from the notice requirements described above, no formal regulations govern process.  Alaska Stat. § 33.20.080(b).   Applicants are warned on Parole Board website that “The clemency policies of the State of Alaska are very strict, the process is lengthy, and clemency is rarely granted.” See Alaska Board of Parole, Executive Clemency Eligibility Determination, http://www.correct.state.ak.us/corrections/Parole/documents/Clemency%20Eligibility%20Determination%20Form.doc.  Initial determination of eligibility takes 30 days. Applicants for clemency are informed that “virtually their entire history is considered,” and they are required to sign waivers permitting an investigation of their employment and personal history.  Applications are investigated by staff of the Board of Parole, including comments from DA and sentencing court and victim if relevant, and a summary of the case with recommendation is prepared and submitted to the Governor’s Executive Clemency Advisory Committee (“ECAC”), which meets as often as necessary to review pending applications.

Restructuring of the Clemency Process

In 2009, concerned about the paucity and irregularity of grants in 2005 and 2006, a process was put in place by the then-Lieutenant Governor to completely restructure the Alaska clemency process, and to make formal the criteria for clemency. All applications for clemency were put on hold at that time.  In June 2011, the Executive Secretary of the ECAC sent specific recommendations to the Governor.   Six years later, in May 2017, there had been no movement on the restructuring of the program, although Parole Board website indicated that it was still accepting applications.  http://www.correct.state.ak.us/parole-board/clemency-update.

Frequency of Grants

In recent years, Executive Clemency Advisory Committee has met on the average two or three times a year.  There are few pardon applications, and there have been only three pardon grants since 1995.  Source: Alaska Parole Board.2

Contact

Carrie Belden
Alaska Parole Board
907-269-4642
carrie.belden@alaska.gov

B.  Judicial sealing or expungement
Set-aside after deferred imposition of sentence

Court may suspend imposition of sentence and, after successful completion of a period of probation, “set aside the conviction and issue to the person a certificate to that effect.”  Alaska Stat. § 12.55.085(e).  Serious violent offenses, stalking, removing a child from the state, human trafficking, sex offenses, and offenses involving use of firearm do not qualify. Id. at (f).   No affirmative showing or finding of rehabilitation need be made before a set-aside is granted; rather, a set-aside should be granted as a matter of right unless some specific reason for denial is established. Wickham v. State, 770 P.2d 757 (Alaska Ct. App. 1989).  Before a sentencing court may refuse to set aside a conviction under subsection (e), the defendant must be given notice that there is reason to believe a set-aside should not be granted, with a precise statement of the reason or reasons, and must be afforded an opportunity for a hearing on the set-aside issue. Mekiana v. State, 707 P.2d 918, 921-22 (Alaska Ct. App. 1985), rev’d on other grounds, 726 P.2d 189 (Alaska 1986):

By enacting the set-aside language of subsection (e), the legislature clearly intended to provide probationers who received a suspended imposition of sentence with the prospect of a clean slate and the promise of a new beginning upon successful completion of probation; a sentencing court cannot thwart this legislative goal — or, for that matter, hinder appellate review — by denying such relief without explanation.

See also Wickham, supra at 1143:

[Statute] does not abandon the requirement of showing rehabilitation as a prerequisite to a set-aside; rather, the statute merely shifts the burden of proof on the issue. In practical effect, the statute deems successful completion of probation to be the equivalent of a prima facie showing of rehabilitation. This implicit showing of rehabilitation imposes on the state the duty of rebuttal, that is, the burden of presenting the court with evidence showing “good cause” to deny set-aside, despite the offender’s apparent rehabilitation.

A conviction that has been set aside may not be relied on for impeachment purposes, and does not qualify as “a ‘conviction’ in situations in which a sentence is increased or a crime is defined by a prior conviction.”  See Doe v. State, Dep’t of Pub. Safety, 92 P. 3d 398, 406 (Alaska 2004).  See also Larson v. State, 688 P.2d 592, 597 (Alaska 1984) (set-aside conviction not counted in determining status as repeat offender).  “In other words, the act of setting a conviction aside creates ‘a settled expectation that the state [will] not subsequently use the conviction … as a basis for imposing brand-new affirmative burdens on [the defendant].’”   Alaska Board of Nursing v. Platt, 169 P.3d 595, 599 (Alaska 2007) (citing Doe, supra, at 408).   For example, it is an affirmative defense to a felon-in possession prosecution under § 11.61.200 that the person has had her conviction set aside pursuant to § 12.55.085.  See Alaska Stat. § 11.61.200(b)(1)(B), (b)(2)(B), (g)(1)(B).  On the other hand, set-aside does not eradicate the fact of conviction, and a defendant’s prior criminal history of repeated instances of assaultive behavior or cruelty to animals may be considered as an aggravating sentencing factor, see Alaska Stat. § 12.55.155(c)(8).  Larson, supra, at 597-98; Krasovich v. State, 731 P.2d 598 (Alaska 1987), or used to deny licensure where convicted conduct is substantially related to opportunity.  See Platt, supra at 599.

Suspended entry of judgment

Under legislation enacted in 2016, courts may, for certain offenses, place a defendant on probation without an entering a judgement of guilt. Alaska Stat. § 12.55.078. Upon successful completion of probation, the defendant is discharged, charges are dismissed, and no conviction results.  The courts may not publish records of dismissal under this authority on a public website.  See also “Nonconviction records,” infra.

Sealing and expungement

Courts have no authority to order the criminal record expunged after set-aside, Journey v. State, 895 P.2d 955, 962 (Alaska 1995).  Moreover, a conviction that has been set aside remains a conviction for purposes of denying a license.  See Board of Nursing v. Platt, supraSee also Spenard Action Comm. v. Lot 3, Block 1, Evergreen Subdiv., 902 P.2d 766, 779 (1995) (explaining that a conviction that has been set aside is nevertheless evidence that a crime occurred;“[T]he dismissal of a charge following the period of stayed imposition of sentence is in the nature of a pardon, not a declaration of innocence.”) (quoting City of St. Paul v. Froysland, 310 Minn. 268, 246 N.W.2d 435, 438 (1976)).

Alaska courts can limit access to otherwise public court records on request if a “legitimate interest in confidentiality” outweighs other interests, see Rules Gov. Administration of All Courts 37.6.  Court may grant access to these records upon petition.  Rule 37.7.  In general, in Alaska there exists “a clear preference for public records to remain accessible.” Johnson v. State, 50 P.3d 404, 406 (Alaska App. 2002).  Alaska court system provides court records online. See http://orca.courts.state.ak.us/names/.

Nonconviction records

Nonconviction records are generally unavailable to the public without the consent of the subject of the record.  Alaska Stat. § 12.62.160(b)(8); 13 AAC 68.310.  Additional sealing further restricting access to nonconviction records is authorized only in cases of mistaken identity or false accusation, if proved beyond a reasonable doubt to the head of the criminal justice agency responsible for maintaining the records. Alaska Stat. § 12.62.180(b).3  On appeal, the defendant must show that the decision below was “clearly mistaken.”  § 12.62.180(c).  After sealing, the person may deny the existence of the information and of an arrest, charge, conviction, or sentence shown in the information.  Alaska Stat. § 12.62.180(d).  Under this authority, access is permitted by government agencies and employers who work with minor or dependent adults. § 12.62.160(b)(9).

Online publication of cases resulting in acquittal or dismissal, including following suspended entry of judgment:

The Alaska Court System may not publish a court record of a criminal case on a publicly available website if 60 days have elapsed from the date of acquittal or dismissal and

(1) the defendant was acquitted of all charges filed in the case;

(2) all criminal charges against the defendant in the case have been dismissed and were not dismissed as part of a plea agreement in another criminal case
under Rule 11, Alaska Rules of Criminal Procedure;

(3) the defendant was acquitted of some of the criminal charges in the case and the remaining charges were dismissed; or

(4) all criminal charges against the defendant in the case have been dismissed after a suspended entry of judgment under AS 12.55.078.

Alaska Stat. § 22.35.030.

Juvenile records

Records of juvenile adjudications are generally confidential and unavailable to the public. Alaska Stat. § 47.12.300 (c), (e).  Additionally, the court shall seal most juvenile records (except for traffic offenses, class A & B felonies against the person or first degree arson, Alaska Stat. § 47.12.030) within 30 days of a minor’s 18th birthday or within 30 days of the court’s release of jurisdiction, whichever is later. If a juvenile was charged as an adult, most juvenile records (except for traffic offenses and certain serious felonies) may be sealed five years after completion of the sentence or five years after the records are made public. §§ 47.12.300(d) and (f).  “A person may not use these sealed records for any purpose except that the court may order their use for good cause shown or may order their use by an officer of the court in making a presentencing report for the court.” Id.4

III.  Nondiscrimination in occupational licensing and employment

Alaska has no general law regulating consideration of conviction in employment or licensure.  It does apply a direct relationship test in connection with disciplinary action for medical and nursing licensees.  See Alaska Stat. § 08.68.270 (“The board [of nursing] may [discipline] a person who . . . (2) has been convicted of a felony or other crime if the felony or other crime is substantially related to the qualifications, functions or duties of the licensee”); § 08.64.326 (board of medical licensing may impose a disciplinary sanction on a licensee who has been convicted of a Class A felony, or a class B or C felony “that is substantially related to the qualifications, functions, or duties of the licensee,” or of a crime involving the unlawful procurement, sale, prescription, or dispensing of drugs).

Alaska Prisoner Reentry Task Force

In 2007, then-Chief Justice Fabe of the Alaska Supreme Court established the Criminal Justice Working Group, an organization comprising representatives from justice agencies across the state as well as representatives of the legislature.  See http://justice.uaa.alaska.edu/a-z/c/criminal_justice_working_group.html.  One of the group’s key objectives is reducing recidivism.  One of its subcommittees is the Alaska Prisoner Reentry Task Force.   The subcommittee on employment restrictions is working to “identify laws that are barriers to housing, employment, and other needs of persons with felony convictions,” and to “consider what changes might be possible, in the context of public safety, and rehabilitation of the offender.”  See http://justice.uaa.alaska.edu/forum/27/1spring2010/d_reentry.html.   In February 2011 the Task Force released “Alaska’s 5-Year Prisoner Reentry Strategic Plan, 2011–2016,” which includes a lengthy chapter on collateral consequences and recommendations to address this issue.  See http://www.correct.state.ak.us/TskForce/documents/Five-Year%20Prisoner%20Reentry%20Plan.pdf.  See also Alaska Prisoner Reentry Task Force Update, http://justice.uaa.alaska.edu/forum/29/3-4fall2012winter2013/e_reentry.html.


  1. The Governor’s clemency authority was made subject to these limits by a statute passed in February 2007, in response to public outcry over a pardon granted by outgoing Governor Frank Murkowski to a construction company held criminally liable for the death of one of its employees in a landslide.  See Pat Forgey, “Governor Signs Bill Restricting Executive Clemency,” Juneau Empire, February 21, 2007, http://www.juneauempire.com/stories/022107/loc_20070221002.shtml.
  2. See note 1 for a controversial grant in 2007 at the end of Governor Murkowski’s term.
  3. In August 2014 Governor Parnell vetoed SB 108, which would have permitted the sealing of records of criminal cases in which a person was acquitted or had charges dismissed.
  4. Certain records (petitions for declaration of delinquency, to revoke or modify probation, to find a child not amenable to treatment, and court orders disposing of these petitions) are available to those with a “legitimate interest,” defined to include (but not limited) to foster parents and victims of a crime seeking to support a civil action against the minor or his/her guardians.  Alaska Stat. §§ 47.12.300(e).

Restoration of Rights Series/Alabama

Alabama Flag
I.  Restoration of Civil/Firearms Rights
A.  Voting

A person convicted of “a felony involving moral turpitude, or who is mentally incompetent, shall [not] be qualified to vote until restoration of civil and political rights or removal of disability.” Ala. Const. art. VIII, § 177.1 In May of 2017, the Felony Voter Disqualification Act limited the definition of “felony involving moral turpitude” under § 177 to 47 specified offenses, including many serious violent offenses, sex offenses, offenses against children, drug trafficking offenses (but not drug possession), and various property crimes.2 See Ala. Code § 17-3-30.1 (enacted by HB-282 (2017)).  Restoration by pardon or administrative procedure (infra). 

Expedited restoration of voting rights

A 2003 statute requires the Board of Pardons and Parole to issue a “certificate of eligibility to register to vote” to all persons convicted of disqualifying offenses (except those convicted of serious violent offenses and sex offenses) if they have completed their sentence and paid all fines, restitution and court costs, and have no charges pending against them.  Ala. Code § 15-22-36.1.  Restoration is automatic upon determination of eligibility.  Persons convicted of murder and sex offenses must still apply to the Board for a pardon. Id. (See discussion in Part IIA infra).  Federal and out-of-state offenders are eligible to apply for restoration of rights.

B. Office/Jury

Someone who is not a qualified elector is “ineligible to and disqualified from holding” state office. Ala. Code § 36-2-1; see Ala. Code § 15-22-36.1(a)(1), (3). A person is not “qualified” to sit on a jury if she has “lost the right to vote by conviction for any offense involving moral turpitude.”  Ala. Code § 12-16-60(a)(4).  If lost, these civil rights may be restored only through a pardon from Board of Pardons and Parole. (The expedited procedure for restoration of voting rights described above does not apply.)

C. Firearms

Any person convicted in any jurisdiction of committing a “crime of violence” may not own, possess or exercise control over “a pistol,” meaning a firearm with a barrel of less than 12 inches in length. See Ala. Code. §§ 13A-11-70(1), 13A-11-72.  Restoration by pardon, unless restoration specifically withheld. State ex rel. Sokira v. Burr, 580 So. 2d 1340, 1345 (Ala. 1991).

II.  Discretionary restoration mechanisms
A. Pardon
Authority

In 1939, the Alabama legislature was granted the pardon power by an amendment to the state constitution. It created the Board of Pardons and Parole to exercise the power, which extends to all offenses save treason and impeachment.  Ala. Const. amend. 38 (amending art. V § 124). The Governor retains reprieve and commutation authority in capital cases. The Board’s administration and procedure is governed by Ala. Code §§ 15-22-20 through 15-22-40.   Mayors have authority to pardon violations of municipal ordinances. 3

Composition of Board: The Board is composed of three members who are appointed by the Governor to six-year terms with the advice and consent of the State Senate.  Ala. Code § 15-22-20(a)-(d).  Members are selected by the Governor from a slate nominated by a board consisting of the State Chief Justice as chair, the Lieutenant Governor, the presiding judge of the court of criminal appeals, the Speaker of the House and the President pro tem of the Senate.  § 15-22-20(b).  The chairperson is designated by the Governor. § 15-22-20(d).  Members are full-time State officials, take an oath of office, and are subject to impeachment on the same grounds as other State officials.  § 15-22-20(e).  The Board must make a full annual report to the Governor. § 15-22-24(b).

Eligibility

Completion of sentence, or completion of at least three years of permanent parole, unless the pardon is sought on grounds of innocence and the judge or district attorney approve in writing.  Ala. Code § 15-22-36(c).   Persons convicted of a felony or certain other offenses involving danger to the person must submit to the taking of a DNA sample as a mandatory condition of the pardon. Ala. Code § 36-18-25(f). Board accepts applications from federal offenders and people convicted in other state jurisdictions residing in the state.  See Article 8 of Ala. Board Rules, Regulations and ProceduresSee Hogan v. Hartwell, 7 So. 2d 889 (Ala. 1942) (Board had authority to restore citizenship and political rights of federal offender, as against contention that a pardon by President was essential to restore the lost rights).

Effect

A pardon does not wipe out the historical fact of the conviction; it involves forgiveness and not forgetfulness.  Johnson v. State, 421 So.2d 1306 (Ala. Crim. App. 1982).  A state pardon does not relieve civil and political disabilities “unless specifically expressed in the pardon.”  Ala. Code § 15-22-36(c).  See also Ala. Code § 17-3-31.  A person who has forfeited his office as a result of felony conviction is not restored to that office by a pardon.  Ala. Code § 36-9-2; see also Hendrix v. Hunt, 607 So. 2d 1254 (Ala. 1992).  “[A] pardon that restores to an individual all civil rights and political privileges necessarily nullifies all legal punishment for the offense.  In other words, if the conviction incorporates certain civil and political disqualifications, then a pardon that specifically revives all civil and political rights must certainly remove any and all legal incapacities,” including handgun privileges. State ex rel. Sokira v. Burr, 580 So.2d 1340, 1345 (Ala. 1991). The Board may grant a full pardon, which restores all rights, or it may grant a pardon with restrictions (e.g., firearms privileges, sex offender registration, habitual offender status).  After the Sokira decision, it became common for the Board of Pardons and Parole to expressly exclude the right to own/possess/control a firearm from the restoration of civil rights. See Ala. Op. Atty Gen. No. 1999-060, 1998 WL 34309449, *1, 3 (1998).

Process

Hearing required, vote by majority, decision and reasons for it made public.  Board has no power to grant a pardon or other act of clemency unless the action is taken in an open public meeting, of which 30 days’ notice has been given to the Attorney General, the DA who prosecuted the case and the judge who sentenced the offender, the chief of police and the county sheriff, and the victim.  Ala. Code §§ 15-22-23, 15-22-36; see also Article 4 of the Ala. Board Rules, supra.   Application to Board of Pardons and Parole is very simple form filed with local probation office that is “intended to facilitate application by individuals who lack formal education.” Ala. Admin. Code r. 640-X-6-.01.  Investigation by a local probation officer includes current information on the applicant’s home situation, job status, and an updated criminal arrest record, written references and other information as warranted.  See Article 8 of Ala. Board Rules, supra.  The Board may not act on any application or case until a complete investigation of the prisoner’s social and criminal record has been made by a parole officer and a written report thereof made a part of the prisoner’s file.  Ala. Code § 15-22-25 (b).  Once the investigation is complete, a hearing will be set before the Board.  Required notification will be sent to the victim and concerned officials.  At hearing, a decision is made by majority vote to grant or deny the pardon request, and announced.  Process takes about a year from beginning to end.  See Article 6 of the Ala. Board Rules.  These same procedures will apply to a request for a Certificate of Eligibility to Register to Vote, except where superseded by Ala. Code § 15-22-36.1 (see below, providing for paper review).

Board Orders granting pardons, with or without restoration of civil and political rights, are public records. The statements of reasons filed by each member voting in favor of such grant are public records.  However, pardon files are otherwise confidential.  Ex parte Alabama Bd. of Pardons and Paroles, 814 So. 2d 870 (Ala. 2001).  Petitioner is not entitled to inspect his own file or to have a reason for denial.  Ex parte Alabama Bd. of Pardons and Paroles, 849 So. 2d 255 (Ala. Crim. App. 2002).

Expedited process to restore voting rights: In October 2003, the Alabama legislature enacted an expedited process for restoring right to vote to be administered by the Board, applicable to all but specified serious violent offenses and sex offenses.  Ala. Code § 15-22-36.1.  Eligibility depends upon applicant having completed sentence, including payment of fines, court costs, fees, and victim restitution ordered by the sentencing court; may have no pending felony charges. In 2005, the Attorney General of Alabama opined that if a person has been convicted of both a disqualifying and a non-disqualifying offense, the person must have satisfied all terms and conditions of the non-disqualifying offense in order to be considered for restitution. Ala. Op. Atty. Gen. No. 2005-092 (March 18, 2005).   If a person is determined to be eligible, the right to vote must be restored. § 15-22-36.1(b).   Restoration is also available to federal and out-of-state offenders. § 15-22-36.1(a)(1).

The application process may include investigation by parole officer and report to Board within 45 days.  If no board member objects within five days, issuance of Certificate of Eligibility to Vote is automatic.  § 15-22-36.1(e).  If any member of Board objects on grounds of eligibility, hearing scheduled.  § 15-22-36.1(f).  In the event the board determines, by a majority vote, that the criteria have been met, the executive director shall forthwith issue a Certificate of Eligibility to Register to Vote to the applicant. Id.

Frequency of grants

Applications for pardon have increased in recent years because pardon is necessary for employment and bonding purposes, and to regain firearms rights.  A substantial number of pardons go to those previously granted restoration of voting rights.

FY 04
FY 05
FY 06
FY 07
FY 08
FY 09
FY 10
FY 11
FY 12
FY 13
FY 14
FY

15

Pardons considered
222
500
805
692
617
398
704
964
980
798
709

Pardons granted
158
469
410
689
578
511
312
565
734
753
657
538

Pardons denied
64
90
116
114
106
86
139
230
227
141
171

Voting rights restored
2608 (includes 2003)
1233
771
1709
3017
3423
673
625
762
843
522
572

Source: Annual Reports of the Alabama Parole Board,
http://www.pardons.state.al.us/Reports.aspx.

Contact

Alabama Board of Pardons and Parole, PO Box 302405
Montgomery, AL 36130
Tel: (334) 353-7771, 353-8067
http://www.pardons.state.al.us/Pardons.aspx
questions4pardonsandparoles@alabpp.gov

B.  Judicial sealing or expungement
Conviction records

Alabama law contains no statutory provision for expungement or sealing of adult conviction records.

Despite the absence of statutory expungement authority for adult criminal records, municipal courts in the recent past appear to have regularly exercised a common law expungement authority.  See Kristin K. Hensen, Can You Make This Go Away:  Alabama’s Inconsistent Approach to Expunging Criminal Records, 35 Cumb. L. Rev. 385 (2005). See also “All Expunged Cases Should be Made Public,” Mobile Register, July 13, 2005.  Concerning the municipal courts, the Alabama Attorney General has stated in an informal opinion that “(t)here is nothing in the Constitution of Alabama 1901 or the Alabama Code granting municipal courts the power to expunge records.”  88-00410 Op. Ala. Att’y Gen. (1988).  Persons seeking expungement have sometimes relied upon statutes authorizing individuals to bring a court challenge to “inaccurate or incomplete” records.  Ala. Code § 41-9-645.  A court may order a record “appropriately purged, modified or supplemented by an explanatory notation” if the record is found to be “inaccurate, incomplete or misleading.” § 41-9-646.

Nonconviction records

Effective July 6, 2014, courts may expunge nonconviction records of non-violent felony and misdemeanor charges, including felony cases where charges were dismissed after successful completion of a drug court program, mental health court program, diversion program or veteran’s court program.  See Ala. Code § 15-27-1 (misdemeanors); § 15-27-2 (non-violent felonies). Expungement may be sought 90 days after acquittal or charges dismissed with prejudice, and five years after dismissal without prejudice “if the person has not been convicted of any other felony or misdemeanor crime, any violation, or any traffic violation, excluding minor traffic violations, during the previous five years.”  15-27-2(a)(5). There is an administrative fee of $300, and if the prosecutor or victim object a hearing shall be held at which the court will consider certain factors relating to the crime.  § 15-27-5.  Where there is no objection, “the court shall grant the petition if it is reasonably satisfied from the evidence that the petitioner has complied with and satisfied the requirements of this chapter.”  Id.   In addition, “[t]he court shall have discretion over the number of cases that may be expunged pursuant to this chapter after the first case is expunged.” Id.

Effect of expungement

After the expungement of records pursuant to subsection (a), the proceedings regarding the charge shall be deemed never to have occurred. Except as provided in this chapter, the court and other agencies shall reply to any inquiry that no record exists on the matter. The petitioner whose record was expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application. However, the petitioner whose record was expunged shall have the duty to disclose the fact of the record and any matter relating thereto to any government regulatory or licensing agency, any utility and its agents and affiliates, or any bank or other financial institution. In these circumstances, the government regulatory or licensing agency, utility and its agents and affiliates, or the bank or other financial institution shall have the right to inspect the expunged records after filing notice with the court.

§ 15-27-6(b). Expungement does not restore firearms rights, § 15-27-15, or relieve sex offender registration, which is only available from a court. See § 15-20A-24.

See also Ala. Code § 41-9-625 (state repository required to delete arrest records from rap sheets within 30 days of release from custody if the person is not charged or is cleared of the charges).

Juvenile delinquency adjudications

May be sealed two years after final discharge or court order not pertaining to custody or supervision, if the individual has not been convicted of a felony or misdemeanor involving sexual offenses, drugs, weapons, or violence, or threats of violence, and has no pending criminal proceedings. Ala. Code § 12-15-136(a).  Any adjudication of delinquency or conviction of a felony or misdemeanor involving sexual offenses, drugs, weapons, or violence, or threats of violence, subsequent to sealing shall have the effect of nullifying the sealing order.   § 12-15-136(e).  Five years after the juvenile reaches the age of majority, s/he can petition the court to have the records destroyed. § 12-15-137(a).

Administrative certificate

See Part I for “certificate of eligibility to register to vote” that must be issued any person convicted of a non-violent offense who has completed his sentence and paid all fines, restitution and court costs, and has no charges pending against him.  Ala. Code § 15-22-36.1.

III.   Nondiscrimination in occupational licensing and employment

Alabama has no general law regulating consideration of conviction.  It does apply a direct relationship test in connection with some licenses.  See, e.g., Ala. Code § 34-1A-5 (d)(2)a. (“An applicant [for an alarm system installer license] shall not be refused a license solely because of a prior criminal conviction, unless the criminal conviction directly relates to the occupation or profession for which the license is sought.”);  Ala. Code § 27-17A-18(f)(3) (“The applicant [for a pre-need sales agent for funeral services] must not have any felony or misdemeanor convictions that relate to any activity regulated by this chapter”).


  1. Prior to its 1996 amendment, the Alabama constitution disenfranchised persons convicted of specified offenses, all felonies punishable by a term of imprisonment, and all “crimes of moral turpitude.”   Ala. Const. Art. VIII, § 182 (1996).  Section 182’s extension of disenfranchisement to misdemeanor crimes of “moral turpitude,” interpreted at that time to include drug possession and DUI, was held unconstitutional in Hunter v. Underwood, 471 U.S. 222 (1985).
  2. Previously, there was no exhaustive list of disqualifying crimes, although the Supreme Court of Alabama from time to time identified felonies that were or were not disqualifying. According to a 2005 opinion of the Alabama Attorney General, assault, felony drug possession and felony DUI were not regarded as crimes of “moral turpitude.” See Ala. Op. Atty. Gen. No. 2005-092 (March 18, 2005), 2005 WL 1121853 (Ala. A.G.)  This opinion was issued in response to a request from the Board of Pardons and Paroles for a list of disqualifying offenses, and cited a number of cases in which the Supreme Court of Alabama had held that murder, rape, burglary, robbery, income tax evasion, conspiracy to commit fraud, possession of marijuana for resale, theft, transporting stolen vehicles, unauthorized sale of a controlled substance, and bigamy were all crimes involving moral turpitude.  On the other hand, assault, doing business without a license, violation of liquor laws, aiding prisoner to escape, possession of marijuana, and driving under the influence, were not.  Notwithstanding this opinion, Alabama’s Secretary of State continued to take the position that conviction of any felony prohibited voting, and so directed county registrars.  On June 1, 2007, in response to a lawsuit filed by the ACLU challenging this interpretation and application of § 177, the Supreme Court of Alabama held that while state and local election officials had acted contrary to the State Constitution and laws, no further injunctive relief was necessary.  See Chapman v. Gooden, 974 So. 2d 972 (Ala. 2007)
  3. In August 2009 the Mayor of Birmingham issued a blanket pardon to all those arrested there during civil rights protests of the 1960s.  See http://blog.al.com/live/2009/08/birminghams_mayor_langford_iss.html

Restoration Rights Series/Federal

I.  Restoration of Civil/Firearms Rights
A.  Vote

Right to vote depends upon state law, for both state and federal offenders.  See Richardson v. Ramirez, 418 U.S. 24, 54 (1974).  Most states that do not restore the right to vote automatically give federal offenders access to their restoration procedures.  (See profiles in this series for Florida, Kentucky, and Virginia.)

B.  Jury

Eligibility for federal jury service is lost upon conviction in state or federal court of a crime punishable by more than one year if a person’s “civil rights have not been restored.”  28 U.S.C. § 1865(b)(5).  The courts and the Administrative Office of United States Courts interpret this provision to require an affirmative act (such as a pardon or expungement) to restore federal jury eligibility.  See, e.g., United States v. Hefner, 842 F.2d 731, 732 (4th Cir. 1988) (legislative history of § 1865(b)(5) indicates that “some affirmative act recognized in law must first take place to restore one’s civil rights to meet the eligibility requirements of section 1865(b)(5)”).  Thus the automatic restoration of rights that takes place in many states upon completion of sentence will not be sufficient.  See Paul J. Komives & Peggy S. Blotner, Loss and Restoration of Civil Rights Affecting Disqualification for Federal Jury Service, 70 Bus. L.J. 542 (1991).

C.  Office-holding

The U.S. Constitution does not prohibit convicted persons from holding office, but some statutes provide that conviction will result in the loss of office.  See, e.g., 18 U.S.C. § 201(b) (sentencing court may order disqualification from federal office of official convicted for bribery).  A felony conviction does not disqualify a person from federal employment, but may be considered by particular agencies in connection with determining suitability.  See Kelly Salzmann & Margaret Love, Internal Exile: Survey of the Collateral Consequences of Conviction under Federal Laws and Regulations (Washington, D.C.: Am. Bar Ass’n, ABA Commission on Effective Criminal Sanctions, 2008), available at http://www.abanet.org/cecs/internalexile.pdf.

D.  Firearms

People with convictions in any court, of a crime punishable by imprisonment for a term exceeding one year, are subject to the prohibition on possession of firearms under federal law, 18 U.S.C. § 922(g)(1), and to additional prohibitions under the laws of the several states.  Persons convicted of domestic violence offenses also lose firearms rights. § 922(g)(9).   The only relief available to federal offenders is a presidential pardon.  See Beecham v. United States, 511 U.S. 368 (1994).  People with state convictions may avoid the federal bar if their convictions are pardoned, set-aside, or expunged, or if their civil rights have been restored, as long as they are not subject to state firearms disabilities.  See 18 U.S.C. §§ 921(a)(20), (a)(33).  Automatic restoration of civil rights is effective to remove federal gun dispossession.  See Caron v. United States, 524 U.S. 308 (1998). 

E.  Capacity to testify

Federal Rule of Evidence 609(b) provides that evidence of a conviction for a felony is not admissible if a period of more than ten years has elapsed since the date of the conviction unless, “[i]ts probative value, supported by specific facts and circumstances, substantially outweigh its prejudicial effect.” FRE 609(c) provides:

“Evidence of a conviction is not admissible if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or imprisonment for more than one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.”

* Additional Federal Collateral Consequences are discussed in Part III, infra. Discretionary relief may be available from a variety of these collateral disabilities from responsible agency officials.  See Salzmann & Love, Internal Exile, supra.

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

Executive pardoning power lies exclusively in President and cannot be limited or regulated by Congress.  U.S. Const. art. II, sec. 2.  By Executive Order, the Attorney General is charged with providing advice on pardon policy and investigating and making recommendations on all applications for pardon and commutation.  See 28 C.F.R. Part 1.

Eligibility

Five years after the completion of a sentence, beginning upon release from prison, or date of sentencing if not incarcerated.  Waiver of the eligibility waiting period is infrequent.  Ordinarily an applicant must have no court proceedings pending, and must have completed supervision.  28 C.F.R. Part 1.  Offenders whose convictions were prosecuted under the Uniform Code of Military Justice are eligible to apply for a presidential pardon, as are D.C. Code offenders.

Effect

A pardon “in no way reverses the legal conclusion of the courts; it ‘does not blot out guilt or expunge a judgment of ’”  Hirschberg v. Commodity Futures Trading Com’n, 414 F.3d 679, 682 (7th Cir. 2005), citing In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994).  See also Nixon v. United States, 506 U.S. 224, 232 (1993) (“a pardon is in no sense an overturning of a judgment of conviction by some other tribunal”); Burdick v. United States, 236 U.S. 79, 94 (1915) (a pardon “carries an imputation of guilt”); United States v. Noonan, 906 F.2d 958, 960 (3d Cir. 1990) (concluding that a pardon can only remove the punishment for a crime, not the fact of the crime itself, and holding that Burdick implicitly rejected the Supreme Court’s prior sweeping conception of the pardoning power in Ex Parte Garland). See additional authorities cited in 30 Op. O.L.C. 1 (2006)(“Whether a Presidential Pardon Expunges Judicial and Executive Branch Records of a Crime”).

A pardoned offense may be used as a predicate offense, and to enhance a subsequent sentence. Carlesi v. New York, 233 U.S. 51 (1914).

The effect of a presidential pardon is not to prohibit all consequences of a pardoned conviction, but rather to preclude future punishment for the conviction. See Nixon, 506 U.S. at 232; Bjerkan v. United States, 529 F.2d 125, 127-28 (7th Cir. 1975).  Thus, a pardon relieves legal disabilities arising under state or federal law solely by virtue of the conviction, but it does not preclude adverse action taken on the basis of the conduct underlying the conviction.  See, e.g., In re Abrams, 689 A.2d 6 (D.C. App. 1997) (upholding bar discipline based upon conduct underlying pardoned conviction:  “[A]lthough the presidential pardon set aside Abrams’ convictions, as well as the consequences which the law attaches to those convictions, it could not and did not require the court to close its eyes to the fact that Abrams did what he did.”); see also Effects of a Presidential Pardon, 19 Op. Off. Legal Counsel No. 160, 1995 WL 861618 (June 19, 1995).  In this regard, a pardon may be taken as evidence of rehabilitation and good character.

Process

The federal pardon process is described at http://www.justice.gov/pardon/clemency.htm.  An application is made to the Office of the Pardon Attorney (OPA), U.S. Department of Justice, on a form provided by that office.  See http://www.usdoj.gov/pardon/pardon_petition.htm.  Each pardon application is investigated by OPA, which in meritorious cases includes an FBI background investigation and inquiry to the U.S. Attorney and the sentencing judge, and a recommendation is made to the President through the Deputy Attorney General.  Cases are reviewed on a paper record, and there is no formal hearing.  Official pardon recommendations and OPA advice to the President are confidential.  Pardon recommendations are handled in the White House by the Office of White House Counsel.  Processing time for a favorable recommendation is generally at least 18 months and may be considerably longer.

Criteria

Standards applicable to a Justice Department review of pardon applications are set forth in § 1-2.112 of United States Attorneys Manual.  See http://www.justice.gov/pardon/petitions.htm.  Factors to be considered include:

  • Post-conviction conduct, character, and reputation
  • Seriousness and relative recentness of the offense
  • Acceptance of responsibility, remorse, and atonement
  • Need for relief
  • Official recommendations and reports1
Frequency of Grants

President Obama granted a total of 212 pardons and denied 1,708 applications, leaving 2011 applications pending when he left office.  (He also granted 1,715 sentence commutations, and denied 18,749 applications, leaving some 8000 prisoner petitions still pending.)   The rate of application picked up markedly at the end of his tenure, notwithstanding the sluggish grant rate.  See Office of the Pardon Attorney, Clemency Statistics, (retrieved July 1, 2017), available at http://www.justice.gov/pardon/statistics.htm (listing clemency statistics by administration from 1900 to present). George W. Bush granted a total of 189 pardons and eleven commutations, and denied more than 1700 pardon petitions.  Id.

Historically, American presidents have pardoned regularly and generously.  Presidential pardoning has abated in recent years, however, compared to pre-1980 grant rates.  See generally Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169 (2010); H. Humbert, The Pardoning Power of the President (1941).  The number of presidential pardons each year has steadily declined since 1980, as has the percentage of applications granted.2 The federal pardon process has been criticized in recent years as being unduly influenced by prosecutors.  See, e.g., Paul Larkin, Revitalizing the Clemency Process, 39 Harvard Journal of Law and Public Policy 833 (2016); Margaret Love, Justice Department Administration of the President’s Pardon Power: A Case Study in Institutional Conflict of Interest, 47 U. Tol. L. Rev 89 (2016).  In December 2011 the Washington Post co-published an investigative series on federal pardoning during the Bush Administration purporting to show racial disparity and undue congressional influence in the federal pardoning process.  See http://www.propublica.org/series/presidential-pardons.  

Contact

Office of the Pardon Attorney
145 N Street N.E.
Room 5E.508
Washington, D.C. 20530
USPardon.Attorney@usdoj.gov
202-616-6070

B.  Judicial sealing or expungement
Inherent expungement authority

There is no general federal expungement statute, and federal courts have no inherent authority to expunge records of a valid federal conviction.  See, e.g., United States v. Crowell, 374 F.3d 790, 792-93 (9th 2004), cert. denied, 543 U.S. 1070 (2005).  However, some courts have held that federal courts have inherent ancillary authority to expunge criminal records where an arrest or conviction is found to be invalid or a clerical error is made.  United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000).  See cases collected in Hall v. Alabama, 2010 U.S. Dist. LEXIS 14082, at *22-30 (M.D. Ala. 2010).3 Occasionally, courts have agreed to expunge an arrest record upon a showing of need where the government did not object.4

Federal First Offender Act (Misdemeanor Drug Possession)

Where a person with no prior drug conviction is found guilty of misdemeanor possession of a controlled substance under 21 U.S.C. § 844, courts may impose probation before entry of judgment, and subsequently dismiss the case without entry of judgment and no conviction resulting if the person has not violated of condition of his probation.  See 18 U.S.C. § 3607(a).5  Expungement of all records is available only if the defendant was less than 21 years of age at the time of offense. § 3607(c).  The effect of expungement under this section is explained as follows:

“The expungement order shall direct that there be expunged from all official records, except the nonpublic records referred to in subsection (b), all references to his arrest for the offense, the institution of criminal proceedings against him, and the results thereof.  The effect of the order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or institution of criminal proceedings.  A person concerning whom such an order has been entered shall not be held thereafter under any provision of law to be guilty of perjury, false swearing, or making a false statement by reason of his failure to recite or acknowledge such arrests or institution of criminal proceedings, or the results thereof, in response to an inquiry made of him for any purpose.”

18 U.S.C. § 3607(c).6

Congress has directed that DNA analysis be expunged from certain indices when a conviction has been overturned.  10 U.S.C. § 1565(e) (under military law); 42 U.S.C. § 14132(d) (FBI expungement).  See also 18 U.S.C. § 921(a)(20), (33)(B)(ii) (defining certain crimes to exclude convictions that have been expunged or for which the person has been pardoned or had his civil rights restored).

Juvenile Records

No provision for expungement or sealing.7

C.  Administrative certificate

While there is no general administrative relief mechanism available from federal collateral consequences, waivers in particular cases may be available from responsible agency officials for both state and federal offenders subject to disabilities under particular federal statutes.  See generally Salzmann & Love, Internal Exile, supra.  For example, exceptions to the prohibition on military enlistment of felony offenders may be authorized by the Secretary of the service involved in “meritorious cases.”  10 U.S.C. § 504(a).  Also, persons prohibited from holding national security clearance by virtue of their conviction may be granted a waiver “in accordance with standards and procedures prescribed by, or under the authority of, an Executive order or other guidance issued by the President.”  50 U.S.C. § 435c(c)(2)(A)  See also the waiver authority of the FDIC and TSA described in Part III.

State Relief Mechanisms

A few federal statutes specifically incorporate a waiver provision based on state provisions for pardon or restoration of rights.  For example, under the Firearms Owners Protection Act of 1986, state convictions that have been expunged, set aside, or pardoned, or for which a person has had civil rights restored, do not constitute “convictions” for purposes of prosecution as a felon in possession.  18 U.S.C. § 921(a)(20); James W. Diehm, Federal Expungement: A Concept in Need of a Definition, 66 St. John’s L. Rev. 73, 99 (1992).  In certain cases, an alien may avoid deportation based on conviction if he is pardoned.  See Morison, Presidential Pardons and Immigration Law, supra note 4, at 268-272; Elizabeth Rapaport, The Georgia Immigration Pardons: A Case Study in Mass Clemency, 13 Fed. Sentencing Rep. 184, 184 (2000).  A felony offender is disqualified from serving on a federal jury “if his civil rights have not been restored.”  28 U.S.C. § 1865(b)(5).  The federal prohibitions relating to involvement in labor organizations and employee benefit plans last up to thirteen years, but may be removed earlier if an individual’s civil rights have been “fully restored.”  29 U.S.C. §§ 504(a), 1111(a).  Under HUD regulations, federal restrictions on licensure as a mortgage originator for persons convicted of a felony may be waived by a pardon.  See 24 C.F.R. § 3400.105(b)(2), 76 Fed. Reg. 38464 (June 30, 2011). See also the Transportation Safety Administration regulations described in Part III, infra, which give effect in connection with employment in transportation-related occupations to both state pardons and expungements.

III. Nondiscrimination in Licensing and Employment
A.  Civil Rights Act of 1964

There is no general provision in federal law that prohibits consideration of a criminal conviction in connection with employment or licensure.  The Equal Employment Opportunity Commission (EEOC) has taken the position that “an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population. Consequently, the Commission has held and continues to hold that such a policy or practice is unlawful under Title VII in the absence of a justifying business necessity.”  See EEOC, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 915.002 (April 25, 2012), http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf .8

Recent litigation under Title VII is described in Michelle Natividad Rodriguez & Maurice Emsellem, 65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks for Employment, National Employment Law Project (2011), at 9-12, available at http://www.nelp.org/page/-/SCLP/2011/65_Million_Need_Not_Apply.pdf?nocdn=1See also NELP, Civil Rights and Consumer Protection Litigation Docket, available at http://www.nelp.org/page/-/SCLP/2011/CivilRightsConsumerProtectionLitigationDocket.pdf?nocdn=1.

B.  Fair Credit Reporting Act

Prohibits a “consumer reporting agency,” including private firms that supply criminal background information to employers, from disseminating to a prospective or current employer information about arrests that are more than seven years old, for which the statute of limitations has run.  See 15 U.S.C. § 1681c(a)(2).  However, convictions of any age may be reported.  15 U.S.C. § 1681c(a)(5).  Additional notice and other procedural protections required by the FCRA also apply directly to an employer, as discussed in FTC advisory letters.  See http://www.cardreport.com/laws/fcra/ftc-opinion/fcra-opinion.html.  For a description of recent FCRA litigation, see the NELP Publications cited in the preceding section.

C.  Federally Regulated Occupations and Employments

Federal law now authorizes or requires criminal history background checks, and mandates disqualification based on certain convictions, for a wide variety of state-licensed occupations and employments.  See Legal Action Center, National H.I.R.E. Network, “Federal Occupational Restrictions Affecting People with Criminal Records,” available at http://www.hire.web5design.com/content/federal-occupational-restrictions-affecting-people-criminal-records. Some of these regulatory schemes contain time limits or provide for administrative waiver, as described below.

Security Regulation of the Transportation Industry

Since 9/11, the nation’s transportation industry has adopted a new regime of criminal background checks intended to identify workers who may pose a terrorism security risk. Starting with the USA Patriot Act, a progression of federal laws and regulations have been enacted to screen workers employed in the air, sea, and ground transportation industries.  Although the laws themselves vary in specificity, by regulation and policy the Transportation Security Administration (TSA) has attempted to harmonize the different screening policies, though the Aviation and Transportation Security Act of 2001 imposes more stringent limits on airport employment than those applicable to maritime employees and commercial drivers.

Airport Employment

The Aviation and Transportation Security Act of 2001 (ATSA) denies “unescorted access” authority to anyone convicted of disqualifying offenses within the past ten years.  49 U.S.C. § 44936(b)(1).  Major categories of workers covered by the ATSA include airport screeners, mechanics, flight attendants and pilots, fleet service workers, and workers handling commercial or passenger cargo in secured areas.  44936(a)(1)(B).  (TSA has proposed regulations to extend a separate level of screening to workers who handle cargo in unsecured areas.)  The ATSA itself includes a list of disqualifying criminal offenses covering various dangerous acts related to transportation, crimes involving espionage and treason, violent felonies, property crimes including theft and burglary that resulted in a felony conviction, and any felony related generally to “dishonesty, fraud or misrepresentation.”  See 49 U.S.C. § 44936(b)(1)(B); see also TSA regulations at 49 C.F.R. §§ 1542.209(d), 1544.229(d), 1544.230.  In addition, some misdemeanors may also be disqualifying.  Most notably, both felony and misdemeanor convictions for unlawful possession or use of a “weapon” (ranging from explosives to firearms, knives, brass knuckles, black jacks, and mace) result in disqualification.  See United States v. Baer, 324 F.3d 282, 286-88 (4th Cir. 2003) (misdemeanor firearms offense is disqualifying under § 44936).  In contrast to the Hazmat regulations (below), the TSA regulations make felony simple possession of a controlled substance a disqualifying offense also.  49 C.F.R. § 1542.209(d)(26)(ix).  If there is no disposition, or if the disposition did not result in a conviction or in a finding of not guilty by reason of insanity of a disqualifying offense, the individual is not disqualified.  § 1542.209(g).

Waiver: Unlike the regulations applicable to commercial drivers and maritime employees, the TSA regulations implementing the ATSA do not provide for waiver.

For the effect of convictions that have been expunged, pardoned, or set-aside; or for offenses that did not result in a conviction, see TSA, “Legal Guidance on Criminal History Records Checks” (May 28, 2004) (also discussed below in “What constitutes a conviction” section).

Hazmat Licenses for Commercial Drivers

Under the USA PATRIOT Act, commercial drivers licensed by the states to transport hazardous material are subject to federal laws regulating their “hazardous materials endorsements” (HME), including new criminal background screening requirements imposed by the USA Patriot Act (49 U.S.C. § 5103a(a)(1)) to insure that “the individual does not pose a security risk warranting denial of the license.” Drivers requiring HME endorsements range from municipal trash collectors carrying items like bleach and batteries, to interstate truckers carrying nuclear and biological waste.  Unlike the ATSA, the Patriot Act does not list disqualifying offenses or impose any time limits on their consideration.  A state may not grant a driver a “license to operate a motor vehicle transporting in commerce a hazardous material” unless the DHS first notifies the state “that the individual does not pose a security risk warranting denial of the license.”  49 U.S.C. § 5103a(a)(1).  The TSA, acting on behalf of the DHS, assesses whether an individual poses a security risk; in practice the TSA notifies the state that an individual poses no threat by granting that individual an HME.

TSA’s final regulations (49 C.F.R. § 1572.103, see generally 69 Fed. Reg. 68720 (Nov. 24, 2004)), list 35 “permanent” and “interim” disqualifying offenses. “Permanent disqualifying offenses” include convictions for especially serious crimes, including murder, espionage, acts of terrorism and crimes related to explosive devices.  49 C.F.R. § 1572.103(a).  These offenses, whether felonies or misdemeanors, will be considered disqualifying no matter how dated.  (Misdemeanor offenses are disqualifying only if they are of a “terroristic nature,” such as sale of explosives or weapons.  Id.)  The regulation’s “interim disqualifying criminal offenses” are expressly limited to felonies and to those convictions that took place within the past seven years, or where the individual was released from prison within five years of the application.  § 1572.103(b).  These include various acts of violence, weapons offenses, property crimes, and a general category of crimes involving “dishonesty, fraud, or misrepresentation, including identify fraud.”   Distribution of a controlled substance is also included as a disqualifying offense.  § 1572.103(b)(2)(vii).  However, TSA removed simple drug possession from the final list of disqualifying offenses, concluding that it “generally does not involve violence against others or reveal a pattern of deception . . . .”  69 Fed. Reg. 68723.

Waiver: If the TSA determines an applicant for an HME has been convicted of any of several “disqualifying criminal offenses” listed in the TSA’s threat assessment regulation (49 C.F.R. § 1572.103) and therefore determines that he poses “a security threat warranting denial” of his application (per  § 1572.5(a)(1)), then the TSA serves the applicant with its “Initial Determination of Threat Assessment.” 49 C.F.R. § 1572.15(d).  An applicant disqualified because of a criminal offense may within 60 days appeal that determination within the TSA and, if unsuccessful, then seek review in a court of appeals.  § 1515.5.  If he does not appeal within 60 days, or if his administrative appeal is unsuccessful, then the Initial Determination of Threat Assessment becomes a Final Determination.  See  §§ 1515.5(b)(1); (c).  Alternatively, any time after receiving an Initial Determination of Threat Assessment and until 60 days after receiving a Final Determination, the applicant may request a waiver on the ground that in fact he “does not pose a security threat.” §§ 1515.7(b); (c)(iii).  Should his waiver request be denied, he may seek review of that decision as well, first before an Administrative Law Judge, then before the Deputy Administrator, and then by petitioning a court of appeals for review.  §§ 1515.7(d); 1515.11.  See also Boniface v. United States Dep’t of Homeland Security, 613 F.3d 282 (D.C. Cir. 2010), cert. denied, 131 S.Ct. 931(2011) (TSA improperly treated appeal as request for a waiver and denied it without giving petitioner an opportunity to demonstrate his rehabilitation).

“In determining whether to grant a waiver, TSA will consider the following factors, as applicable to the disqualifying condition: (i) The circumstances of the disqualifying act or offense. (ii) Restitution made by the applicant. (iii) Any Federal or State mitigation remedies. (iv) Court records or official medical release documents indicating that the applicant no longer lacks mental capacity. (v) Other factors that indicate the applicant does not pose a security threat warranting denial of the HME or TWIC.”

49 C.F.R. § 1515.7(c)(2).  As to pardoned or expunged convictions, see infra.

Maritime Employees

The Maritime Transportation Security Act of 2002 (MTSA), as amended, establishes a new “transportation worker identification credential” (TWIC) required of anyone with unescorted access to a “secure area” of a port facility or vessel. 46 U.S.C. § 70105.   Persons are ineligible for a TWIC if the Secretary determines they pose “a security risk warranting denial of the card.”  70105(b).  Persons are disqualified if they have been convicted within the preceding 7-year period of a felony that “the Secretary believes could cause the individual to be a terrorism security risk to the United States” or if they have been released from incarceration within the preceding 5-year period for committing such a felony.  §§ 70105(c)(1)(B), (c)(1)(D).  (Note that these expiration dates have been adopted by the TSA for “interim” disqualifying offenses, but not for “permanent” disqualifying offenses, while the ATSA imposes a ten-year rule on all disqualifying offenses.)  TSA regulations identifying disqualifying offenses and defining a conviction for purposes of obtaining a TWIC are at 46 U.S.C. § 70105(c); 49 C.F.R. §§ 1570.3; 1572.103.  Privacy protections are written into the law – individual employers may be informed only of the results.  See 46 U.S.C. § 70105(e) (information obtained may not be made available to the public, including the individual’s employer; employer may only be informed of whether or not the individual has been issued the card).  The TSA background check process is described in the very helpful guidance prepared by the National Employment Law Project (NELP).  See http://www.nelp.org/content/uploads/NELP-TWIC-Update-June-2008.pdf  (guidance specific to port workers).  The NELP guidance also contains sample letters for responding to TSA initial determinations of ineligibility and/or requesting a waiver.

Waiver: The MTSA as amended requires a “waiver” process that will “give consideration to the “circumstances of any disqualifying act or offense, restitution made by the individual, Federal and State mitigation remedies, and other factors from which it may be concluded that the individual does not pose a terrorism risk warranting denial of the card.”  46 U.S.C. § 70105(c)(2).  Alternatively, a waiver may be granted if the employer establishes “alternative security arrangements acceptable to the Secretary.”  § 70105(c)(2)(B).  The TSA must also establish an appeals process that requires notice and a hearing.  § 70105(c)(4).

What constitutes a “conviction”?

For all maritime and land transportation security employments subject to regulation by TSA, the rules on expunged and pardoned offenses are contained in 49 C.F.R. § 1570.3.  The TSA has taken the position that a “conviction” does not include offenses that have been discharged or set-aside such as convictions that have been expunged or pardoned.  See § 1570.3:

Convicted means any plea of guilty or nolo contendere, or any finding of guilt, except when the finding of guilt is subsequently overturned on appeal, pardoned, or expunged.  For purposes of this subchapter, a conviction is expunged when the conviction is removed from the individual’s criminal history record and there are no legal disabilities or restrictions associated with the expunged conviction, other than the fact that the conviction may be used for sentencing purposes for subsequent convictions. In addition, where an individual is allowed to withdraw an original plea of guilty or nolo contendere and enter a plea of not guilty and the case is subsequently dismissed, the individual is no longer considered to have a conviction for purposes of this subchapter.

Note that in order to be effective, an expungement must “nullify” the conviction, which means it must remove the criminal record from the applicant’s file and cannot impose any restrictions or disabilities on the applicant.  See May 28, 2004, Memorandum from the Office of the TSA Chief Counsel, “Legal Guidance on Criminal History Records Checks” at 2-3.  Examples of restrictions specifically mentioned in TSA advisory memoranda include limitations on ownership of a firearm, and limitations on employment as law enforcement officer, teacher, or health care provider.  See id. at 3.  Therefore “some expungements remove the disabling effect of the underlying conviction and some expungements do not.”  Id.  On the other hand, TSA takes the position that “all pardons will act to nullify the underlying conviction” for purposes of the airport “unescorted access” authority.  Id. at 4.  If a record fails to indicate the disposition of an arrest, the credentialing authority may take into account convictions outside the 10-year period in making a suitability determination.  Id.  The commentary to the TSA regulations refers to the May 28, 2004 policy memorandum applicable to airport personnel, discussed above, which notes that to be effective an expungement cannot place limits on hiring as a police officer, teacher, or health care worker: “TSA believes it is necessary to include this level of detail in the definition to ensure that applicants are treated consistently across the country.  Procedures on expungements vary from state to state, and may change at any time.  Therefore, TSA hopes to avoid inconsistent application of the law against hazmat drivers by providing the new definition.”  69 Fed. Reg. at 68729.  Thus pardons and some expungements will be given effect even prior to the waiver stage.

Banking

Section 19 of the Federal Deposit Insurance Act prohibits people who have been convicted of a crime of dishonesty, breach of trust, or money laundering from working in, owning, or controlling a bank (an “insured depository institution”) unless they obtain a waiver from the FDIC. 12 U.S.C. § 1829(a).  For purposes of this law, pre-trial diversion or similar programs are considered to be convictions.   1829(a)(1)(A).9  Certain specified federal crimes cannot be waived for a ten-year period after conviction, absent a motion by the FDIC and court approval.  § 1829(a)(2).  A 1998 FDIC policy statement (http://www.fdic.gov/regulations/laws/rules/5000-1300.html) (“SOP”) provides that all drug crimes require FDIC waiver, but that pre-trial diversion programs will be considered on a case-by-case basis (except for those that occurred prior to November 29, 1990, which do not require a waiver).  See SOP §§ (B)(2)-(3).  The term “dishonesty” encompasses offenses including the wrongful taking of property belonging to another, in violation of any criminal statute. See FDIC Statement of Policy, 63 Fed. Reg. 66, 177, 66, 185 (Dec. 1, 1988).10   Youthful offender adjudications and “de minimis crimes”11 are not considered “convictions” requiring a waiver, nor are convictions that have been “completely expunged.”  Id. at §§ (B)(1), (4).  However, a conviction for which a pardon has been granted will require a waiver.  Id. at § (B)(1).  The FDIC generally requires the institution to submit the request for FDIC approval on behalf of the job applicant.  Id. at § C.  (The National H.I.R.E. Network reports that institutions rarely seek a waiver, except for higher level positions when the candidate is someone the institution really wants to hire. Individuals can only seek FDIC approval themselves if they ask the FDIC to waive the usual requirement.  See www.reentry.net/library/attachment.93411.)

In determining whether to grant an applicant a waiver, the FDIC will consider the following factors: (1) the conviction and nature and circumstances of the offense; (2) evidence of rehabilitation, including age at conviction, and time elapsed; (3) the position to be held; (4) amount of influence and control over the management of the institution; (5) management’s ability to supervise and control the person’s activities; (6) degree of ownership over the institution; (7) applicability of the institution’s fidelity bond coverage to the individual; (8) opinion of primary Federal and/or state regulator; and (9) any additional relevant factors.  See SOP, § D.  Other banking agencies charged with administering laws regulating real estate and mortgage brokerage licensing may defer to FDIC for waivers.

Care Providers for Vulnerable Populations

Federal law authorizes or requires states to conduct background checks for a variety of employments affecting vulnerable populations.  See, e.g., 42 U.S.C. § 5119a (child-care, elder-care, care of individuals with disabilities); 28 U.S.C. § 534 note (nursing care facilities and home health care agencies); 20 U.S.C. § 7115(b)(2)(E)(xx) (teachers and other education agency employees); 42 C.F.R. § 418.114 (hospice employment).  See Internal Exile, supra, at 30-33.

Labor organizations

Prohibitions relating to office-holding in labor organizations and employee benefit plans last 13 years, but may be removed earlier if civil rights have been “fully restored” or if a federal court or the Parole Commission so directs. 29 U.S.C. §§ 504(a), 1111(a).

Federal defense contractors

Persons convicted of fraud or any felony arising out of a contract with the Department of Defense are prohibited for a period of “not less than five years after the date of conviction” from working in a management or supervisory capacity with a defense contractor, or from serving on the board of directors or acting as a consultant for any company that is a defense contractor.  10 U.S.C. § 2408(a).  (Waiver prior to five years available from Secretary of Defense “in the interests of national security.”  2408(a)(3).)12

Union Office

Certain classes of felons are barred for 13 years after one’s conviction from holding any of several positions in a union or other organization that manages an employee benefit plan, including serving as an officer of the union or a director of the union’s governing board.  29 U.S.C. §§ 504(a), 1111(a).

Healthcare

Those convicted of certain crimes are prohibited from providing healthcare services reimbursed by Medicare or from working for the generic drug industry.  42 U.S.C. § 1320a-7; 21 U.S.C. § 335a.

Childcare

Criminal history background checks are required for individuals who provide care for children in any Federal agency or facility operated by the Federal government.  42 U.S.C. § 13041.   In addition, the Federal Child Protection Act, 42 U.S.C. § 5119a, authorizes states to enact statutes concerning the facilitation of criminal background checks of persons who work with children.  It authorizes states to institute mandatory or voluntary fingerprinting of prospective employees in childcare fields in order to facilitate criminal background checks.  Id.

Prisoner Transportation

Prisoner transportation (including private prisoner transportation) is federally regulated. 42 U.S.C. § 13726b sets “[m]inimum standards for background checks and pre-employment drug testing for potential employees, including requiring criminal background checks, to disqualify persons with a felony conviction or domestic violence conviction . . . for eligibility for employment.”  The purpose of the act was to provide protection against risks to the public inherent in the transportation of violent prisoners and to assure the safety of those being transported.  See L. 106–560 (December 21, 2000) (“An Act To provide protection against the risks to the public that are inherent in the interstate transportation of violent prisoners.”); 42 U.S.C. § 13726(5) (private prisoner transport companies should be subject to regulation to enhance public safety).

D.  Additional Note on Federal Criminal Background Checks

In June 2006 the Attorney General issued a report pursuant to § 6403(d) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L.108-458, 118 Stat. 3638, 3759) making recommendations to Congress for standardizing non-criminal justice access to FBI-maintained criminal history records.  See The Attorney General’s Report on Criminal Background Checks, http://www.usdoj.gov/olp/ag_bgchecks_report.pdf.   The report recommends that the FBI’s national database of criminal records generally be made more widely available to private employers and private screening firms for purposes of determining suitability for employment or placement in a position of trust.13 Id. at 59.  It also recommends that privacy protections be created (including notice to an individual whose records have been requested, and an opportunity to review and challenge the accuracy of those records), and that procedures for assuring accuracy of records be improved.  Id. at 59-65, 72-73.14  It recommends national standards relating to disposition reporting and record completeness, including declinations to prosecute and expungement and sealing orders, so that there is uniformity in improvements by repositories nationwide.  Id. at 72.  As to suitability criteria, the report recommends that Congress consider “whether guidance should be provided to employers on appropriate time limits that should be observed when applying criteria specifying disqualifying offenses and on providing an individual the opportunity to seek a waiver from the disqualification.”  Id. at 68.15

 

Continue reading “Restoration Rights Series/Federal”

POLICE OFFICERS MAY MISCHARACTERIZE A CUSTODIAL SITUATION IN COURT

Police Officers generally believe that suspects are more likely to speak with them voluntarily in the absence of a Miranda warning. Thus, police officers have an incentive not to give the warning. One way they may attempt to evade the Miranda rule is by delaying the arrest of a suspect until after they’re through with the questioning. If an officer can convince a judge that the officer was engaged only in general questioning and would have let the suspect walk away had the suspect chosen to do so anything the suspect says can be used against the suspect at trial despite the lack of Miranda warnings.

 

WILL THE CHARGES AGAINST ME BE AUTOMATICALLY DISMISSED IF THE POLIE QUESTIONED ME WITHOUT ADVISING ME OF MY MIRANDA RIGHTS?

 

No. One popular misconception about the criminal justice system is that a case has to be thrown out of court if the police fail to give the Miranda warning to people they arrest. What Miranda says is that the warning is necessary if the police interrogate a suspect in custody and want to offer what he or she says into evidence at trial. This means that the failure to give the Miranda warning is utterly irrelevant to the case if:

  • the suspect is not in custody
  • the police do not interrogate the suspect, or
  • the police do interrogate the suspect, but the prosecution does not try to use the suspect’s responses as evidence.

In essence, if the prosecution can win its case without using the improperly obtained statements, a Miranda violation will not cause dismissal of the case.

 

AFTER I’M ARRESTED IS IT EVER GOOD IDEA TO TALK TO THE POLICE?

 

Not without talking to a lawyer first. Talking to the police is almost always hazardous to the health of a defense case, and defense attorneys almost universally advise their clients to remain silent until the attorney has assessed the charges and counseled the client about case strategy.

 

HOW DO I ASSET MY RIGHT TO REMAIN SILENT OR REQUEST A LAWYER IF I AM BEING QUESTIONED BY THE POLICE?

 

Suspects do not need to use a precise set of words to indicate that they want to remain silent. Arrestees may invoke their Miranda rights by saying things like the following:

  • “I don’t want to talk to you; I want to talk to an attorney.”
  • “I refuse to speak with you.”
  • “I claim my Miranda rights.”

If the police continue to question an arrestee who says anything like the above, they have violate Miranda. As a result, nothing the arrestee says after that point is admissible in evidence. Even though they don’t have to mention the Miranda case or use a particular phrase to invoke their rights, suspect who wants to prevent police questioning have to speak up and assert their desire to remain silent. If the suspects fail to tell the police that they want to remain silent or talk to a lawyer, the police have the right to question them.

 

Example:

Police officers arrest Sy Lentz for murder and advise him of his Miranda rights. When Sy remains silent, the officers question him. After three hours of questioning, Sy answers “Yes” to an officer’s question about whether he had prayed for forgiveness for shooting the victim. The prosecutor can offer the question and Sy’s response into evidence at trial to prove that Sy is quilty of murder. Sy did not demand a lawyer or tell the police that he refused to talk to them. Sy’s silence allowed the police to continue to question him, his eventual answer is admissible at trial.

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