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/.

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