Restoration of Rights, Pardon, Expungement & Sealing
Last updated: August 6, 2017
I. Restoration of Civil/Firearms Rights
A. Civil Rights
A “sentence of custody to the Idaho state board of correction” following a felony conviction “suspends all the civil rights of the person so sentenced, including the right to refuse treatment authorized by the sentencing court, and forfeits all public offices and all private trusts, authority or power during such imprisonment.” Idaho Code Ann. § 18-310(1). A suspended sentence also results in loss of right to vote. Id. (any such person “may lawfully exercise all civil rights that are not political during any period of parole or probation”). Civil rights are restored upon final discharge of sentence. § 18-310(2) (“final discharge” means satisfactory completion of imprisonment, probation and parole as the case may be). The civil rights of those convicted in other jurisdictions may be restored on the same terms. § 18-310(4). The Administrative Office for U.S. Courts has taken the position that federal offenders on supervised release are entitled to register and vote.1
A felony conviction results in the loss of firearms rights only during the period of sentence, with the exception of specified serious violent crimes. Idaho Code Ann. §§ 18-310(1), (2). For those crimes, firearms rights may be restored by application to the Idaho Commission for Pardons and Parole five years after the date of final discharge. § 18-310(3). See also § 18-3316(4) (firearms rights restored if a person’s “conviction has been nullified by expungement, pardon, setting aside the conviction or other comparable procedure by the jurisdiction where the felony conviction occurred; or whose civil right to bear arms either specifically or in combination with other civil rights has been restored by any other provision of Idaho law.”).
II. Discretionary Restoration Mechanisms:
A. Executive Pardon
The Idaho Constitution empowers legislature to create a board to grant pardons. Idaho Const. art. IV, § 7. This board (Idaho Commission for Pardons and Parole) has authority to grant pardons, except in cases of treason and impeachment, subject to legislative limitations on its power and manner of proceeding. Idaho Const. art. IV, § 7; Idaho Code Ann. §§ 20-210, 20-240.2 The governor has constitutional power to grant reprieves or respites, except in the case of treason or imprisonment on impeachment. In addition, by law the governor must approve the Commission’s recommendation in cases of murder, voluntary manslaughter, rape, kidnapping, lewd and lascivious conduct with a minor child, or manufacture or delivery of a controlled substance, before the pardon becomes effective. In such cases, the Commission’s decision constitutes a recommendation to the governor. Idaho Code Ann. § 20-240.
Idaho Commission for Pardons and Parole is composed of five members appointed by the governor, with advice and consent of Senate, for three-year terms; no more than three may be from the same party. Commission members may be removed by the governor for any reason. The governor also appoints the Executive Director of the Commission, who is a full-time employee of the Commission. Idaho Code Ann. § 20-210.
For non-violent offenses (both felony and misdemeanor), individuals are eligible for pardon three years after completion of the sentence. For violent and sex offenders, individuals are eligible for pardon five years after completion of the sentence. See Rules of the Commission of Pardons & Paroles, Idaho Admin. Code 50.01.01 § 550.01 (hereafter Board Rules), available at http://adminrules.idaho.gov/rules/current/50/0101.pdf. Only persons convicted under Idaho law are eligible for a state pardon. See Idaho Const. art. IV, § 7.
A pardon relieves welfare and employment disabilities imposed by state law or administrative regulation, e.g., health care provider, school bus driver. Standlee v. State, 538 P.2d 778, 781 (Idaho 1975) (a pardon “does away with both the punishment and the effects of a finding of guilt”). However, an Idaho pardon does not “expunge” the conviction, as that term has been defined by federal courts for purposes of the U.S. sentencing guidelines. See United States v. Bays, 589 F.3d 1035, 1037-40 (9th Cir. 2009).
Article IV, Section 7 of the Idaho Constitution provides that no pardon shall be granted
“. . . except by the decision of a majority of said board, after a full hearing in open session, and until previous notice of the time and place of such hearing and the release applied for shall have been given by publication in some newspaper of general circulation at least once a week for four weeks. The proceedings and decision of the board shall be reduced to writing and with their reasons for their action in each case, and the dissent of any member who may disagree, signed by him, and filed, with all papers used upon the hearing, in the office of the secretary of state.”
Idaho Const. art. IV, § 7. All written material (except pre-sentence report and victim info) relating to the application becomes a matter of public record, including dissents, and are available from Secretary of State. See Board Rules, supra, § 550.04(e)(i)-(ii).
The pardon application form is available at https://parole.idaho.gov/pardonsinfoandapppage.html. Completed applications submitted to the Commission of Pardons and Parole are assigned for investigation to a parole officer in area where the applicant resides, who inquires into criminal history, reputation in the neighborhood, employment, and makes a recommendation to Commission. Id.; see also Board Rules, supra, § 550.02(b). The Commission decides in executive session whether to convene as a Pardon Board for a hearing. See Rules of the Commission of Pardons & Paroles, § 550.03. If a hearing is granted, notice must be published pursuant to constitutional requirement, supra, and prosecutor and victims also notified so they may participate. See Board Rules, supra, § 550.04. Information on hearing schedules can be found at https://parole.idaho.gov/hearingschedules.html.
In cases where the governor retains final authority to pardon, the Commission conducts the same full hearing and makes written recommendation to the governor; if no action is taken within 30 days, the application is deemed denied. See Board Rules, supra, § 550.05.
Idaho Code Ann. §§ 18-310(3), (2). A person whose gun rights are not restored automatically (see Part I) may apply to the Commission five years after final discharge. Persons convicted of murder or whose sentence was enhanced for the use of a firearm during the commission of a felony are ineligible.
Frequency of Grants
Since 2009, the number of applications for pardon annually has more than doubled, to 30-40 per year. Between 25% and 50% of these are granted by the Board.
|Year||Eligible petitions received||Hearings granted/held||Pardon granted|
Idaho Commission of Pardons and Parole
3056 Elder St.
Boise, Idaho 83705
(208) 334-2520 ext. 229
B. Judicial sealing or expungement
Knockdown of felony to misdemeanor
Between 2006 and 2014 Idaho gradually expanded its statute authorizing downgrading of offenses after successful completion of probation. What began as a drug court program is now a comprehensive program applicable to any misdemeanor or felony offender qualifying for deferred sentencing or who has not been sentenced to a prison or jail term. See Idaho Code § 19-2604. A 2013 provision permits a defendant who has been convicted of a felony and who has been discharged from probation to apply to the sentencing court for a reduction of the conviction from a felony to a misdemeanor, if less than five (5) years have elapsed since the defendant’s discharge from probation, and the prosecuting attorney stipulates to the reduction; or if at least five (5) years have elapsed since the defendant’s discharge from probation. If the defendant was convicted of a list of serious violent offenses, the application may be granted only if the prosecuting attorney stipulates to the reduction. § 2604(3). The application may be granted only if the court finds that the applicant has been convicted of no further felony, is not currently charged with any crime, and “there is good cause for granting the reduction in sentence.” This authority does not apply to anyone required to register as a sex offender. A violation of the terms of an agreement of supervision with the board of correction “shall not preclude the granting of relief to that person under this section.”
Deferred Adjudication/Suspended Sentences
Idaho Code Ann. § 19-2601(3) authorizes any Idaho state district court, in any case except treason and murder, to withhold judgment “on such terms and for such time as it may prescribe,” and place the individual on probation. See also 19-2601(4) (suspension of sentence). Upon successful completion of probation, the court may allow the defendant to change his or her plea to not guilty, “set aside” the conviction, and dismiss the charges. § 19-2604(1). The dismissal “shall have the effect of restoring the defendant to his civil rights,” including firearms rights. Id. “Where a judgment has been vacated under this statute [Section 19-2604], ‘it is a nullity, and the effect is as if it had never been rendered at all,’ and there are no limits or conditions on the rights defendant regains.” State v. Parkinson, 172 P.3d 1100, 1103 (Idaho 2007) (quoting Manners v. Bd. of Veterinary Med., 694 P.2d 1298, 1300 (Idaho 1985) (quoting State v. Barwick, 483 P.2d 670, 674 (Idaho 1971))), overruled on other grounds, Verska v. St. Alphonsus Reg’l Med. Ctr., 265 P.3d 502 (Idaho 2011).
However, the statute does not authorize the complete expungement of all records and references to the charge. See Idaho Code Ann. § 19-2604(1); Parkinson, 172 P.3d at 1103 (finding that Section 19-2604 “does not require or authorize the complete expungement of all records and references to the charge”). This statute does not apply to any offense requiring sex offender registration. § 2604(3).
A person whose DUI charge was dismissed pursuant to this section, but whose conviction was not set aside, is considered a person previously found guilty of DUI for purposes of the penalty-enhancing statute (Idaho Code Ann. § 18-8005(4)) applicable to repeat DUI offenders. State v. Deitz, 819 P.2d 1155, 1157-58 (Idaho Ct. App. 1991); see also State v. Reed, 243 P.3d 1089, 1090-92 (Idaho Ct. App. 2010) (DUI charge dismissed under Section 19-2604(1) can be considered for purposes of penalty-enhancing statute even when the court order dismissing the first conviction stated that the plea was “unconditionally withdrawn” and “deemed as though it had never been tendered to or accepted by” the court).
Expungement of juvenile adjudications is governed by Idaho Code Ann. § 20-525A, which provides that juveniles may petition the court for expungement after a waiting period, with certain serious violent offenses excepted. For felonies, eligibility begins the latest of reaching age 18, five years after release, or five years after the end of the juvenile court’s jurisdiction. § 525A(1). For misdemeanors, eligibility is the later of one year after the end of the juvenile court’s jurisdiction or reaching age 18. §§ 525A(2), (A)(3). Following a hearing, the court shall grant the juvenile’s expungement petition if it finds that the juvenile has been held accountable, is a contributing member of society, and expungement will not risk public safety. § 525A(5). If the expungement request is granted, all records are sealed and removed from public access, and the juvenile may deny the existence of any record. Id.3
Idaho law makes no provision for limiting access to non-conviction records except for unreturned arrest records. See C.A.R. Rule 32.
Idaho Code Ann. § 18-8310: Sex offenders (other than recidivists, offenders convicted of an aggravated offense, or offenders designated as violent sexual predators) may petition court after ten years of law-abiding conduct for “expungement” from sex offender registry. See also § 2604(3) (sex offenders ineligible for deferred adjudication and set-aside).
III. Nondiscrimination in Licensing and Employment
Idaho has no general law regulating consideration of conviction in employment or licensure. It does apply a direct relationship test in connection with licensure as a veterinarian. See Idaho Code Ann. § 54-2103(23) (“In good standing” means that an applicant: (e) Has not been convicted of a felony . . .; and (f) Has no criminal conviction record or pending criminal charge relating to an offense the circumstances of which substantially relate to the practice of veterinary medicine”). See also § 54-923 (dental professional’s certificate or qualification to practice may be revoked if convicted of felony or certain misdemeanors, even if conviction occurred before certified/qualified); § 54-2012 (past convictions of felonies or certain misdemeanors considered in connection with licensure of real estate salesperson or broker); § 19-5109(9) (certification/training of peace officers); id. § 23-910(1)(selling liquor); § 26-31-207(1)(d) (mortgage brokers); § 33-1202(4) & 1204 & 1208 (teachers); §54-1510(3)(optometrists); §69-504(6) (commodity dealers).
- In an opinion dated October 31, 2008, the General Counsel, Administrative Office for U.S. Courts, opined that federal supervised release, as a penalty imposed separately from a prison sentence, is analogous to probation as opposed to parole. (On file with author.)
- The state constitution originally provided for a Board of Pardons composed of the Governor, the Attorney General, and the Secretary of State. In 1945 the Constitution was amended to give the legislature power to create a pardoning board. See Idaho Const. art. IV, § 7.
- §525A(5) provides in part:
“If the court finds after hearing that the petitioner has not been adjudicated as a juvenile offender for any [ineligible offence] . . . and that no proceeding involving such felony or misdemeanor is pending or being instituted against him, and if the court further finds to its satisfaction that the petitioner has been held accountable, is developing life skills necessary to become a contributing member of the community and that the expungement of the petitioner’s record will not compromise public safety, it shall order all records in the petitioner’s case in the custody of the court and all such records, including law enforcement investigatory reports and fingerprint records, in the custody of any other agency or official sealed; and shall further order all references to said adjudication, diversion or informal adjustment removed from all indices and from all other records available to the public. However, a special index of the expungement proceedings and records shall be kept by the court ordering expungement, which index shall not be available to the public and shall be revealed only upon order of a court of competent jurisdiction. Copies of the order shall be sent to each agency or official named in the order. Upon the entry of the order the proceedings in the petitioner’s case shall be deemed never to have occurred and the petitioner may properly reply accordingly upon any inquiry in the matter. Inspection of the records may thereafter be permitted only by the court upon petition by the person who is the subject of the records or by any other court of competent jurisdiction, and only to persons named in the petition.”