Restoration of Rights, Pardon, Expungement & Sealing
Last updated: November 14, 2017
I. Restoration of Civil/Firearms Rights
A. Civil Rights
Conviction of a felony suspends the right to vote, to hold office, and to sit on a jury. Ariz. Const. art. VII, § 2(C); Ariz. Rev. Stat. §§ 13-904(A)(1)-(3); 16-101(A)(5); 21-201(3). See also Ariz. Rev. Stat. § 14-5651(C)(3) (fiduciary, including court-appointed guardians and personal representatives unrelated to a decedent,). For a first felony offender (state or federal), civil rights, other than those pertaining to firearms, are automatically restored upon completion of the term of probation, or upon an unconditional discharge from imprisonment and upon completion of payment of any fine or restitution. Ariz. Rev. Stat. § 13-912.1 Repeat offenders, including federal offenders, must apply for judicial restoration or pardon (see II A and B, below). Out-of-state recidivists apparently must seek restoration in the jurisdiction of their conviction. See Flynn Patrick Carey, Extending the Home Court Advantage: A Call to Update the Arizona Civil Rights Restoration Scheme, 48 Az. L. Rev. 1129 (2006); see also State v. Prince, 226 Ariz. 516, 530, 250 P.3d 1145, 1159 (2011) (“a juror convicted of an out-of-state felony whose civil rights have not been restored is disqualified from jury service by § 21-201(3)”).
Conviction of a felony suspends “[t]he right to possess a gun or firearm.” Ariz. Rev. Stat. § 13-904(A)(5).2 Firearms rights may be regained by application to court, on a timetable that depends on the nature of the offense, or by pardon. See Ariz. Rev. Stat. § 13-904(C); Ariz. Admin. Code § R5-4-101(6) (2008).3 Persons convicted of a “dangerous offense” may regain firearms rights only through a pardon. See id.; see also Part II B infra. Out-of-state and federal offenders must seek relief from firearms disabilities in the jurisdiction of their conviction. See Carey, Extending the Home Court Advantage: A Call to Update the Arizona Civil Rights Restoration Scheme, supra, 48 Az. L. Rev. at 1148-49.
C. Other Collateral Consequences
Many of the collateral consequences of conviction applicable under Arizona law have been collected by the Law, Criminal Justice and Security Program of the University of Arizona Law School. See Kate Adamson et al., Collateral Consequences of Criminal Conviction in Arizona, The Law, Criminal Justice and Security Program, University of Arizona (2007), available at http://www.reentry.net/public2/library/attachment.139610. See also Part III, infra.
II. Discretionary Restoration Mechanisms
The governor has the authority to grant pardons “after conviction,” except in cases of treason or impeachment, “upon such conditions and with such restrictions and limitations as may be provided by law.” See Ariz. Const. art. V, § 5. The governor may not act except upon a favorable recommendation from the Board of Executive Clemency. See Ariz. Rev. Stat. § 31-402(A) (“no reprieve, commutation or pardon may be granted by the governor unless it has first been recommended by the [Board of Executive Clemency]”). The governor is required to publish reasons for each grant, and must report to legislature at the beginning of every regular session. Ariz. Rev. Stat. §§ 31-445, -446.
Board of Executive Clemency consists of five persons appointed by the Governor to five-year terms. Ariz. Rev. Stat. § 31-401 (effective September 28, 2012, governor will not be required to appoint a selection committee to develop candidate lists for vacancies on the Board). Chairperson selected by Governor. Id. § 31-401(F). Board members serve on a full-time basis, and must meet at least once a month. Id. § 31-401(B), (H). Three members constitute a quorum, except that the chairperson may designate two as a quorum. Id. § 31-401(I). The powers and duties of the Board are set forth in § 31-402. The Board’s website is at https://boec.az.gov/.
“Unless prohibited by law, an individual who was convicted of an Arizona felony offense may apply for a pardon.” Ariz. Admin. Code § R5-4-201(A). Persons convicted under federal law or convicted under the law of another state are ineligible for a Governor’s pardon. See id.
A state pardon “absolves an individual of the legal consequences of a crime for which the individual was convicted.” Ariz. Admin. Code § R5-4-101(6); 68 Ariz. Op. Att’y Gen. 17 (Aug. 19, 1968). In addition, a pardon is “an honor and a privilege that is reserved for those that have demonstrated crime free behavior for a period following a criminal conviction.” A pardon relieves most remaining legal disabilities and “sends a very powerful message to society that you have led a useful, productive, and law-abiding life following your conviction.” 68 Ariz. Op. Att’y Gen. 17. Pardon restores firearms rights only if specified in the pardon document (but firearms rights may be restored by the court, see Part I).
Board is required to meet at least once a month. Ariz. Rev. Stat § 31-401(H). An eligible individual “shall submit to the Board a completed application form obtained from the Board.” Ariz. Admin. Code § R5-4-201(B). The application form can be downloaded at https://boec.az.gov/sites/default/files/documents/files/Completed%20Pardon%20Application%20fillable%20rev.%20Jan.%209%202015.pdf. The Board, at its discretion, may require the applicant to submit additional information and documents. Id. § R5-4- 201(C). Prisoners may also apply for a pardon, and for such applications the Board will request that Arizona’s Department of Corrections review the application and verify whether the prisoner is eligible to apply. Id. § R5-4-201(D). Ariz. Rev. Stat. § 31-442 requires applicant to give notice of intention to apply for pardon to county attorney ten days before Board is to act, and (“unless dispensed with by the governor”) publication of that notice in a paper for a 30-day period in county of conviction. An earlier version of the Board’s website set forth the standards considered by the Board (including reasons for applying, efforts toward rehabilitation, and whether a person has been granted a set-aside by the court). It also stated that the pardon process “can be a lengthy process that takes effort on your part.”
“After receiving a complete application from an eligible applicant, the Board shall schedule a hearing and provide advanced written notice to the applicant of the date and location of the hearing.” Ariz. Admin. Code § R5-4-201(E). Board may require court of conviction and county attorney to provide facts proved at trial and any other facts that bear on propriety of granting or refusing pardon. Ariz. Rev. Stat § 31-441.
Under its regulations, Board is required to notify applicant within 10 work days of decision to deny or affirm recommendation for pardon to Governor. Ariz. Admin. Code § R5-4-201(E). “If the Board votes to recommend a pardon, the Presiding Officer shall designate a Board member to prepare and send to the governor a letter of recommendation. The letter of recommendation may include a statement of individual Board members’ reasons for voting to recommend a pardon. Board members who voted not to recommend a pardon may prepare and send letters of dissent to the governor.” Id. § R5-4-201(G). If denied by Board or governor, applicant may not reapply for three years. Id. § R5-4-201(I).
Frequency of Grants
There were very few pardon applications through mid-1980s, but those recommended by Board were generally granted. From 1988 through 2009, Arizona governors issued 55 pardons. Governor Jan Brewer (2009-2014) granted 12 pardons during her six year tenure, all during her final month in office. Source: Arizona Board of Executive Clemency; see also Bob Ortega, Arizona Prisoners Rarely Granted Clemency, The Republic, May 12, 2012, available at http://www.azcentral.com/news/articles/2012/04/12/20120412arizona-prison-clemency.html.4 Current Governor Doug Ducey has granted no pardons since taking office in 2015. During that year, the Board recommended just 3 pardons on 21 hearings. Annual Report 2015, Arizona Board of Executive Clemency, https://boec.az.gov/sites/default/files/documents/files/Annual%20Report%20PDF%202015.pdf.
Arizona Board of Executive Clemency
1645 West Jefferson, Suite 101
Phoenix, AZ 85007
Tel: (602) 542-5656
Fax: (602) 542-5680
B. Judicial restoration and set-aside
Judicial restoration of civil rights to repeat offenders
A person convicted under Arizona law of two or more felonies and sentenced to a term of imprisonment for the most recent offense may apply to have his civil rights restored by the sentencing judge two years after unconditional discharge from imprisonment. Ariz. Rev. Stat. §§ 13-906, 13-908. A repeat offender completing a term of probation may have his rights restored by the court that discharged him from probation. § 13-905(A). See also Ariz. R. Crim. P. 29.1. (“Prior to his or her absolute discharge, a probationer shall receive from his or her probation officer, or the court if there is no probation officer, a written notice of the opportunity to have his or her civil rights restored, to withdraw his or her plea of guilty or no contest, or to vacate his or her conviction.”). A person whose civil rights were lost by virtue of a federal felony conviction may apply for restoration of civil rights to the presiding judge of the superior court of his county of residence, but those sentenced to a term of imprisonment must first wait two years. Id. §§ 13-909(A), 13-910(A)-(B). There are no explicit provisions in Arizona law for restoration of any rights under Arizona law that may have been lost as a result of a felony conviction in another state. See id. §§ 13-904 et seq.; see also Carey, Extending the Home Court Advantage: A Call to Update the Arizona Civil Rights Restoration Scheme, supra, 48 Az. L. Rev. at 1148-49
Arizona law also permits all state offenders except those convicted of serious violent offenses, to have their convictions “set aside” or “vacated” by the sentencing court, and the charges against them dismissed, upon successful completion of probation or sentence and discharge. Ariz. Rev. Stat. § 13-907(A). Convicted persons are entitled to be informed of their “right” to a set-aside at the time of discharge. Id. See also Ariz. R. Crim. P. 29.1, supra, requiring notice to probationers at time of discharge of right to have conviction “vacated.” This relief restores all rights and generally releases the person “from all penalties and disabilities resulting from the conviction.” See Ariz. Rev. Stat. § 13-907(C). However, it does not eliminate the conviction, and thus does not relieve the offender from having to report the conviction if asked. Id. § 13-907; see also Russell v. Royal Maccabees Life Ins. Co., 974 P.2d 443, 449 (Ariz. Ct. App. 1999) (finding expungement does not obliterate the fact of conviction and offender must report conviction in application for insurance). The fact that a conviction is set aside or vacated does not release the person from certain motor vehicle restrictions, if applicable, and the conviction may still be used as a predicate offense in any subsequent prosecution. Ariz. Rev. Stat. § 13-907(C). Set-aside is unavailable to anyone convicted of a criminal offense involving the infliction of serious physical injury, the use of a deadly weapon or dangerous instrument, a victim less than 15 years old, certain traffic laws, or a violation of the state’s laws defining sexual offenses. Id. § 13-907(D). Set-aside does not relieve duty to register as sex-offender. See Ariz. Rev. Stat. § 13-3821; Ariz. Op. Atty. Gen. No. I00- 0300, 2000 WL 33156113 (Ariz. A.G. Dec. 18, 2000).
Human trafficking convictions may be vacated, do not serve as prior, and need not be reported unless fingerprint background check authorized. § 13-907.01 (E) and (F).
Restoration of firearms rights
The automatic restoration of civil rights provision for first offenders “does not apply to a person’s right to possess weapons as defined in Ariz. Rev. Stat. § 13-3101,” Ariz. Rev. Stat. § 13-912(B); instead, the first offender must make an application to the court pursuant to Ariz. Rev. Stat. §§ 13-905 (following discharge from probation) or 13-906 (at least two years following discharge from prison). Persons convicted of a “serious offense” (generally common law felonies, crimes against children, and sexual offenses) must wait ten years for restoration. § 13-906(C). Persons convicted of a “dangerous offense” (namely the discharge or use of a deadly weapon or the intentional infliction of serious physical injury upon another) are ineligible for judicial restoration, id., and may regain firearm rights only by pardon. See also Ariz. Const. art. V, § 5; Ariz. Rev. Stat. § 31-443; Ariz. Op. Atty. Gen. No. I79-305 (R79-155), 1979 WL 23372, *1 n.4 (Ariz. Atty Gen. Dec. 31,1979) (noting that governor’s pardon power is “in addition” to a restoration of rights under § 13-905). See also Ariz. Rev. Stat. § 13-912.01 (restoration for persons adjudicated delinquent upon completion of probation). For juveniles adjudicated delinquent, if the person’s adjudication was for a dangerous or serious offense, the person may not file for the restoration of the right to possess or carry a gun or firearm until the person attains thirty years of age. Id. § 13-912.01(C). If the person’s adjudication was for any other felony offense, the person may not file for the restoration of the right to possess or carry a gun or firearm for two years from the date of discharge. Id.
Non-conviction records may not be sealed or expunged, but may be amended to notate that a person has been cleared of any arrests or indictments that did not lead to conviction. Ariz. Rev. Stat. § 13-4051; State v. Mohajerin, 226 Ariz. 103, 108, 244 P.3d 107, 112 (Ariz. Ct. App. 2010) (noting § 13-4051 does “not authorize a person’s criminal records to be expunged or hidden from law enforcement officials”). To obtain relief, “a petitioner must demonstrate both that his arrest or charge was ‘wrongful’ and that justice requires the entry of a notation of clearance . . . .” Mohajerin, 226 Ariz. At One of the ways to meet this standard is to show the allegations against petitioner are false. Id.
Individuals 18 years of age and older may apply to have many juvenile delinquency or incorrigibility adjudications set aside upon discharge from probation or absolute discharge unless the individual has a subsequent criminal conviction, criminal proceedings pending, has not successfully completed terms of probation, has not been discharged from department of juvenile corrections upon completion of individual treatment plan, or has not paid all restitution or assessments. Ariz. Rev. Stat. § 8-348 (A), (C). This does not apply if the adjudication involved any of the following:
(1) infliction of serious injury; (2) the use or exhibition of a deadly weapon or dangerous instrument; (3) sexual offenses; (4) driving under the influence or with a suspended license; or (5) a civil traffic violation. Id. § 8-348 (D). May be used as a predicate in subsequent criminal proceeding. Id. §§ 8-207, 13-501.
Set-aside “relieves all penalties and disabilities from the adjudication,” with exceptions for those imposed by the Department of Transportation.
C. Administrative certificate: N/A
III. Nondiscrimination in licensing and employment
A person may not be disqualified from public employment “solely because of a prior conviction for a felony or misdemeanor,” nor may a person “whose civil rights have been restored” be disqualified from an occupation for which a license is required “solely because of” a prior conviction. Ariz. Rev. Stat. § 13-904(E). A person may be disqualified from public employment or denied a license by reason of conviction only if “the offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.” Id.5 Subsection (E) does not apply to positions in law enforcement. Id. § 13-904(F). Any complaints concerning a violation of this subsection shall be adjudicated in accordance with the Arizona administrative procedures act, including judicial review. Id. § 13-904(G). See also Rehabilitating the Ex-felon: Impact of Arizona’s pardons and civil rights restoration statutes, Law & Soc. Ord., 1971, p. 793. No provisions governing private employment.
Ban-the-box in state hiring
In November 2017, Governor Doug Ducey issued Executive Order 2017-7 (https://azgovernor.gov/sites/default/files/related-docs/boxeo.pdf), limiting inquiries into criminal history in state hiring. The Order requires the Department of Administration to “establish hiring procedures to be used by all State Agencies” that prohibit asking about criminal records during the “initial stage of an application process,” and prohibit disqualifying an applicant from receiving an interview because of a criminal record. “State Agency” is defined at Ariz. Rev. State. § 41-741(15) as
a department, board, office, authority, commission or other governmental budget unit of this state and includes an agency assigned to a department for administrative purposes. State agency does not include the legislative and judicial branches, the Arizona board of regents, state universities, the Arizona state schools for the deaf and the blind, the department of public safety, the Arizona peace officer standards and training board, the cotton research and protection council or public corporations.
The Order does not apply to, “(i) state governmental units that are not included in A.R.S. § 41-741(15) and (ii) one or more offices headed by one or more statewide elected officials.” However, those excluded agencies “are encouraged, along with private employers operating in Arizona, to adopt similar Second Chance Box Policies.”
The Order also does not apply to positions “where a state or federal law prohibits a person from holding a job due to prior criminal conduct.”
Licensing schemes have been interpreted to incorporate the standards of Ariz. Rev. Stat. § 13-904(E). See, e.g., Curtis v. Richardson, 212 Ariz. 308, 131 P. 3d 480 (Ariz. Ct. App. 2006) (felony conviction for possession of illegal drugs was “reasonably related” to the functions of a real estate salesperson, since the real estate industry places heavy reliance not only on an agent’s competence, honesty, and financial integrity, but also on how the person represents the industry).
Statutes governing the operation of licensing boards are variously worded. See, e.g., Cosmetology, Ariz. Rev. Stat. § 32-572(B) (“conviction of a crime or act shall not be a cause of refusal to issue or renew a license unless the crime or act is substantially related to the qualifications, functions or duties of the license for which application is made”); Nursing, id. § 32-1632(2) (“absolute discharge from the sentences for all felony convictions five or more years before the date of filing an application”); Physician’s Assistant, id. § 32- 2507(A)(1), (2) (requiring public profile describing conviction of a felony or a misdemeanor, or charges to which licensee pled no contest, involving moral turpitude within the last five years); Real Estate, id. § 32-2153(B) (denial of license for “a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense”); Pest Control, id. § 32-2312(D) (“felony conviction may demonstrate a lack of good moral character”); Funeral Services, id. § 32-1301(27)(a), (b) (“Good moral character” means that a person has not been convicted of a class 1 or 2 felony, or “has not, within five years of application for licensure or registration, been convicted of a felony or misdemeanor if the offense has a reasonable relationship to the person’s proposed area of licensure or registration”). See also Pharmacists, Ariz. Rev. Stat. § 32-1927(A)(1) (under 2005 amendment, specific reference to conviction was replaced by “unprofessional conduct” as basis for discipline; however, § 32-1901.01(B)(8) defines “unprofessional conduct” to include “[c]omitting a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude or any drug related offense”).
- The ACLU challenged the obligation to satisfy financial obligations before re-enfranchisement under the 14th and 24th Amendments in Coronado v. Napolitano, No. 08-17567 (9th Cir.). Coronado was consolidated with Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010). In Harvey, the Ninth Circuit upheld the statute finding it neither violated the U.S. Constitution’s Equal Protection Clause, the bar against poll taxes in the 24th Amendment, or the Privileges or Immunities Clause nor the Arizona Constitution’s Privileges or Immunities and Free and Equal Elections Clauses. Id. at 1078-80. For an analysis of the impact of fees, fines, and restitution on felony disenfranchisement see Erika Wood & Neema Trevedi, The Modern Day Poll Tax: How Economic Sanctions Block Access to the Polls, 41 Clearinghouse Rev., 30 (May-June 2007), available at http://brennan.3cdn.net/c82128f55efee5440d_g8m6btpex.pdf.
- Prior to 1994, Arizona law suspended firearms rights only for persons “convicted . . . of a felony involving violence or possession and use of a deadly weapon or dangerous instrument and whose civil rights have not been restored.” See Ariz. Rev. Stat. §§ 13-904, 13-3101 (1991). In 1994, Section 13-904 was amended to add “the right to possess a gun or firearm” to the list of civil rights automatically suspended by a felony conviction. The stricter 1994 law, which did not specifically address the issue of retroactivity, has been held by Arizona state courts to apply to persons who were convicted before its passage but whose right to restoration vested after its passage. See State v. Olvera, 191 Ariz. 75, 952 P.2d 313 (Ariz. Ct.App. 1997) (finding amendment to Ariz. Rev. Stat. § 13-904 merely changed defendant’s status to a “prohibited possessor felon” under Ariz. Rev. Stat. § 13-3101 and did not amount to punishment for earlier convictions, therefore defendant’s right to be free from ex post facto laws was not violated); State v. Gallegos, No. 1 CA-CR 07-0633, 2008 WL 3892039 (Ariz. Ct. App. May 13, 2008) (finding that amendments to Ariz. Rev. Stat. §§ 13-904, 13-3101 applied to defendant because his right to apply for restoration did not vest until he completed his probation, which occurred after the 1994 amendments). Federal courts in Arizona do not necessarily disagree, although when a defendant’s rights have vested and been restored (i.e., pre- or post-1994) appears to be a key factor. In both United States v. Simpson, 442 F.3d 737, 740-41 (9th Cir. 2006) and U.S. v. Meza-Corrales, 183 F.3d 1116, 1129-30 (9th Cir. 1999), the Ninth Circuit found that where a felon’s right to restoration had vested and rights had already been restored prior to the 1994 amendments, Ariz. Rev. Stat. §§ 13-904 and 13-3101 did not restrict a past felon’s right to possess firearms and, therefore, the defendant could not be convicted as a felon in possession under 18 U.S.C. § 922(g). Indeed, the Meza-Corrales court, relying on Olvera, opined that Arizona courts had not interpreted Ariz. Rev. Stat. § 13-904 to restrict a past felon’s right to possess firearms where his civil rights had otherwise been fully restored. See Meza-Corrales, 183 F.3d at 1129-30, n.6.
- Defining “pardon” as “an action by the governor that absolves an individual of the legal consequences of a crime for which the individual was convicted.”
- The governor approves even fewer commutation applications. Under Board requirements, prison inmates can apply for commutation once they have served two years of their sentence and are not within one year of their parole eligibility/mandatory release date for sentences more than three years. Exceptions are special orders of the court under § 13- 603L requesting the Board entertain an inmate petition within 90 days of admission, sentences of three years or less, and imminent danger of death petitions. See https://boec.az.gov/sites/default/files/documents/files/Revised%20Commutation%20App%20May%2025%202016_1.pdf. In 2003 and 2004, the Board reviewed over 400 commutation applications each year, and forwarded 40 and 32 petitions respectively to the Governor’s Office with favorable recommendations. The Governor approved three commutations in 2003 and one in 2004. See generally Amanda J. Crawford and Ryan Konig, Clemency voice goes unheeded: Board’s advice on sentences largely ignored by governor, The Arizona Republic, May 22, 2005. Since 1988, no Arizona governor has commuted a death sentence. In the 31 executions since 1992, the Board has never recommended a commutation. Bob Ortega, Arizona Prisoners Rarely Granted Clemency, supra, at http://www.azcentral.com/news/articles/2012/04/12/20120412arizona-prison-clemency.html. Up until 1993, fewer than 60 inmates a year, on average, applied for commutation. See id. In 1993, Arizona adopted so-called “truth in sentencing” laws, which more or less abolished parole. Under these laws, offenders must serve at least 85% of their sentence before becoming eligible for community supervision. Some felonies require 100% of the sentence be served. Along with mandatory sentencing minimums, these laws have made commutation the only avenue for most offenders to seek a reduced sentence. See id. As a result, in recent years commutation applications have skyrocketed—applications soared to more than 1,200 in 2005. Id. From April 1988 to May 2012, only 104 commutations were granted by Arizona governors. Id. Of the 24 commutations granted by Governor Brewer, 19 were “imminent danger or death” cases. Id. Board continues to recommend between 6% and 12% favorably despite the governor’s continued declination to grant more than a handful. Source: Arizona Board of Executive Clemency. Note that “any recommendation for commutation that is made unanimously by the members present and voting and that is not acted on by the governor within ninety days after the board submits its recommendation to the governor automatically becomes effective.” Ariz. Rev. Stat. § 31-402(D).
- Section 13-904(E) provides:
A person shall not be disqualified from employment by this state or any of its agencies or political subdivisions, nor shall a person whose civil rights have been restored be disqualified to engage in any occupation for which a license, permit or certificate is required to be issued by this state solely because of a prior conviction for a felony or misdemeanor within or without this state. A person may be denied employment by this state or any of its agencies or political subdivisions or a person who has had his civil rights restored may be denied a license, permit or certificate to engage in an occupation by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.