Restoration of Rights, Pardon, Expungement & Sealing
Last updated: July 17, 2016
I. Restoration of Civil Rights/Firearms Privileges
A. Civil Rights
The rights to vote and to serve on a jury are lost upon conviction of a felony and automatically restored upon completion of sentence (“unconditional discharge”). Alaska Stat. §§ 09.20.020; 15.05.030(a); 33.30.241. See also 22.214.171.124 (defining unconditional discharge as release “from all disability arising under a sentence, including probation and parole”). The commissioner of corrections must establish procedures for notifying those unconditionally discharged about the voter registration requirements and procedures. § 15.05.030(b).
Restoration of vote also restores right to hold office. Alaska law contains several general prohibitions against holding public office by a person who is not a qualified voter: Alaska Stat. §§ 15.25.030(10) (candidacy for public office); § 39.05.100 (appointment to a board or commission of state government must be “registered voter”). See the more specific provisions relating to service on school board (§ 14.08.045(a)(4) (conviction of felony involving moral turpitude or offense involving violation of oath of office) and as judge (§ 22.30.070(b) (on recommendation of commission, supreme court may reprimand, censure, or suspend judge convicted of crime punishable as a felony under state or federal law, or of crime involving moral turpitude).
A felony offender may not possess a concealable weapon for 10 years following discharge (privilege is lost permanently if offense is one against the person), unless conviction set aside or pardoned. Alaska Stat. §11.61.200(a)(1),(b)(1). During the period of disability a convicted person may not live in a building where concealable firearms are kept without permission of court or law enforcement. § 11.61.200(a)(10). Once 10-year period has expired, state offender is relieved of federal firearms bar since all civil rights restored. See 18 U.S.C. § 921(a)(20).
A professional license may be denied or revoked upon conviction. See, e.g., § 21.27.410(a)(7)(insurance agent); § 08.04.450(5), (6)(accountant); § 08.68.270(2)(nurse); § 08.88.171(a)(real estate broker). See also Deborah Periman, The Hidden Impact of a Criminal Conviction: A Brief Overview of Collateral Consequences in Alaska 6 – 27 (Dec 2007), http://justice.uaa.alaska.edu/occasionalpapers/op01.collateral.pdf.
D. Other collateral consequences
For a review of collateral consequences in Alaska, see Alaska Prisoner Reentry Task Force, “Alaska’s 5-Year Prisoner Reentry Strategic Plan, 2011–2016,” http://www.correct.state.ak.us/TskForce/documents/Five-Year%20Prisoner%20Reentry%20Plan.pdf, discussed in Part III, See also Periman, The Hidden Impact of a Criminal Conviction: A Brief Overview of Collateral Consequences in Alaska 6 (Dec 2007), http://justice.uaa.alaska.edu/occasionalpapers/op01.collateral.pdf.
E. State Policy on Rehabilitation
Rehabilitation and reintegration of the convicted have been components of public policy in Alaska since statehood; the principle of reformation is one of the five considerations on which the Alaska Constitution requires that administration of the criminal justice system be based. (The others are public safety, community condemnation of the offender, rights of victims, and restitution from the offender. See Alaska Constitution art. I, § 12.)
II. Discretionary Restoration Mechanisms
The pardon power, except in cases of impeachment, is vested in the Governor alone, “subject to procedure prescribed by law.” Alaska Const. art. III, § 21; Alaska Stat. § 33.20.070. By statute, the governor “may not grant executive clemency to a person” unless the case has first been referred for investigation to the Board of Parole and at least 120 days have passed. § 33.20.080(a). The Board is required to investigate each case so referred and report to governor within 120 days. Id. It must also, within five days of receipt of notice from governor, notify the Department of Law, the office of victim’s rights, and the victim if a crime of violence or arson. § 33.20.080(b).1 Non-statutory Governor’s Executive Clemency Advisory Committee (“ECAC”) (composed of a member of the governor’s staff, a representative from the Department of Law, and a public member) reviews investigative reports and advises the governor. The governor is not bound by the Committee’s advice.
For a thorough review of the history and practice of pardoning in Alaska, see Ronald S. Everett & Deborah Periman, “The Governor’s Court of Last Resort:” An Introduction to Executive Clemency in Alaska, 28 Alaska L. Rev. 58 (2011). The records of the Parole Board indicate that there have been only 188 grants of clemency since statehood in 1959, of which more than half (96) were granted between 1959 and 1966 by Alaska’s first governor. There have been no grants at all since 2006. See id. at 83.
A person may not apply for pardon unless and until he or she has been found eligible to apply by Parole Board staff. The application process begins with filing an Eligibility Determination form. See http://www.correct.state.ak.us/Parole/documents/Clemency%20Eligibility%20Determination%20Form.pdf. The Parole Board website states that the clemency process is presently undergoing review, so that the previously applicable handbook describing standards for pardon has been withdrawn. Persons convicted under federal law or convicted under the law of another state are ineligible for a Governor’s pardon.
Pardon is the only way to regain lost rights and remove disabilities under Alaska law. Pardon has the effect of “setting aside” the conviction, so that individual is deemed not to have been convicted (though conviction remains on the record). A pardoned conviction may not be taken into account in subsequent sentencing, or by licensing board, though conduct underlying the conviction may be. Conviction is no longer a bar, but offense conduct may be considered in context of determining good moral character. A pardon will restore gun rights. Alaska Stat. § 11.61.200(b) & (g).
Aside from the notice requirements described above, no formal regulations govern process. Alaska Stat. § 33.20.080(b). Applicants are warned on Parole Board website that “The clemency policies of the State of Alaska are very strict, the process is lengthy, and clemency is rarely granted.” See Alaska Board of Parole, Executive Clemency Eligibility Determination, http://www.correct.state.ak.us/corrections/Parole/documents/Clemency%20Eligibility%20Determination%20Form.doc. Initial determination of eligibility takes 30 days. Applicants for clemency are informed that “virtually their entire history is considered,” and they are required to sign waivers permitting an investigation of their employment and personal history. Applications are investigated by staff of the Board of Parole, including comments from DA and sentencing court and victim if relevant, and a summary of the case with recommendation is prepared and submitted to the Governor’s Executive Clemency Advisory Committee (“ECAC”), which meets as often as necessary to review pending applications.
Restructuring of the Clemency Process
In 2009, concerned about the paucity and irregularity of grants in 2005 and 2006, a process was put in place by the then-Lieutenant Governor to completely restructure the Alaska clemency process, and to make formal the criteria for clemency. All applications for clemency were put on hold at that time. In June 2011, the Executive Secretary of the ECAC sent specific recommendations to the Governor. Four years later, in April 2015, there had been no movement on the restructuring of the program, although Parole Board staff indicated that it was still accepting applications. Source: Parole Board Staff.
Frequency of Grants
In recent years, Executive Clemency Advisory Committee has met on the average two or three times a year. There are few pardon applications, and there have been only three pardon grants since 1995. Source: Alaska Parole Board.2
B. Judicial sealing or expungement
Set-aside after deferred imposition of sentence
Court may suspend imposition of sentence and, after successful completion of a period of probation, “set aside the conviction and issue to the person a certificate to that effect.” Alaska Stat. § 12.55.085(e). Serious violent offenses, stalking, removing a child from the state, human trafficking, sex offenses, and offenses involving use of firearm do not qualify. Id. at (f). No affirmative showing or finding of rehabilitation need be made before a set-aside is granted; rather, a set-aside should be granted as a matter of right unless some specific reason for denial is established. Wickham v. State, 770 P.2d 757 (Alaska Ct. App. 1989). Before a sentencing court may refuse to set aside a conviction under subsection (e), the defendant must be given notice that there is reason to believe a set-aside should not be granted, with a precise statement of the reason or reasons, and must be afforded an opportunity for a hearing on the set-aside issue. Mekiana v. State, 707 P.2d 918, 921-22 (Alaska Ct. App. 1985), rev’d on other grounds, 726 P.2d 189 (Alaska 1986):
By enacting the set-aside language of subsection (e), the legislature clearly intended to provide probationers who received a suspended imposition of sentence with the prospect of a clean slate and the promise of a new beginning upon successful completion of probation; a sentencing court cannot thwart this legislative goal — or, for that matter, hinder appellate review — by denying such relief without explanation.
See also Wickham, supra at 1143:
[Statute] does not abandon the requirement of showing rehabilitation as a prerequisite to a set-aside; rather, the statute merely shifts the burden of proof on the issue. In practical effect, the statute deems successful completion of probation to be the equivalent of a prima facie showing of rehabilitation. This implicit showing of rehabilitation imposes on the state the duty of rebuttal, that is, the burden of presenting the court with evidence showing “good cause” to deny set-aside, despite the offender’s apparent rehabilitation.
A conviction that has been set aside may not be relied on for impeachment purposes, and does not qualify as “a ‘conviction’ in situations in which a sentence is increased or a crime is defined by a prior conviction.” See Doe v. State, Dep’t of Pub. Safety, 92 P. 3d 398, 406 (Alaska 2004). See also Larson v. State, 688 P.2d 592, 597 (Alaska 1984) (set-aside conviction not counted in determining status as repeat offender). “In other words, the act of setting a conviction aside creates ‘a settled expectation that the state [will] not subsequently use the conviction … as a basis for imposing brand-new affirmative burdens on [the defendant].’” Alaska Board of Nursing v. Platt, 169 P.3d 595, 599 (Alaska 2007) (citing Doe, supra, at 408). For example, it is an affirmative defense to a felon-in possession prosecution under § 11.61.200 that the person has had her conviction set aside pursuant to § 12.55.085. See Alaska Stat. § 11.61.200(b)(1)(B), (b)(2)(B), (g)(1)(B). On the other hand, set-aside does not eradicate the fact of conviction, and a defendant’s prior criminal history of repeated instances of assaultive behavior or cruelty to animals may be considered as an aggravating sentencing factor, see Alaska Stat. § 12.55.155(c)(8). Larson, supra, at 597-98; Krasovich v. State, 731 P.2d 598 (Alaska 1987), or used to deny licensure where convicted conduct is substantially related to opportunity. See Platt, supra at 599.
Suspended entry of judgment
Under legislation enacted in 2016, courts may, for certain offenses, place a defendant on probation without an entering a judgement of guilt. Alaska Stat. § 12.55.078. Upon successful completion of probation, the defendant is discharged, charges are dismissed, and no conviction results. The courts may not publish records of dismissal under this authority on a public website. See also “Nonconviction records,” infra.
Sealing and expungement
Courts have no authority to order the criminal record expunged after set-aside, Journey v. State, 895 P.2d 955, 962 (Alaska 1995). Moreover, a conviction that has been set aside remains a conviction for purposes of denying a license. See Board of Nursing v. Platt, supra. See also Spenard Action Comm. v. Lot 3, Block 1, Evergreen Subdiv., 902 P.2d 766, 779 (1995) (explaining that a conviction that has been set aside is nevertheless evidence that a crime occurred;“[T]he dismissal of a charge following the period of stayed imposition of sentence is in the nature of a pardon, not a declaration of innocence.”) (quoting City of St. Paul v. Froysland, 310 Minn. 268, 246 N.W.2d 435, 438 (1976)).
Alaska courts can limit access to otherwise public court records on request if a “legitimate interest in confidentiality” outweighs other interests, see Rules Gov. Administration of All Courts 37.6. Court may grant access to these records upon petition. Rule 37.7. In general, in Alaska there exists “a clear preference for public records to remain accessible.” Johnson v. State, 50 P.3d 404, 406 (Alaska App. 2002). Alaska court system provides court records online. See http://orca.courts.state.ak.us/names/.
Nonconviction records are generally unavailable to the public without the consent of the subject of the record. Alaska Stat. § 12.62.160(b)(8); 13 AAC 68.310. Additional sealing further restricting access to nonconviction records is authorized only in cases of mistaken identity or false accusation, if proved beyond a reasonable doubt to the head of the criminal justice agency responsible for maintaining the records. Alaska Stat. § 12.62.180(b).3 On appeal, the defendant must show that the decision below was “clearly mistaken.” § 12.62.180(c). After sealing, the person may deny the existence of the information and of an arrest, charge, conviction, or sentence shown in the information. Alaska Stat. § 12.62.180(d). Under this authority, access is permitted by government agencies and employers who work with minor or dependent adults. § 12.62.160(b)(9).
Online publication of cases resulting in acquittal or dismissal, including following suspended entry of judgment:
The Alaska Court System may not publish a court record of a criminal case on a publicly available website if 60 days have elapsed from the date of acquittal or dismissal and
(1) the defendant was acquitted of all charges filed in the case;
(2) all criminal charges against the defendant in the case have been dismissed and were not dismissed as part of a plea agreement in another criminal case
under Rule 11, Alaska Rules of Criminal Procedure;
(3) the defendant was acquitted of some of the criminal charges in the case and the remaining charges were dismissed; or
(4) all criminal charges against the defendant in the case have been dismissed after a suspended entry of judgment under AS 12.55.078.
Alaska Stat. § 22.35.030.
Records of juvenile adjudications are generally confidential and unavailable to the public. Alaska Stat. § 47.12.300 (c), (e). Additionally, the court shall seal most juvenile records (except for traffic offenses, class A & B felonies against the person or first degree arson, Alaska Stat. § 47.12.030) within 30 days of a minor’s 18th birthday or within 30 days of the court’s release of jurisdiction, whichever is later. If a juvenile was charged as an adult, most juvenile records (except for traffic offenses and certain serious felonies) may be sealed five years after completion of the sentence or five years after the records are made public. §§ 47.12.300(d) and (f). “A person may not use these sealed records for any purpose except that the court may order their use for good cause shown or may order their use by an officer of the court in making a presentencing report for the court.” Id.4
III. Nondiscrimination in occupational licensing and employment
Alaska has no general law regulating consideration of conviction in employment or licensure. It does apply a direct relationship test in connection with disciplinary action for medical and nursing licensees. See Alaska Stat. § 08.68.270 (“The board [of nursing] may [discipline] a person who . . . (2) has been convicted of a felony or other crime if the felony or other crime is substantially related to the qualifications, functions or duties of the licensee”); § 08.64.326 (board of medical licensing may impose a disciplinary sanction on a licensee who has been convicted of a Class A felony, or a class B or C felony “that is substantially related to the qualifications, functions, or duties of the licensee,” or of a crime involving the unlawful procurement, sale, prescription, or dispensing of drugs).
Alaska Prisoner Reentry Task Force
In 2007, then-Chief Justice Fabe of the Alaska Supreme Court established the Criminal Justice Working Group, an organization comprising representatives from justice agencies across the state as well as representatives of the legislature. See http://justice.uaa.alaska.edu/a-z/c/criminal_justice_working_group.html. One of the group’s key objectives is reducing recidivism. One of its subcommittees is the Alaska Prisoner Reentry Task Force. The subcommittee on employment restrictions is working to “identify laws that are barriers to housing, employment, and other needs of persons with felony convictions,” and to “consider what changes might be possible, in the context of public safety, and rehabilitation of the offender.” See http://justice.uaa.alaska.edu/forum/27/1spring2010/d_reentry.html. In February 2011 the Task Force released “Alaska’s 5-Year Prisoner Reentry Strategic Plan, 2011–2016,” which includes a lengthy chapter on collateral consequences and recommendations to address this issue. See http://www.correct.state.ak.us/TskForce/documents/Five-Year%20Prisoner%20Reentry%20Plan.pdf. See also Alaska Prisoner Reentry Task Force Update, http://justice.uaa.alaska.edu/forum/29/3-4fall2012winter2013/e_reentry.html.
- The Governor’s clemency authority was made subject to these limits by a statute passed in February 2007, in response to public outcry over a pardon granted by outgoing Governor Frank Murkowski to a construction company held criminally liable for the death of one of its employees in a landslide. See Pat Forgey, “Governor Signs Bill Restricting Executive Clemency,” Juneau Empire, February 21, 2007, http://www.juneauempire.com/stories/022107/loc_20070221002.shtml.
- See note 1 for a controversial grant in 2007 at the end of Governor Murkowski’s term.
- In August 2014 Governor Parnell vetoed SB 108, which would have permitted the sealing of records of criminal cases in which a person was acquitted or had charges dismissed.
- Certain records (petitions for declaration of delinquency, to revoke or modify probation, to find a child not amenable to treatment, and court orders disposing of these petitions) are available to those with a “legitimate interest,” defined to include (but not limited) to foster parents and victims of a crime seeking to support a civil action against the minor or his/her guardians. Alaska Stat. §§ 47.12.300(e).