Restoration of Rights, Pardon, Expungement & Sealing
Last updated: August 17, 2017
I. Restoration of Civil/Firearms Rights
The right to vote is lost upon conviction of a felony, and automatically restored upon completion of sentence, including any term of probation or parole. Ark. Const. art. III, §§ 1 (lawful registration to vote required for electors), 2 (prohibiting restrictions on suffrage “except for the commission of a felony, upon lawful conviction thereof); amended by Ark. Const. art. 51, § 11(a)(4) (requiring city registrars to cancel the registration of voters “[w]ho have been convicted of a felony and have not discharged their sentence or been pardoned”). This provision applies to felony convictions from any jurisdiction. See Merritt v. Jones, 533 S.W.2d 497, 500 (Ark. 1976) (conviction from another jurisdiction is a “felony” if punishable in that jurisdiction by imprisonment in a penitentiary, or death).1
Arkansas law disqualifies from jury service those “who have been convicted of a felony and not pardoned.” Ark. Code Ann. § 16-31-102(a)(4). The Arkansas Constitution disqualifies anyone “convicted of embezzlement of public money, bribery, forgery or other infamous crime” from election to the General Assembly and holding any office of trust or profit in this State. Ark. Const. art. V, § 9. Infamous crimes “include elements of deceit and dishonesty.” Unlike the right to serve on a jury, a pardon does not restore eligibility to hold office, see State v. Oldner, 206 S.W.3d 818, 826 (Ark. 2005); Ridgeway v. Catlett, 379 S.W.2d 277 (Ark. 1964), which can be restored either through expungement process set forth in Ark. Code. Ann. §§ 16-93-301 et seq. (first-time felony offender probation and expungement), or a similar expungement statute from another jurisdiction. § 7-6-102(d); see Powers v. Bryant, 832 S.W. 2d 232 (1992) (coram nobis proceeding that declared conviction “null and void” meant person had not been “convicted” under art. 5, § 9); Tyler v. Shackleford, 799 S.W.2d 789, 790 (Ark. 1990) (same for convictions expunged under federal law). Sealing of a criminal record under the Comprehensive Criminal Record Sealing Act, Ark. Code Ann. § 16-90-1401 et. seq., also restores eligibility to hold office. See Haile v. Johnston, 2016 Ark. 52 (2016) (explaining that sealing under the CCRSA restored candidate for sheriff’s eligibility to hold office despite prior misdemeanor conviction and disqualification). See discussion in Part III, below.
No person convicted or adjudicated guilty of a felony (including suspended sentences and probation) may possess or own any firearm unless: 1) the person’s conviction is dismissed under § 16-93-301 et seq. (first offender) or § 16-98-303(g) (drug court) (see infra Part II B); 2) the person is granted a pardon expressly restoring the ability to possess a firearm; or 3) the governor accepts the recommendation of the chief law enforcement officer in the person’s residence to “restore” the ability to possess a firearm (available only if the underlying felony or adjudication did not involve a weapon and occurred more than 8 years ago). See Ark Code. Ann. § 5-73-103; see also Irvin v. State, 784 S.W.2d 763 (Ark. 1990) (under prior version of statute that made expungement mandatory, no prior conviction for purposes of statute despite fact that state officer had not completed ministerial duties necessary for expungement) .
II. Discretionary Restoration Mechanisms
A. Executive pardon
The governor has full clemency authority, except in cases of treason and impeachment, “under such rules and regulations as shall be prescribed by law.” Ark. Const. art. VI, § 18. By statute, all applications for clemency “shall be referred to the Parole Board for investigation.” Ark. Code Ann. § 16-93-204(a).2 The Parole Board “shall thereupon investigate each case and shall submit to the Governor its recommendation, a report of the investigation, and all other information the board may have regarding the applicant.” § 16-93-204(b). While the governor is thus required to seek the non-binding advice of the Parole Board, his own power does not depend upon receiving a favorable recommendation. Under Constitution, governor must report to legislature on all grants and give reasons. Ark. Const. art. VI, § 18. (Pending legislation requiring detailed reasons has stalled.)
Parole Board consists of seven full-time members appointed by governor to seven-year terms. Four constitutes a quorum. Grounds for removal for cause may not include any proper official action. Ark. Code Ann. § 16-93-201(a).
Only state offenders are eligible for a governor’s pardon, but there is no waiting period for in-state convictions.
Pardon restores jury eligibility but not right to hold public office. See Part I, Pardon removes conviction-related barriers to licensing and employment. Under state habitual offender statute, a pardoned conviction cannot be used to enhance a later sentence. Duncan v. State, 494 S.W. 2d 127 (1973).
Sealing follows automatically upon receipt of pardon for all but a few serious offenses: “The Governor shall notify the court upon issuing a pardon, and the court shall issue an order sealing the record of a conviction of the person pardoned.” Ark. Code Ann. § 16-90-1411(a)(1). Exceptions where victim under 18, sex offenses, and where death or serious physical injury results. § 16-90-1411(a)(3). For effect of sealing see below.
Pardon must specifically restore firearms privileges. The governor may separately restore firearms privileges, upon the recommendation of the chief law enforcement officer of the jurisdiction in which the convicted person resides, if the offense occurred more than eight years before and did not involve the use of a weapon. Ark. Code Ann. § 5-73-103(a)(1), (b), (d).
See http://www.paroleboard.arkansas.gov/. Policies and procedures are at http://www.paroleboard.arkansas.gov/clemency/pages/default.aspx. The application form is at http://www.paroleboard.arkansas.gov/Websites/parole/images/PardonApplication050415.pdf.
Before considering an application for pardon, Parole Board must request a (non-binding) recommendation of sentencing court, prosecuting attorney, and sheriff of county of conviction. Ark. Code Ann. §§ 5-4-607(d)(1);16-93-204(d)(1). (Notice to victim and solicitation of recommendation required only in connection with capital murder cases and class Y, A, and B felonies. § 16-93-204(d)(2).) Ordinarily no formal hearing is required in pardon cases. If a majority of Board votes to recommend pardon, sends written recommendation to governor. Board must give 30-days public notice of intention to make favorable recommendation to governor, and must also send notice to judge and prosecutor. § 16-93-204(e).
Before acting, governor must give 30 days notice (including statement of reasons) to Secretary of State, judge, prosecuting attorney, sheriff, and, if applicable, the victim. § 16-93-207(a)(1). A failure to give proper notice renders grant void. Id at (a)(2). If Governor does not act on a Board recommendation within 240 days, application deemed denied. If an application is denied by the Governor in writing, applicant must wait four years from time of original application before reapplying; if denial by inaction, applicant may reapply immediately. § 16-93-207(c).
Frequency of Grants
Pardons are processed by the Board at monthly hearings, and acted on by the governor on a regular basis. Since 2004, between 400 and 500 pardon applications have been received each year. See http://www.paroleboard.arkansas.gov/past-recommendations/. As of August 10, 2017, Governor Hutchinson had granted about 200 pardons since taking office in January 2015. See http://governor.arkansas.gov/clemency-extraditions. Governor Beebe (2007-2014) granted over 700 pardons during his tenure (many without restoring firearms, and some restoring firearms only). While sentence commutations in recent years have occasionally given rise to controversy and legislative limits on the pardon power, no similar concerns have been expressed about post-sentence pardons, with one conspicuous exception.3 In July of 2004, Governor Huckabee was reported to have pardoned a total of 567 persons in his eight years in office (1996-2004). See Bob McCord, “Huckabee’s Pardons,” Arkansas-Times (July 29, 2004), http://www.arktimes.com/arkansas/huckabees-pardons/Content?oid=948418. He granted another 200 pardons after that time.
|Year||Applications rec’d||Recommended fav.||Pardons Granted||Firearms only|
Counsel for Clemency and Corrections
Office of the Governor
B. Judicial sealing or expungement
Comprehensive Criminal Record Sealing Act of 2013
In 2013 the Arkansas legislature enacted an entirely new chapter of Title 16 of the Arkansas Code to simplify and reconcile its laws on sealing of criminal records. See Ark. Code Ann. § 16-90-1401, et seq. Effective January 1, 2014, the Comprehensive Criminal History Sealing Act of 2013 repealed a number of authorities for expungement and sealing of conviction records that had accumulated over 40 years.4 Certain authorities for non-conviction dispositions were left undisturbed, including the authority in § 16-93-314 authorizing dismissal of charges for first offenders granted probation, and diversionary dispositions (including deferred adjudication) for persons sentenced to probation, first felony offenders, and juveniles.5 The new sealing law is intended to supersede all other provisions for sealing of criminal records except under the Arkansas Drug Court Act, § 16-98-301, and those applicable to juvenile records under § 16-90-1403.
Conviction records: This law expanded slightly the classes of offenders eligible for sealing relief to include minor felony offenders: Class C and D felonies and certain drug convictions are now eligible for sealing after five years (if no more than one prior felony), § 16-90-1406; and, misdemeanor convictions are eligible for sealing immediately after completion of sentence, § 16-90-1405. Special provision for sealing certain drug convictions immediately upon completion of sentence are set forth in § 16-90-1407. Serious violent and sexual offenses are ineligible for sealing, as are motor vehicle violations committed by a holder of a commercial driver’s license. 16-90-1408.
Non-conviction records: A person may petition a district circuit court to have arrest records sealed if no charges are filed within one year, §16-19-1409, and records in which charges are dismissed or no conviction is obtained. 16-90-1410.
Pardoned offenses: § 16-90-1411. Certain serious offenses excepted even if pardoned.
Victims of human trafficking: See below.
Procedures for sealing are set forth in § 16-90-1413, and include filing a uniform petition, which must be served on the prosecuting attorney. A hearing will be scheduled in the case of misdemeanors only if the prosecutor objects, but must be scheduled in every case where felonies are concerned. Provisions on release of sealed records in certain circumstances are set forth in §16-90-1416 (to criminal justice agencies in case of application for employment, to courts and prosecutors).
Standards and Burden of proof
There is a presumption in favor of sealing in misdemeanor and violation cases (court “shall seal” the record unless the court “is presented with and finds that there is clear and convincing evidence that a misdemeanor or violation conviction should not be sealed”). § 1415(a). The court “may seal” the record of eligible felonies, including drug possession cases, “if the court finds by clear and convincing evidence that doing so would further the interests of justice,” considering certain factors related to the likelihood of recidivism (including the person’s other criminal history, the pendency of other charges, and input from the victim. §1415(b) and (c). The court “shall seal” the nonconviction records, including records of cases in which charges dismissed, unless it finds there is a public safety risk. § 1415(d). An appeal of the grant or denial of the petition to seal may be taken by either party. § 1415(f).
Effect of sealing
§ 16-90-1417: A person whose record has been sealed under this subchapter shall have all privileges and rights restored, and the record that has been sealed shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law. Sealing does not restore the right to carry a firearm if that right was removed as the result of a felony conviction. A sealed conviction “shall be deemed as a matter of law never to have occurred, and the person may state that the underlying conduct did not occur and that a record of the person that was sealed does not exist.” § 16-90-1417(b)(1). That notwithstanding, a sealed conviction may be used as a predicate and to enhance a subsequent sentence. Id. at (b)(2).
Deferred adjudication for first-time offenders
First-time offenders who plead guilty or nolo contendere are eligible for deferred adjudication under Ark. Code Ann. § 16-93-303. After successfully completing a period of probation, the defendant may be discharged without adjudication of guilt, the case may be dismissed and the record sealed pursuant to the Comprehensive Record Sealing Act of 2013. Ark. Code Ann. §§ 16-93-303 (b), 16-93-314 (b). Serious violent felonies and certain sex offenses are ineligible.
Human trafficking victims
A person convicted of a prostitution offense as a result of being a victim of human trafficking may petition for sealing at any time. Ark. Code Ann. § 16-90-1412. Sealing is mandatory so long as the court finds by a preponderance of the evidence that the conviction was the result of being a victim of human trafficking. In addition to restoring the individual’s rights in the manner specified above, the petitioner’s name is redacted from all records and files related to arrest and conviction.
Expungement available in only two situations:
Juvenile offenses: An individual who was convicted of a nonviolent felony committed when the individual was less than 18 years old may petition for expungement. Ark. Code Ann. § 16-90-602.
Drug court: Under Ark. Code Ann. § 16-98-303, each district may establish its own drug court. May be pre-adjudication or post-adjudication, and all but violent and sex offenses eligible. Upon successful completion, court may order expungement, with concurrence of prosecuting attorney, if after considering the offender’s past criminal history the judge feels expungement and dismissal of the case is appropriate. Court may also expunge a case from another Arkansas court, with the concurrence of that court. Burglary, breaking and entering, and fourth DUI are ineligible for expungement. § 16-98-303(g). Those convicted of or currently charged with violent felonies, and those required to register are sex offenders, are not eligible for drug court programs. § 16-98-303(c)(1).
C. Administrative certificate: N/A
III. Nondiscrimination in Licensing and Employment:
A. Criminal Offender Rehabilitation Act
“It is the policy of the State of Arkansas to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the assumption of the responsibilities of citizenship. The public is best protected when offenders are given the opportunity to secure employment or to engage in a meaningful trade, occupation, or profession.” Ark Code Ann. § 17-1-103(a). Licensing boards “may take into consideration conviction of certain crimes which have not been annulled, expunged, or pardoned. However, such convictions shall not operate as an automatic bar to registration, certification, or licensing for any trade, profession, or occupation.” § 17-1-103(b). Arrest records not leading to conviction, convictions that have been pardoned or expunged, and misdemeanor convictions (except misdemeanor sex offenses) may not be “used, distributed, or disseminated” in connection with an application for a license. § 17-1-103(b)(2). Completion of parole or probation supervision plus five years after release from prison will be “prima facie evidence of rehabilitation.” § 17-1-103(e).
Boards and agencies shall “state explicitly in writing the reasons for a decision which prohibits the applicant from practicing the trade, occupation, or profession if the decision is based in whole or in part on conviction of a felony.” § 17-1-103(c). Complaints are adjudicated under Arkansas APA. § 17-1-103(e). Does not apply to teacher licensure or certification, or nursing licensure and certification, which are governed by §§ 6-17-410 and 17-87- 312 respectively. § 17-1-103(g). Secretary of State must make section known to any affected agency. § 17-1-103(f)(2). See also Bolden v. Watt, 719 S.W.2d 428 (Ark. 1986) (criminal offender act benefits DWI offender seeking licensure as taxi driver, in spite of specific prohibition in taxi licensing law, since individual could be prevented from obtaining particular job because of direct connection between nature of conviction and job).
B. Teachers License
Ark. Code Ann. § 6-17-410 provides for revocation or denial of teaches license for conviction of a wide variety of crimes. However, under § 410(f)(2) the revocation provisions of subsection (c) of this section may be waived taking into account:
(A) The age at which the crime or incident was committed;
(B) The circumstances surrounding the crime or incident;
(C) The length of time since the crime or incident;
(D) Subsequent work history;
(E) Employment references;
(F) Character references; and
(G) Other evidence demonstrating that the applicant does not pose a threat to the health or safety of school children or school personnel.
C. Nursing license
Ark. Code Ann. § 17-87-312(g)(2) provides substantially the same scheme as for teachers.
D. Elder Care License
Ark Code Ann. § 20-33-213 imposes mandatory record checks, and § 20-38-105(b) bars licensure for wide variety of offenses for limited periods of time (five years for misdemeanors, ten years for felonies) as long as applicant has not been convicted in the meantime. § 20-38-105(d). Permanent disqualification for smaller group of violent offenses, including expunged convictions. § 20-38-105(c).
Ark. Code Ann. § 6-82-107: “A criminal conviction shall not be used as a basis to disqualify a person from eligibility for a scholarship, grant, loan forgiveness program, or other benefit subsidized by state funds under this chapter unless there is a specific statutory reason for denial that relates to the basis of assistance.”
- When Merrit was decided, Arkansas law defined a felony as a crime punishable by imprisonment in a penitentiary or death. Today, § 5-1-106 defines a felony as any crime so designated by statute.
- The Arkansas legislature reconstituted the Post Prison Transfer Board as the Parole Board in 2005, and made other modifications in parole and pardon policy. See Acts 1033, 85th Gen. Sess., 2005.
- The Board recommended that Governor Beebe pardon his son, who had been convicted of a minor marijuana offense in 2003, reasoning that the case was similar to others it had recommended favorably. See Lucy McCalmont, “Arkansas governor to pardon own son,” Politico (Nov. 13, 2014), http://www.politico.com/story/2014/11/arkansas-gov-mike-beebe-pardon-son-112857.html.
- See § 16-90-1401 (“The General Assembly recognizes that historically the laws of this state involving the procedure a person must follow to have his or her prior criminal history information sealed have been confusing, from the standpoint of both practicality and terminology. . . . It is the intent of the General Assembly to provide in clear terms in what instances and, if applicable, how a person may attempt to have his or her criminal history information sealed.”)
- See also the Community Punishment Act of 1993 (“Act 531”), Ark. Code Ann. § 16-93-1201 et seq.; First Offenders Act of 1975 (“Act 346”), Ark. Code Ann. § 16-93-314 (authorizing dismissal of charges after completion of probationary sentences); Ark. Code Ann. § 5-4-312 (authorizing the court to suspend any sentence to community corrections).