Restoration of Rights, Pardon, Expungement & Sealing
Last updated: September 3, 2017
I. Restoration of Civil/Firearms Rights
Disenfranchisement occurs only upon conviction of one of the crimes listed in the Mississippi Constitution as disqualifying. See Miss. Const. art. 12, § 241 (murder, rape, bribery, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy). Most statutory offenses involving an unlawful taking of property are disqualifying. See Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998).1 The right to vote, if lost, may be regained only by pardon, or by a two-thirds vote of legislature. Miss. Const. art. 5, § 124 (executive’s power to pardon limited in cases of treason and impeachment); art. 12, § 253.2
Only convictions obtained in Mississippi state courts are disqualifying. See Middleton v. Evers, 515 So.2d 940, 944 (Miss. 1987) (disqualification not applicable if person was convicted in another state); Op. Miss. Atty.Gen. No. 2005-0193 (Wiggins, April 26, 2005). The Mississippi Attorney General’s office advises that only felony convictions are disqualifying. See McLaughlin v. City of Canton, 947 F.Supp. 954 (S.D. Miss. 1995) (misdemeanor “false pretenses” conviction does not constitute a conviction for fraud within the constitution, and is thereby not disqualifying; equal protection issues discussed in dicta).3
B. Jury and Office
Persons convicted of an “infamous crime,” defined as an offense “punished with death or confinement in penitentiary,” are ineligible for jury service. See Miss. Code Ann. §§ 13-5-1; 1-3-19. Jury eligibility is restored five years after conviction, provided the person is a qualified elector. § 13-5-1.
The right to hold office is lost upon conviction of certain felonies, and restored only by pardon. Miss. Const. art. 4, § 44(1)-(3); Miss. Code Ann. § 99-19-35 (“A person convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement, or bigamy, shall not be allowed to practice medicine or dentistry, or be appointed to hold or perform the duties of any office of profit, trust, or honor, unless after full pardon for the same.”). A person convicted in another state, or in federal court would not fall within the scope of this prohibition. State ex rel. Mitchell v. McDonald, 145 So. 508 (Miss. 1933); Op. Miss. Att’y Gen., 1990 WL 547896 (Harris, Aug. 29, 1990).
Persons convicted of a felony may not possess a firearm unless pardoned, granted federal relief under 18 U.S.C. § 925(c), or granted a “certificate of rehabilitation” by a court. See Miss. Code Ann. § 97-37-5(1), discussed in Part II, infra.
II. Discretionary Restoration Mechanisms:
A. Executive pardon
The governor has full clemency authority in all criminal cases (except treason and impeachment), subject to rules and regulations prescribed by law. Miss. Const. art. 5, § 124. Mississippi law gives the Parole Board “exclusive responsibility” for investigating pardon cases at the governor’s request. Miss. Code Ann. § 47-7-5(3). See also § 47-7-31. The Board is composed of five full-time salaried members appointed by the governor, who also appoints the chair. § 47-7-5(1). The Board reports annually to the governor and legislature. § 47-7-15.
According to the Governor’s Office, informal policy requires applicants to wait seven years after the completion of sentence. Federal and out-of-state offenders are not eligible for a state pardon.
Pardon restores civil rights and removes employment disabilities, including gun rights. Legislative relief does not restore gun rights. Statutes barring convicted people from jobs in education and health care give specific effect to pardon. See, e.g., Miss. Code Ann. §§ 37-9-17(3) (teachers and school administrators); 37-29-232(3) (admission to health care professional training program). See also 45-33-47(4) (pardon relieves obligation to register as sex offender). A pardon does not expunge a conviction. See Hentz v. Mississippi, 152 So. 3d 1139 (Miss. 2014), http://law.justia.com/cases/mississippi/supreme-court/2014/2013-ca-01217-sct.html.
Under the Mississippi Constitution, all applicants for executive clemency must post notice in a newspaper in the county of conviction 30 days prior to making application to governor, setting forth the reasons why clemency should be granted. Miss. Const. art. 5, § 124.4 Facially meritorious cases filed with the governor’s office are sent to the Parole Board for investigation. The Board generally requires letters of recommendation from the community and family, and a statement of unusual circumstances. The application form is available at http://www.cjpf.org/clemency/MississippiApp.pdf. The Board holds a hearing on meritorious applications at which the victim (if any) may be present. See Miss. Code Ann. § 99-45-1.
Frequency of Grants
Governor Bryant indicated at the outset of his administration, doubtless influenced by the scandal connected with the irregular pardons issued by Governor Haley Barbour at the end of his term, that he intended to use the pardon power sparingly and only in cases of wrongful conviction. See Huma Khan, Pardon No More? Mississippi’s New Governor Eyes Tougher Rules for Clemency, ABCNEWS.com ( 16, 2012), http://abcnews.go.com/blogs/politics/2012/01/pardon-no-more-mississippis-new-governor-eyes-tougher-rules-for-clemency. He has not modified this position. Governor Barbour granted no more than a handful of pardons until the very end of his tenure in 2012, when he issued 215 clemency grants. Of these final grants, 189 were full pardons granted to persons no longer in prison, most (though not all) of whom had completed their sentences. According to the Parole Board, it received more than 500 applications during Governor Barbour’s eight-year tenure. Of those, just over 250 met the required standards for consideration and were sent on to the governor’s office. At the end of his term, Barbour granted clemency to 185 applicants, apparently not all of whom had applied for pardon through the established procedure, and denied it to 69 others. http://www.reuters.com/article/2012/01/20/us-usa-mississippi-pardons-idUSTRE80J25K20120121. According to the Mississippi Attorney General’s office, there are several dozen legislative pardons granted pursuant to Bills of Suffrage each year, and some of those granted end-of-term pardons by Governor Barbour had previously received such restorations.5 Source: Mississippi Attorney General’s Office.
Mississippi Parole Board (601) 576-3520; also Paul Hirst, Governor’s Office at (601) 350-3150; Phil Carter, Attorney General’s Office, (601) 359-3680, email@example.com
B. Judicial sealing or expungement
Any first misdemeanor conviction other than a traffic offense may be expunged by petitioning the convicting court. Miss. Code Ann. § 99-19-71(1). A person may also expunge a single enumerated minor felony conviction in the same manner. § 99-19-71(2)(a).6 § 99-19-71(2)(a). Effective July 2013, a person may also expunge a single more serious felony conviction committed before the age of 21. § 99-19-71(2)(b) (as amended by Laws, 2013, Ch. 557, § 1). Certain serious felonies including rape, murder, armed robbery, and child pornography are not eligible for underage expungement under section 99-19-17(2)(b), however. Additionally, the court may deny an underage felony expungement for “any felony that, in the determination of the circuit court, is a violent crime or a felony that is related to the distribution of a controlled substance and in the court’s discretion it should not be expunged.” Expungement is not available for public officials convicted of offenses related to official duties. § 99-19-71(5).
For both types of felony expungement there is a five year waiting period after completion of sentence. §§ 99-19-71(2)(a), (b). The District Attorney must be given 10 days’ notice before any hearing. § 99-19-71(2)(c). The court may grant such a petition if it determines the applicant is rehabilitated. Id. “Upon entering an order of expunction under this section, a nonpublic record thereof shall be retained by the Mississippi Criminal Information Center solely for the purpose of determining whether, in subsequent proceedings, the person is a first offender.” § 99-19-71(3). Expunged records are retained for law enforcement purposes. Id.
Miss. Code Ann. § 99-19-71(3):
The effect of the expunction order shall be to restore the person, in the contemplation of the law, to the status he occupied before any arrest or indictment for which convicted. No person as to whom an expunction order has been entered shall be held thereafter under any provision of law to be guilty of perjury or to have otherwise given a false statement by reason of his failure to recite or acknowledge such arrest, indictment or conviction in response to any inquiry made of him for any purpose other than the purpose of determining, in any subsequent proceedings under this section, whether the person is a first offender.
At the same time, “[t]he existence of an order of expunction shall not preclude an employer from asking a prospective employee if the employee has had an order of expunction entered on his behalf.” Id. A person as to whom an order has been entered, upon request, shall be required to advise the court, in camera, of the previous conviction and expunction in any legal proceeding wherein the person has been called as a prospective juror. The court shall thereafter and before the selection of the jury advise the attorneys representing the parties of the previous conviction and expunction. Id.
2. Nonconviction records
Records of misdemeanor cases in which no charges were brought or charges were dismissed may be expunged. Miss. Code Ann. §§ 99-15-59 (misdemeanor). See also 99-15-26(5) (deferred adjudication, below).
3. Deferred adjudication
Deferred adjudication is authorized for felonies and misdemeanors, except crimes against the person and drug trafficking crimes. Miss. Code Ann. § 99-15-26(1)-(5)(“Dismissal of action upon successful completion of certain court-imposed conditions”). Expungement required upon successful completion. § 99-15-26(5)(“upon petition therefore, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case”)
4. Juvenile adjudications
A youth may apply to a court to initiate sealing of records if the youth qualifies. Miss. Code Ann. § 43-21-263(2). A youth qualifies upon reaching age 20 if the case was dismissed or the court set aside the adjudication. § 43-21-263(1). A judge has complete discretion over whether to seal and unseal records. Only a judge can initiate the record destruction process, which is distinct from sealing. §§ 43-21-263(2), 265.
5. Judicial certificate of rehabilitation
Miss. Code Ann. § 97-37-5(1) provides that a felony offender will no longer be subject to prosecution as a felon in possession if he has received a certificate of rehabilitation from the court of conviction. Section 97-37-5(3) authorizes the court to issue a certificate of rehabilitation, “upon a showing to the satisfaction of the court that the applicant has been rehabilitated and has led a useful, productive and law-abiding life since the completion of his sentence and upon the finding of the court that he will not be likely to act in a manner dangerous to public safety.” Certificates are referred to in Miss. R. Evid. 609(c) as sufficient to rehabilitate a testimonial witness, indicating that it may be issued under a common law authority not exclusively created for firearms restoration.
III. Nondiscrimination in Licensing and Employment
While Mississippi has no general law regulating consideration of conviction in connection with licensing and employment, it does apply a direct relationship test in connection with some licenses. See, e.g., Miss. Code Ann. § 73-67-27(1)(e) (massage therapy license may be denied or revoked if person has conviction or charges “that directly relates to the practice of massage therapy or to the ability to practice massage therapy”).
- Until the Fifth Circuit’s 1998 decision in Cotton v. Fordice, the constitutional list of crimes was given a narrow literal reading by the state Attorney General. Since that decision, the Attorney General has expanded the list of statutory theft-related crimes that are disqualifying. See Op. Miss. Att’y Gen. No. 2001-0278 (Scott, May 11, 2001) (car-jacking); Op. Miss. Atty.Gen. No. 99-0186 (Vowell, April 30, 1999) (timber larceny). Similarly, since 1998 the category of “false pretenses” offenses has also been more expansively interpreted to include statutory offenses. However, the Attorney General has made clear that crimes involving drugs or other controlled substances generally do not “fall under one of the twenty-one (21) crimes listed above and therefore would not be disqualifying,” though “we caution that an independent determination would have to be made on each specific crime.” See Op. Miss. Att’y Gen. No. 2004-0171 (Karrem, April 23, 2004). Other distinctions are explained in Op. Miss. Att’y Gen. Nos. 2000-0454 (Scott, August 18, 2000) (conviction for receiving stolen property or felony shoplifting results in disenfranchisement, but conviction for burglary does not); 2000-0169 (Salazar, April 7, 2000) (forgery does, prescription forgery does not); 2001-0278, supra (rape does, sexual battery does not).
- Miss. Code Ann. § 99-19-37(11) establishes administrative procedures for restoring the vote automatically to any convicted person who served honorably in World War I or World War II, referring to legislative authority in section 253 of the Mississippi constitution.
- Prior to 1995, the Mississippi Attorney General had historically opined that misdemeanor offenses falling within the constitutional list of crimes were disqualifying. See, e.g., Op. Miss. Att’y Gen Nos. 1992-0153 (March 3, 1992); 1985-744 (Pittman, November 22, 1992).
- On March 8, 2012, the Mississippi Supreme Court upheld the validity of certain pardons issued by outgoing Governor Barbour despite the beneficiaries’ failure to comply with the notice requirement in the Mississippi constitution, holding that compliance with constitutional provisions that were procedural in nature and committed solely to another branch of government was not justiciable. See In re Hooker, 87 So. 3d 401 (Miss. 2012).
- See Marc Mauer & Tushar Kansal, Barred for Life: Voting Rights Restoration in Permanent Disenfranchisement States, Sentencing Project (Feb. 2005) at 16,available at http://www.sentencingproject.org/pdfs/barredforlife.pdf (reporting that between 2001 and 2004, 55 “bills of suffrage” passed while 57 were defeated).
- Prior to 2010, expungement was available only for misdemeanor convictions. See Laws, 2010, ch. 460, § 1. In 2010, the legislature added felony bad check offenses, possession of a controlled substance or paraphernalia, false pretense, larceny, malicious mischief, and shoplifting. Earlier, in 2003, § 99-19-71 was amended to eliminate a requirement that a misdemeanor conviction must have occurred before the person reached age 23. See Laws 2003, Ch. 557, § 4.