Restoration of Rights, Pardon, Expungement & Sealing
Last updated: March 24, 2016
I. Restoration of Civil Rights/Firearms Privileges
A. Civil Rights
Persons convicted of “treason or felony in any state” lose the right to vote, hold office, and sit on a jury. Nev. Const. art. 2, § 1; id. art. 15, § 3; Nev. Rev. Stat. § 6.010. First offenders convicted of all but the most serious and/or violent offenses are restored automatically to the right to vote and sit on a civil jury upon completion of sentence; to hold office after four years; and to sit on a criminal jury after six years. See Nev. Rev. Stat. §§ 213.157(1) (completion of sentence), 213.155(1) (honorable discharge from parole), 176A.850(3) (honorable discharge from probation).1 Persons convicted under Nevada law of Class A and violent Class B felonies, or who have more than one Nevada conviction, must seek restoration of civil rights in the court in which they were convicted, or from the Board of Pardons Commissioners. §§ 213.090(2), 213.155(2), 213.157(2), 176A.850(4).2 Completion of sentence must be documented. Nev. Rev. Stat. §§ 213.155(3), (5); 213.157(3), (5); 176A.850(6), (8). Fine or restitution may be reduced if indigent. § 176.085 (1); Gilbert v. State, 669 P.2d 699 (Nev. 1983).
B. Juvenile adjudications
Except as provided by a specific statute, a juvenile adjudication “does not impose any of the civil disabilities ordinarily resulting from conviction.” Nev. Rev. Stat. § 62E.010.
C. Federal and out-of-state convictions
Persons convicted of a felony in another state may exercise civil rights in Nevada if the person’s civil rights have been restored pursuant to the laws of the state in which he or she was convicted or a court in the jurisdiction of conviction certifies that his or her civil rights have been restored in that jurisdiction. See Nev. Rev. Stat. §§ 293.540(3), 293.543(2)(b)(2),3 §§ 213.155(5), 213.157(5), 176A.850(8). A federal offender may regain civil rights in Nevada upon proof of restoration by federal authorities, which is currently a presidential pardon. 1996 Nev. Op. Att’y Gen. No. 27, 1996 WL 587397, *3-4, 7-8 (Sept. 25, 1996).
“A person shall not own or have in his possession or under his custody or control any firearm if he . . . has been convicted of a felony in this or any other state.” Nev. Rev. Stat. § 202.360(1)(a). Firearms rights may be restored only by pardon. Id.; see also § 213.090(1). Presumably federal and out-of-state offenders may have their firearms rights restored under Nevada law only by a pardon in the jurisdiction of their conviction.
All repeat offenders or persons convicted of a serious felony who reside in Nevada, or who enter the state on more than five occasions in a month, must register with the local sheriff. Nev. Rev. Stat. §§ 179C.100(1)-(2). Convicted persons who have had their civil rights restored may be relieved of this obligation by the sentencing court, the Board of Parole Commissioners, or Board of Pardons Commissioners. § 179C.100(6). No such relief is available from sex offender registration requirements. § 179D.490.
F. Collateral consequences inventory
Under Nev. Rev. Stat. Ann. § 176.0125(12), enacted in 2013, the Advisory Commission on the Administration of Justice 4 is directed to “cause to be identified any provision in the Nevada Constitution, the Nevada Revised Statutes and the Nevada Administrative Code which imposes a collateral sanction or authorizes the imposition of a disqualification, and any provision of law that may afford relief from a collateral consequence.” In carrying out this duty it “may rely on the study of this State’s collateral sanctions, disqualifications and relief provisions prepared by the National Institute of Justice described in section 510 of the Court Security Improvement Act of 2007, Public Law 110-177.” Further, it “[m]ust include the posting of a hyperlink on the Commission’s website to any study of this State’s collateral sanctions, disqualifications and relief provisions prepared by the National Institute of Justice described in section 510 of the Court Security Improvement Act of 2007, Public Law 110-177.”
II. Discretionary Restoration Mechanisms
A. Executive pardon
The Nevada Constitution gives certain short-term clemency powers to the governor (reprieves, suspensions). Nev. Const. art. 5, § 13. However the full clemency power is entrusted to a panel consisting of “the governor, justices of the supreme court, and attorney general, or a major part of them.” Id. art. 5, § 14. The legislature has constituted this group as the Board of Pardons Commissioners. Nev. Rev. Stat. § 213.010(1). A majority of the Board can grant a pardon, but the governor must be among the majority. Nev. Const. art 5, § 14. The legislature has specified Board operating procedures (see below) but it may not modify or restrict Board’s powers. King v. Board of Regents, 200 P.2d 221 (Nev. 1948). The Board meets semiannually in the second weeks of November and May, or more often as determined by the Board. Nev. Rev. Stat. § 213.010(2); Nev. Admin. Code § 213.020(1), (2). The governor must report to the legislature at the beginning of each session every clemency action (no reasons necessary). Nev. Const. art 5, § 13.
The Chairman of the State Board of Parole Commissioners appoints a person to serve as secretary of the Board of Pardons Commissioners. Nev. Rev. Stat. § 213.017(1).
The application revised in 2012 no longer contains criteria for assessing pardon petitions, but provides only that
An application for a pardon will ordinarily not be considered unless a significant amount of time has passed since the applicant’s final discharge . . . . [during which period] an applicant is expected to demonstrate complete and total rehabilitation.
See Board of Pardons, Criteria and Application Instructions in Community Cases, available at http://pardons.nv.gov/Downloads/Community_Case_Pardons_Application_2012/.5 The Board accepts applications only from state offenders, including applications from misdemeanants, which represent about 20% of its caseload. Sex offenders may apply for pardon only after they have obtained relief from registration requirements by a court of competent jurisdiction. See Nev. Rev. Stat. § 179D.490.
“A person who is granted a full, unconditional pardon by the Board is restored to all civil rights . . . and is relieved of all disabilities incurred upon conviction.” Nev. Rev. Stat.§ 213.090(1). “A pardon granted by the Board shall be deemed to be a full, unconditional pardon unless the official document issued pursuant to subsection 3 explicitly limits the restoration of the civil rights of the person or does not relieve the person of all disabilities incurred upon conviction.” § 213.090(2); see also 2003 Attorney General Opinion, supra note 4 (full and unconditional pardon removes all disabilities, including licensing bars, but does not “erase conviction” or dispense with licensing boards’ authority to condition licensure on finding of good moral character). 6 A pardon “does not attest to rehabilitation of a person” and “does not substitute a good reputation for one that is bad.” See http://www.pardons.nv.gov/node/6.
For sex offenders, pardon does not obviate need to register. 2003 Attorney General Opinion, supra, at p. 14; http://www.pardons.nv.gov/node/6. In re Sang Man Shin, 206 P.3d 91, 91 (Nev. 2009) (pardon did not supersede Nevada law prohibiting the sealing of a sex offense). Pardon relieves firearms restrictions in state law (unless otherwise provided in the pardon document itself), Nev. Rev. Stat. § 213.090; see also id. § 202.360(1)(a), and a pardoned conviction releasing the offender from all penalties and disabilities cannot serve as a predicate felony for federal firearms prosecution. 2003 Attorney General Opinion, supra, at p. 15 (citing U.S. v. Laskie, 258 F.3d 1047, 1052-53 (9th Cir. 2001) (state conviction that had been set-aside cannot serve as predicate felony for federal firearms prosecution)).
A public hearing is required in all cases where pardon is to be granted. Nev. Rev. Stat. §§ 233B.010 et seq., 213.020 et seq.; Nev. Admin. Code § 213.020 et seq.. Application form for community cases available http://pardons.nv.gov/Downloads/Community_Case_Pardons_Application_2012/. The Division of Parole & Probation prepares an extensive background investigation report for the Board’s consideration, a process that generally takes 2-3 months, after which cases will be chosen for a hearing. Nev. Admin. Code §§ 213.073(1), (2). The Board may hear cases twice a year. (In recent years, for budgetary reasons, the Board has held only one hearing each year.) Nev. Rev. Stat. § 213.010(2); Nev. Admin. Code § 213.020. All applications must be submitted at least 90 days beforehand. Nev. Admin Code § 213.040(2). The Board’s agenda is posted on the Pardons Board web site at http://www.pardons.nv.gov/node/4. Copies of this agenda are mailed to every Nevada judge, every Nevada district attorney, and every person on the mailing list of the Board of Pardons. The Board must notify the county attorney and court of conviction 30 days before the hearing, and any victims 15 days before the hearing. Nev. Rev. Stat. §§ 213.010(3), 213.020(4). The County attorney also gives notice to victims. Applications are generally presented to the Board only after the recommendation of the Department of Corrections and/or Secretary of the Board. See Nev. Admin. Code §§ 213.073, 213.183. Hearings are informal, though the Board may require the applicant’s presence. Nev. Admin. Code § 213.190. The Board’s decision is by a majority, which must include Governor. Nev. Const. art. 5, § 14(1). Proceedings are subject to the Nevada Administrative Procedure Act, so that the public receives 3 working days advance notice of a hearing, and minutes of meetings are public, including how each member voted. Nev. Rev. Stat. § 233B.010 et seq.
Expedited process for non-violent first time offenders
In August 2010, the Board adopted regulations providing for an expedited process to consider pardon applications filed by non-violent first-time offenders without a hearing, as long as there is no objection from district attorney, judge, or victim. See Nev. Admin Code § 213.077. See also Rev. Stat. Ann. § 213.017 (authorizing the Board to establish procedures for pardon and restoration of civil rights).
Frequency of Grants
The Board receives about 30-50 new pardon applications each year from “community cases,” of which about half are granted a hearing. Some cases held over from prior years may also be heard. The Board granted 13 pardons in 2015 and 13 in 2014. See Transcripts at Public Meeting Information, Nevada Board of Pardons Commissioners, http://pardons.nv.gov/Meetings. Between 2006 and 2011 there were about 20 grants each year, a substantial majority of those following hearings. See Nevada Pardons Board Historical Actions (1990-2011), on file with author.7 At the end of 2009 the Board’s report to the legislature noted that it had 250 community cases on file that had not been granted a hearing, “many of which are not suitable for pardons (they were recently discharged, are sex offenders, or have multiple offenses with not much time elapsed).” The Board’s 2009 authority to adopt an expedited process for non-violent first offenders began to show up in its case processing statistics after 2011.
The Board receives about 1000 commutation petitions each year, hears about 20 cases each year, and in the past decade has granted about half of those. See Nevada Pardons Board Historical Actions (1990-2011), supra.
Executive Secretary, Board of Pardons Commissioners
1677 Old Hot Springs Road, Suite A
Carson City, NV 89706
Phone: 775-687-5049, ext. 225
B. Judicial sealing or expungement
Authority for Sealing
Nev. Rev. Stat. § 179.245. After an eligibility waiting period that varies depending on the seriousness of the offense (for felonies, seven to 15 years after the date of conviction or release from actual custody, whichever is later; for misdemeanors, two to seven years), a person may petition the court in which he was convicted to seal all records related to the conviction. § 179.245(1). This relief is not available to sex offenders, § 179.245(5), or to anyone who has been arrested during the eligibility waiting period. § 179.245(4); see http://www.nvrepository.state.nv.us/criminal/forms/sealingcriminalhistoryrecords.pdf. See also In re Sang Man Shin, 206 P.3d at 91 (pardon did not supersede Nevada law prohibiting the sealing of a sex offense).
Non-conviction records may also be sealed upon completion of case. Nev. Rev. Stat. § 179.255.
Sealing for Successful Probationers
Nev. Rev. Stat. § 176A.850 provides for automatic restoration of civil rights of persons who are “honorably discharged” from probation and have no serious prior record, and authorizes them to petition the court immediately for sealing under § 179.245 (above) if they are otherwise eligible. § 176A.850(3)(e). A more limited remedy of sealing was substituted in 2001 for the broader “set-aside” relief in former § 176.225, construed in U.S. v. Laskie, 258 F.3d 1047 (9th Cir. 2001), see infra.8 Civil rights restored immediately are the right to vote and to sit on a civil jury. The right to hold office and to sit on a criminal jury is restored after an additional waiting period (see section I, supra).
Nev. Rev. Stat. § 458.300 authorizes deferred sentencing in the case of persons convicted of a crime and adjudged an addict or alcoholic. Certain crimes are not eligible. See §§ 458.300(1)-(7). Upon successful completion of a treatment program, the conviction may be set-aside and the record sealed. §§ 458.330(1), (4). Deferred sentencing is also available for first-time drug offenders. See § 453.3363.
Automatic sealing for certain minor offenders
Probationers with mental illness or retardation after honorable discharge (Nev. Rev. Stat. §§ 176A.260, 176A.265(1)), successful reentry program participants (§ 259), persons convicted of drug possession (§§ 453.336, 453.3365), and veterans (§§ 176A.290, 176A.295).
Records are sealed automatically upon reaching age 21 for most juvenile offenses. Nev. Rev. Stat. § 62H.140. Records for certain violent and sexual offenses may be sealed after reaching age 30. § 62H.150. Those under age 21 may petition for sealing if they have not been adjudicated in or referred to juvenile court for the preceding three-year period. Id. Before sealing, the court holds a hearing to determine whether the person has been convicted of any felony or misdemeanor involving moral turpitude and whether the applicant has been rehabilitated. § 62H.130. Upon sealing, a person may deny any existence of the records. § 62H.170.
Effect of sealing
If the court seals the records, “all proceedings recounted in the record are deemed never to have occurred,” and the person “may properly answer accordingly to any inquiry . . . concerning the arrest, conviction, dismissal or acquittal and the events and proceedings related to the arrest, conviction, dismissal or acquittal.” Nev. Rev. Stat. § 179.285. Records remain available to law enforcement and certain related agencies. § 179.301. When a record of conviction is sealed, such conviction may not be utilized to prove an element in a new crime or as an enhancement for a new conviction. In addition, a sealed conviction may not be used as the basis for denial or revocation of a professional license. See Baliotis v. Clark County, 729 P.2d 1338, 1339-40 (Nev. 1986) (finding that licensing officials cannot use sealed convictions as basis for denying license, but licensing authorities may use independent knowledge of criminal behavior to make decision); see also Nev. Op. Att’y Gen. No. 83-13 (1983), available at http://ag.nv.gov/uploadedFiles/agnvgov/Content/Publications/opinions/1983_AGO.pdf.9 A person whose records have been sealed may also vote, hold office and serve as a juror. Id.; see also § 179.285(b). Sealing sets aside conviction but does not restore firearms rights under state law, for which a pardon is necessary. See § 179.285(2)(b). The purpose of the sealing law is explained in Dep’t of Motor Vehicles and Pub. Safety v. Frangul, 867 P.2d 397 (Nev. 1994) (sealing statute was “enacted to remove ex-convicts’ criminal records from public scrutiny and to allow convicted persons to lawfully advise prospective employers that they have had no criminal arrests and convictions with respect to the sealed events”).
III. Nondiscrimination in Licensing and Employment
Nevada has no general law regulating consideration of conviction in employment or licensure. It does apply a direct relationship test in connection with some licenses. See, e.g., Nev. Rev. Stat. § 625.410(4) (discipline permissible based on “[c]onviction of . . . any crime an essential element of which is dishonesty or which is directly related to the practice of engineering or land surveying”).
Juvenile adjudications “must not be used to disqualify the child in any future application for or appointment to the civil service.” Nev. Rev. Stat. Ann. § 62E.010.
- All persons who completed their sentence prior to July 1, 2003 were restored to their civil rights by 2003 Nevada Laws Ch. 447 (A.B. 55) (vote, civil jury, office after four years, criminal jury after six years).
- In 2003 the Nevada legislature sought to limit authority of Pardons Commissioners under Nev. Rev Stat. § 213.090 by imposing on the pardon application process the same eligibility requirements and waiting periods that apply to restoration of rights to first offenders under Nev. Rev. Stat. § 213.157. Seehttp://www.leg.state.nv.us/Session/72nd2003/bills/AB/AB55_EN.pdf. This law was found constitutionally problematic by the Nevada Attorney General. See Nev. Op. Atty Gen. (Nov. 18, 2003), available at http://www.pardons.nv.gov/sites/pardons/files/pdf/PardonInformalOpinion.pdf (hereinafter “2003 Attorney General Opinion”). In 2005 the statute was amended again to restore the Board’s previous authority. Seehttp://www.leg.state.nv.us/Session/73rd2005/bills/SB/SB445_EN.pdf.
- Section 293.543(2) was amended in 2005 to codify the results of a 1996 Attorney General Opinion:
Nevada should give full faith and credit to restorations of civil rights where certain criteria are met. The restoring jurisdiction must have also been the convicting jurisdiction. The restoration must purport to be just that, a restoration of the convicted person’s civil rights, and meet all the constitutional and statutory requirements of the restoring jurisdiction. Nevada must not have any overriding reason, such as a public policy set out in a statute or Nevada’s Constitution, for not recognizing the restoration. If all these questions can be answered affirmatively, then Nevada should recognize a restoration of civil rights by a foreign jurisdiction.
Nev. Op. Att’y Gen. No. 96-27 (1996), available at http://ag.nv.gov/uploadedFiles/agnvgov/Content/Publications/opinions/1996_AGO.pdf. This statute has been applied by the Secretary of State to federal offenders as well as those from other state jurisdictions.
- The Advisory Commission includes as statutory members a representative group of criminal justice practitioners, judges, legislators, corrections officials, and members of the public, many of them appointed by the governor. The Attorney General sits on the Commission ex officio. See Nev. Rev. Stat. Ann. § 176.0123.
- The application form in effect in 2011 varied the eligibility waiting period by type of conviction, and also provided that good conduct should be judged by “(1) post-conviction conduct, character, and reputation; (2) seriousness and relative recency of the offense; (3) acceptance of responsibility, remorse, and atonement; and (4) need for relief.” http://www.pardons.nv.gov/sites/pardons/files/pdf/I2012.pdf. Criteria set forth a number of disqualifying factors based on institutional conduct; parole status; criminal charges, investigations, or appeals; and time and sentence. Id.
- See Board of Pardons Commissioners, “Effect of a Pardon,” available at http://www.pardons.nv.gov/node/6 “Where a statute limits rights based on the underlying conduct and not the pardoned offense itself, a pardon would not remove or erase the disability of past conduct. If there is a requirement that the license applicant has not been convicted of a felony, the pardon would permit licensing. However, if the licensing standard is good moral character, the pardon does not erase the moral guilt associated with the commission of a criminal offense and the fact giving rise to that conviction may be considered in determining whether that person is of ‘good moral character.'” Statutes containing licensing bars can be found on the Nevada Legislature’s website: www.leg.state.nv.us.
- Prior to July 2010, the Pardons Board was authorized by regulation to issue “Certificates of Good Conduct” under Nev. Admin. Code § 213.130 et seq. According to a 2003 Attorney General opinion, these certificates served: “1) To remove a legal disability incurred through conviction; 2) to furnish evidence of good moral character where it is required by law; or 3) upon proof of the person’s performance of outstanding public services or if there is unusual and compelling evidence of his rehabilitation.” See 2003 Attorney General Opinion, supra note 2, at p. 21. However, per this opinion, only a pardon can remove the state firearms disability, so that the federal bar under 18 U.S.C. §921(a)(20) would still apply. See id. at p. 22-23. Additionally, the opinion noted that the Certificate could relieve other disabilities such as those in licensing and employment laws, but each one must be listed. See id. at p. 21. In July 2010, in recognition of the fact that it had not issued a Certificate of Good Conduct in many years, the Board rescinded the regulations authorizing Certificates based on its prior conclusion that these certificates were indistinguishable from pardons.
- In Laskie, the 9th Circuit held that a probationary sentence “honorably discharged” and “set aside” under former Nev. Rev. Stat. § 179.225 could not serve as a predicate felony for federal firearms prosecution under 18 U.S.C.§ 922(g)(1) based upon the definition of “conviction” set forth in 18 U.S.C.§ 921(a)(20). Note that the set-aside authority at issue in Laskie provided that, “in any subsequent prosecution of the defendant for any other offense, such prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the indictment or information had not been dismissed.” See Laskie, 258 F.3d at 1051 (citing statute). The Laskie court, however, found this language had no bearing on its analysis under 18 U.S.C.§ 921(a)(20) as to whether a “conviction” existed for purposes of federal firearms prosecution. Id. at 1051-52.
- Where conviction records are sealed under Nev. Rev. Stat. § 453.3365, professional licensing authorities are entitled to consider sealed convictions for the purpose of determining suitability for a license or liability to discipline. Nev. Rev. Stat. § 453.3365(4); see also Yllas v. State, 920 P.2d 1003, 1005 n.3 (Nev. 1996).