Restoration of Rights, Pardon, Expungement & Sealing
Last updated: August 3, 2017
I. Restoration of Civil Rights/Firearms Rights
Neb. Rev. Stat. § 29-112 provides that a person convicted of a felony loses the right to vote, to serve on a jury, and to hold “any office of honor, trust or profit.” The right to vote is restored automatically two years after completion of sentence, including any period of parole. Id. See also § 29-2264(1) (voting rights restored to probationers two years after discharge).1 In addition, “[a]ny person who has been convicted of a felony under the laws of any other state is not qualified to vote until two years after such person has completed his or her sentence, including any parole term.” § 29-113. This provision has been interpreted by the Board of Elections to apply to federal offenders as well. The right to vote is restored to out-of-state offenders on same terms as Nebraska offenders. Id.2.
B. Other civil rights
The right to serve on a jury and hold public office are restored only by a “warrant of discharge” issued by the Board of Pardons. Neb. Rev. Stat. § 29-112. In the case of an individual sentenced to a non-prison sentence, a warrant of discharge restoring jury and office rights is issued automatically. See Neb. Rev. Stat. § 29-112.01 (warrant “shall be issued by such board upon receiving from the sentencing court a certificate showing satisfaction of the judgment and sentence entered against such person”). In the case of individuals sentenced to prison, however, a “warrant of discharge” is issued only after a hearing. See Neb. Rev. Stat. § 83-1,118(5).3 A person convicted of a felony under the laws of any other state must be restored to jury and office-holding rights “under the laws of the state in which the felony was committed.” § 29-113. It is not clear how federal offenders regain these rights.
C. Firearms rights
Long gun and handgun rights are lost upon conviction of a felony. Neb. Rev. Stat. §§ 28-1206(1), (2). Firearms rights may be regained only if the Board of Pardons empowers the governor to expressly authorize a pardoned individual to receive, possess, or transport guns in commerce. § 83-1,130(2).
II. Discretionary Restoration Mechanisms
A. Executive pardon
The authority to grant pardons is vested in the Board of Pardons, which is composed of the governor, secretary of state, and attorney general. Neb. Const. art. IV, § 13; Otey v. State, 485 N.W.2d 153, 163 (Neb. 1992). The governor acts as chair. Neb. Rev. Stat. § 83-1,126. The scope of the pardon power is set forth in Neb. Rev. Stat. § 83-170(10). The Board of Pardons is not subject to the Nebraska Administrative Procedure Act, and its constitutional powers cannot be limited or modified by any act of the legislature or of the Nebraska courts. Neb. Rev. Stat. § 83-1,134; FAQ, Neb. State Bd. of Pardons, available at http://www.pardons.state.ne.us/faq.html. The Board has the power to (1) remit fines and forfeitures, (2) grant respites, (3) grant reprieves, (4) grant pardons, and (5) grant commutations, in all cases of conviction for offenses against the laws of the State of Nebraska, except for treason and cases of impeachment. Neb. Const. art. IV, § 13. The Board of Parole may advise the Board of Pardons “on the merits of any application . . . but such advice shall not be binding on them.” Id.; Neb. Rev. Stat. § 83-194; see also 270 Neb. Admin. Code § 009 (2011).
For felonies, ten years from final discharge, including payment of fine; for misdemeanors, three years. See Pardon Board Application, Neb. State Bd. of Pardons, available at http://www.pardons.state.ne.us/content/new-application.pdf (“It is the usual practice in the granting of pardons to hear only those misdemeanor cases where three (3) years has elapsed and those felony cases where ten (10) years has elapsed upon completion of sentencing, including any probation, supervised release, or parole term, with no further law enforcement contacts or court convictions within the waiting period.”). In the case of misdemeanants sentenced to probation, the Board will consider a petition three years after sentencing. Persons convicted under federal law or the laws of another state are ineligible for a gubernatorial pardon or a discharge. See Part I, supra.
A pardon restores civil rights lost due to a felony conviction, including the right to vote, the right to be a juror, the right to hold public office, the right to bear arms,4 and the right to hold certain licenses (Liquor and Public Health and Welfare Licenses). See FAQ, Neb. State Bd. of Pardons, available at http://www.pardons.state.ne.us/faq.html. However, a felony offender may only regain firearm privileges if the Board of Pardons empowers the governor to “expressly” authorize the individual to receive, possess, or transport in commerce a firearm. Neb. Rev. Stat. § 83-1,130(2). It is not clear whether a person convicted in another state may avail himself of this procedure, or must instead have his rights restored in the jurisdiction of conviction in order to regain state firearms privileges in Nebraska (and presumably avoid liability under federal law as well, 18 U.S.C. § 921(a)(20)).
After a person files his pardon application, the Board of Pardons will consider the application and conduct further investigation as it deems appropriate; thereafter, the Board makes the decision to grant or deny relief by majority vote. See Neb. Rev. Stat. §§ 83-1,130(1), (3); see also § 83-1,128 (enumerating the powers of the Board). The Board of Pardons holds open hearings quarterly, and the entire process takes about one year. Policy and Procedure Guidelines, Neb. State Bd. Pardons, § 003.01, available at http://www.pardons.state.ne.us/app_guidelines.html. See also Pardon Application Instructions, available at http://www.pardons.state.ne.us/instructions.html. “The Board may grant or deny any application, in whole or in part, without a hearing,” but “[i]t is the Board’s general policy . . . not to grant applications for pardons or commutations of sentences without a hearing.” Id. § 004.02. The application form may be obtained from the Board and must be accompanied by several letters “verifying the applicant’s good character from citizens of the community where the applicant has resided.” See Pardon Application Instructions, Neb. State Bd. Pardons, available at http://www.pardons.state.ne.us/instructions.html.
The Board has subpoena power, and perjury before the Board will subject the perjurer to criminal penalties. Policy & Procedure Guidelines, supra at § 004.03; Neb. Rev. Stat. § 83-1,128. Any hearing must be informal, but a complete record must be kept. Policy & Procedure Guidelines, supra at § 004.03.D; Neb. Rev. Stat. § 83-1,129(3). The victim must be notified if the Board grants a hearing to an applicant convicted of a crime against a person. Policy and Procedure Guidelines, supra at § 004.03 A.
The Board may, after a pardon has been granted for a felony offense, “empower the Governor to expressly authorize such person to receive, possess, or transport in commerce a firearm.” Neb. Rev. Stat. § 83-1,130(2); see also Part II, Effect, supra. There is no provision for giving reasons. The pardon application form is available at http://www.pardons.state.ne.us/content/new-application.pdf.
Reprieves from Driver’s License Revocations
The Board also considers applications for reprieves from those subject to lifetime or 15-year driver’s license revocation for third or subsequent DUI/DWI offense. Eligibility after 7 years, with no intervening convictions of any kind, and proof of sobriety for seven years. The application for reprieve is made to the DMV, which reviews it and forwards it to the Board of Pardons. If the Board grants a reprieve, a Nebraska resident may drive a vehicle equipped with an ignition interlock device (BAIID) after applying for an ignition interlock permit (IIP). A non-resident must contact his home state to determine his driving eligibility. See http://www.dmv.ne.gov/legal/pardons.html.
Frequency of Grants
|Year||Pardon petitions rec’d||Pardon hearings held||Pardons granted w/ gun rights||Pardons granted w/o guns||Pardons denied||DUI reprieves
|DUI reprieves granted|
Source: Nebraska Pardon Board
B. Judicial sealing or expungement
Set-aside for probationers
Neb. Rev. Stat. § 29-2264(2) permits an offender sentenced to probation, or to pay a fine only, to petition the sentencing court to “set aside” the conviction. “In determining whether to set aside the conviction, the court shall consider the behavior of the offender after sentencing; the likelihood that the offender will not engage in further criminal activity; and any other information the court considers relevant.” § 29-2264(3). “The court may grant the offender’s petition and issue an order setting aside the conviction when in the opinion of the court the order will be in the best interest of the offender and consistent with the public welfare.” § 29-2264(4). Set-aside has the effect of nullifying the conviction and removing “all civil disabilities and disqualifications imposed as a result of the conviction.” Id. See also § 29-2264(1) (Order on completion of probation “shall include information on restoring other civil rights through the pardon process, including application to and hearing by the Board of Pardons.”). A conviction that has been set aside may nonetheless be used as a predicate offense and to enhance a subsequent sentence, to impeach a witness, to deny or revoke a law enforcement training certification. §§ 29-2264(5)(c) through (h).5 A set-aside does not result in sealing or relieve the obligation to register as a sex offender. § 29-2264(j).
Sealing is governed by Neb. Rev. Stat. § 43-2,108.03. Prosecutors must inform juveniles of the sealing process in writing, and the court must inform the juvenile about the effects of sealing. § 43-2,108.02, .04(7)–(8). Juveniles may petition for sealing under limited circumstances, including where no charges are filed and successful completion of probation or a diversion/treatment program. Id. The court must hold a hearing if there is opposition to sealing and may hold a hearing without opposition. §§ 43-2,108.04(3), (4). The court grants sealing upon a finding of satisfactory rehabilitation. § 43-2,108.04(5). Sealing allows the juvenile to proceed as if the offense had never occurred. § 43-2,108.05(1)(a).
Expungement is limited to cases where a juvenile is arrested due to an error of a law enforcement agency. Neb. Rev. Stat. § 29-3523(3). The juvenile may petition the court, which applies a clear and convincing evidence standard to determine whether the arrest was due to an error. Id.
Automatic sealing of criminal history information not resulting in a conviction
Criminal history information from cases not resulting in conviction is automatically removed from the public record and available only to law enforcement. Neb. Rev. Stat. § 29-3523.6 In cases where the prosecuting attorney decides not to file charges, records are removed one year after arrest; records where charges were not filed because of completed diversion are not available to the public after two years; and records where charges were filed but later dismissed by the court, including in cases of acquittal and successful drug court program completion, are removed from the public record immediately. Neb. Rev. Stat. § 29-3523(3).
A 2016 amendment to § 29-3523 added a provision requiring the court, “upon acquittal or entry of an order dismissing a case” to send notice to state records repository, law enforcement agencies and city and county attorneys, that any information pertaining to the case should be “sealed” and not disseminated to persons other than criminal justice agencies. § 29-3523(4). Courts have interpreted the immediate sealing amendment to apply only to arrests or citations that occurred on or after January 1, 2017. Lori Pilger, Judge Says New Law Sealing Criminal Cases Isn’t Retroactive, Lincoln J. Star, June 28, 2017, http://journalstar.com/news/local/911/judge-says-new-law-sealing-dismissed-criminal-cases-isn-t/article_659d6bbb-5f75-56ea-a3ce-c81e4632be4f.html.
The 2016 amendment also includes a provision limiting consideration of non-conviction records in employment and licensing (see Part III below).
Expungement of arrest records resulting from law enforcement error
Any person arrested due to the error of a law enforcement agency may file a petition with the district court for an order to expunge the criminal history record information related to such error…. The county attorney shall be named as the respondent and shall be served with a copy of the petition. The court may grant the petition and issue an order to expunge such information if the petitioner shows by clear and convincing evidence that the arrest was due to error by the arresting law enforcement agency.
Unauthorized dissemination of nondisclosable criminal history information is a Class IV misdemeanor. Neb. Rev. Stat. § 29-3527. Any person may file an action to compel compliance, including but not limited to mandamus. 78 Neb. Admin. Code Ch. 3, § 009 (2013).
III. Nondiscrimination in Licensing and Employment
A public employer may not ask about an individual’s criminal history until the employer “has determined the applicant meets the minimum employment qualification.” Neb. Rev. Stat. § 48-202. This does not apply to police employment, to positions requiring a background check, or positions for which a criminal record is disqualifying. The law provides that an employment application may state “conspicuously . . . that a criminal records check is required by federal or state law or the employer’s policy.”
Consideration of non-conviction records in employment and licensing:
The 2016 amendment to Neb. Rev. Stat. § 29-3523 added a provision stating that
In any application for employment, bonding, license, education, or other right or privilege, any appearance as a witness, or any other public inquiry, a person cannot be questioned with respect to any offense for which the record is sealed. If an inquiry is made in violation of this subsection, the person may respond as if the offense never occurred.
Nebraska has no other general law regulating consideration of conviction in employment or licensure. However, in 2016 Nebraska added a provision to its sealing law prohibiting inquiry into the criminal history of sealed non-conviction records in any employment, license, or education application. Individuals who are nonetheless asked about such information may respond as if the offense never occurred. Neb. Rev. Stat. § 29-3523(5).
Nebraska law also applies a direct relationship test in connection with franchise licenses. See Neb. Rev. Stat. § 87-404 (franchise termination protections inapplicable when “the alleged grounds are (a) the conviction of the franchisee . . . of an indictable offense directly related to the business”).
- Prior to March 11, 2005, all felony offenders were required to obtain a pardon before voting. See Neb. Rev. Stat. § 29-112 (2004) (warrant of discharge issued by Board of Pardons was required to restore civil rights and privileges, including voting rights, to a felon). See also Ways v. Shively, 646 N.W.2d 621, 627 (Neb. 2002). In the Shively decision, the Supreme Court of Nebraska construed § 29-112 together with a newer restoration provision, Neb. Rev. Stat. § 83-1,118(5) (Reissue 1999), which provided that upon a convicted offender’s release from confinement, the Director of Correctional Services should issue a certificate of discharge restoring the person’s civil rights. The Shively Court concluded that the more specific provisions of Neb. Rev. Stat. § 29-112 regarding restoration of voting rights, rather than § 83-1,118(5), controlled the conditions under which a convicted person’s right to vote is restored. Id. Following the Shively decision, § 29-112 was amended to make clear that pardon is the exclusive means of restoring civil rights. It was amended again in 2005 to restore the right to vote automatically to all offenders two years following completion of sentence.
- In April 2017 Governor Pete Ricketts vetoed a bill that would have amended § 29-112 to restore the vote automatically upon completion of sentence, taking the position that the Constitution must first be amended before voting rights can be restored. “While the legislature may restore certain privileges, such as driving privileges, to convicted felons, the legislature may not circumvent the Nebraska Constitution to automatically restore a voting right in state law.” It is not clear how this position can be reconciled with the existing statutory restoration provision in § 29-112.
- Neb. Rev. Stat. § 83-1,118(5):
Upon completion of the lawful requirements of the sentence, the [Parole Board] shall provide the parolee or committed offender with a written notice regarding his or her civil rights. The notice shall inform the parolee or committed offender that voting rights are restored two years after completion of the sentence. The notice shall also include information on restoring other civil rights through the pardon process, including application to and hearing by the Board of Pardons.
- But see Neb. Rev. Stat. § 83-1,130(2) (Board may give governor alone authority to “expressly” restore gun rights to a person convicted of a felony and later pardoned, presumably to satisfy the provisions of 18 U.S.C. § 921(a)(20).). See also FAQ, Neb. State Bd. of Pardons, available athttp://www.pardons.state.ne.us/faq.html.
- This procedure was upheld against constitutional challenge by the Nebraska Supreme Court in State v. Spady, 645 N.W.2d 539, 543-44 (Neb. 2002). Apparently, a set-aside under Neb. Rev. Stat. § 2264 does not result in sealing or expungement of the record. See id. at 542-43. Nor does it result in restoration of civil rights, which is exclusive purview of Pardon Board. Id. at 542, 543-44 (“[Section] 29-2264 does not nullify all of the legal consequences of the crime committed because certain civil disabilities . . . are not restored, as occurs when a pardon is granted.”); see also FAQ, Neb. State Bd. of Pardons, available athttp://www.pardons.state.ne.us/faq.html.
- In some cases, non-conviction records may be disseminated for the express purpose of research “pursuant to an agreement with a criminal justice agency that specifically authorizes access to the information, limits the use of the information to research, evaluative, or statistical activities, and ensures the confidentiality and security of the information.” Neb. Rev. Stat. § 29-3523(2).