Restoration of Rights, Pardon, Expungement & Sealing
Last updated: August 4, 2017
I. Restoration of Civil/Firearms Rights
The right to vote “may be suspended” while a person is “under an order of imprisonment for conviction of a felony.” La. Const. art. I, § 10. This does not require actual imprisonment; disenfranchisement applies to people on parole, and also to probationers whose prison sentence was suspended. See Rosamond v. Alexander, 846 So. 2d 829 (La. App. 3d Cir. 2003). The Administrative Office for the U.S. Courts has taken the position that federal offenders on supervised release are entitled to register and vote.1
B. Office and Jury
As of January 2016, those with felony convictions are now eligible to run for elective office.2 Public officers are automatically removed following a felony conviction while holding office. La. R.S. § 42:1411. Under La. Code Crim. Proc. Ann. art. 401(A)(5), those convicted of or “under indictment” for a felony may not serve on a jury. See also State v. Baxter, 357 So. 2d 271 (La. 1978) (includes federal convictions).
C. Automatic Restoration of Rights
La. Const. art. I, § 20 provides that “[f]ull rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.” This provision restores the “basic rights” of citizenship (voting, holding office). See State v. Adams, 355 So. 2d 917, 921-22 (La. 1978) (“the ultimate language, ‘rights of citizenship,’ was adopted to make it clear that the drafters’ intent was to restore the customary rights a citizen may exercise (the rights to vote, work, hold public office, etc.) and not to erase automatically the fact of the conviction”). However, it does not restore firearms rights or other privileges. See, e.g., State v. Williams, 358 So. 2d 943 (La. 1978) (firearms rights not restored automatically upon completion of sentence); Williams v. Louisiana Bd. (Comm’n) of Alcoholic Beverages, 317 So. 2d 247 (La. App. 3d Cir. 1975) (same for liquor license). There is also caselaw holding that the general restoration authority in § 20 does not extend to jury service, e.g., State v. Haynes, 514 So. 2d 1206 (La. App. 2d Cir. 1987), but the reasoning of these cases does not account for § 20. See generally Helen Ginger Berrigan, Executive Clemency, First-Offender Pardons, Automatic Restoration of Rights, 62 La. L. Rev. 49 (2001).
D. First offender pardon
A first offender (defined in La. Rev. Stat. Ann. § 15:572(C) as a person “convicted within this state of a felony but never previously convicted of a felony” under federal law or the law of any state or country) “shall be pardoned automatically upon completion of his sentence without a recommendation of the Board of Pardons and without action by the governor.” La. Const. art. IV, § 5(E)(1); La. Rev. Stat. Ann. § 15:572(B)(1). Entitlement to first offender pardon for those eligible is guaranteed by the constitution and may not be infringed by statute. Op. La. Att’y Gen. No. 04-0080 (2005). Payment of court costs is not required. Id.
Applies to state convictions on or after January 1, 1975. Since a 1999 amendment to the Louisiana Constitution, first offender pardon is available only to persons convicted of “non-violent crime, or convicted of aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities.” La. Const. art. IV, § 5(E)(1) as amended by Acts 1999, No. 1398, § 1, approved Oct. 23, 1999, eff. Nov. 25, 1999. All others must apply for full pardon.
First offender pardon restores “all rights of citizenship and franchise,” La. Rev. Stat. Ann. § 15:572(D), but not the right to run for office, Touchet v. Broussard, 31 So.3d 986 (La. 2010), or privileges such as liquor license. See State v. Adams, 355 So. 2d 917 (La. 1978). Unlike a gubernatorial pardon, a first offender pardon does not preclude use of a conviction in subsequent prosecution or sentencing, see Touchet v. Broussard, 31 So. 3d at 993–94, or to disqualify for occupational licensing. Rev. Stat. Ann. § 15:572(E). It does not restore firearms rights. State v. Wiggins, 432 So. 2d 234 (La. 1983). Nor does it relieve of obligation to register as sex offender. La. Rev. Stat. Ann. § 15:572(B)(2).
A first offender pardon is not regarded as “full and unconditional” under federal immigration law for purposes of avoiding deportation, or demonstrating good moral character for naturalization. See Hang Thuy Nguyen v. USCIS, No. 16-30904 (5th Cir. Feb. 9, 2017) (in contrast to unconditional gubernatorial pardon, Louisiana’s automatic first offender pardon does not qualify as “full and unconditional” so as to enable petitioner to demonstrate good moral character for naturalization), http://www.ca5.uscourts.gov/opinions/pub/16/16-30904-CV0.pdf).)
Restriction on possessing firearms or carrying concealed weapons applies to any person convicted of a crime of violence, felony weapons or drug offense, or sex offense, and terminates ten years after completion of sentence so long as no other felony conviction occurs during that period. La. Rev. Stat. Ann. § 14:95.1(C). A governor’s pardon will restore firearms rights prior to the ten years, but a first offender pardon will not. Wiggins, supra, 432 So. 2d 234. The federal government takes the position, based on the holding in Caron v. United States, 524 U.S. 308 (1998), that a person who is ineligible for a concealed carry permit, as described in the paragraph below, is prohibited from possessing firearms under 18 U.S.C. § 922(g)(1). See Complaint filed in Lynch v. Lee, No. 3:16-cv-00089-BAJ-EWJ (M.D. La.)
Concealed carry permits: In addition, persons who have been convicted of, or pled guilty or nolo contendere to, a crime of violence or any crime punishable by a term of one year or more may not obtain a concealed carry permit. La. Rev. Stat. Ann. § 40:1379.3(C)(10). “A conviction, plea of guilty, or plea of nolo contendere under this Paragraph shall include an expungement of such conviction or a dismissal and conviction set-aside under the provisions of Code of Criminal Procedure Article 893.” Conviction of or plea to a misdemeanor crime of violence (as defined in R.S. 14:2) will result in loss of concealed carry privileges for five years after completion of sentence, unless the conviction was set aside and the prosecution dismissed. Persons convicted of federal counterfeiting or forgery charges under may obtain such a permit 15 years after completion of sentence. Id. However, a person who has been convicted of a violation of 18 U.S.C. § 491(a) shall be permitted to qualify for a concealed handgun permit if fifteen or more years has elapsed between the date of application and the successful completion or service of any sentence, deferred adjudication, or period of probation or parole. Id.
II. Discretionary Restoration Mechanisms
A. Executive pardon
“Upon favorable recommendation of the Board of Pardons,” the Governor may pardon “those convicted of offenses against the state.” La. Const. art. IV, § 5(E)(1); La. Rev. Stat. Ann. § 15:572(A). In 2012, Act 714 merged the functions and duties of the Board of Pardons and the Parole Board.
The Board consists of five appointees of the governor confirmed by the Senate, whose terms run concurrent with Governor’s, and one of which shall be chosen from a victims group. See http://doc.la.gov/quicklinks/pardon-board/ (providing general information on the Board of Pardons). The governor chooses the chair. Const. art. IV, § 5(E)(2); La. Rev. Stat. Ann. § 15:572.1. Any board action requires four favorable votes. La. Rev. Stat. Ann. § 15:572.1(e).
An applicant for pardon must have completed their sentence, including court costs. La. Rev. Stat. Ann. § 15:572(A); see Op. La. Att’y Gen. No. 04-0080 (2005). The Rules of the Louisiana Board are posted at http://doc.la.gov/quicklinks/pardon-board/rules. The Louisiana Supreme Court held in 2006 that a pardon issued by the governor of the state of Louisiana was sufficient to restore the right to hold a municipal or state office to one convicted of a federal felony offense. Malone v. Shyne, 937 So. 2d 343 (La. 2006). 3 See also 1978-79 Op. Att’y Gen. 103 (No. 79-787)(1980).
Where a convicted person receives a full executive pardon by the governor upon recommendation of the Board of Pardons (“Gold Seal” Pardon), he is restored to “status of innocence.” State v. Riser, 704 So. 2d 946 (La. App. 2 Cir. 1997). After a pardon, the conviction cannot be used to enhance punishment for a subsequent crime, though it may be used at trial to impeach. (By contrast, an automatic first offender pardon does not preclude use of the conviction in subsequent prosecution, or to disqualify for occupational licensing. See cases cited in Part I D.) A full pardon also is effective under federal immigration law to avoid deportation and to lift the bar to establishing good moral character for purposes of naturalization. See Hang Thuy Nguyen v. USCIS, supra.
See La. Rev. Stat. Ann. § 15:572.4. The Board meets at regularly scheduled dates, see Rule 1(A) of Board Rules at http://www.doc.la.gov/rules/. All applications must be made on the official form, posted at http://www.doc.la.gov/wp-content/uploads/2013/02/Clemency-Application-Feb-2013.pdf. “Before considering the application for pardon of any person, the board shall give written notice of the date and time at which the application will be heard and considered, at least thirty days prior to the hearing,” to the district attorney, the victim (if any), and any other person who has indicted an interest and has a legal right to present testimony. La. Rev. Stat. Ann. § 15:572.4(B)(1). In addition, the applicant must notify the district attorney and victims of his application, and place public notice in a newspaper on three separate days in a 30-day period. La. Rev. Stat. Ann. § 15:572.4(C). Information relating to a pardon request must be made available to the public. The district attorney, injured victim, spouse or next of kin, and any other persons who desire to do so shall be given a reasonable opportunity to attend the hearing, and both the district attorney and victim must be given an opportunity to respond to the application, either telephonically or in person. La. Rev. Stat. Ann. § 15:572.4(B)(2) and (3). See also Rule 6(C) of the Board Rules. No more than three persons may speak in favor of an application, and no more than three against. All actions of the Board require the favorable vote of at least four members of the Board. See Rule 1(C).
In recent years the legislature has erected more and more procedural barriers to pardon, generally permitting greater public scrutiny of the process, and making formal provisions for input by officials and victims. Because a favorable Board recommendation is necessary for the governor to act, recent amendments create obstacles to pardon. See generally Berrigan, supra.
Frequency of Grants
In addition to First Offender Pardons, the Board hears 20-25 cases of full pardon every two months, or about 120 cases annually, and historically has recommended favorably in about 40% of these. Dockets and decisions can be viewed at http://www.doc.la.gov/dockets-and-decisions/l. Governor Jindal issued 83 pardons during his 8 years in office, acting favorably on only 11% of the Board’s recommendations. Kevin Litten, Bobby Jindal grants pardon to 21 offenders, Times-Picayune, http://www.nola.com/politics/index.ssf/2016/01/bobby_jindal_grants_clemency_t.html (Jan. 6, 2016). Previous governors Blanco and Foster issued few pardons early in their terms, but ended by pardoning over 331 individuals (in four years) and 476 individuals (in eight years), respectively. Governor Edwin Edwards approved more than 3000 clemency recommendations in 16 years in office. See Michelle Milhollon, Governor Spurns Most Pardon Bids, The Advocate, Sept. 11, 2011, http://theadvocate.com/home/666536-79/governor-spurns-most-pardon-bids.html. If past is prologue in Louisiana, Governor Jindal should pick up the pace of his pardoning in his second term.
Board of Pardons
504 Mayflower St.
Baton Rouge, LA 70802
B. Judicial expungement or sealing
Until 2014, there was no provision for expungement or sealing of adult felony convictions in Louisiana. In May 2014, a comprehensive set of provisions for expunging criminal records was enacted as Chapter 34 of the Code of Criminal Procedure, and previous provisions for expunging nonconviction records (La. Rev. Stat. Ann. § 44:9) were repealed. See La. Code Crim. Proc. Ann. Ch. 34. Art. 971. The purpose of the new chapter is “to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.” Id.
Felony conviction records:
Article 978 provides for expungement of felony conviction records 10 years from completion of sentence so long as no convictions (either misdemeanor or felony) in intervening years and no pending charges. 978(A). Non-eligible offenses: violent offenses, crimes against minors, drug trafficking offenses (though mere possession with intent to distribute is eligible), and sex offenses (though expungement is available for conviction under pre-2001 statutory rape law if the offense would be a misdemeanor today). Certain controlled substance offenses are also ineligible. 978(B). May be granted only once every 15 years. 978(D).
Misdemeanor conviction records:
Article 977 provides that misdemeanors may be expunged at any time if set aside pursuant to deferred sentencing options provided under La. C. Cr. Proc. Arts. 893 and 894. They may also be expunged 5 years from the completion of sentence so long as the person has no felony convictions in the intervening years and no pending felony charges. Domestic abuse offenses (if not dismissed following set-aside) and sex offenses are not eligible for expungement. 977(C). Expungement of misdemeanor conviction records may be granted only once every five years, and only once every ten years in the case of a DUI conviction. 977(D).
Article 976 provides that records may be expunged at any time if the person was not prosecuted and prosecution is barred, the DA declined to prosecute, or if the proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.
Article 973 provides that persons with expunged records are not required to disclose the expunged arrest or conviction, or the fact that a record has been expunged. 973(C). Expunged records are not available to the public, but are available to law enforcement/prosecutors and to a number of licensing boards (mostly medical-related, but also the bar, social work, insurance, and other boards). 973(A), (B). Expunged records may be used as a predicate offense in recidivist schemes. 973(E). Expungement of a record does not relieve sex offender registration/reporting obligations. 973(H). Nor does expungement relieve handgun permit restrictions, though it does relieve firearm disabilities imposed as a result of a domestic battery abuse conviction. La. R.S. § 40:1379.3, 14:95.10.
Article 980 calls for “contradictory hearing” if the district attorney, Bureau of Criminal Identification and Information, or arresting agency object to a motion to expunge within 60 days after receiving notice from the clerk (though court may grant another 60 day extension). 980(A)(B). If there is an objection, a contradictory hearing is held at which the entity must show cause for denial by a preponderance standard. 980(E). Otherwise the court will grant if requirements are met.
Article 983 – Fees are capped at $550. 983(A)(B).4
No cost for expungement following acquittal, wrongful conviction, dismissal/non-charge (so long as district attorney consents), or in cases where juvenile has completed drug court.
Third party dissemination
Article 974 provides that a private entity “that compiles and disseminates criminal history information for compensation,” excluding news-gathering organizations, may not disseminate information on expunged records once they have received notice of the expungement from the affected person. 974(A). An action for damages is available against entities that violate this provision. 974(C). The provisions of this paragraph do not apply to private third-party credit reporting companies regulated by the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) or financial institutions regulated by Graham-Leach-Bliley Act (15 U.S.C. §6801 et seq.). La. Code Crim. Proc. Ann. Art. 974.
Expungement by redaction
Art 985 – If a record includes the name of more than one individual and one or more of the individuals is entitled to an expungement of an arrest or conviction, any individual entitled to an expungement may petition the court to have records related to the arrest or conviction of the individual expunged by redaction.
Interim expungement of felony arrest records resulting in misdemeanor conviction: Article 985.1 – Apart from the other expungement provisions, a felony arrest record can be expunged at any time if the arrest resulted in a misdemeanor conviction. Only the felony arrest record is expunged; the misdemeanor conviction record remains. There is no limit on the number of times this may be done.
2. Deferred Adjudication
Under Art. 893(A): “When it appears that the best interest of the public and of the defendant will be served,” the court may place certain offenders on probation, at the successful conclusion of which charges are dismissed. Expungement may then be sought under Section 44:9(A) or (B). See Art. 893(E)(3)(c) (“Dismissal under this Paragraph shall have the same effect as an acquittal for purposes of expungement under the provisions of [Art. 976] and may occur only once with respect to any person.”). Eligibility criteria are complex, but in general no more than one prior felony unless the prosecutor consents. The offense may still be used as a predicate offense. See also State v. Jones, 539 So. 2d 866 (La. App. 1989) (conviction expunged after completion of deferred adjudication probation could be considered for the purposes of the felon in possession charge). Sex offenses involving children, violent offenses, and serious drug trafficking offenses are not eligible for deferred sentencing. No expungement is available in the case of a suspended sentence. See State v. Oliver, 874 So.2d 365, 367-68 (La. App. 2004).
3. Juvenile Records
Immediately upon turning age 17, a person may apply to expunge non-adjudication records. Child Code Ann. art. 918(A). Upon a person’s motion to the court, misdemeanor adjudication records may be expunged only if two or more years have passed since satisfaction of the most recent judgment. Id. at (B). Felony adjudication records may only be expunged if the offense was not murder, a sex crime, kidnapping, or armed robbery; five or more years have elapsed since the satisfaction of the most recent judgment against the person; there are no subsequent convictions for a felony or misdemeanor involving a weapon; and there are no pending charges against the person. Id. at (C). If the court finds that grounds for expungement exist, it may order expungement. Id. at (F). Expungement results in destruction of records and prohibition against release of non-destroyable items; the person may deny any existence of the record, with certain exceptions. La. Child Code Ann. arts. 920–22.
C. Administrative Restoration
The Louisiana Bureau of Criminal Identification may purge records of individuals over 60 who have not been arrested for 15 years. La. Rev. Stat. Ann. § 15:586.
III. Nondiscrimination in Licensing and Employment
The Licensing for Ex-Offenders Act of 2017, La. Rev. Stat. § 37:31 through 36, is intended to facilitate licensing for convicted individuals. Originally enacted in 2014 to regulate only “provisional” licenses, it was amended in 2017 to remove the term “provisional” and apply to permanent licenses. It provides that a covered licensing entity “shall issue” a license to an “otherwise qualified” convicted individual. § 37:325, and specifies that a license issued to a covered individual may be revoked if the individual commits “a new felony” or violates the rules of the profession for which the license was issued. § 37:34. It does not require issuance of a license to any person convicted of a crime of violence or sex offense, or fraud if the licensed field of work is one in which the licensee owes a fiduciary duty to a client. § 37:36(A), (B). In addition, a licensing entity shall not be required to issue a license to an applicant whose conviction “directly relates” to the specific field or profession. § 37:36(C). “A license holder who supervises children or individuals who lack mental capacity shall not do so without another licensee in the room at all times.” § 37:36(D). A number of regulatory and employing agencies are exempted, including law enforcement, medical and nursing licensing boards, state bar association, financial regulation, education, state racing and athletic commissions, pharmacists, architects, embalmers and funeral directors, and state board of elementary and secondary education. § 37:36(E)(1). However, exempt licensing entities are required to record and report on the number of licenses issued or denied to an otherwise qualified convicted applicant, including all reasons for any such issuance or denial. “The entity shall provide the report annually to the House Committee on Commerce no later than February first of each year.” § 37:36(E)(3).
A more specific older provision dealing with “Criminal record effect on trade, occupational, and professional licensing,” provides that “a person may not be disqualified, or held ineligible to practice or engage in any licensed trade, occupation, or profession “solely because of” a prior criminal record unless it involves a conviction that “directly relates to the position of employment sought, or to the specific occupation, trade or profession for which the license, permit or certificate is sought.” La. Rev. Stat. Ann. § 37:2950(A).6 “Any decision which prohibits an applicant from engaging in the occupation, trade or profession for which the license, permit or certificate is sought, which is based in whole or in part on conviction of any crime . . . shall explicitly state in writing the reasons for the decision.” § 37:2950(B). Any complaints concerning violations of this section “shall be adjudicated in accordance with generally applicable procedures for administrative and judicial review.” § 37:2950(C). It exempts the same professions as the Licensing for Ex-Offenders Act, supra. See § 37:2950(D). Section 37:2950 does not overrule specific restrictions on certificates of employment such as those applicable to employees in the gaming industry under La. Rev. Stat. Ann. § 27:28. Eicher v. Louisiana State Police, Riverboat Gaming Enforcement Division, 710 So. 2d 799 (La. App. 1 Cir. 1998).
B. Negligent hiring protection
In 2014, R.S. 23:291(E) was enacted, protecting employers from negligent hiring and supervision liability in many claims based solely on an employee’s past criminal convictions. Exceptions apply if the employee’s actions are substantially related to the nature of past crimes, or if the employee was convicted of a specified crime of violence or sex offense.
C. Ban-the-box in public employment
Under a new law, HB 266, signed in June of 2016 and effective August 1, 2016, state employers may not inquire into the criminal history of applicants for “unclassified” state service positions until after the applicant has been interviewed for the position, or, if no interview is conducted, until the applicant is extended a conditional offer of employment. See La. Rev. Stat. Ann. § 42:1701 (added by Act No. 398 (2016)). The law does not apply to law enforcement or corrections positions or to positions “for which a criminal background check is required by law.” § 42:1701(D).
The law permits the consideration of an applicant’s criminal history once it is disclosed and provides that:
In considering the criminal history of the prospective employee, the state employer may consider the following:
1) The nature and gravity of the criminal conduct.
2) The time that has passed since the occurrence of the criminal conduct.
3) The specific duties and essential functions of the position and the bearing, if any, that the criminal conduct will have on the ability of the prospective employee to perform one or more of those duties or functions.
§ 42:1701(B). Effective July 2017, “classified” state service positions will also be covered by ban-the-box provisions adopted by the the State Civil Service Commission. See Civil Service Rule 22.4.1, available at http://www.civilservice.louisiana.gov/files/general_circulars/2017/GC2017-009.pdf; see also http://www.civilservice.louisiana.gov/files/commission_actions/2017/commact17-05.pdf (adopting proposed rule). Rule 22.4.1 provides as follows:
No state employer, when filling a position in the classified service, may inquire on an initial application form about a prospective employee’s felony criminal history unless it is for a position that has a legal restriction that prohibits employment due to a criminal conviction. However, during the candidate’s interview or after the candidate has been given a conditional offer of employment, the appointing authority or his or her designee may inquire about the candidate’s criminal history.
- 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. See Memorandum from Joe Gergits, Assistant General Counsel, AOUSC, October 31, 2008 (on file with authors).
- On January 27, 2016, the Louisiana Supreme Court overturned a 1997 amendment to the state constitution, La. Const. art. I § 10 (B) that barred those with felony convictions from holding elective office until 15 years after completion of sentence. The court held that the amendment had not been constitutionally adopted because, due to an error, the version of the amendment that was voted on by the public omitted provisions that had been approved by the legislature. See Shepherd v. Schedler, 209 So. 3d 752 (La. 2016), available at http://www.lasc.org/opinions/2016/15CA1750.opn.pdf; see also Janet McConnaughey, Associated Press, State high court overturns bar to felons running for office, The Advertiser, http://www.theadvertiser.com/story/news/local/louisiana/2016/01/28/state-high-court-overturns-bar-felons-running-office/79451184/ (Jan. 28, 2016).
- In holding that the phrase “offenses against the state” in art. IV, § 5 includes federal offenses, the court referred to “the historical practice of Louisiana governors to issue pardons to federal offenders. See La. Atty. Gen. Op. 103, 97-878 (3/13/80), which recites the fact that Louisiana governors issued 87 pardons to persons convicted of federal felonies in the 15 years preceding 1980.” 937 So. 2d at 351. Prior to the Shyne decision, the Board of Pardons had announced in 1996 and again in 2005 that it would no longer accept applications from federal offenders. See http://www.insurancejournal.com/magazines/editorsnote/2005/08/22/59579.htm.
Art. 983. Costs of expungement of a record; fees; collection; exemptions; disbursements
A. Except as provided for in Articles 894 and 984 of this Code, the total cost to obtain a court order expunging a record shall not exceed five hundred fifty dollars.
B. The nonrefundable processing fees for a court order expunging a record shall be as follows:
(1) The Louisiana Bureau of Criminal Identification and Information may charge a processing fee of two hundred fifty dollars for the expungement of any record of arrest when ordered to do so by the court in compliance with the provisions of this Title.
(2) The sheriff may charge a processing fee of fifty dollars for the expungement of any record of arrest when ordered to do so by the court in compliance with the provisions of this Title.
(3) The district attorney may charge a processing fee of fifty dollars for the expungement of any record of arrest when ordered to do so by the court in compliance with the provisions of this Title.
(4) The clerk of court may charge a processing fee not to exceed two hundred dollars to cover the clerk’s costs of the expungement.
- The law also specifies that the law should not be interpreted to limit the licensing entity’s discretion vis a vis individuals “not covered” by the law. § 37:33.
- Prior to 2012 amendment, only a felony could be disqualifying.