Restoration of Rights, Pardon, Expungement & Sealing
Last updated: April 29, 2017
I. Restoration of Civil/Firearms Rights
A. Vote, Office
Under Mont. Code Ann. § 46-18-801(1), a conviction does not result in loss of civil rights except as provided in the Montana Constitution, or as specifically enumerated by the sentencing judge “as a necessary condition of the sentence directed toward the objectives of rehabilitation and the protection of society.” A convicted person is ineligible to vote only if “serving a sentence for a felony in a penal institution;” the right to vote is regained upon release from incarceration. Mont. Const. art. IV, § 2. A felony offender may not hold public office until final discharge from state supervision. Id. art. IV, § 4. Full rights are automatically restored “by termination of state supervision for any offense against the state.” Mont. Const. art. II, § 28. Accord Mont. Code Ann. § 46-18-801(2) (“Except as provided in the Montana constitution, if a person has been deprived of a civil or constitutional right by reason of conviction for an offense and the person’s sentence has expired or the person has been pardoned, the person is restored to all civil rights and full citizenship, the same as if the conviction had not occurred.”).
The state constitution does not provide for disqualification from jury service, but a statute does. See Mont. Code Ann. § 3-15-303(2) (person who has been “convicted of malfeasance in office or any felony or other high crime” is not competent to sit as juror). Presumably this disability is removed upon completion of sentence. See § 46-18-801(2).1
Firearms rights are lost under state law only where the conviction involves use of a dangerous weapon. Mont. Code Ann. § 45-8-313(1). In such cases, the sentencing court shall impose lifetime supervision as part of sentence imposed, “for the purpose of restricting the person’s right to purchase and possess firearms.” § 45-8-314(1). Because Montana offenders regain civil rights when supervision ends, federal law firearms disabilities are generally coincident with state law firearms disabilities by virtue of 18 U.S.C. § 921(a)(21). An individual who has lost his firearms rights may “apply to the district court for the county in which the person resides for a permit to purchase and possess one or more firearms,” and “shall show good cause for the possession of each firearm sought to be purchased and possessed.” § 45-8-314(2)(a). In addition, a county sheriff may deny a concealed weapon permit only if the person has been convicted of a crime punishable by a term of imprisonment of more than one year; a violent, sex or drug offense; or a specified gun or substance abuse offenses. §§ 45-8-321(1)(c), (d), and (f). However, unless supervision is also terminated in these cases, civil rights would not be restored and the federal disability would remain.
II. Discretionary Restoration Mechanisms:
A. Executive pardon
The pardon power is vested in the governor, but the legislature may control the process. Mont. Const. art. VI, § 12. Prior to Match 2015, the governor could issue a pardon only upon the favorable recommendation of the Board of Pardons and Parole, except in capital cases, though he was not bound to accept each Board favorable recommendation. Mont. Code Ann. §§ 46-23-104(1), 46-23-301(3). On March 20, Governor Steve Bullock signed HB 43 converting the Board’s role in clemency cases to an advisory one. While the governor is still required to premise action on a Board recommendation, after a hearing, he may grant clemency even if the recommendation is negative. See § 46-23-104(4).2 He may also direct the Board to conduct an investigation when it has declined to do so. § 46-23-301(3)(b). The governor must report to the legislature each pardon and the reasons for it. § 46-23-316.
The Board has seven members. Mont. Code Ann. § 2-15-2302(2). All are appointed by the Governor, and serve effectively as volunteers. One member must be an enrolled member of a state-recognized or federally recognized Indian tribe located within the boundaries of the state of Montana. Id. All decisions are by majority vote. § 2-15-2303(8). The Board may appoint two or three-member hearing panels. § 46-23-103(4). A majority of the Board constitutes a quorum and all decisions are by majority vote. Rules are set forth at Mont. Admin. R. 20-25-901 to 904, posted at http://bopp.mt.gov/about/adminrules/default.mcpx. History of the Board (including merging of pardon and parole function in 1955) at http://bopp.mt.gov/history/history.mcpx..
There are no eligibility requirements for executive pardon, except that federal and out-of-state offenders are ineligible. Misdemeanants may apply. The Board may not postpone consideration of an application for executive clemency on grounds that the applicant has not exhausted the appeal and sentence review processes. 37 Mont. Op. Att’y Gen. 183 (1977).
Executive pardon removes “all legal consequences” of conviction, Mont. Code Ann. § 46-23-301(1)(b), including licensing bars, g., § 37-60-303 (private investigators and patrol officers). See also Mont. Admin. R. 20-25-901A(1) (“Pardon is a declaration of record that an individual is to be relieved of all legal consequences of a prior conviction.”).
See generally Mont. Code Ann. §§ 46-23-301 to 46-23-307, 46-23-315, 46-23-316 (governing executive clemency process), and Mont. Admin. Rules 20-25-901 to 20-25-904. The Board may hold a hearing in meritorious cases where all sides are heard and a record made, though it is required to hold hearings only in capital cases. Mont. Admin. R. 20-25-902(1). Under 2015 changes to the system, if the Board declines to investigate or hold a hearing, the governor may direct it to do so. § 46-23-301(3)(b). The hearing must be publicized at least once a week for two weeks. Mont. Code Ann. §§ 46-23-303, 46-23-304. Favorable recommendations must be forwarded to the governor Id. § 46-23-307. If a majority of the Board recommends denial in a non-capital case, the case may not be sent to the governor. Id. § 46-23-301(3).
NB: Board regulations do not appear to contemplate applications for clemency by persons no longer under sentence, but, according to the Board director, the hearing requirement does apply to pardon applicants. Published standards appear to apply only to commutation cases.
Mont. Code Ann. § 46-23-316. The governor shall
report to the legislature each case of remission of fine or forfeiture, respite, commutation, or pardon granted since the previous report, stating the name of the convict, the crime of which the convict was convicted, the sentence and its date, the date of remission, commutation, pardon, or respite, with the reason for granting the same, and the objection, if any, of any of the members of the board made to the action.
Frequency of grants
Pardons are infrequently recommended and rarely granted. As of April 2016, Governor Bullock had granted only no pardons, and only one commutation, in over three years in office. See Phil Drake, Beach remains only inmate governor has granted clemency, Great Falls Tribune, http://www.greatfallstribune.com/story/news/local/2016/04/07/beach-inmate-clemency/82779542 (April 8, 2016). Brian Schweitzer granted 16 pardons in his eight years on office for crimes ranging from issuing fraudulent checks to aggravated assault. Nine of those pardons came during Schweitzer’s first term in office. Statistics can be found at http://bopp.mt.gov/history/statistical_data.mcpx. According to the Montana Department of Corrections 2011 Biennial Report, during fiscal years 2006-2010, the Board received an average of 13 requests a year and approved about three (i.e., recommended approval in about one-fifth of applications filed). See http://cor.mt.gov/content/Resources/Reports/2011BiennialReport.pdf, at A27. The governor’s report to the legislature, describing each case in which pardon granted, is available from the Board. Source: Montana Board of Pardons and Parole.
Senior Parole Analyst, Board of Pardons and Parole
1002 Hollenbeck Road
Deer Lodge, MT 59722
B. Judicial Sealing or Expungement
Effective October 1, 2017, individuals convicted of misdemeanors will become eligible to have their convictions expunged if they have satisfied all terms of their sentence. Under Section 1 of House Bill 168, signed into law on April 13, 2017, district courts are authorized to expunge the record of any misdemeanor conviction. Although no more than one expungement order is permitted during a person’s lifetime, it appears that multiple misdemeanors from different counties may be expunged in a single proceeding. If expunged, the record is destroyed, and only a person’s fingerprints remain in official files. Under Section 2, expungement is “presumed” for all but certain specified serious offenses (involving violence or driving while impaired), unless “the interests of public safety demand otherwise” — as long as five crime-free years have passed since completion of sentence, or if the petitioner is seeking opportunities for military service that are otherwise closed to him and is not currently charged with a crime. Under Section 3, dealing with the crimes for which expungement is not presumed, expungement may be granted after a hearing, in which the court “must consider, in addition to any other factors, the age of the petitioner at the time the offense was committed, the length of time between the offense and the request, the rehabilitation of the petitioner, and the likelihood that the person will reoffend.” In cases where expungement is not presumed, the prosecution office that prosecuted the offense for which expungement is being requested must be notified of the request and be given an opportunity to respond and argue against the expungement.
Deferred adjudication and sealing for first offenders
For first felony offenders and misdemeanants, a court may defer imposition of sentence from one to three years during which the offender will be on probation. Mont. Code Ann. § 46-18-201. Following termination of the relevant time period, Mont. Code Ann. § 46-18-204 authorizes the court to permit the defendant to withdraw a plea of guilty or nolo contendere or to strike the verdict of guilty from the record and order that the charge or charges against the defendant be dismissed. “After the charge is dismissed, all records and data relating to the charge are confidential criminal justice information, as defined in 44-5-103, and public access to the information may be obtained only by district court order upon good cause shown.” Id. If the sentence is dismissed then it should not be considered in determining whether the defendant is a persistent felony offender. State v. Tomaskie, 157 P.3d 691, 693-694 (Mont. 2007). Sealing is unavailable if a mandatory sentence applies, except in certain situations. See § 46-18-222. (Prior to 1989, the requirement was that records be “expunged, which was understood to require that all documentation and physical or automated entries concerning the expunged offense be physically destroyed or obliterated.” 42 Mont. Op. Att’y Gen. 384 (1988).)
Youth court records are automatically sealed and youth probation records are automatically destroyed on the juvenile’s 18th birthday, with limited extensions in certain cases. Mont. Code Ann. §§ 41-5-215, -216. A juvenile may move the court to limit availability of court records prior to turning age 18. Privacy Rules § 4.60. There exists no process for sealing or expunging juvenile arrest records.
Upon the defendant’s request, or upon the order of the court, all records in cases where no charges were brought, where no conviction resulted, or the conviction was invalidated must be returned to the defendant or destroyed. Mont. Code Ann. § 44-5-202. See also https://dojmt.gov/enforcement/criminal-record-expungement-and-sealing.
III. Nondiscrimination in Licensing and Employment:
Under a 1975 statute, criminal convictions may not operate as an automatic bar to licensure for any occupation in the state of Montana. Mont. Code Ann. § 37-1-201 provides that:
It is the public policy of the legislature of the state of Montana to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the assumption of the responsibilities of citizenship. The legislature finds that the public is best protected when offenders are given the opportunity to secure employment or to engage in a meaningful occupation, while licensure must be conferred with prudence to protect the interests of the public. The legislature finds that the process of licensure will be strengthened by instituting an effective mechanism for obtaining accurate public information regarding a license applicant’s criminal background.
(The final sentence was added to this provision in 2007.) Mont. Code Ann. § 37-1-203 provides:
Criminal convictions shall not operate as an automatic bar to being licensed to enter any occupation in the state of Montana. No licensing authority shall refuse to license a person solely on the basis of a previous criminal conviction; provided, however, where a license applicant has been convicted of a criminal offense and such criminal offense relates to the public health, welfare, and safety as it applies to the occupation for which the license is sought, the licensing agency may, after investigation, find that the applicant so convicted has not been sufficiently rehabilitated as to warrant the public trust and deny the issuance of a license.
While this statute does not itself apply to license revocation proceedings, Erickson v. State ex rel. Bd. of Med. Exam’rs, 938 P.2d 625, 629 (Mont. 1997), its provisions may be incorporated by reference into particular licensing statutes, Ulrich v. State ex rel. Bd. of Funeral Serv., 961 P.2d 126, 131-132 (Mont. 1998). In Ulrich, the Montana Supreme Court upheld the finding of a hearing examiner that a conviction for forgery and theft did not “relate to the public health, welfare, and safety as it applies to the occupation” of mortician, and that the applicant in that case was “sufficiently rehabilitated so as to warrant the public trust.” 961 P.2d at 134. Completion of probation or parole supervision without any subsequent criminal conviction “is evidence of rehabilitation.” Mont. Code Ann § 37-1-205.
A licensing agency must give reasons for denying a license on grounds related to a felony conviction. Mont. Code Ann § 37-1-204 (“When a licensing agency prohibits an applicant from being licensed wholly or partially on the basis of a criminal conviction, the agency shall state explicitly in writing the reasons for the decision.”).
No law regulates public or private employment. However, the Montana Human Rights Commission takes the position that pre-employment inquiries regarding arrests raise suspicion of intent to unlawfully discriminate unless related to bona fide lawful affirmative action plan or inquiry is required for record-keeping purposes. Mont. Admin. R. 24.9.1406(2)(h).
- According to the 1996 survey of the Office of the Pardon Attorney, the “Montana Attorney General advised that under a similarly worded previous version of Mont. Code Ann § 46-18-801 the right to sit on a jury was restored only by a pardon.” Civil Disabilities of Convicted Felons: A State-by-State Survey (Office of the Pardon Attorney, Dep’t of Justice, 1996), available at https://www.ncjrs.gov/pdffiles1/pr/195110.pdf.
- This change in the law was prompted by the Board’s refusal to change its position in a case involving claims of innocence. See “Bill to restrict Montana Parole Board’s power over clemency gets wide support,” http://missoulian.com/news/state-and-regional/bill-to-restrict-montana-parole-board-s-power-over-clemency/article_e8c03e6e-25e9-55a0-a61c-111229c42897.html. There has also been some more general concern among legislators that the Board’s parsimonious policy on recommending clemency might be frustrating the governor’s exercise of the power. See John S. Adams, Lawmakers Considering Changes to Pardon and Parole Board, Great Falls Tribune, August 2, 2014, http://www.greatfallstribune.com/story/news/politics/2014/08/03/lawmakers-considering-changes-pardon-parole-board/13536729/.