Restoration of Right Series/New Hampshire

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

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

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

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

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

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

B.  Firearms

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

II.  Discretionary Restoration Mechanisms:
A.  Executive pardon
Authority

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

Eligibility

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

Effect

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

Process

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

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

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

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

Contact

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

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

N.H. Rev. Stat. Ann. § 651:5(I):

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

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

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

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

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

Non-conviction records

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

Procedure

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

­Effect

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

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

N.H. Rev. Stat. Ann. § 651:5(X)(f).

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

Juvenile records

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

III.  Nondiscrimination in Licensing and Employment

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

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

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

Copyright © 2017

Restoration of Rights Series/Nevada

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

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

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

B. Juvenile adjudications

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

C. Federal and out-of-state convictions 

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

D.  Firearms

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

E.  Registration

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

F.  Collateral consequences inventory

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

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

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

Administration

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

Eligibility

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

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

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

Effect

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

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

Process

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

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

Frequency of grants
Pardons

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

2017
2016
2015
2014
2013

Apps rec’d
  84
  62
  52
  74
  39

Apps heard
  60
  28
  35
  23
  31

Pardons granted
  55
  21
  29
  20
  25

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

Source: Board of Pardons Commissioners

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

Commutations

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

Contact

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

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

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

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

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

Additional sealing authority for certain minor offenders

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

Human trafficking victims

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

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

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

Non-conviction records

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

Juvenile records

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

2.   Applicable procedures

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

3.  Effect of sealing

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

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

III.  Nondiscrimination in Licensing and Employment
A. Public employment

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

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

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

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

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

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

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

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

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

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

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

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

B. Licensing

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

C. Juvenile adjudications

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


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

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

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

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

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

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

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

Copyright © 2017

Restoration of Rights Series/Nebraska

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

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

B.  Other civil rights

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

C.  Firearms rights

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

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

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

Eligibility

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

Effect

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

Process

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

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

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

Reprieves from Driver’s License Revocations

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

Frequency of Grants

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

FY02-03
120
62
43
13
55
57
26
23

FY03-04
145
95
36
33
63
30
9
9

FY04-05
186
120
56
44
76
38
16
14

FY05-06
163
81
39
33
76
45
26
22

FY06-07
111
94
49
40
37
27
13
13

FY07-08
214
178
119
39
86
38
15
15

FY08-09
168
69
48
18
64
39
11
10

FY09-10
124
75
61
9
44
26
10
9

FY10-11
239
119
100
12
76
38
9
8

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

FY 12-13
188
110
94
  7
45
62
22
11

FY13-14
153
136
109
23
47
30
23
21

FY14-15
160
113
79
24
45
42
26
24

FY15-16
127
96
63
27
36
54
29
25

FY16-17
170
113
28
29

Source: Nebraska Pardon Board

Contact

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

B.  Judicial sealing or expungement
Set-aside for probationers

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

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

Set-aside for human trafficking

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

Sealing of juvenile records

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

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

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

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

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

Expungement of arrest records resulting from law enforcement error

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

§ 29-3523(6).

Remedies

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

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

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

Inquiry into sealed records in employment and licensing 

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

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

      § 29-3523(5). 

Consideration of criminal history in licensing

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

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

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


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

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

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

Copyright © 2017

Restoration of Rights Series/Montana

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

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

B.  Jury

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

C.  Firearms

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

II.  Discretionary Restoration Mechanisms:
A.  Executive pardon
Authority

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

Administration

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

Eligibility

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

Effect

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

Process

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

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

Report

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

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

Frequency of grants

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

Contact

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

B.  Judicial Sealing or Expungement
Misdemeanor expungement

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

Deferred adjudication and sealing for first offenders

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

Juvenile records

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

Nonconviction records

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

III.  Nondiscrimination in Licensing and Employment:

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

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

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

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

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

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

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


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

Copyright © 2017

Restoration of Rights Series/ Missouri

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

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

B.  Firearms

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

C.  Other Collateral Consequences

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

II. Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

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

Administration

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

Eligibility

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

Effect

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

Process

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

Frequency of Grants

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

Contact

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

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

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

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

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

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

B.  Effect

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

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

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

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

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

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

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

2.  Non-conviction records, including deferred sentencing

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

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

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

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

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

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

3.  Arrests based on false information; motor vehicle cases

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

4.  Sealing of Juvenile Court Records

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

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

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

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

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

B. Ban-the-box in public employment

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

C.  Licensing boards and other state agencies

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


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

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

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

Copyright © 2017

Restoration of Rights Series/Mississippi

I.  Restoration of Civil/Firearms Rights
A.  Voting

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

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

B.  Jury and Office

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

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

C.  Firearms

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

II.  Discretionary Restoration Mechanisms:
A.  Executive pardon
Authority

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

Eligibility

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

Effect

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

Process

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

Frequency of Grants

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

Contact

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

 

B.  Judicial sealing or expungement
1.  Expungement

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

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

Effect

Miss. Code Ann. § 99-19-71(3):

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

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

2.  Nonconviction records

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

3.  Deferred adjudication

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

4.  Juvenile adjudications

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

5.  Judicial certificate of rehabilitation

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

III.  Nondiscrimination in Licensing and Employment

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

 


 

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

 

 

 

 

Copyright © 2017

 

Restoration of Rights Series/Minnesota

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

Person convicted of “treason or felony” may not vote “unless restored to civil rights.”  Minn. Const. art. VII, § 1.  By statute, civil rights (including right to sit on jury) restored upon discharge from sentence.  Minn. Stat. § 609.165, subd. 1 (“When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.”).  Two exceptions: firearms rights following a “crime of violence,” § 609.165, subd. 1a; and forfeiture of and disqualification from public office following a conviction of bribery under Minn. Stat. § 609.42, subd. 2.   Juvenile adjudications do not give rise to any of the “civil disabilities” that may be imposed as a consequence of an adult conviction, except that a person adjudicated delinquent for a crime of violence as defined in Minn. Stat.  § 624.712(5) “is not entitled to ship, transport, possess, or receive a firearm for the remainder of the person’s lifetime.” Minn. Stat. § 260B.245 subd. 1.

B.  Firearms

Individuals convicted of a “crime of violence,” as defined in Minn. Stat. § 624.712, subd. 5, are barred from possessing “a pistol or semiautomatic military-style assault weapon or, except for juveniles in specified monitored circumstances], any other firearm.” 624.712 subd. 1.  Firearms rights are not restored automatically upon completion of sentence along with other civil rights, but may be regained by petitioning a court for restoration.  § 609.165, subdsubd. 1a.  Court “may grant the relief sought if the person shows good cause to do so and the person has been released from physical confinement.”  § 609.165, subdsubd. 1d.1  “Crime of violence” is defined broadly in § 624.712(5) to include drug crimes and a variety of theft and burglary offenses (in addition to violent offenses).2

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

Chapter 638 of the Minnesota Statutes sets forth the authority and procedures governing the Board of Pardons.  https://www.revisor.mn.gov/statutes/?id=638&view=chapter.   “The governor, the attorney general and the chief justice of the supreme court constitute a board of pardons. Its powers and duties shall be defined and regulated by law. The governor in conjunction with the board of pardons has power to grant reprieves and pardons after conviction for an offense against the state except in cases of impeachment.”  Minn. Const. art. V, § 7; Minn. Stat. § 638.01-.08.  “The Board has the power to grant an absolute or conditional pardon,” to people currently serving a sentence.  Minn. Stat. § 638.02, subd. 1.  The Board also has the power to grant a “pardon extraordinary,” to people who have completed their sentences.  § 638.02, subd. 2.  The commissioner of corrections, or his or her designee, is the Secretary of the Board and conducts investigations and makes recommendations to the Board.  § 638.07.  The Board is required to report to legislature by February 15 each year.  § 638.075. 

Eligibility

For pardon extraordinary, five crime-free years from final discharge for nonviolent crimes, or ten crime-free years for “violent” offenses as broadly defined under Minn. Stat. § 624.712, subd. 5.  Stat § 638.02, subd. 2.  The Board may set aside this waiting period by “expressly provid[ing] otherwise in writing by unanimous vote.”  Id.  (But see Minn. R. 6600.0600, providing that application for pardon extraordinary is premature if filed less than 18 months after discharge from sentence.)  Federal felony offenders and persons convicted under the law of another state are not eligible for a state pardon.  See Minn. Const. art. V, § 7; Minn. Stat. § 638.01.  Once a pardon has been denied, reconsideration is possible only with the consent of two members of the Board.  Minn. Stat. § 638.06.  Individuals re-imprisoned for violation of parole or other supervision are barred from application for 12 months following their return.  Minn. R. 6600.1000.

Standard

To qualify for a “pardon extraordinary,” applicant must be found to be of “good character and reputation.”   Minn. Stat. § 638.02, subd. 2(2).

Effect

A “pardon extraordinary” restores all rights not otherwise regained upon completion of sentence, including firearms rights, and in addition has “the effect of setting aside and nullifying the conviction and of purging the person of it, and the person shall never after that be required to disclose the conviction at any time or place other than in a judicial proceeding or as part of the licensing process for peace officers.”  Minn. Stat. § 638.02, subd. 2.  However, a pardon extraordinary does not seal or expunge the record.3  After a pardon extraordinary is granted, a copy of the pardon is filed with the district court in the county of conviction; and the court is “directed” to issue an order “setting aside” the conviction, and to include a copy of the pardon in the court file. § 638.02, subd. 3.

Deportation

The 2005 report of the Board describes a “unique case” presented to it that year, in which a foreign national whose conviction for a minor drug offense had been set-aside under Minn. Stat. § 152.18 sought pardon to avoid deportation by federal immigration authorities. The Board was presented with the problem that its constitutional and statutory authority is limited to granting clemency for “convictions.”  The Office of the Attorney General issued an opinion that the Board did have the authority under these unique circumstances to grant the applicant a pardon extraordinary to avoid deportation.4

Process

For general pardons and commutations, Secretary of Board screens applications to determine eligibility, and makes recommendations to the Board.  Minn. R. 6600.0500.  Application forms must be obtained directly from the Secretary’s Office by mail after eligibility requirements have been reviewed.  Minn. R. 6600.0300 (“Applications for relief shall be made on forms approved by the board and supplied by the secretary to the applicant.”).  Application forms typically are sent only to those deemed eligible by the Secretary.  See http://www.doc.state.mn.us/pages/files/8214/1114/1010/BOP_2011_report.pdf  (Board of Pardons’ 2011 annual report indicating that “[a]s in the past, when an inquiry for application is made, the staff makes every effort to determine whether the potential applicant meets the eligibility requirements before an application is sent”).  In 2010, 178 applications were sent out by the Board, and 32 applications were sent in 2011.5 See http://www.doc.state.mn.us/pages/files/9614/1114/1009/BOP_2010_report.pdf  (2010 annual report); http://www.doc.state.mn.us/pages/files/8214/1114/1010/BOP_2011_report.pdf (2011 annual report).  Applications the Secretary deems “undeserving” on the merits may also be excluded from consideration, with a report to the Board summarizing the application and basis for the exclusion.  Minn. R. 6600.0500.

Hearings

“The board of pardons shall hold meetings at least twice each year and shall hold a meeting whenever it takes formal action on an application for a pardon or commutation of sentence. All board meetings shall be open to the public. . . .”  Minn. Stat. § 638.04.  For pardons extraordinary, except for less serious offenders discharged more than five years before, applicant must attend a hearing at which application is considered.  Minn. R. 6600.0900.  Persons seeking a waiver of the eligibility waiting period must also attend in person.  Judge and DA are asked their views, and victims notified.  Decision of Board usually announced at the conclusion of the hearing.  See generally Minn. R. 6600.0200-.1100, available at https://www.revisor.mn.gov/rules/?id=6600.  “Every pardon or commutation of sentence shall be in writing and shall have no force or effect unless granted by a unanimous vote of the board duly convened.”  Minn. Stat. § 638.02, subd. 1.

Frequency of grants

The following data is derived from the Annual Reports to the Legislature of the Board of Pardons, available back to 2009 at https://mn.gov/doc/data-publications/legislative-reports/In the past decade, between 10 and 25 pardons extraordinary have been granted each year, about half of those that are docketed (deemed eligible, according to the statutory criteria).  In recent years the percentage of applications granted has increased significantly. In 2015 and 2016, 33 of 83 individuals who applied for a pardon extraordinary were granted relief.  According to the 2008 report of the Board, applications for waiver have increased as collateral consequences have become more onerous: “Over the years as the collateral consequences of criminal conviction appear to have increased, there has also been an increase in the number of applicants seeking waiver of the waiting period, which the statute permits upon the unanimous written consent of the Board.” 

Relief Sought
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016

Applications Sent (all forms relief)
95
56
98
163
169
175
178
32
117
125
118
No data
53

Applications for Relief
Pardon Extraordinary (considered/granted)
19/9
18/14
27/12
23/17
41/24
28/10
45/17
45/17
20 Granted
32/10
22/7
39/18
44/15

Pardon Extraordinary + Waiver of Waiting Period
0/0
0/0
3/0
13/1
11/2
6/0
11/1
11/0
1 Granted
16/1
6/0
5/0

Commutation/ Pardon
12/0
10/0
6/0
3/0
10/0
7/0
6/0
9/0
0 Granted
7/0
8/0
10/1
9/0

Leave to Reapply
3/1
0/0
2/0
1/1
1/0
4/0
1/0
4/1
0 Granted
5/0
7/2
3/0

Contact

Randolph Hartnett, Secretary of the Board
(651) 642-0284
rhartnett@co.doc.state.mn.us

B.  Judicial sealing or expungement
Expungement/sealing

Under legislation signed into law in April 2014, the courts are now authorized to expunge judicial and executive branch records in a broad range of criminal matters: juvenile delinquency adjudications, cases resolved in an individual’s favor, cases resulting in diversion or a stay of adjudication after a one-year waiting period, and misdemeanor and minor non-violent felony convictions after waiting periods ranging from two to five years after completion of sentence.  In a case involving a conviction, a person must be able to establish that the need to expunge the record outweighs any risk to public safety.  The law protects employers from liability where a record has been expunged, and requires background screening companies to delete expunged records.  The law is effective January 1, 2015, except for domestic violence convictions which are expungeable effective July 1, 2015.  For a survey of the provisions of this comprehensive new law, see Emily Baxter, Minnesota’s sweeping new expungement law takes effect, http://ccresourcecenter.org/2015/01/01/minnesotas-sweeping-new-expungement-law-takes-effect/.

Minnesota has two types of expungement, common law and statutory.

Statutory expungement

Effective January 1, 2015, Minnesota law specifically authorizes its courts to expunge (or seal, a term used interchangeably) court and executive branch records where all pending actions or proceedings are resolved in favor of the petitioner, and in cases involving misdemeanor convictions and a long list of non-violent felonies.  See Minn. Stat. § 609A.02, subd. 3.  For a more detailed overview of the statutory expungement scheme, see Emily Baxter, Minnesota’s sweeping new expungement law takes effect, Collateral Consequences Resource Center, http://ccresourcecenter.org/2015/01/01/minnesotas-sweeping-new-expungement-law-takes-effect (January 1, 2015).

Eligibility: Those convicted of or who received a stayed sentence for a misdemeanor must wait two years after completion of sentence; those convicted of a gross misdemeanor must wait four years; and those convicted of 50 eligible felonies listed in subd. 3(b) must wait five years. The records of a conviction for which registration is required may not be expunged. § 609A.02 subd. 4. Minn. Stat. §§ 609A.01, 609A.02, subds. 1, 3. Note that a felony-to-misdemeanor reduction following deferred sentencing does not reduce the offense for purposes of expungement eligibility. See “Deferred sentencing,” infra.

Non-conviction records: Sealing may also be sought under § 609A.02 where all pending actions or proceedings were “resolved in favor of the petitioner.” § 609A.02, subd. 3(a)(1).  Individuals who have completed a deferred adjudication or other diversion program may have the related arrest, indictment, trial, or other records sealed after remaining crime-free for a one-year waiting period. § 609A.02, subd. 3(a)(2). Juveniles prosecuted as adults may have their records sealed under this authority upon discharge. § 609A.02, subd. 2. Sealing under § 609A.02 may not be sought where destruction of the records available under Minn. Stat. § 299C.105 (see below).

Procedures and Standards: Procedures for filing a petition for expungement are set forth in Minn. Stat. § 609A.03, subd. 5(a). (Under a new provision effective in January 2015, no petition is necessary with the agreement of the prosecutor. See § 609A.025.)  In all cases involving conviction records, a balancing test applies. Expungement of conviction records is

an extraordinary remedy to be granted only upon clear and convincing evidence that it would yield a benefit to the petitioner commensurate with the disadvantages to the public and public safety of:  (1) sealing the record; and  (2) burdening the court and public authorities to issue, enforce, and monitor an expungement order.

§ 609A.03, subd. 5(a). A balancing test also applies to expungement of non-conviction records, but there is a presumption in favor of relief. See discussion below.

Common law expungement

For convictions that do not fall within the list of statutorily eligible offenses, common law expungement may still be available, though the procedures set forth in § 609A.03 apply. Minnesota courts have inherent authority to expunge records generated by the judicial branch in two situations: 1) when a convicted offender’s constitutional rights may be seriously infringed by not expunging the record; and 2) even if no constitutional infringement, when expungement will yield a benefit to the offender commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing, enforcing, and monitoring an expungement order.   See State v. S.L.H., 755 N.W.2d 271, 274 (Minn. 2008); State v. Ambaye, 616 N.W.2d 256, 258 (Minn. 2000); see generally Lindsay W. Davis, An Amicus Perspective on Recent Minnesota Criminal Expungement, 2 Wm. Mitchell J. L. & Prac. 4 (2009); Jon Geffen & Stephanie Letze, Chained to the Past: An Overview of Criminal Expungement Law in Minnesota – State v. Schultz, 31 Wm. Mitchell L. Rev. 1331 (2005). 

It is not clear to what extent the standards developed and applied in common law expungement cases will be supplanted by the new statutory factors in § 609A.03.  See Ambaye, 616 N.W.2d at 258; see also State v. H.A., 716 N.W.2d 360, 364 (Minn. Ct. App. 2006).  The seriousness of the offense has been regarded as an important consideration in determining whether records should be expunged.  Compare Ambaye, 616 N.W.2d at 261 (agreeing with district court determination of “compelling interest” in maintaining record of violence, in part due to underlying charge of first degree murder) with State v. Schultz, 676 N.W.2d 337, 341 (Minn. Ct. App. 2004) (listing mitigating circumstances following plea to charge of felony assault supporting trial court exercise of discretion to expunge).6

The Minnesota Supreme Court held in May 2013 that courts’ inherent authority to expunge records created by the judicial branch does not extend to records maintained by the executive branch.  State v. M.D.T., — N.W.2d —-, 2013 WL 2220826 (Minn. 2013) at *14 (“expungement of M.D.T.’s records held in the executive branch is not necessary to the performance of a unique judicial function”).  The court reasoned that because the Minnesota Government Data Practices Act “establishes a presumption that government data are public” for 15 years, see Minn. Stat. § 13.87, subd. 1(b) (see above), “[r]ecognition of inherent judicial authority to expunge M.D.T.’s criminal records held in the executive branch would effectively override the legislative policy judgments expressed in both of these statutes.” 2013 WL 2220826 * 12.

Effect of expungement

Minn. Stat. § 609A.01: “The remedy available is limited to a court order sealing the records and prohibiting the disclosure of their existence or their opening except under court order or statutory authority. Nothing in this chapter authorizes the destruction of records or their return to the subject of the records.”  Expungement seals the record, which remains available for law enforcement purposes, for purposes of evaluating a candidate for a law enforcement position, or for purposes of background checks by the Department of Human Services.  See § 609A.03 subd. 7.  In addition, “upon request by law enforcement, prosecution, or corrections authorities, an agency or jurisdiction subject to an expungement order shall inform the requester of the existence of a sealed record and of the right to obtain access to it as provided by this paragraph.  For purposes of this section, a “‘criminal justice agency’ means courts or a government agency that performs the administration of criminal justice under statutory authority.”  Id.

Consideration in employment and licensing:  Records of arrest not leading to conviction, convictions that have been expunged, or misdemeanors for which a prison sentence could not be imposed, may not be considered in connection with public employment or licensing decision.  Minn. Stat. § 364.04.

Negligent hiring standard: “Information relating to a criminal history record of an employee, former employee, or tenant that has been expunged before the occurrence of the act giving rise to the civil action may not be introduced as evidence in a civil action against a private employer or landlord or its employees or agents that is based on the conduct of the employee, former employee, or tenant.”  Minn. Stat. § 609A.03, subd. 5(e).

Background screening companies:  The new bill closes the gap on private data mining records: if a business screening service knows that a criminal record has been sealed, expunged, or is the subject of a pardon, the screening service shall promptly delete the record. Minn. Stat. 332.70 subd 3a.7

Frequency

Expungement has been a frequently sought remedy in Minnesota.  According to press accounts prior to enactment of the new law, more than 100 applications for expungement are filed annually in Hennepin County alone.  See Nick Coleman, This Diva Changed her Tune and her Life, Minneapolis Star Tribune, Sept. 18, 2005, at 1B.

Juvenile records

Unless expunged, juvenile records are retained and made available to certain government agencies, schools, and victims only until the person reaches age 28, with certain exceptions.  If the person commits a felony as an adult, or the court convicts a child as an “extended jurisdiction juvenile,” the court “shall retain the juvenile records for as long as the records would have been retained if the offender had been an adult at the time of the juvenile offense.”  See Minn. Stat. § 260B.171, subd. 1.  Juvenile records may be used to enhance subsequent adult criminal charges and sentences; disqualify adults from working at jobs or volunteer opportunities involving vulnerable adults, patients, or children; restrict access to firearms; and prevent access to public housing.

Under Minn. Stat. § 260B.198, subd. 6, as amended in April 2014 and effective January 1, 2015, the district court is authorized to expunge from executive branch and court files all records relating to a delinquency adjudication, after determining that “expungement of the record would yield a benefit to the subject of the record that outweighs the detriment to the public and public safety in sealing the record and the burden on the court and public agencies or jurisdictions in issuing, enforcing and monitoring the order.” In making this determination the court must consider a variety of factors set forth in subd. 6(b), including the age, education, experience, and background, including mental and emotional development, of the subject of the record at the time of commission of the offense; the nature and severity of the offense, including any aggravating or mitigating factors; victim and community impact; and the overall background and history of the subject of the record.  This legislation effectively over-rules the holding of the Minnesota Supreme Court in In re Welfare of J.J. P., — N.W.2d —-, 2013 WL 2220283 (Minn. 2013).

A new report from the Center for Crime and Justice outlines how juvenile records are created, maintained, and accessed; it describes when juvenile records are public and when they are private; and it both identifies and defines the many collateral consequences – legal disabilities and practice barriers – that an individual with a juvenile record may face as they grow into adulthood.  These collateral consequences often severely limit a youth’s ability to access employment, higher education, and housing, sometimes long after an individual’s time in juvenile court is complete. See “Juvenile Records in Minnesota,” http://www.crimeandjustice.org/pdffiles/Juvenile%20Records%20in%20Minnesota.pdf.

Effect of a pardon

A pardon extraordinary “nullifies” and “sets aside” the conviction, but it does not expunge or seal the record.

Deferred sentencing

A felony conviction will be “deemed to be” a gross misdemeanor or misdemeanor if 1) the sentence imposed was no greater than that authorized for a misdemeanor; or 2) the imposition of the prison sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a prison sentence.  Minn. Stat. § 609.13, subd. 1.  The purpose and effect of this statute is to avoid imposition of most legal disabilities that accompany a felony conviction, including those in administrative licensing proceedings.  See id., advisory committee cmt., quoted in Matter of Woollett, 540 N.W.2d 829, 831 (Minn. 1995) (“It is believed desirable not to impose the consequences of a felony if the judge decides that the punishment to be imposed will be no more than that provided for misdemeanors or gross misdemeanors”). 

However, in recent years courts have chipped away at the effect of the deferred sentencing reduction.  The conviction will still be counted as a felony for purposes of prosecution as a felon in possession, and for subsequent sentencing.  See Woollett.  Also, in Woollett, the Supreme Court of Minnesota held that a stay of sentencing did not convert a felony conviction for third-degree assault into a misdemeanor for purposes of peace officer licensing, because the Board of Peace Officer Standards and Training had specific statutory authority to disqualify an individual based on a felony conviction.  The court compared the Minnesota statute with the California statute on which it was modeled (see Cal. Penal § 17(b)(1) and (b)(3), described in the California profile), and found its coverage less comprehensive.  See Woollett, 540 N.W.2d at 832, n. 3. 

Individuals who have completed a deferred adjudication or other diversion program may have the related arrest, indictment, trial, or other records sealed after remaining crime-free for a one-year waiting period. § 609A.02, subd. 3(a)(2).  (See below). In March 2017, the Minnesota Supreme Court held that felony-to-misdemeanor deferred sentencing reduction did not reduce the offense level for the purpose of expungement eligibility under Minn. Stat. § 609A.02.  See State v. S.A.M., A15-0950 (Minn. 2017); see also Mike Mosedale, Supreme Court Limits Expungement Eligibility, Minnesota Lawyer, http://minnlawyer.com/2017/03/20/supreme-court-limits-expungement-eligibility (March 20, 2017),

Non-conviction records

Expungement may be sought for non-conviction records (cases “resolved in favor of the petitioner”) under Minn. Stat. § 609A.02, subd. 3(a)(1), and for deferred sentencing/adjudication cases under subd. 3(a)(2). (Expungement authority under this statute discussed above as applied to conviction records.)  Sealing under § 609A.02 may not be sought where relief available under Minn. Stat. § 299C.105, which provides for mandatory destruction of arrest record and certain identifying information by the Minnesota Bureau of Criminal Apprehension (BCA) and other state agencies (police departments, county attorneys) in cases where no charges filed or all changes dismissed prior to a determination of probable cause. Section 299C.105 applies only if the individual has not been convicted of a felony or gross misdemeanor for the 10 years prior.

A balancing test applies to consideration of sealing as authorized under § 609A.02(a)(1) and (a)(2), but unlike the test that applies to conviction records, there is a presumption in favor of sealing. See § 609A.03, subd. 5(b): “the court shall grant the petition to seal the record unless the agency or jurisdiction whose records would be affected establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record.” In applying the balancing test, the court is directed to consider a number of factors, including the nature and severity of the underlying crime, the risk the petitioner poses to individuals or society, the length of time since the crime occurred, the steps taken by the petitioner toward rehabilitation, aggravating or mitigating factors relating to the underlying crime, the reasons expungement is sought, the petitioner’s overall criminal record, official recommendations and the recommendations of victims, and payment of restitution. § 609A.03, Subd. 5(c).
See also Minn. Stat. § 152.18 (deferred prosecution and expungement for minor drug offenses); § 609A.03, subd. 6 (“If the court orders the sealing of the record of proceedings under [Minn. Stat. § 152.18], the effect of the order shall be to restore the person, in the contemplation of the law, to the status the person occupied before the arrest, indictment, or information.”).

Minn. Stat. § 299C.11. The Minnesota Bureau of Criminal Apprehension (BCA) and other state agencies (police departments, county attorneys) must destroy an individual’s arrest record and certain identifying information upon request if the individual has not been convicted of a felony or gross misdemeanor within 10 years before the determination of all pending criminal actions in favor of the arrested person; and either no charges were filed or all changes were dismissed prior to a determination of probable cause.  See State v. Bragg, 577 N.W.2d 516 (Minn. Ct. App. 1998).  The balancing test under Minn. Stat. § 609A.03, subd. 5 applies even to sealing of nonconviction records.  See Bragg, supra, 577 N.W. 2d at 521 (noting that petitioner in that case could have proceeded under § 299C.11 but chose instead to proceed under § 609A.03).   See also Minn. Stat. § 152.18 (deferred prosecution and expungement for minor drug offenses); § 609A.03, subd. 6 (“If the court orders the sealing of the record of proceedings under [Minn. Stat. § 152.18], the effect of the order shall be to restore the person, in the contemplation of the law, to the status the person occupied before the arrest, indictment, or information.”).

Helpful information about how to apply for expungement is available on the Minnesota courts website at http://www.mncourts.gov/selfhelp/?page=276.  Forms are available at http://www.mncourts.gov/selfhelp/?page=332See also Geffen & Letze, supra.

Administrative sealing

Conviction information maintained by the Bureau of Criminal Apprehension will not be publicly disseminated 15 years after discharge of sentence, Minn. Stat. § 13.87, subd. 1(b), except that information “created or collected by law enforcement agencies which document any actions taken by them to cite, arrest, incarcerate or otherwise substantially deprive an adult individual of liberty shall be public at all times in the originating agency.” § 13.82, subd. 2.

Firearms restoration

A person convicted of a crime of violence and thus deprived of firearms rights under Minn. Stat. § 609.165, subd. 1a, may petition a court for restoration, and “the court may grant the relief sought if the person shows good cause to do so and the person has been released from physical confinement.”  § 609.165, subd. 1d.

III.  Nondiscrimination in Licensing and Employment:
A.  Minnesota Criminal Rehabilitation Act

The Minnesota Criminal Rehabilitation Act (1974), Minn. Stat § 364.01 et seq., prohibits discrimination in public employment and licensing:

The legislature declares that it is the policy of the state of Minnesota to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the resumption of the responsibilities of citizenship. The opportunity to secure employment or to pursue, practice, or engage in a meaningful and profitable trade, occupation, vocation, profession or business is essential to rehabilitation and the resumption of the responsibilities of citizenship.

Public employers and licensing agencies may not disqualify a person “solely or in part” based on criminal conviction unless 1) there is a “direct relationship” between occupation or license and conviction history, measured by the purposes of the occupation’s regulation and the relationship of the crime to the individual’s fitness to perform the duties of the position; and 2) the individual has not shown “sufficient rehabilitation and present fitness to perform” the duties of the public employment or licensed occupation.  § 364.03, subd. 1.

Direct relationship test

In determining if a conviction directly relates to the position of public employment sought or the occupation for which the license is sought, the hiring or licensing authority shall consider: (a) the nature and seriousness of the crime or crimes for which the individual was convicted; (b) the relationship of the crime or crimes to the purposes of regulating the position of public employment sought or the occupation for which the license is sought; (c) the relationship of the crime or crimes to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position of employment or occupation.   Minn. Stat § 364.03, subd. 2.

Judicial Interpretation of Direct Relationship Test:  The Minnesota courts have interpreted the direct relationship test broadly. See, e.g., Peterson   v. Minneapolis City Council, 274 N.W.2d 918 (Minn. 1979) (conviction for attempted theft by trick directly related to the operation of a massage parlor); In re Shelton, 408 N.W.2d 594 (Minn. Ct. App. 1987) (embezzlement directly related to fitness to teach; teacher with 20 years of service terminated in spite of efforts to make restitution).

Rehabilitation

Even where a crime is found to be directly related to the public employment or license sought, person shall not be disqualified if the person can show “competent evidence of sufficient rehabilitation and present fitness to perform the duties of the public employment sought or the occupation for which the license is sought.” § 364.03, subd. 3.  Rehabilitation may be established by a record of law-abiding conduct for one year after release from confinement, and compliance with all terms of probation or parole.  Licensing or hiring authority shall also consider evidence regarding nature and seriousness of crime, mitigating circumstances, age at time of conviction, time elapsed since conviction, and other evidence of rehabilitation such as letters of reference.  Id. A public employee may demonstrate sufficient rehabilitation if one year has elapsed since release from incarceration without subsequent conviction of another crime.  In re Shelton, 408 N.W.2d 594 (Minn. Ct. App. 1987).

Various bills have from time to time been introduced into the Minnesota legislature that would add to or clarify the test of rehabilitation.  Readers are encouraged to check recent enactments for the most up-to-date information, or to consult with Emily Baxter, Council on Crime and Justice, baxtere@crimeandjustice.org.

Certain records may not be considered

Records of arrest not leading to conviction, convictions that have been expunged, or misdemeanors for which a prison sentence could not be imposed, may not be considered in connection with public employment or licensing decision.  Minn. Stat. § 364.04.

Notification of reasons for denial

“If a hiring or licensing authority denies an individual a position of public employment or disqualifies the individual from pursuing, practicing, or engaging in any occupation for which a license is required, solely or in part because of the individual’s prior conviction of a crime, the hiring or licensing authority shall notify the individual in writing of the following: (1) the grounds and reasons for the denial or disqualification; (2) the applicable complaint and grievance procedure; (3) the earliest date the person may reapply for a position of public employment or a license; and (4) that all competent evidence of rehabilitation presented will be considered upon reapplication.”  Minn. Stat. § 364.05.

Enforcement through administrative procedure act

Minn. Stat. § 364.06.  See Commers v. Spartz, 294 N.W.2d 321, 322 (Minn. 1980) (county school board required to invoke mechanisms of the Administrative Procedure Act upon an aggrieved party’s assertion of alleged violation of Minnesota Criminal Rehabilitation Act).  Conviction may be considered as an element in good character inquiry.  Minn. Stat. § 364.07.  Law enforcement and fire protection agencies are specifically excluded from a requirement of compliance with this statute.  Minn. Stat. § 364.09.  See Woollett, 540 N.W.2d at 834.

Exceptions

Since 1974, list of excepted professions and employments has been enlarged gradually.  Chapter does not apply to the practice of law (Minn. Stat. § 364.08); or to “peace officers” and law enforcement agencies, fire protection agencies, private detectives, certain transportation licenses (including school bus drivers, EMT personnel and taxi drivers if convicted of certain serious offenses and discharged from sentence within the past ten years) (Minn. Stat. § 364.09(a)).  Chapter does not apply to juvenile corrections employment if crime involved sexual misconduct.  Id.  Chapter does not apply to school districts or teaching licenses.  Minn. Stat. § 364.09(b).  See also § 364.09(c) (“Nothing in this section precludes the Minnesota police and peace officers training board or the state fire marshal from recommending policies set forth in this chapter to the attorney general for adoption in the attorney general’s discretion to apply to law enforcement or fire protection agencies.”)  Chapter also does not apply to a license to practice medicine that has been denied or revoked.  § 364.09(d).

B.  Recent Legislative Measures to Regulate Hiring/Licensing of People with Criminal Records
Expunged records

Employers and licensing agencies are not permitted to consider records that have been expunged, misdemeanors not leading to a prison term, or records of arrest not leading to conviction.  Minn. Stat. § 364.04.  As of 2014, the number of records eligible for statutory expungement was greatly expanded.  See Part IIB, above.  Employers and landlords also enjoy a measure of protection for negligence claims based on expunged records.  Minn. Stat. § 609A.03, subd. 5(e).  Background screening companies are also subject to regulations relating to the reporting of expunged records. Minn. Stat. 332.70 subd 3a.  See Part II B, above.

Ban-the-Box initiative

In 2009 the Minnesota legislature enacted a state-wide “ban-the-box” law applicable to public employment prohibiting inquiry into criminal history until the applicant has been selected for an interview, or if no interview offered employment.  Minn. Stat. § 364.021.  Effective January 1, 2014, the law was extended to cover private employment as well.  See 2013 Minn. Sess. Law Serv. Ch. 61 (S.F. 523) (WEST).

The law does not apply to the Department of Corrections or to employers who have a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee’s criminal history during the hiring process. It also does not prevent an employer from notifying applicants that “law or the employer’s policy will disqualify an individual with a particular criminal history background from employment in particular positions.”  § 364.021.  Specific additional exceptions are set forth in § 364.09 (includes fire and emergency personnel, taxicab drivers, school district personnel).

Enforcement of § 364.021 is governed by Minn. Stat. § 364.06.  Complaints against public employers are handled under the state administrative procedures act.  Complaints against private employers are investigated by the state human rights commissions, and violations may result in fines.

A number of municipal directives have implemented Section 364.  In 2006 the City of St. Paul passed an ordinance prohibiting municipal employers from making inquiry about an applicant’s criminal record on an application for employment for positions covered by Section 364.  See http://stpaul.granicus.com/MetaViewer.php?view_id=37&clip_id=308&meta_id=14447; see also http://www.nelp.org/page/-/SCLP/2010/BantheBoxCurrent.pdf?nocdn=1.   A criminal records check may be made only for certain positions deemed of “sufficient sensitivity and responsibility” to require one, and then only after a conditional offer of employment has been made.8  The City of Minneapolis followed suit.  See id.; see also http://www.ci.minneapolis.mn.us/www/groups/public/@council/documents/proceedings/wcms1q-070097.pdf (containing copy of Resolution 2006R-642).9

Negligent hiring

Minnesota is one of 36 states that will hold employers liable for the negligent hiring of individuals with violent backgrounds.  See Ponticas v. K.M.S. Investments, 331 N.W. 2d 907 (Minn. 1983).  Many employers assume this liability exposure is greater than it actually is and therefore do not hire individuals who, in fact, could be hired safely.  In 2009 the Minnesota Legislature enacted Minn. Stat. § 181.981 to clarify the liability of employers for hiring someone with a criminal record and limit liability regarding certain records.  Minn. Stat. § 181.981:

Subdivision 1. Limitation on admissibility of criminal history. Information regarding a criminal history record of an employee or former employee may not be introduced as evidence in a civil action against a private employer or its employees or agents that is based on the conduct of the employee or former employee, if:

(1) the duties of the position of employment did not expose others to a greater degree of risk than that created by the employee or former employee interacting with the public outside of the duties of the position or that might be created by being employed in general;
(2) before the occurrence of the act giving rise to the civil action, a court order sealed any record of the criminal case or the employee or former employee received a pardon; or
(3) the record is of an arrest or charge that did not result in a criminal conviction.

Subdivision 2. Relation to other law. This section does not supersede a statutory requirement to conduct a criminal history background investigation or consider criminal history records in hiring for particular types of employment.

A 2013 amendment that goes into effect January 2014 will also limit liability based on compliance with the ban-the-box provisions in Minn. Stat. § 364.021.  See 2013 Minn. Sess. Law Serv. Ch. 61 (S.F. 523) (WEST).

Notice to college students

Minn. Stat. § 135A.157 requires all public and private postsecondary educational institutions within the State of Minnesota to give notice of the potential effects of criminal convictions on future employment.  By giving future students the notice required by this law, such students will know that their options may be limited in certain fields before they invest time and money in a particular area of study.  Ideally, it will also make the general public more aware of some of the onerous and often unreasonable statutory employment restrictions and lead to the change of these policies.

Juvenile adjudications

Juvenile adjudications may not “disqualify the child in any future civil service examination, appointment, or application.” Minn. Stat. § 260B.245 subd. 1.


  1. Until 2003, the right to possess firearms was automatically restored to persons convicted of a crime of violence (with the exception of persons convicted of domestic assault involving the use of a firearm) 10 years after restoration of rights or expiration of sentence, whichever occurs first, provided the person had not been convicted of another crime of violence in that 10 year period.  Minn. Stat. § 624.713, subdiv. 1(b) (2002).  The 2003 Minnesota Citizen’s Personal Protection Act, 2003 Minn. Sess. Law Serv. Ch. 28 (S.F. 842), modified the ban against possession of firearms to a lifetime ban for all persons discharged from sentence of court supervision on or after August 1, 1993, unless and until rights are restored by a court.  See Minn. Stat. § 624.713, subdiv. 1(11).
  2. Because Minnesota offenders regain all three basic civil rights upon discharge from sentence, their federal firearms rights are restored along with their state firearms rights.  See 18 U.S.C. § 921(a)(20) (“Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”).
  3. In 1992, language in Minn. Stat. § 638.02 that provided for “sealing” of records after pardon was repealed, so that even though the conviction is “nullified” the record is not expunged or sealed.  See Minn. Stat. § 638.02 (historical and statutory notes); 1992 Minn. Sess. Law Serv. Ch. 569 (H.F. 2181).  Rather, the fact of the pardon is added to the record.  Where there is a request from a member of the public for public criminal records, only the fact of the pardon is disseminated. When there is a background check for private data (authorized by the subject), both the conviction and the pardon are disseminated. See also State v. Stern, 297 N.W. 321 (Minn. 1941) (pardon granted defendant for previous conviction in California was not bar to imposition of enhanced punishment under Minnesota’s habitual criminal statute following conviction of crime of performing illegal operation).
  4. See http://www.doc.state.mn.us/pages/files/5514/1114/1008/BOP_2005_report.pdf.
  5. In 2011, the Board considered 45 applications for pardons extraordinary and granted 17.  28 applications for pardons extraordinary were denied, two additional applicants withdrew or were deferred prior to consideration, and 11 additional applications were not considered because the Board declined to set aside the waiting period.  Nine applications for pardon/commutation were reviewed under Minn. R. 6600.0500, eight of which were deemed ineligible for review.  See http://www.doc.state.mn.us/pages/files/8214/1114/1010/BOP_2011_report.pdf.
  6. In Ambaye, the Minnesota Supreme Court held that the district court did not abuse its discretion by refusing to expunge a violent offense:

    [T]he court stated that the benefit respondent stood to gain from expungement, if granted, would override the very purpose of the background check. Employers, sometimes pursuant to law and sometimes voluntarily, have required background checks in order to ‘assess any potential risk involved with hiring certain individuals.’ Further, the district court reasoned that the public had a ‘compelling interest in maintaining [respondent’s] record of violence, particularly because the underlying offense [respondent] was charged with was murder in the first degree.’ Finally, the district court noted that respondent is ‘currently gainfully employed, thus his [criminal record] is not preventing him from obtaining employment.’

    Ambaye, 616 N.W.2d at 261.  In Schultz, the petitioner granted expungement had been convicted of second degree assault shortly after his 18th birthday, at a time when he was experiencing mental health difficulties that had subsequently been controlled through medication.  Shultz, 676 N.W.2d at 340.   In M.D.T., the court of appeals granted expungement, noting that “appellant’s offense, aggravated forgery, was a ‘non-violent misdemeanor’ and that ‘the facts surrounding the offense’ also showed that ‘the nature and seriousness’ of the offense were ‘minimal.’”  State v. M.D.T., 815 N.W.2d 628, 633 (Minn. App. 2012), rev’d on other grounds by 2013 WL 2220826 (Minn. 2013).

  7. Subd. 3a.Deletion of expunged records:  “If a business screening service knows that a criminal record has been sealed, expunged, or is the subject of a pardon, the screening service shall promptly delete the record.”  See also Subd. 4 (“A business screening service that disseminates a criminal record that was collected on or after July 1, 2010, must include the date when the record was collected by the business screening service and a notice that the information may include criminal records that have been expunged, sealed, or otherwise have become inaccessible to the public since that date.”); Subd. 5.Remedies; relationship to FCRA (“A business screening service that violates this section is liable to the individual who is the subject of the record for a penalty of $1,000 or actual damages caused by the violation, whichever is greater, plus costs and disbursements and reasonable attorney fees.”
  8. The St. Paul resolution provides that “the City will make a good faith determination as to which specific positions of employment are of such sensitivity and responsibility that a background check is warranted. Further, certain positions of employment with the City of Saint Paul are exempted from Chapter 364 including, but not limited to, police and fire, positions working with children, and positions that handle money or sensitive information. If it has been established that a position requires a background check, the City will not conduct that check until after the applicant is determined to be otherwise qualified for that position.”  Seehttp://stpaul.granicus.com/MetaViewer.php?view_id=37&clip_id=308&meta_id=14447.    Moreover, the City will not conduct, request, or accept any background checks which contain information relating to (i) records of arrests not followed by a valid conviction; (ii) convictions which have been, pursuant to law, annulled or expunged; and (iii) misdemeanor convictions where no jail sentence can be imposed.  Id.  If the background check uncovers a prior conviction, the employee shall not be disqualified “unless the crime directly relates to the employment sought.”  Id.  Additionally, if a determination is made that an applicant has been convicted of a crime or crimes directly relating to the position sought, the City will comply with the notification requirements set forth in Minn. Stat. § 364.05. Id.
  9. The resolution of the Minneapolis City Council, approved on December 22, 2006, requires the City’s Department of Human Resources to periodically review all positions of employment with the City and “make a good faith determination as to which specific positions are of such sensitivity and responsibility that a background check is warranted.”  Minneapolis City Counsel, Resolution 2006R-642, available at http://www.ci.minneapolis.mn.us/www/groups/public/@council/documents/proceedings/wcms1q-070097.pdf.  Even as to those jobs, the City “will not conduct that check until after the job applicant is determined to be otherwise qualified for that position.” Id.  If a determination is made that an applicant has been convicted of a crime or crimes directly relating to the position sought, the City’s Human Resources Department will comply with the notification requirements set forth in Minn. Stat. § 364.05. Id.

Copyright © 2017

Restoration of Rights Series/Michigan

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

A person who has been convicted and sentenced “for a crime for which the penalty imposed is confinement in jail or prison” is disqualified from voting “while confined.”  Mich. Comp. Laws § 168.758b.  See also Mich. Const. art. 2, § 2.  Disqualification while confined also applies to misdemeanants.  See U.S. v. Wegrzyn, 305 F.3d 593 (6th Cir. 2002).  A person on probation or parole is not considered “confined.”

A person convicted of a felony is permanently disqualified from jury service unless the conviction is pardoned or expunged.  Mich. Comp. Laws § 600.1307a(1)(e).1 Some disqualifications from office expire after a certain period, see, e.g., Mich. Const. Art. 4, § 7 (person convicted of breach of public trust within last 20 years ineligible for either house of legislature), and some are permanent, see, e.g., Mich. Comp. Laws § 750.118 (public officer who accepts a bribe is forever disqualified from public office).

B.  Firearms

Under Mich. Comp. Laws § 750.224f(1), a person convicted of a felony may not possess firearms until three years after completion of all the terms of the sentence, including probation or parole, except that persons convicted of a “specified felony” (generally involving the use of force, explosive or firearm, controlled substances, burglary) remain subject to the disability until 1) five years after the completion of the sentence and 2) their firearm privileges have been restored pursuant to the administrative procedure set forth in Mich. Comp. Laws § 28.424 (see Part IIC).This section “does not apply to a conviction that has been expunged or set aside, or for which the person has been pardoned, unless the expunction, order, or pardon expressly provides that the person shall not possess a firearm.”  § 750.224f(4).

C.  Collateral consequences

See Miriam Aukerman, Collateral Consequences of Criminal Convictions, A Legal Outline for Michigan, Dec. 5, 2008, available at http://www.sado.org/content/guides/collateral.pdf.  Other Michigan-specific reentry resources are collected at Michigan Reentry Law Wiki, Michigan Poverty Law Program, at http://reentry.mplp.org/reentry/index.php/Main_Page.

II.  Discretionary Restoration Mechanisms:
A.  Executive pardon
Authority

The pardon power, except in cases of impeachment, is vested in the governor, “subject to procedures and regulations prescribed by law.”  The governor is required to inform the legislature annually of each pardon granted, “stating reasons therefor.”  Mich. Const. Art. 5, § 14.

Administration

The governor is required to obtain a recommendation from the Parole Board prior to deciding each case, but is not bound by it.  See Mich. Comp. Laws §§ 791.243, 791.244.  See also Rich v. Chamberlain, 62 N.W. 584 (Mich. 1895) (statute providing that a board of pardons will investigate petitions for pardons and report to the governor with such recommendations as they deemed fit, and that the governor, on receipt of such report, might, as he deemed fit, grant or refuse the pardon, did not violate constitution).  In 2011, Governor Snyder signed a new executive order that abolished the Michigan Parole and Commutation Board (a 15-member board which had been established by his predecessor), and established a 10 member Michigan Parole Board, consisting of non-Civil Service employees who are appointed by the Director of the Michigan Department of Corrections.  See Executive Order 2011-03 (effective April 15, 2011), available at http://www.legislature.mi.gov/documents/2011-2012/executiveorder/pdf/2011-EO-03.pdfSee also http://www.michigan.gov/corrections/0,4551,7-119-1435_11601-61290–,00.html (giving history of Parole Board).

Eligibility

No eligibility requirements for Michigan offenders.  A person convicted under federal law or the law of another state is ineligible for a gubernatorial pardon.

Effect

The Parole Board website provides that

a pardon erases a conviction from an individual’s record. The Michigan Supreme Court has held that the effect of a pardon by the Governor is such that it “releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.” People v. Van Heck, 252 Mich.App. 207, 216; 651 N.W.2d 174, 179 (2002). A pardon is an extraordinary form of relief for someone convicted of a crime and is extremely rare.

http://www.michigan.gov/corrections/0,4551,7-119-1435_11601-223452–,00.html                                     (explaining the clemency process).

Process

Mich. Comp. Laws § 791.243 provides that all applications for executive clemency must be filed with the Parole Board.  Procedures governing clemency hearings are set forth in § 791.244.2  The contents of the pardon application are specified at Mich. Admin. Code r. 791.7760, which also specifies the procedures for applying for pardon. 

The Parole Board website provides an application form, which explains that in certain cases judicial set-aside relief may be available (see Part II.B below) and that the board “will not process [a pardon application] where expungement is available to the petitioner as an appropriate remedy.”  See paragraph 5 of the “Application for Pardon after Probation, Parole or Discharge,” https://www.michigan.gov/documents/corrections/application_for_pardon_after_probation_parole_ordischarge_330607_7.pdf.  The form seeks detailed information on the applicant’s crime, his employment history, his contributions to the community, and his need for pardon.  

Mich. Comp. Laws § 791.244 describes the procedure for investigating pardon applications, setting time limits on each stage.  One member of Board must interview any person convicted of murder in the first degree or serving a life sentence without parole at the conclusion of ten years.  Mich.Comp. Laws § 791.244(1).  Unless upon the initiation of the Board, the Board must initiate a review within 60 days of receiving an application for clemency to determine whether an application has merit, and must make a full investigation and determination on whether or not to proceed to a public hearing within 270 days of initiation by the Board or receipt of a meritorious application.  §§ 791.244(2)(a), (e).

A hearing must be held within 90 days.  At least 30 days before conducting the public hearing, the Board must provide written notice of the public hearing by mail to the attorney general, the sentencing trial judge, and the prosecuting attorney, or their successors in office, and each victim who requests notice pursuant to the crime victim’s rights act.  One member of the Board may conduct the hearing, and the public shall be represented by the Attorney General or a member of the attorney general’s staff.  If the parole board recommends executive clemency, it shall make all data in its files available to the governor.  Except for medical records protected by the doctor-patient privilege of confidentiality, the files of the parole board in cases under this section shall be matters of public record.  The recommendation of the Board is a matter of public record.  See generally §§ 791.244(2)(f)-(j), (3).

Frequency of Grants

Post-sentence pardons have been infrequent in Michigan in recent years.  Between 1969 and 2006, only 34 pardon applications were approved by the governor.  As collateral consequences have grown more severe in recent years, the number of applications for pardon filed has steadily increased.  While former-Governor Granholm was aggressive in her use of the pardon power to shorten prison sentences,3 she granted fewer than twenty pardons during her eight years in office (2003-2011).  Source:  Michigan Parole & Commutation Board.

Her successor Rick Snyder granted no pardons until the end of his first four-year term, when he issued 11 grants out of 750 applications considered.  Most of the grants went to individuals convicted long ago of minor crimes:  See http://www.freep.com/story/news/local/michigan/2015/02/06/gov-snyder-pardons-michigan/22972283/ (“Most of them were people who made mistakes early in their lives and have been good citizens for decades,” Snyder spokesman Dave Murray said Thursday. “The earlier mistake they made was holding them back from a job, a passport.”)  However, one of the eleven pardons went to well-connected businessman Alan Gocha whose case created a firestorm of controversy.  See http://www.freep.com/story/opinion/columnists/brian-dickerson/2015/04/18/snyder-pardon/25964847/.

Contact

Michigan Department of Corrections
Office of the Parole Board
Pardons and Commutations Coordinator
Post Office Box 30003
Lansing, Michigan 48909
517-373-0270.

B.  Judicial sealing or expungement
1.  Set-aside

A person convicted of a felony offense under Michigan law may seek a court order “setting aside” the conviction five years after either imposition of sentence or completion of any term of imprisonment imposed, whichever is later, as long as the applicant has no more than two “misdemeanors.”4  Mich. Comp. Laws § 780.621(1)(a).   (A traffic offense does not constitute a misdemeanor, unless it has been for operating while intoxicated). In addition, under a provision signed into law on January 12, 2015, persons convicted of not more than two misdemeanor offenses and no other felony or misdemeanor offenses may apply to have either or both of the misdemeanor convictions set aside. Id. § 780.621(1)(b). A person convicted of any felony or attempt to commit any felony punishable by life in prison is ineligible for a set aside, as are certain traffic offenses and sex offenses.  Id. at § 780.621(2).  Victims of human trafficking are also eligible for set-aside, as a result of amendments to the law in the fall of 2014.  See House Bill 5025, Mich. Comp. Laws §§ 780.621(3) (as amended by 2014 Mich. Pub. Acts 64). See People v. Blachura, 440 N.W.2d 1, 2 (Mich. Ct. App. 1989) (person convicted of five counts of perjury ineligible since each count deemed a separate conviction).

A conviction that has been previously set aside is counted for purposes of determining eligibility for later set-aside, but a conviction that has been the subject of a full and unconditional pardon does not count.  See Van Heck, 651 N.W.2d at 178-79 (contrasting limited effect of Michigan set-aside with Connecticut pardon, which wipes out all legal disabilities, “erases” conviction).

Effect

Upon entry of an order, an individual “shall be considered not to have been previously convicted.” Mich. Comp. Laws § 780.622(1), (3).  This statute is commonly referred to as the “general expungement statute,” and the record of the arrest is no longer generally accessible to the public.  However, a conviction that has been set-aside remains accessible to law enforcement and the judicial branch for a variety of purposes, including professional licensure by the judicial branch, and enhancement of a sentence in subsequent prosecution.   Mich. Comp. Laws § 780.623(2).  Sex offenders must continue to register even if a conviction is set aside.  Id. See also Mich. Op. Att’y Gen. No. 7133 (2003) (person convicted of a felony whose conviction has been set aside by order of a Michigan court may not be denied a concealed pistol license based on conviction alone, but the conduct may be taken into account).  A person who knows that a conviction was set aside under this section and who divulges, uses, or publishes information concerning such a conviction is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both.  Mich. Comp. Laws § 780.623(5).  However, the effect of a set-aside under Michigan law is not considered to be as broad as pardon in some other states.

Procedure

The procedure applicable to set-aside is set forth in full, including notification to the prosecuting attorney and, if an assaultive crime, to the victim, in Mich. Comp. Laws §§ 780.621-624.  Set-aside is discretionary with the court, which must consider the “circumstances and behavior of the applicant” and whether “setting aside the conviction is consistent with the public welfare.”   780.621(9). Only one conviction may be expunged.  § 780.624.

2.  Probation before Judgment for Drug First Offenders

Mich. Comp. Laws § 333.7411 – Discharge and dismissal under this section for a drug offender with no previous drug conviction shall be without adjudication of guilt and, except as provided in subsection (2)(b), is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under section 333.7413.  See § 333.7411(1).  See also § 769.4a (domestic violence deferred adjudication).  Nonpublic records are kept by the state police and are available to law enforcement and court.  See §§ 333.7411(2), (3).

3.  Juvenile Adjudications

One year after adjudication or release from detention, or upon attaining the age of 18, whichever is later, a person may apply to the adjudicating court to set aside up to three delinquency adjudications, one of which may qualify as a felony if committed by an adult.   Mich. Comp. Laws § 712A.18e, as amended by H.B. 5600 (effective December 28, 2012).5  Certain adjudications are ineligible (felony-level adjudications punishable by life imprisonment, designated violent and traffic offenses).   § 712A.18e(2).  A person is ineligible for set-aside if he has a subsequent adult felony conviction.   § 712A.18e(1).  Before granting a set-aside, the court will consider the applicant’s behavior and circumstances since the adjudication and whether set-aside is consistent with public welfare. § 712A.18e(9).  If an adjudication is set aside, a person may deny the existence of a juvenile record, § 712A.18e(11), and the record  may not be disclosed or used except for law enforcement purposes, for law enforcement employment, or for licensing by an agency of the judicial branch.  § 712A.18e(13).  Disclosure of an adjudication that has been set aside is punishable as a misdemeanor.  § 712A.18e(16).

4.  Non-conviction Records

No statutory process for sealing or expunging non-conviction court records.   However, where a person has been found not guilty or where charges were dismissed or not prosecuted, biometric evidence and arrest card “shall be destroyed by the official holding those items and the clerk of the court entering the disposition shall notify the [State Police] of any finding. . . .”  Mich. Comp. Laws § 28.243(8).

C.  Administrative certificate
Firearms

A person whose firearms privileges were lost because of conviction may regain them by applying to the “concealed weapons licensing board” for the county of his residence.   The board “shall, by written order” restore the person’s firearms privileges if it finds by clear and convincing evidence that five years have passed since the person completed his sentence, and that “the person’s record and reputation are such that the person is not likely to act in a manner dangerous to the safety of other persons.”  Mich. Comp. Laws § 28.424(3)(c). If the concealed weapons licensing board refuses to restore a right under this section, the aggrieved person may petition the circuit court for review of that decision. Id. at § 28.424(3)(d).

III.  Nondiscrimination in Licensing and Employment:
A.  Licensing

Mich. Comp. Laws § 338.42 (2):

A judgment of guilt in a criminal prosecution . . . shall not be used, in and of itself, by a licensing board or agency as proof of a person’s lack of good moral character. It may be used as evidence in the determination, and when so used the person shall be notified and shall be permitted to rebut the evidence by showing that at the current time he or she has the ability to, and is likely to, serve the public in a fair, honest, and open manner, that he or she is rehabilitated, or that the substance of the former offense is not reasonably related to the occupation or profession for which he or she seeks to be licensed.

This 1974 statute was intended “to encourage and contribute to the rehabilitation of former offenders and to assist them in the assumption of the responsibilities of citizenship; to proscribe the use of the term ‘good moral character’ or similar term as a requirement for an occupational or professional license or when used as a requirement to establish or operate an organization or facility regulated by this state; and to provide administrative and judicial procedures to contest licensing board or agency rulings thereon.”  1974 Mich. Pub. Acts 381 (in Mich. Comp. Laws Ch. 338 (Occupational License for Former Offenders), preceding Mich. Comp. Laws § 338.41).  Under § 338.41(1),“the phrase ‘good moral character’, or words of similar import, when used as a requirement for an occupational or professional license or when used as a requirement to establish or operate an organization or facility regulated by this state  . . . shall be construed to mean the propensity on the part of the person to serve the public in the licensed area in a fair, honest, and open manner.”

In addition, the following types of records “shall not be used, examined, or requested by a licensing board or agency in a determination of good moral character when used as a requirement to establish or operate an organization or facility regulated by this state, or pursuant to occupational or professional licensure”:

(a) Records of an arrest not followed by a conviction.

(b) Records of a conviction which has been reversed or vacated, including the arrest records relevant to that conviction.

(c) Records of an arrest or conviction for a misdemeanor or a felony unrelated to the person’s likelihood to serve the public in a fair, honest, and open manner.

(d) Records of an arrest or conviction for a misdemeanor for the conviction of which a person may not be incarcerated in a jail or prison.

Mich. Comp. Laws § 338.43(1).  See Miriam J. Aukerman, Barriers to Reentry: Legal Strategies to Reduce Recidivism and Promote the Success of Ex-offenders, 2 Mich. Crim. L. Ann. J. 4 (2003).   A criminal record “shall not be furnished to a licensing board or agency except by the principal department, and shall be furnished only after the director of the principal department or a person designated by the director has determined that the information to be provided to the board or agency meets the criteria set forth in this section.”  § 338.43(2).

Each licensing board or agency is required to promulgate rules prescribing “the offenses or categories of offenses which the department considers indicate a person is not likely to serve the public as a licensee in a fair, honest, and open manner.”  Mich. Comp. Laws § 338.43(3).  The statute provides for a statement of reasons in the event of denial on grounds of good moral character, including a complete record of the evidence upon which the determination was based, and it provides a right to administrative “rehearing if he or she has relevant evidence not previously considered, regarding his or her qualifications.”  § 338.45.  Judicial review is also provided: “If, in the opinion of the circuit court, the record does not disclose a lack of good moral character, as defined in this act, the court shall so state and shall order the board to issue the license. . . .”  § 338.46.

B.  Employment
Misdemeanor arrest records

Employers, employment agencies, and labor organizations are prohibited from requesting or “making record of” misdemeanor arrests not leading to conviction in connection with employment application, Mich. Comp. Laws § 37.2205a(1), but they are not prohibited from considering arrest in connection with termination of employment.  See Aho v. Mich. Dep’t of Corrs., 688 N.W.2d 104 (2004).

Certificate of Employability

Under a 2014 law, Michigan prisoners who complete certain programs and have a reasonably clear conduct record may qualify for a “Certificate of Employability.” See Mich. Comp. Laws § 791.234d.  Under this provision, an employer or other person may introduce a “Certificate of Employability” as evidence of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with someone who has the certificate, if the employer knew of the certificate when hiring or otherwise engaging in activity with that person.  The Michigan Department of Corrections is authorized to issue Certificates only to incarcerated people no more than 30 days before release if the prisoner successfully completed a career and technical education course, received no major misconducts during the two years preceding his or her release, and qualifies for a national work-readiness certificate.  The Certificate is only valid for 4 years after issuance.  Considering that nearly 80% of felony offenders since 1999 have been sentenced to community-based sanctions, the vast majority of those with a felony record will not be eligible for a Certificate. Also ineligible are those who are no longer incarcerated. Finally, people currently at MDOC will be eligible only if they have access to education and training programs, which vary by facility throughout the state.


  1. In 2002 conviction was made a permanent bar to jury service; previously a person was ineligible only while “under sentence for a felony at the time of jury selection.”  See Mich. Comp. Laws § 600.1307a(1)(e) (2002), amended by 2002 Mich. Pub. Acts 739.  Court rules provided that a convicted person could be challenged for cause based on his conviction.  Mich. Ct. R. 2.511(D)(2), 6.412(D).  See United States v. Driscoll, 970 F.2d 1472 (6th Cir. 1992), cert. denied, 506 U.S. 1083 (1993) (upholding challenge for cause under Mich. Ct. R. 2.511(D)(2)).  But see Froede v. Holland Ladder & Mfg. Co., 523 N.W.2d 849, 851-52 (Mich. Ct. App. 1994) (disagreeing with Sixth Circuit’s conclusion in Driscoll that right to serve on a jury is not automatically restored upon completion of sentence); People v. LeGrone, 517 N.W.2d 270, 272 n.1 (Mich. Ct. App. 1994), appeal denied, 527 N.W.2d 520 (Mich. 1994) (raising question whether Mich. Comp. Laws § 600.1307a(1)(e) takes precedence over Mich. Ct. R. 2.511).
  2. In Lewis-El v. Sampson, 649 F.3d 423 (6th Cir. 2011), the court of appeals held that a change to Michigan’s commutation procedures did not implicate ex post facto concerns because the petitioner did not show prejudice:  “In fact, [prejudice] would be almost impossible to demonstrate considering that the decision to commute a prisoner’s sentence is so tied to the personal predilections of the person occupying the governor’s office.”
  3. Between 2007 and 2010, Governor Granholm commuted more than one hundred prison sentences.  See, Gov. Jennifer Granholm OKs Clemency for 100 Inmates in 2 years, Assoc. Press (Jan. 17, 2010), available at http://www.mlive.com/news/index.ssf/2010/01/gov_jennifer_granholm_oks_clem.html (describing over 100 commutations granted by Michigan Governor Granholm to ease prison budget crisis). In one of her last acts as Governor, she attempted to retract a commutation granted to Matthew Makowski, an action later invalidated by the Michigan Supreme Court. See Makowski v. Governor, 495 Mich. 465; 852 N.W.2d 61 (2014).
  4. Previously, the only permissible priors were “minor offenses,” defined as a misdemeanor or ordinance violation for which the maximum permissible imprisonment does not exceed 90 days, for which the maximum permissible fine does not exceed $1,000.00, and that is committed by a person who is not more than 21 years of age. § 780.621(10).
  5. Prior to passage of the 2012 amendments to § 712A.18e, only one misdemeanor-level conviction was eligible for set-aside.  To be eligible, the applicant must have attained the age of 24 or have waited at least five years following the disposition of the adjudication or completion of detention.

Copyright © 2017

Restoration of Rights Series/Massachusetts

Massachusetts flagI.  Restoration of Civil/Firearms Rights
A.  Civil Rights

“Persons who are incarcerated in a correctional facility due to a felony conviction” may not vote.  Mass. Const. Amend. Art. 3 (as amended in 2000).  A person sentenced to imprisonment for a federal or state felony forfeits any public office he currently holds.  Mass. Gen. Laws ch. 279, § 30.  Otherwise, conviction presumably does not affect the right to run for and hold future public office.

B.  Jury service

Persons are disqualified if convicted of a felony within the past seven years, or in the custody of a correctional institution (including misdemeanants).  Mass. Gen. Laws ch. 234A, § 4(7).  The right to serve on a jury is automatically restored seven years after completion of sentence for felony offenders, and upon release for misdemeanants.  However, a person convicted of a felony may still be challenged on voir dire.

C.  Firearms

Anyone convicted in any jurisdiction of a felony or serious misdemeanor, or of a violation of any drug law, may not obtain a license to carry a firearm, or a rifle or shotgun.  Mass. Gen. Laws ch. 140, § 131(d)(i) (prohibition applies to anyone “convicted or adjudicated a youthful offender or delinquent child for the commission of (a) a felony; (b) a misdemeanor punishable by imprisonment for more than two years; (c) a violent crime as defined in section 121; (d) a violation of any law regulating the use, possession, ownership, transfer, purchase, sale, lease, rental, receipt or transportation of weapons or ammunition for which a term of imprisonment may be imposed; or (e) a violation of any law regulating the use, possession or sale of controlled substances . . .”)  Any person prohibited from obtaining a license under § 131(d)(i), except someone convicted of trafficking in a controlled substance or a violent offense,  may be issued a Firearm Identification Card necessary to possess a rifle or shotgun five years after conviction or release from confinement, whichever is later. ch. 140, § 129B(1).  Sealing does not remove state firearm disabilities.  ch. 140, § 122; Rzeznik v. Chief of Police of Southampton 373 N.E.2d 1128, 1132 (Mass. 1978).  Partial restoration of state firearms rights is insufficient to relieve the federal bar in 18 U.S.C. §922(g).  See Caron v. United States, 524 U.S. 308 (1998).

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

The pardon power, except in cases of impeachment, is vested in the governor, who may grant a pardon only with the advice and consent of the Governor’s Council.  Mass. Const. pt. 2, ch. II, sec. I, art. VIII. The Massachusetts Governor’s Council, also known as the Executive Council, is composed of eight individuals elected from districts statewide, and the lieutenant governor who serves ex officio.  Mass. Const. pt. 2, ch. II, sec. III, art. I, amended by Mass. Const Amend. Art. 16.  If the offense is a felony, “the general court [i.e., legislature] shall have power to prescribe the terms and conditions upon which a pardon may be granted.”  Art. VIII, supra.  Public reporting:

The governor shall, at the end of each calendar year, transmit to the general court [legislature] . . . a list of pardons granted with the advice and consent of the council during such calendar year, together with action of the advisory board of pardons concerning each such pardon, and together with a list of any revocations of pardons made under this section.

Administration

Every petition must be filed with the Parole Board, acting as the Advisory Board of Pardons, which makes recommendation to the governor and Council.  Mass. Gen. Laws ch. 127, § 152.  The Advisory Board sends all favorable recommendations to the governor, who may accept them only if the Council approves.  Id.  See also Ladetto v. Comm’r of Correction 369 N.E.2d 967 (1977) (requiring “concurrent exercise” of pardon power by both governor and Council).  The Advisory Board functions as “gatekeeper,” and effectively also has a veto over pardon cases insofar as it does not send the governor ones it disapproves.  ch. 127, § 154.  The Parole Board is composed of seven members appointed by the governor to five-year terms.  The Board is composed of full-time salaried employees; the chair is chosen by the governor.  ch. 27, § 4.  An overview of the pardon process is available at http://www.mass.gov/eopss/law-enforce-and-cj/parole/exec-clemency-unit/executive-clemency-overview.html.

Eligibility

Shortly after assuming office in 2015, Governor Charlie Baker rescinded all clemency guidelines put in place by his predecessor, Governor Deval Patrick, including those implementing special procedures for “particularly meritorious clemency petitions.” 1 Under Governor Baker’s new guidelines, the waiting period remains the same (5 years for misdemeanors; 10 for felonies), but the standards for consideration have changed significantly.  See Office of the Governor, Executive Clemency Guidelines 4 (Dec. 10, 2015), available at http://www.mass.gov/eopss/law-enforce-and-cj/parole/exec-clemency-unit/executive-clemency-overview.html; “Standards for consideration,” infra

The Baker clemency guidelines are analyzed in this article:   William Cosmas, Jr., A Clear View of a Narrower Path: Examining the Baker Pardon Guidelines, Boston Bar Journal, May 11, 2017, https://bostonbarjournal.com/2017/05/11/a-clear-view-of-a-narrower-path-examining-the-baker-pardon-guidelines/

Effect

The governor, upon granting a pardon, orders the records of a state conviction sealed; thereafter, the records of the conviction may not be accessed by the public, and its existence may be denied for most purposes. Mass. Gen. Laws ch. 127, § 152.

Such sealed records shall not disqualify a person in any examination, appointment or application for employment or other benefit, public or private, including, but not limited to, licenses, credit or housing, nor shall such sealed record be admissible in evidence or used in any way in any court proceeding or hearing before any board, commission or other agency except in imposing sentence in subsequent criminal proceedings and when a person has subsequently been charged with certain crimes against the person.

Id.  An applicant may deny the existence of the conviction on an application for employment, or in any other circumstance, and licensing authorities are prohibited from disqualifying the application based on his record. “The attorney general and the person so pardoned may enforce the provisions of this paragraph by an action commenced in the superior court department of the trial court.”  Id.

Standards for consideration

The Advisory Board of Pardons considers favorably where a petitioner establishes, by clear and convincing evidence:

  1. a specific compelling need for such pardon relief;
  2. a substantial period of good citizenship subsequent to the criminal offense for which such pardon relief is requested, and
  3. that the ends of justice will be served by the granting of such pardon relief.

120 Mass. Code Regs. 902.01. The Clemency Guidelines, supra at 2, describe pardon as an “extraordinary remedy … mainly intended to remove barriers that are sometimes associated with a criminal record, thereby facilitating the reintegration of the petitioner into his or her community.”

“Absent compelling circumstances, a petitioner seeking a pardon should demonstrate both good citizenship and a verified, compelling need.”  Clemency Guidelines, supra at 3. “Good citizenship means living a responsible and productive life and contributing to one’s community in a positive manner.” Id. at 4.  In determining good citizenship, the Board “should make all reasonable efforts to investigate and verify, among other things:”

  1. Whether the petitioner has been the subject of any civil lawsuit, including any restraining order, during the period of claimed good citizenship;
  2. the circumstances surrounding any criminal charge that resulted in a noll prosequi, dismissal, or finding of not guilty.

Id. at 4.  Denial of employment or licensure based on conviction may suffice to demonstrate a “compelling need” with appropriate documentation (including evidence that a pardon would likely result in issuance of a license and/or an explanation as to why sealing is not an adequate remedy for employment denial).  Id. Denial of a firearms license may also demonstrate a compelling need if certain conditions are met, including 15 years without certain violent/civil rights convictions. Id. Petitions based on firearms licenses must also include a letter from licensing authority stating that a pardon would result in issuance. Id. Where a petitioner has other adequate administrative or judicial remedies, such as sealing, the need for a pardon will not generally meet the “compelling” standard.”  Id

The Clemency Guidelines list and explain the following general factors to be considered in executive clemency determinations:

  1. Nature and circumstances of the offense
  2. Character and behavior of the petitioner
  3. Acceptance of responsibility
  4. Pending appeals and other litigation
  5. Restitution to victims
  6. Substantial assistance to law enforcement
  7. Military, public, or charitable service
  8. Prior petitions

The Board “shall not review the proceedings of the trial court, and shall not consider any questions regarding the correctness, regularity or legality of such proceedings, but shall confine itself solely to matters which properly bear upon the propriety of the extension of clemency to the petitioner.”  Mass. Gen. Laws ch. 127, § 154.

Process

The regulations provide for a public hearing that is a matter of public record, and decision by a majority of the Board.  120 Mass. Code Regs. § 902.02-.12.  The application form can be found at http://www.mass.gov/eopss/docs/pb/2016pardonpetition-finalwithforms.pdf.   The Parole Board must process applications in accordance with procedures set out in Mass. Gen. Laws ch. 127, § 154, which include referral to concerned officials (including the attorney general, district attorney, and the sentencing court) for recommendation, and notice to the victim.  120 Mass. Code Regs. §§ 902.05, 400.04. See also Clemency Guidelines, supra at 2 (Board required to solicit input from victim, DA, and law enforcement).  If an application has merit under statute and Clemency Guidelines, a hearing will be scheduled.   120 Mass. Code Regs. § 902.06.  (Proposed denials also go to governor.)  Hearing procedures are the same as in a parole hearing under tit. 120 Mass. Code Regs. § 301.06.  Id. at § 902.08.  Hearings may be conducted by a panel of the Advisory Board or by a single member.  Id. at § 902.09(1).  The panel reports to the full Board, which in turn sends its recommendations to the governor and Governor’s Council.  Id. at § 902.10.  The majority gives reasons, as does any dissenting minority. Id.

The Board must make its recommendation to the governor within 10 weeks of original submission, unless a hearing is deemed by the Board to be required, and in no case more than six months.  Mass. Gen. Laws ch. 127, § 154.  Sensitive parts of a recommendation may be kept confidential, but “in all cases a statement containing the facts of the crime or crimes for which a pardon or commutation is sought, the sentence or sentences received, together with all conclusions and recommendations shall be made public when the report is submitted.”  Id.  A second level of review is in the Council.  If no action is taken within a year, the application will be deemed denied.  120 Mass. Code Regs. 902.12(2).   See also Clemency Guidelines, supra, at 6 (if governor takes no action on a recommended denial within 90 days, the application is deemed denied).

Under Mass. Gen. Laws ch. 127, § 152, once a petition is filed with Parole Board it becomes a public record. 

Representation

Payment for assistance in obtaining a pardon is prohibited, except for proper legal services.  Mass. Gen. Laws ch. 127, § 166.  Representatives must register with the state secretary, stating that services are only legal, and detailing those services.  ch. 127, § 167.  Violation is a criminal offense.  ch. 127, § 168.

Revocation

The governor may revoke a pardon if there is a misstatement of fact in the application, or if it was procured by fraud or misrepresentation.  Mass. Gen. Laws ch. 127, § 152.

Frequency of Grants

Pardons in Massachusetts have been rare in recent years, only 57 since 1990.  See William Cosmas, Jr., From Here to Clemency: Navigating the Massachusetts Pardon Process, Boston Bar Journal, April 22, 2015,  https://bostonbarjournal.com/2015/04/22/from-here-to-clemency-navigating-the-massachusetts-pardon-process/.  Governor Baker has issued no pardons since taking office in 2015.  Governor Patrick approved four pardons on November 10, 2014, the first grants during his tenure, and the first since 2002. All of the recipients had been out of prison for a number of years.2 Patrick also approved one commutation, for a woman serving a 7 ½ year sentence for drug distribution.  Two more pardons followed just before Patrick left office in 2015, including one to True-See Allah, who was convicted of armed assault with attempt to murder for his participation in a 1989 shooting that left the victim paralyzed for life. See Maria Cramer, As 2 felons earn pardons, time for others runs short, Boston Globe, https://www.bostonglobe.com/metro/2015/01/02/true-see-allah-granted-pardon-vote-governor-council/yO6t9mXHlGwIfNGgKA70AK/story.html (Jan. 2, 2015). The trend toward fewer grants in Massachusetts started in the 1990s under Governor William Weld.   Governor Mitt Romney issued no pardons during his tenure, Governor Swift granted seven pardons, and Governor Cellucci granted 20.

Contact

Julie Ching Pease
Executive Clemency Unit, Massachusetts Board of Parole
12 Mercer Road
Natick, MA 01760
phone: 508-650-4542
email:
pease@state.ma.us

B.  Judicial sealing and expungement
1.  Sealing of misdemeanors and felonies

With certain exceptions, including firearms offenses, crimes by public officials, and crimes “against public justice” such as perjury and resisting arrest convicted persons are entitled to have their records sealed upon application to the department of probation if they can demonstrate a period of law-abiding conduct:  5 years for a misdemeanor and 10 years for a felony.  Mass. Gen. Law ch. 276, § 100A.3 Records of conviction for decriminalized offenses may be sealed immediately “except in cases where the elements of the offense continue to be a crime under a different designation.” Id.4  Sex offenses are subject to a 15-year eligibility period.  Firearms offenses, crimes by public officials and employees, and crimes “against public justice” such as perjury, witness tampering and resisting arrest, are never eligible for sealing.  

Effect of sealing

Mass. Gen. Laws ch. 276, § 100A describes the effect of sealing:

Such sealed records shall not operate to disqualify a person in any examination, appointment or application for public service in the service of the commonwealth or of any political subdivision thereof; nor shall such sealed records be admissible in evidence or used in any way in any court proceedings or hearings before any boards or commissions, except in imposing sentence in subsequent criminal proceedings . . . .5

Sealing does not expunge a record, however, and it remains available to law enforcement authorities.  Sealing does not restore state firearm disabilities.  ch. 140, § 122; Rzeznik v. Chief of Police, 373 N.E.2d 1128 (Mass. 1978).   The purpose of the statute is rehabilitative, to ensure privacy after a period of time, not to defeat law enforcement interests.  See Com. v. Doe 648 N.E.2d 1255, 1258 (Mass. 1995) (statutes “protect individuals from unnecessary and overbroad dissemination of criminal record information”).  The records of conviction of public officials and employees may not be sealed.  ch. 276, § 100A.

Standard for sealing

In 1995, relying on precedent upholding a First Amendment right to access court records, Massachusetts Supreme Court held that records of closed criminal cases may be sealed by a court only if there has been an individualized finding that sealing is necessary to effectuate a compelling state interest. Com. v. Doe, 420 Mass. 142, 648 N.E.2d 1255 (1995).  Some two decades later, the Massachusetts high court held that a lower standard of “good cause” was more appropriate in light of the concerns expressed by the legislature in intervening years about “the negative impact of criminal records on the ability of former criminal defendants to reintegrate into society.”   See Com. v. Pon, 469 Mass. 296, 297 (2014).  The Pon court noted several legislative developments in the intervening years that weighed against adhering to the strict standard announced in Doe:  

Since our Doe decision in 1995, there have been significant changes in the availability of CORI records. These changes indicate a strong legislative policy of providing the public, and particularly employers and housing providers, with access to certain criminal records in order to make sound decisions while also enabling the sealing of criminal records where so doing would not present public safety concerns. . . .  First, the Legislature extended access to official CORI records to a broader group, creating several tiers of access.  Second, the Legislature implemented procedural protections for defendants seeking employment by limiting when employers may ask about criminal history and requiring employers to share criminal history information with applicants. . . . Third, the Legislature made changes to the sealing provisions by enabling earlier automatic sealing under G.L. c. 276, § 100A, and expanding discretionary sealing to a broader class of nonconvictions.

Given these clearly expressed legislative concerns regarding the deleterious effects of criminal records on employment opportunities for former criminal defendants, and the explicit expansion of opportunities for sealing to minimize the adverse impact of criminal records, it is apparent that the test articulated in Doe, 420 Mass. at 151, serves to frustrate rather than further the Legislature’s purpose by imposing too high a burden of proof on the defendant and articulating unhelpful factors for the defendant to determine how to meet his or her burden. Consequently, it is proper for us to revisit the meaning of “substantial justice” to ensure that we are interpreting the statute so as to give effect to present legislative intent.

469 Mass. at 303-305.  In assessing whether good cause has been established, a court must balance the public’s “general right to know” with the interests of the defendant and the state in keeping the information private. The Pon Court established factors relevant to this good cause balancing test:

At a minimum, judges should evaluate the particular disadvantages identified by the defendant arising from the availability of the criminal record; evidence of rehabilitation suggesting that the defendant could overcome these disadvantages if the record were sealed; any other evidence that sealing would alleviate the identified disadvantages; relevant circumstances of the defendant at the time of the offense that suggest a likelihood of recidivism or of success; the passage of time since the offense and since the dismissal or nolle prosequi; and the nature of and reasons for the particular disposition.

Id. at 316.

Effect in Employment

Mass. Gen. Laws ch. 276, § 100A:

An application for employment used by an employer which seeks information concerning prior arrests or convictions of the applicant shall include the following statement: “An applicant for employment with a sealed record on file with the commissioner of probation may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a sealed record on file with the commissioner of probation may answer ‘no record’ to an inquiry herein relative to prior arrests or criminal court appearances. In addition, any applicant for employment may answer ‘no record’ with respect to any inquiry relative to prior arrests, court appearances and adjudications in all cases of delinquency or as a child in need of services which did not result in a complaint transferred to the superior court for criminal prosecution.” The attorney general may enforce the provisions of this paragraph by a suit in equity commenced in the superior court.

2.  Deferred adjudication (“Continuance without a Finding”)

Mass. Gen. Laws ch. 278, § 18.  Relevant procedure is explained in detail in Commonwealth v. Powell, 453 Mass. 320 (Mass. 2009).  Courts (including municipal and juvenile courts) may dismiss a valid indictment, in certain circumstances, after accepting a guilty plea, even over the government’s objections, by continuing the case without a finding, and imposing conditions.  This disposition avoids prejudice to the Commonwealth by accepting the defendant’s guilty plea before placing him on probation, so that a violation of the terms of probation would result in an adjudication of guilt and imposition of sentence.  See also Commonwealth v. Cheney, 440 Mass. 568, 571 (2003) (explaining the CWOF procedure).

Eligibility

General “in the interests of justice” standard, but certain offenses are ineligible.  See Powell, 453 Mass. at 326, n. 7, 8.  In addition, CWOF is not available after trial.  See Commonwealth v. Norrell, 423 Mass. 725, 727 (1996).

Sealing

Information about pending CWOF charges may be obtained on the same basis as final convictions.  See Mass. Gen. Laws ch. 6, § 172(a)(3).  However, under the 2010 changes to the sealing laws, immediate sealing is allowed in CWOF cases once probation has been successfully completed.  See 2010 Mass. Acts ch. 256, § 131 (amending Mass. Gen. Laws ch. 276, § 100C), available at http://www.mass.gov/legis/laws/seslaw10/sl100256.htm.

3.  Pretrial Diversion

Mass. Gen. Laws ch. 276A, § 2 et seq. authorizes pretrial diversion for first offenders between the ages of 17 and 21.

4.  Juvenile records

Mass. Gen. Laws ch. 120, § 21:

Whenever a person committed to the department by a court upon conviction of a crime is discharged from its control such discharge shall, when so ordered by the department, restore such person to all civil rights and shall have the effect of setting aside the conviction. The conviction of such a person shall not operate to disqualify him for any future examination, appointment or application for public service under the government either of the commonwealth or of any political subdivision thereof . . . . A commitment to the department shall not be received in evidence or used in any way in any proceeding in any court except in subsequent proceedings for waywardness or delinquency against the same child, and except in imposing sentence in any criminal proceeding against the same person.

Sealing

Records on file with the office of the commissioner of probation must be sealed upon request if 3 years have elapsed since any court appearance or disposition in the case (including commitment supervision, probation and parole), and the person has not been adjudicated delinquent, found guilty of a crime (with exception for some motor vehicle offenses), nor been imprisoned or committed to custody in the preceding 3 years.  Mass. Gen. Laws ch. 276, § 100B.  Upon sealing by the commissioner, court records are also sealed:

When records of delinquency appearances and delinquency dispositions are sealed by the commissioner in his files, the commissioner shall notify forthwith the clerk and the probation officer of the courts in which the adjudications or dispositions have occurred, or other entries have been made, and the department of youth services of such sealing, and said clerks, probation officers, and department of youth services likewise shall seal records of the same proceedings in their files. ….

Such sealed records of a person shall not operate to disqualify a person in any future examination, appointment or application for public service under the government of the commonwealth or of any political subdivision thereof; nor shall such sealed records be admissible in evidence or used in any way in any court proceedings or hearings before any boards of commissioners, except in imposing sentence for subsequent offenses in delinquency or criminal proceedings.

§ 100B.

5.  Non-conviction records

Records that do not result in conviction may be sealed if the defendant is found not guilty, or a no bill has been returned by the grand jury, or a finding of no probable cause has been made by the court.  Mass. Gen. Laws ch. 276, § 100C.6   Sealing is also available by court order where a case is nol prossed or dismissed if “it appears to the court that substantial justice would best be served.”  Id.7 See Comm. v. Gavin G, 772 N.E. 2d 1067, 1073-74 (Mass. 2002) (citing Commonwealth v. Doe, 648 N.E. 2d 1255, 1260 (Mass. 1995)) (court may order immediate sealing only if it appears that substantial justice would best be served, and the interests of confidentiality and avoiding harm have specific application to the defendant; otherwise, a defendant denied request for immediate sealing may still request sealing after requisite waiting period specified in § 100A).

Effect

Sealed non-conviction records shall not operate to disqualify a person in any examination, appointment or application for public employment in the service of the commonwealth or of any political subdivision thereof.  Mass. Gen. Laws ch. 276, § 100C.  An application for employment used by an employer which seeks information concerning prior arrests or convictions of the applicant shall include the following statement:  “An applicant for employment with a sealed record on file with the commissioner of probation may answer ‘no record’ with respect to an inquiry herein relative to prior arrests or criminal court appearances.”  Id.

6.  Effect of pardon

Conviction is automatically sealed by pardon.  Mass. Gen. Laws ch. 127, § 152; see Section IIA, supra.

III.  Nondiscrimination in Licensing and Employment:
A.  Fair Employment Practices

Massachusetts’ general fair employment practices law makes it unlawful for any covered employer, public or private, to request any information from an employee or applicant for employment about:  (1) an arrest without conviction; (2) a first conviction for misdemeanors such as simple assault or minor traffic violations; and (3) any conviction of a misdemeanor that occurred five or more years before the application date.  See Mass. Gen. Laws ch. 151B, § 4(9) (It shall be an unlawful practice for an employer “to request any information . . . regarding: (i) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted, or (ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or (iii) any conviction of a misdemeanor where the date of such conviction or the completion of any period of incarceration resulting therefrom, whichever date is later, occurred five or more years prior to the date of such application for employment or such request for information, unless such person has been convicted of any offense within five years immediately preceding the date of such application for employment or such request for information”).  The law is enforced by the Massachusetts Commission against Discrimination, and procedures are set forth in Mass. Gen. Laws ch. 151B, § 5.

While Massachusetts’ general nondiscrimination law applies only to misdemeanors, a “direct relationship” test applies to consideration of felony convictions in some licensing schemes.  See, e.g., Mass. Gen. Laws ch. 112 § 52D (“The board . . . may [discipline] any dentist convicted . . . of a felony related to the practice of dentistry”); ch.112, § 61 (board may discipline holder of medical license for “a criminal offense which is reasonably related to the practice of the profession”); ch. 112,  § 189 (real estate appraisers may be disciplined based upon conviction of “a crime which is substantially related to the qualifications, functions, and duties of a person developing appraisals and communicating appraisals to others, or convicted of any felony”).

The only general limitation on consideration of a felony conviction by employers and licensing boards is where a person has received a pardon and their record has been sealed. Mass. Gen. Laws ch. 127, § 152.

B.  Limitation on Access to Records

Rather than directly limiting consideration of conviction in employment and licensing decisions, Massachusetts limits the availability of conviction-related information through the Criminal Offender Record Information System (CORI).  Mass. Gen. Laws ch. 6, §§ 168, 172.  The CORI system was reformed in 2010 to increase employer access to records but at the same time to limit the extent to which the employer may inquire into an applicant’s criminal record, to change the procedure by which employers may obtain and rely on criminal records, and to give employers who rely on CORI records protection against negligent hiring.  See 2010 Mass. Acts, ch. 256, § 21, available at http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter256.   See also Com. v. Pon, discussed supra; Massing, CORI Reform—Providing Ex–Offenders with Increased Opportunities Without Compromising Employers’ Needs, 55 Boston B.J. 21, 22, 24 (2011).In general, employers and licensing agencies will not have access to sealed records: five years in the case of misdemeanors and ten years for felonies.  See above.8  Section 172 sets both a tiered system of access, with law enforcement and the subject of records given full access; requesters authorized or required by law to obtain criminal history information have access necessary to comply with their obligations; requesters seeking records for employment or licensing purposes (including volunteers) have access to pending charges, felony convictions for 10 years and misdemeanors for five years if there have been no intervening convictions; and members of the general public somewhat more limited access.  See § 172 (a)(1)_through (5).  Other entities are specifically authorized to obtain records, such as housing authorities and schools, and facilities caring for vulnerable populations.  See § 172(a)(6) through (30). Employers and others will still be able to access indefinitely information on certain convictions, including those for murder, voluntary and involuntary manslaughter, and certain sex offenses, unless sealed.  § 172(b).   Employers who wish to question an applicant about the results of a CORI records check must first provide the applicant with a copy of any criminal record that it has obtained.  § 172(c). If the employer decides not to hire an applicant in part or in whole because of the applicant’s criminal history record, the employer must, if it has not already done so, provide the applicant with a copy of the record. Id.

C.  Protection against Negligent Hiring Liability and Exposure to Discrimination Claims

No employer or person relying on volunteers shall be liable for negligent hiring practices by reason of relying solely on criminal offender record information received from the department and not performing additional criminal history background checks, unless required to do so by law; provided, however, that the employer made an employment decision within 90 days of obtaining the criminal offender record information and maintained and followed policies and procedures for verification of the subject’s identifying information consistent with the requirements set forth in this section and in the department’s regulations.

Mass. Gen. Laws ch. 6, § 172(e).  This provision also protects an employer who relies on CORI records from being sued under the nondiscrimination laws based upon erroneous information. Id.9

D.  Prohibition on Employer Inquiry into Non-conviction and Misdemeanor records

Under Mass. Gen. Laws ch. 151B, § 4 (9) it is unlawful for an employer to inquire into arrest not resulting in conviction, a first conviction for a variety of misdemeanors (“drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace”) or any other misdemeanor conviction after five years, unless there are intervening convictions

E.  State-wide “Ban-the-Box” Policy

In 2010, public and private employers were made subject to a “ban-the-box policy” that prohibits inquiry into criminal records on an initial job application, unless the particular job is one for which a convicted person is at least presumptively disqualified by law, or the employer “is subject to an obligation imposed by any federal or state law or regulation not to employ persons, in either 1 or more positions, who have been convicted of 1 or more types of criminal offenses.” See Mass. Gen. Laws ch. 151B, § 4(9 ½).  Even when no exception applies, employers will still have the right to inquire into an applicant’s criminal history at any time after the initial application, such as in a job interview.

The City of Boston and several other Massachusetts jurisdictions have adopted even more stringent policies for their vendors and other private contractors, requiring them to determine whether particular positions are sufficiently sensitive to warrant a background check, and obligating them to give reasons to people who are turned down for employment because of their conviction record.  Of special significance, Boston’s City Council ordinance, effective July 1, 2006, applies not only to hiring in city jobs, but also to the hiring decisions of an estimated 50,000 private vendors who do business with the City.  See Ord. 2005 c. 7 (codified at 4-7), available at http://www.amlegal.com/nxt/gateway.dll/Massachusetts/boston/chapterivcontracts?f=templates$fn=default.htm$3.0$vid=amlegal:boston_ma$anc=JD_4-7.  The successful campaign to reform Boston’s hiring policy was backed by a broad community coalition called the Massachusetts Alliance to Reform CORI (MARC).  See Michelle Rodriguez, Beth Avery, National Employment Law Project, Ban the Box 16 (April 2016) available at http://www.nelp.org/content/uploads/Ban-the-Box-Fair-Chance-State-and-Local-Guide.pdf.  According to the ordinance, the City of Boston and its vendors cannot conduct a criminal background check as part of their hiring process until the job applicant is found to be “otherwise qualified” for the position.  Ord. 2005 c. 7, supra.  This critical protection ensures that everyone is first considered for employment based on their actual skills and experience before the employer takes into account the presence or absence of a criminal record.  The ordinance also requires that the final employment decision, which includes information about the individual’s criminal record, also considers the age and seriousness of the crime and the “occurrences in the life of the Applicant since the crime(s).”  Id.  In addition, the Boston ordinance creates important appeals rights for those denied employment based on a criminal record and the right to present information related to the “accuracy and/or relevancy” of the criminal record.  Id.

F.  State Employment Bars

A sweeping bar on employment of people with convictions in state and state-funded human service jobs, issued by Governor Weld in 1996, disqualified certain offenders for life (violent and drug offenders), and others for periods of 10 and 5 years.  The bar was modified by Governor Swift in 2001, and further limited by Cronin v. O’Leary, 13 Mass. L. Rptr. 405, 2001 WL 919969 (2001) (striking down lifetime bar on constitutional grounds, and requiring a hearing to determine fitness).


  1. See Steve LeBlanc, Associated Press, Baker Rescinds Ex-Gov. Patrick’s Clemency Guidelines, CBS Boston, http://boston.cbslocal.com/2015/01/15/baker-rescinds-ex-gov-patricks-clemency-guidelines (Jan. 15, 2015). Governor Patrick’s guidelines made it easier to obtain a pardon by lowering waiting periods and by fast-tracking petitions where a person made “extraordinary contributions to society.”   See Executive Guidelines for Particularly Meritorious Clemency Petitions (July 17, 2014), available at http://www.mass.gov/eopss/docs/pb/executive-guidelines-for-particularly-meritorious-clemency-petitions-7-17-14.pdf; Maria Cramer, Governor Patrick may grant his first pardons, Boston Globe, https://www.bostonglobe.com/metro/2014/10/09/gov-patrick-says-ready-grant-pardons/bdC51zgZf7QqxAGmiMf4QO/story.html (Oct. 9, 2014). The fast-track guidelines were primarily created to expand consideration for persons unable to demonstrate a “compelling need.”  See Colleen Quinn, “Board recommends three pardons, Wall sees more coming,” WWLP.com (October 3, 2014), http://wwlp.com/2014/10/03/board-recommends-three-pardons-wall-sees-more-coming. Petitioners facing “deportation that is unnecessary for public safety [and] especially harsh or unfair consequences” were also considered for a gubernatorial pardon under those guidelines. See Guidelines for Particularly Meritorious Clemency Petitions, supra.
  2. The grants are described at http://www.bostonglobe.com/metro/2014/11/10/closer-look-governor-deval-patrick-commutation-and-pardons/cIZTlJtROBaMTGiUJZmiZI/story.html?p1=Article_Related_Box_ArticleSee Karen Young, Clemency for Criminals Increasingly Rare in Mass., Portland Press Herald, July 7, 2012, http://www.pressherald.com/news/Clemency-for-criminals-increasingly-rare-in-Mass.html?pagenum=full
  3. Prior to May 2012, these time periods were 10 and 15 years.  See 2010 Mass. Acts ch. 256, § 128, available at http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter256.
  4. Recent low-level marijuana possession convictions are now eligible for sealing with no waiting as a result of decriminalization legislation enacted at the end of 2016.  See ch. 94G, § 13(e).
  5. Exceptions for certain civil family law cases were added to the law in 2010 when the waiting periods to seal convictions were last reduced, including abuse prevention, divorce, paternity, separate support, guardianship, termination of parental rights, and care and protection cases related to a child.
  6. The automatic sealing provisions of § 100C were held unconstitutional in Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 506-07) (1st Cir., 1989) (sealed records must be made available to media unless there has been an individualized finding that sealing necessary to effectuate compelling governmental interest).  In Comm. v. Doe, 420 Mass. 142 (Mass. 1995), the Massachusetts Supreme Court extended the holding of the Pokaski case to judicial sealing of closed criminal cases.
  7. 2010 amendments to § 100C struck the parenthetical phrase (“except in cases in which an order of probation has been terminated”) after “dismissed,” to the effect that cases “continued without a finding” may now be sealed immediately upon completion of probation.  See 2010 Mass. Acts ch. 256, § 131, available athttp://www.mass.gov/legis/laws/seslaw10/sl100256.htm.
  8. Prior to the 2010 reforms, criminal justice agencies could see that a sealed record existed, but they needed to petition a court in order to view its contents. See Quirion & Russo, Sealing Criminal Records 8 (Mass. Cont. Legal Educ. 2009).
  9. See National Employment Law Project, States Adopt Fair Hiring Standards Reducing Barriers to Employment of People with Criminal Records 3 (August 2012), available at http://www.nelp.org/page/-/SCLP/ModelStateHiringInitiatives.pdf?nocdn=1 (“The bill uniquely tackles the issue of inaccurate commercial background screeners by creating an incentive for employers to use the state’s criminal history database, which then limits the length of time that criminal history information is available. It also ensures that a denied applicant receives a copy of his or her record, paralleling one component of the federal consumer protection law, the Fair Credit Reporting Act, which applies to commercially-prepared background checks.”).

Copyright © 2017

Restoration of Rights Series/Maryland

Maryland FlagI.  Restoration of Civil/Firearms Rights
A.  Vote/Office

The Maryland Constitution authorizes the General Assembly to disqualify persons from voting who are convicted of “infamous or other serious crime.”  Md. Const. art. I, § 4.  With one exception, disenfranchisement is limited to persons convicted of a felony who are “currently serving a court-ordered sentence of imprisonment for the conviction,”  Md. Code Ann., Election Law § 3-102(b)(1), and the vote is restored automatically upon release.1  The exception is for persons convicted of buying or selling votes, who are not qualified to vote even after fulfilling their court-ordered sentence.  § 3-102(b)(3).

A person is ineligible to hold an elective office if at any time after election/appointment and prior to completion of their term, the person ceases to be a registered voter.  Md. Const. art. I, § 12.  Once restored to the franchise, convicted persons also regain the right to hold office.

 
B.  Jury
Persons are disqualified from jury service if convicted of a crime punishable by imprisonment exceeding 6 months, and sentenced to more than 6 months’ imprisonment.  Md. Code Ann., Courts and Judicial Proceedings § 8-103(b)(4).  Jury rights are restored by pardon.  § 8-103(c).
C.  Firearms

Md. Code Ann., Criminal Law § 5-622 prohibits anyone convicted of a felony from possessing any firearm, including an antique firearm as defined in § 4-201, subject to a penalty not to exceed five years’ imprisonment.  Relief is available only through pardon.

Regulated Firearms

In addition, a person convicted of a “disqualifying crime” who possesses a “regulated firearm” is subject to a mandatory minimum sentence of five years.  Md. Code Ann., Public Safety § 5-133(b)(1).  A disqualifying crime includes a crime of violence, a felony, and “a violation classified as a misdemeanor in the State that carries a statutory penalty of more than 2 years.”  Id., § 5-101(c), (g).  A “regulated firearm” includes handguns and certain specified assault weapons as defined in Md. Code Ann., Public Safety, §§ 5-101(h), (n), and (p).  Persons “convicted of a violation classified as a common law crime and [who] received a term of imprisonment of more than 2 years” also may not possess a “regulated firearm.”  § 5-133(b)(2).  Prosecutors have broad authority to choose which statute to charge.   See State v. Lee, 178 Md. App. 478, 943 A.2d 14 (Ct. Spec. App. 2008)(trial court exceeded its authority in substituting less serious charge in plea context).

Firearms dealers

Persons who may not possess a “regulated firearm” cannot be a firearms “dealer.”  § 5-101(d); 5-107(b)(4)(iii)-(iv).

Rifles and shotguns

Under Md. Code Ann., Public Safety §§ 5-206(b), a person may not possess a rifle or shotgun if he was previously convicted of a “crime of violence” or certain drug offenses.  See §§ 5-101(c) (defining crime of violence); 5-206(a).

Handgun permit

A person may not be issued a handgun permit if he has been convicted of “a felony or of a misdemeanor for which a sentence of imprisonment for more than 1 year has been imposed,” or a crime involving possession or use of a controlled substance; or, if under 30 years of age, adjudicated delinquent for an offense that would be a felony, a crime of violence, or an act that would be a misdemeanor in this State that carries a statutory penalty of more than 2 years if committed by an adult.”  See Code Ann., Public Safety §§ 5-306(a), (b).

D.  Other Collateral Consequences

A partial catalogue of collateral consequences for Maryland offenders is contained in the study produced by the University of Maryland School of Law Reentry of Ex-Offenders Clinic, “A Report on Collateral Consequences of Criminal Convictions in Maryland” (rev. Spring 2007), available at http://www.sentencingproject.org/doc/publications/cc_report2007.pdfSee also Homeless Persons Representation Project, “Ex-Offenders and Employment: A Review of Maryland’s Public Policy and a Look at Other States” (December 2001, rev. June 2002), available at http://www.hprplaw.org/index.php?option=com_k2&view=item&layout=item&id=20&Itemid=73, documenting a number of situations in which people with convictions are barred by law from certain jobs and occupations.

II.  Discretionary Restoration Mechanisms
A.  Pardon
Authority

The pardon power is vested in the governor, except in cases of impeachment.  Md. Const. art. II, § 20; see also Md. Code Ann., Correctional Services § 7-601.   The Constitution requires the governor to publish notice in one or more newspapers of earliest date he will grant pardon, and to report to the legislature each grant and reasons there for.  Md. Const. art. II, § 20.

Administration

The Maryland Parole Commission is responsible for reviewing and making recommendations on pardon applications if requested by the governor, but its advice is not binding.  Md. Code Ann., Correctional Services § 7-206(3)(ii).2  The Parole Commission consists of 10 members appointed to six-year terms by the Secretary of Public Safety and Correctional Services.  § 7-202.  Full-time salaried employees are subject to removal only for cause by the secretary (with concurrence of governor).  § 7-203.

Eligibility

Md. Code Regs. tit. 12, § 08.01.16(C) provides that “[p]roof of successful completion of any parole or probation, or both, which may have been imposed, plus a reasonable length of satisfactory adjustment in the community beyond the maximum expiration date of sentence, is preferred for a favorable pardon recommendation.”  Under informal Parole Commission rules, applicants with felony convictions must have ten crime-free years to be eligible (seven if a Parole Commission waiver is granted); misdemeanants must have five crime-free years.  There is a twenty-year wait for crimes of violence and for controlled substances violations (or fifteen if waiver granted).  See Parole Commission “Frequently Asked Questions” about pardons, Question #6, http://www.dpscs.state.md.us/about/FAQmpc.shtml.  A person convicted under federal law or the law of another state is ineligible for a gubernatorial pardon.  See general description on http://www.dpscs.state.md.us/publicservs/pardons.shtml.

Eligibility II

A pardon may be available where an individual has been charged with a crime but has not yet been convicted:

The decision to pardon certain individuals has arisen when an individual is charged and a nolle prosequi is entered or the charge is stetted.  This has proven especially helpful for individuals who wish to obtain security clearance (and, thus, maintain their jobs) under the new Homeland Security/TSA rules that govern airport employees (apparently, a nolle prosequi under those guidelines is tantamount to a ‘conviction’).

E-mail from Chrysovalantis “Chrys” P. Kefalas, Deputy Counsel, Governor’s Office, June 10, 2005 (on file with author).  In such cases there is no eligibility period.  Id.

Effect

Pardon lifts all disabilities and penalties imposed because of the conviction.  Firearms rights must be separately restored in pardon document.  

A court may expunge the record if the person has been convicted of only one criminal act, and that act is not a crime of violence; and is granted a full and unconditional pardon by the Governor.  Md. Code Crim. Proc. § 10-105(8).

Process

The form for applying for pardon can be downloaded from the website of the Maryland Parole Commission, which Commission determines if the applicant is eligible according to Maryland guidelines. See https://www.dpscs.state.md.us/publicservs/pdfs/Application-for-Pardon-Revised.pdf.  If eligible, the Commission directs the Division of Parole and Probation to conduct an Executive Clemency investigation of the petitioner.  Md. Code Regs. tit. 12, § 08.01.16(B).  Upon the victim’s request, the victim most be notified.  See Md. Code Ann., Correctional Services § 7-805.   There is no formal hearing, and a case is reviewed on a paper record.  Once the pardon investigation is completed, the case returns to the Commission for its review and recommendation.  The application, the Division of Parole and Probation investigation report, and the Commission’s recommendation are then submitted to the governor’s legal counsel for review.  The governor may choose to accept, modify, or reject the Commission’s recommendation.  For purposes of effectuating a pardon, the governor must issue a written executive order under the great seal.  Md. Code Ann., Correctional Services § 7-601(b)(1).  In addition, the Maryland Constitution requires the governor to “give notice, in one or more newspapers, of the application made for [pardon], and of the day on, or after which, his decision will be given.”  Md. Const. art. II, § 20.  If pardon is denied, an applicant may reapply after a “reasonable time.”  Md. Code Regs. tit. 12, § 08.01.16(B).

Standards

The Commission considers the following factors in connection with a petitioner’s request for a pardon: (1) the nature and circumstances of the crime; (2) effect of a pardon on the victim and community; (3) the sentence given; (4) the other anti-social behavior of the petitioner; (5) the subsequent rehabilitation of the petitioner; (6) the age and health of the petitioner; and (6) the reason the pardon is needed.  Parole Commission “Frequently Asked Questions” about pardons, Question #7, http://www.dpscs.state.md.us/about/FAQmpc.shtml. 3

Frequency of Grants

Governor Larry Hogan issued no pardons in his first three years in office, despite having indicated an interest in increasing the number of pardons during his campaign for election. See The power to pardon, The Baltimore Sun (Jan. 23, 2015), http://www.baltimoresun.com/news/opinion/editorial/bs-ed-parole-20150125-story.html.  Governor Martin O’Malley (2008-2015) granted 146 pardons in eight years in office, all but thirteen in his final three years in office, and rejected about 1300 applications.  See Justin Fenton, O’Malley increases pardons, but remains stingy overall, Baltimore Sun., Dec. 18, 2014, http://www.baltimoresun.com/news/maryland/politics/bs-md-omalley-pardons-20141213-story.html#page=1. See also John Wagner, O’Malley Puts the Brakes on Clemency in Md., The Washington Post, June 21, 2009, at C1, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/06/20/AR2009062001629.html.  Governor Ehrlich granted 228 pardons out of a total of 439 applications considered.  (Also, he granted fifteen commutations, including five life sentences, and in addition six medical paroles during his tenure.)  Governor Ehrlich considered pardon applications on a regular basis, reviewing about 20 cases each month, issuing pardons every two or three months.  Source: Office of the Governor.

Contacts

David R. Blumberg
Chair, Maryland Parole Commission
dblumberg@dpscs.state.md.us

Linda L. Dodge
Administrative Officer, Executive Clemencies & Pardons
(410) 585-3211
linda.dodge@maryland.gov

Pardon applications available at:

https://www.dpscs.state.md.us/publicservs/pdfs/Application-for-Pardon-Revised.pdf

Additional information can be found by contacting the Pardon Application Coordinator at (410) 585-3200 or toll-free (877) 241-5428.  See Parole Commission, “Frequently Asked Questions,” supra, Questions # 10-11.

B.  Judicial sealing or expungement
1.  Conviction records
a.  Expungement of misdemeanor convictions

In May of 2016, Maryland enacted the Justice Reinvestment Act, authorizing expungement of police, conviction, and other official records for enumerated misdemeanor offenses.  See SB-1005 (2016), available at http://mgaleg.maryland.gov/2016RS/Chapters_noln/CH_515_sb1005e.pdf (Md. Code Ann., Crim. Proc. § 10-110).  The law will take effect October 1, 2017. Expungement confers greater benefits than shielding (discussed below) and is available for more offenses, but the waiting period for expungement is far longer (10/15 years vs. 3 years). 4

Eligibility

Over 100 enumerated misdemeanors are eligible, including second degree assault, drug possession, prostitution, theft, disorderly conduct, various fraud offenses, and various regulatory offenses.  Md. Code Ann., Crim. Proc. § 10-110(A). A waiting period of 10 years from completion of sentence (including any period of probation, parole, or mandatory supervision) applies for all offenses except for second degree assault under Md. Crim. Law Code § 3-203 and offenses classified as “domestically related crimes” under Md. Crim. Proc. Code § 6-233, for which a 15-year waiting period applies.  Md. Code Ann., Crim. Proc. § 10-110(C). “If the person is convicted of a new crime during [the waiting period], the original conviction or convictions are not eligible for expungement unless the new conviction becomes eligible for expungement.” § 10-110(D)(1).  Individuals with pending criminal charges are not eligible. § 10-110(D)(2).  If one offense stemming from a single incident is ineligible for expungement, then all offenses stemming from the incident are ineligible. §§ 10-110(D)(3), 10-107 (this is known as the “unit rule”).

Procedure and criteria

Petition is filed in court in which proceedings began, with exceptions for cases that were transferred or appealed.  Md. Code Ann., Crim. Proc. § 10-110(B).  The court serves notice to the State’s Attorney and victims, who have 30 days to object to the petition. § 10-110(E).  Court must order expungement if no objection is filed after 30 days. § 10-110(E)(3).  If either the State’s Attorney or victim object, the court must hold a hearing, and the court’s determination is guided by § 10-110(F)(2).  If the person meets the statutory eligibility requirements, the court must grant expungement upon finding:

  • that giving due regard to the nature of the crime, the history and character of the person, and the person’s success at rehabilitation, the person is not a risk to public safety; and
  • that an expungement would be in the best interest of justice.

§ 10-110(F)(2)(II), (III). Petitioner and State’s Attorney are entitled to appellate review of the court’s decision. § 10-110(I). Unless an order is appealed, every custodian of police and court records subject to the order must notify the court and petitioner of compliance with the expungement order.

Effect

A record that has been expunged may be opened only upon court order, with notice to the person concerned and a hearing, or upon ex parte application by the State’s attorney and a showing of good cause (including that the record is needed by law enforcement).  Md. Code Ann., Crim. Proc. §§ 10-108(a) through (c).  Violation of this is a misdemeanor.  § 10-108(d).  Expunged records are kept separately for three years, then destroyed.  See §§ 4-511, 4-512.  A person may not be required to disclose information about expunged records to an employer, educational institution, or government licensing agency.  §§ 10-109(a)(1)-(2). Refusal by a person to disclose information about criminal records that have been expunged may not be the sole reason for an employer to discharge or refuse to hire the person, or for a government licensing agency to deny the person’s application.  § 10-109(a)(3). Violation is a misdemeanor, and a government official who violates may be dismissed from public service.  § 10-109(b).  Applicants for positions that require the carrying of firearms should be asked for information about past criminal activity for purposes of the federal firearms statute even if records have been expunged.  71 Md. Op. Att’y Gen. 242 (1986).

b. “Shielding” (sealing) of misdemeanor convictions

Under the Maryland Second Chance Act of 2015, Md. Code Ann., Crim. Proc. § 10-301 et seq., a handful of minor misdemeanor convictions are eligible for “shielding” (the functional equivalent of sealing in other jurisdictions).  Shielding is distinct from “expungement,” which is also available for certain misdemeanor convictions after a much longer waiting period, as described in the preceding section.

Eligibility

Shielding is available only for twelve enumerated non-violent misdemeanors, ranging from malicious destruction of property to prostitution and possession of a controlled dangerous substance.  Md. Code Ann., Crim. Proc. § 10-301(f). Any offense sentenced as a “domestically related crime” is ineligible. § 10-302(a). A person may only petition for shielding once in their lifetime, though a single petition may seek sealing of multiple convictions so long as the convictions are from the same county. § 10-303(e)(4), (a).  A waiting period of three years following satisfaction of sentence, including any period of community supervision, applies. § 10-303(a). If a person is convicted of an additional offense before filing a petition to shield, then the prior conviction may only be shielded when the intervening conviction becomes eligible for shielding. § 10-303(b)(1).

Process

No hearing is necessary unless the State’s Attorney objects to the petition. Md. Code Ann., Crim. Proc. § 10-303(d).  Prior to granting a shielding petition, the court must notify victims of the relevant offenses and allow them to submit relevant information to the court.  Id.  The court may grant a petition without a hearing “after taking into consideration any objections or additional information provided by the State’s Attorney or the victim.” § 10-303(d)(2).  Upon a hearing, the court may grant the petition “for good cause” if otherwise eligible.  § 10-303(e)(3).

Effect

Shielding has the effect of rendering “a court record and police record relating to a conviction of a crime inaccessible by members of the public,” and such records are not accessible on the Maryland Judiciary Case Search (which provides public access to state court records). Md. Code Ann., Crim. Proc. §§ 10-302, -304. Sealing does not restore rights lost as a result of a conviction and does not make the conviction “disappear.” However, a shielded conviction does not count as a conviction for the purpose of determining eligibility for PBJ expungement or expungement of decriminalized offenses.  § 10-305.  In general, employers, educational institutions, and government licensing and services agencies may not require a person to disclose shielded convictions on an application or in an interview and may not take adverse action against a person for refusing to disclose such convictions.  § 10-306.  There are some major exceptions that threaten to swallow this rule, however. Notably, any employer or licensing agency that is required or authorized by law to inquire into a person’s criminal record may access a person’s shielded record.  § 10-302(B)(2).  Exceptions also apply to health occupations boards, child care facilities, and the medical marijuana commission, among others.

2.  Additional expungement authorities, including non-conviction records

In addition to expungement of the record in certain misdemeanor cases (see above), the court has authority to expunge the record in the following situations:

  • Non-violent first offenders who have been granted a full and unconditional pardon. Md. Code Ann., Crim. Proc. § 10-105(a)(8). Application must be filed no later than ten years after pardon granted.   § 10-105(c)(4).
  • Certain minor nuisance crimes (public urination, drinking in public, panhandling, loitering, vagrancy, etc.), three years after completion of sentence. § 10-105(a)(9), (c)(6).
  • Non-conviction records (acquittals, nolle prosequis, dismissed charges, probation before judgment (“PBJ”)) after a three-year waiting period (after final action on charges, or completion of treatment), as long as no pending charges (or, additionally, any intervening convictions for a PBJ). Records may be opened only upon court order.  10-105(a)(1)-(4) and (c)(1)-(2).  See below for discussion of PBJ procedure.  
  • Charges transferred to juvenile court. § 10-105(a)(7); 10-106.
  • Police records of arrests not leading to charges. § 10-103; 10-103.1.5
  • Conviction records for decriminalized offenses. § 10-105(a)(11).
  • Conviction records for possession of marijuana. § 10-105(a)(12)
Procedure

The petition form is available at http://www.courts.state.md.us/courtforms/joint/ccdccr072.pdf.  A $30 fee is required.  See http://www.courts.state.md.us/circuit/feesummaryschedule.pdfThe State’s attorney receives a copy of the petition for expungement and is a mandatory party to the proceeding.  Md. Code Ann., Crim. Proc. §§ 10-105(d), (e), (g).  The State’s attorney has 30 days to respond to the petition, and if State’s attorney objects, a hearing is held to determine whether the person is entitled to expungement.  Id.   An expungement order may be appealed.  § 10-105(g).  See also State v. Nelson, 847 A.2d 1184, 1189 (Md. App. 2004) (State entitled to 30-day period to file objection and court cannot proceed to hearing prior to expiration of that period absent an articulated waiver by the State).

Limitations

Per Md. Code Ann., Crim. Proc. § 10-107, if any single charge in arising from the same incident is ineligible, then every charge arising from that incident is ineligible (this is known as “the unit rule”).

Effect

The effect of expungement is the same as that described for misdemeanor convictions in the preceding sections.  For non-conviction dispositions, an expunged record may not be used as predicate, or to enhance sentence.  See Jones v. Baltimore City Police Dep’t, 606 A.2d 214, 218 (Md. 1992). 

3.  Probation before Judgment (“PBJ”) and expungement

Subject to the provisions of the Maryland sentencing guidelines, the court may defer judgment and place a defendant on probation subject to reasonable conditions, if (i) the court finds that the best interests of the defendant and the public welfare would be served; and (ii) if the defendant gives written consent after determination of guilt or acceptance of a nolo contendere plea.  Md. Code Ann., Crim. Proc. § 6-220(b)(1).  Terms of probation may include payment of fine or restitution, or participation in a treatment program.  § 6-220(b)(2).  Upon successful completion of probation, the court shall discharge the defendant from probation without judgment of conviction, and such discharge “is not a conviction for the purpose of any disqualification or disability imposed by law because of conviction of a crime.”  § 6-220(g).  A person discharged from probation may petition the court for expungement of police and court records relating to the charges after a three-year waiting period, as long as the petitioner has not been convicted of any crime other than a minor traffic violation, and is not a defendant in a pending criminal proceeding.  §§ 10-105(a)(3), (c)(2)(ii), (e)(4).

A PBJ plea that has been expunged may not be used to enhance a subsequent sentence.  See Jones, 606 A.2d at 218 (“A disposition of probation before judgment cannot be considered a predicate offense for imposition of certain recidivist penalties imposed by law; there is no assessment of points when probation before judgment is granted after a finding of guilt on a motor vehicle charge; and a sentence of probation before judgment is not entered upon a defendant’s public driving record.”).  Cf. United States v. Bagheri, 999 F.2d 80 (4th Cir. 1993) (noting distinction between PBJ disposition, which may be considered if not expunged, and expunged record, which may not).  See also “Effect of expungement” at Part II, B(2)(c), supra.

Motion for Modification

Under Md. Rule 4-345, upon motion filed within 90 days after imposition of a sentence, the court has revisory power over a sentence for five years from the date the sentence originally was imposed, and may upon motion reduce a sentence to probation before judgment, so as to make a defendant eligible for expungement under Md. Code Ann., Crim. Proc. § 10-105(a)(3).

4.  Judicial sealing of juvenile court records

Police and courts records concerning a child are confidential and may not be divulged except by court order for good cause or to certain school officials for certain reportable offenses. Md. Code Ann., Courts and Judicial Proceedings § 3-8A-27.  Access and use is permitted by the Department of Juvenile Services, law enforcement agencies, and certain governmental bodies in certain circumstances.  Id.  If good cause is shown, the court may order court records of a child sealed at any time, and must order sealing upon motion or petition when the child reaches 21 years of age.  If sealed, court records cannot be opened for any purpose except by court order for good cause shown.  § 3-8A-27(c).  See also § 3-827(c) (confidentiality of juvenile court records for children “in need of assistance” who require court intervention).

III.  Nondiscrimination in occupational licensing and employment
A.  Ban-the-Box in public employment

Effective October 2013, state government employers may not inquire about an applicant’s criminal history until an applicant has had an opportunity for an interview.  Md. Code Ann., State Pers. & Pens. § 2-203 (enacted by 2013 Maryland Laws Ch. 160, § 1 (S.B. 4).  Certain positions are exempt, including law enforcement-related positions and positions where a criminal records check is mandated by statute.  See id.

Since 2007, the city of Baltimore has had its own ban-the-box policy for public employment.  The criminal history of potential administrative hires in “positions of trust” are not investigated or inquired about until the final stages of the hiring process.  See Policy AM-237-1 at http://www.nelp.org/page/-/SCLP/BaltimorePolicyonPositionsofTrust.pdf?nocdn=1; see also National Employment Law Project, Ban the Box Resource Guide 7 (2013), available at http://www.nelp.org/page/-/SCLP/2011/CityandCountyHiringInitiatives.pdf?nocdn=1.  Additionally, a conviction may only be disqualifying after “fair consideration of the relationship between an conviction and the applicant’s suitability for a particular position.”  AM-237-1 at 4.

Under state law, a consumer reporting agency cannot report conviction information that is older than seven years for purposes of employment, if the job about which information sought is expected to pay an annual salary less than $20,000.  Md. Code Ann., Com. Law § 14-1203(a)(5).  See also Part II B, supra, regarding disclosure of arrest or conviction that has been expunged in context of application for employment, education, or government license.  Md. Code Ann., Crim. Proc. § 10-109.

B.  Licensing

Md. Crim. Proc. Code § 1-209(d):

A department may not deny an occupational license or certificate to an applicant solely on the basis that the applicant has previously been convicted of a crime, unless the department determines that:

(1) there is a direct relationship between the applicant’s previous conviction and the specific occupational license or certificate sought; or
(2) the issuance of the license or certificate would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

Standards for making these determinations are set forth at § 1-209(e), and restated at COMAR (Code of Md Reg) 09.01.10.02:

The following standards shall be considered in the grant, denial, renewal, or revocation of a license, when an applicant or licensee has been convicted of a crime:

  1. The nature of the crime;
  2. The relationship of the crime to the activities authorized by the license;
  3. The relevance of the conviction to the fitness and qualification of the applicant or licensee to perform the occupation authorized by the license;
  4. Other crimes of which the applicant or licensee has been convicted;
  5. The length of time since the conviction;
  6. The behavior and activities of the applicant or licensee before, and subsequent to, the conviction.

Drug convictions are specifically subject to a similar analysis under statute.  See Md. State Gov’t Code § 10-1405.

Certificate of Rehabilitation

Beginning October 2017, the Department of Corrections “shall issue” a Certificate of Rehabilitation to individuals convicted of non-violent and non-sexual felonies and misdemeanors who were supervised by the Division of Parole and Probation under conditions of parole, probation, or mandatory release supervision, and who have completed all such conditions.  Md. Code Ann., Corr. Servs.  § 7-104 (enacted by the 2016 Justice Reinvestment Act, SB-1005).  Notwithstanding the law’s mandatory language, the Department is required to promulgate rules establishing an application and review process that allows the state’s attorney and victim to object to issuance. § 7-104(G)Only one certificate may be issued in a person’s lifetime.  § 7-104(E).

Effect:

A licensing board may not deny an occupational license or certificate to an applicant who has been issued a certificate of rehabilitation solely on the basis that the applicant has previously been convicted of the crime that is the subject of the certificate of rehabilitation, unless the licensing board determines that:

  1. There is a direct relationship between the applicant’s previous conviction and the specific occupational license or certificate sought; or
  2. The issuance of the license or certificate would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

§ 7-104(C).  When determining whether a conviction is directly related to a license or involves a risk to property or the public a board must consider a list of factors similar to those in COMAR 09.01.10.02, described in the previous section.  § 7-104(D)


  1. Prior to February 2016, felony offenders did not regain the right to vote until the completion of any period of probation or parole. The 2015 bill that limited disenfranchisement to those serving a prison term was enacted over the veto of Governor Larry Hogan. See Erin Cox, Released felons gain right to vote in Maryland after veto override, Balt. Sun, Feb. 10, 2015, available at http://www.baltimoresun.com/news/maryland/politics/bs-md-felons-voting-20160209-story.html.  Eight years earlier, the 2007 Voting Registration Protection Act restored the vote to most after completion of sentence.  Prior to that time, recidivists were required to wait three years after completion of sentence, and people convicted of two or more crimes of violence were permanently disenfranchised unless pardoned.  Persons convicted of bribery, attempted bribery, or buying or selling votes, whether felony or misdemeanor, were permanently disenfranchised and disqualified from holding office, unless pardoned.  Passage of the 2007 Act also obviated the confusion historically surrounding the constitutional term “infamous or other serious crime,” which had been held to include some misdemeanors that were regarded as crimes of moral turpitude under the common law, such as perjury.  See, e.g., Brennan Center for Justice,Maryland Voter Registration Protection Act of 2007, available at http://www.brennancenter.org/page/-/d/download_file_48254.pdf.  Prior to the passage of the 2007 Act, the most recent list of disqualifying offenses issued by the Office of the Attorney General, dated July 2004, was 21 pages long and included as “infamous crimes” a large number of offenses that appear at least potentially to be misdemeanors.  See also Theiss v. State Admin. Bd. of Elec. Laws, 387 F. Supp. 1038, 1040 n. 3 (D. Md. 1974) (1973 “laundry list” includes shoplifting, “child abuse,” and “various offenses relative to prostitution).
  2. The governor also has authority to issue partial and conditional pardons.  Md. Code Ann., Correctional Services §§ 7-601(a)(2), (b)(2).  The governor is the sole judge of whether a condition of a conditional pardon is violated, but the Parole Commission may hear cases of alleged violations of conditional pardons if so delegated by the governor. §§ 7-602; 7-205(a)(8).
  3. “No one convicted of first-degree murder in Maryland has ever been pardoned.”  Don Markus, Columbia Man, 18, Pleads Guilty to Assault, Armed Robbery, The Baltimore Sun, July 28, 2009, at 5A, available at http://articles.baltimoresun.com/2009-07-28/news/0907270070_1_murder-sentence-fleming-columbia-man.
  4. Note, however, that four of the twelve offenses that are eligible for shielding are not also eligible for expungement.
  5. Police investigative files are not subject to expungement.  Md. Code Ann., Crim. Proc. § 10-102(c)(5)-(6).  See also Gigeous v. Eastern Correctional Institution, 752 A.2d 1238 (Md. App. 2000), aff’d, 769 A.2d 912 (Md. 2001) (investigatory files not subject to expungement and can be used for police investigative purposes).

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