Restoration of Rights, Pardon, Expungement & Sealing
Last updated: June 24, 2017
I. Restoration of Civil/Firearms Rights
A. Civil Rights
New Hampshire follows the Uniform Act on Status of Convicted Persons. The rights to vote and hold office are lost following conviction until completion of sentence, except that a person may vote unless actually incarcerated:
A person sentenced for a felony, from the time of his sentence until his final discharge, may not: (a) Vote in an election, but if execution of sentence is suspended with or without the defendant being placed on probation or he is paroled after commitment to imprisonment, he may vote during the period of the suspension or parole; or (b) Become a candidate for or hold public office.
N.H. Rev. Stat. Ann. § 607-A:2(I). The right to seek and hold public office is automatically restored upon final discharge. § 607-A:2(I)(b); see Charlene Beaulieu & Lauren F. Hanke, Commentary: The Disenfranchisement of New Hampshire’s Incarcerated Felons, 42 N.H.B.J. 38, Sept. 1, 2001, available at http://www.nhbar.org/publications/archives/display-journal-issue.asp?id=227.
Jury service: N.H. Rev. Stat. Ann. § 500-A:7-a(V): “A juror shall not have been convicted of any felony which has not been annulled or which is not eligible for annulment under New Hampshire law.”
Restoration of rights is also available from the governor in the case of federal or out-of-state convictions. N.H. Rev. Stat. Ann. § 607-A:5.
A person convicted of a “felony against the person or property of another” or a felony drug offense may not own or possess any firearm. N.H. Rev. Stat. Ann. § 159:3. This restriction may be relieved by pardon or, for nonviolent offenses, by judicial annulment pursuant to N.H. Rev. Stat. Ann. §§ 4:23, 651:5, discussed infra.
II. Discretionary Restoration Mechanisms:
A. Executive pardon
The pardon power (except in cases of impeachment) is vested in the governor, “by and with the advice of [the executive] council,” a core elected body of five that advises the governor generally in carrying out his duties. N.H. Const. pt. 2, art. 52. The executive council is composed of five members, biennially elected from each of five counties of the state, “for advising the governor in the executive part of government.” Id. pt. 2, art. 60. According to the Office of the Attorney General, the constitutional requirement of “advice” has traditionally been interpreted to require the governor to obtain a supporting majority vote of the council before issuing a pardon. The governor may not remit fines or forfeitures in criminal cases, and may not grant a pardon before conviction. Id. pt. 2, art. 52.
Persons eligible for “annulment” under N.H. Rev. Stat. Ann. § 651:5 will generally not be considered for a pardon. Persons convicted under federal law or the law of another state will not be considered for pardon.
A pardon “is an act of executive grace completely eliminating all consequences of the conviction, but it does not remove the record of the conviction.” Doe v. State, 114 N.H. 714 (1974).
See N.H. Rev. Stat. Ann. §§ 4:21 to 4:28.
On all petitions to the governor and council for pardon or commutation of sentence written notice thereof shall be given to the state’s counsel, and such notice to others as the governor may direct; and the prosecuting officer may be required to furnish a concise statement of the case as proved at the trial and any other facts bearing on the propriety of granting the petition.
§ 4:21. “In all cases where the petition is for the pardon of a person serving a sentence in the state prison, the commissioner of corrections shall make a report upon the petition before it is referred to the council.” § 4:22. No hearing is required. It has been the custom to consider cases in the order filed, with no case being moved ahead of others in line. No standards of review have been promulgated to date. Source: Office of the Attorney General of New Hampshire.
Frequency of Grants
The Attorney General’s office receives about 25 applications for clemency per year, but only two pardons and two sentence commutations have been granted since 1996. One pardon was granted in 2003 to a National Guardsman headed for Iraq who wanted firearms restoration, and the other in 2011 to a woman convicted of escape 29 years before. See Owen Labrie unlikely to get pardon, history says, WCVB 5, http://www.wcvb.com/news/owen-labrie-unlikely-to-get-pardon-history-says/36039286 (Oct. 25, 2015); Guardsman Pardoned, Will Be Deployed, Dec. 22, 2003, http://www.freerepublic.com/focus/f-news/1044919/posts; Lynn Tuohy, NH Executive Council Pardons Escape Conviction, 16, 2011, http://www.fosters.com/apps/pbcs.dll/article?AID=/20110216/NEWS0201/110219681. The last governor to issue a significant number of pardons was John Sununu (17 pardons from 1983 to 1989). See Norma Love, NH govs historically stingy in granting pardons, Boston Globe (Jan. 1, 2011), available at http://www.boston.com/news/local/new_hampshire/articles/2011/01/01/nh_govs_historically_stingy_in_granting_pardons.
Office of the Attorney General
B. Judicial sealing or expungement (“annulment”)
N.H. Rev. Stat. Ann. § 651:5(I):
[T]he record of arrest, conviction and sentence of any person may be annulled by the sentencing court at any time in response to a petition for annulment which is timely brought in accordance with the provisions of this section if in the opinion of the court, the annulment will assist in the petitioner’s rehabilitation and will be consistent with the public welfare. The court may grant or deny an annulment without a hearing, unless a hearing is requested by the petitioner.1
In a 2012 opinion, the Supreme Court of New Hampshire ruled that, in exercising discretion to grant an annulment pursuant to the “public welfare” standard, the court
may consider such factors as the number and circumstances of the convictions at issue, the defendant’s age at the time of each conviction, the time span of the convictions, and the particular manner in which annulment would aid the defendant’s rehabilitation—for example, by allowing him to obtain a professional license or to pursue a calling otherwise prohibited to those convicted of a crime.
State v. Baker, 55 A.3d 1001, 1005 (2012). Other relevant factors may also be considered. Id. Courts “may not consider simply the fact of the defendant’s convictions without considering the specific facts and circumstances that led to them.” Id. at 1004.
Waiting periods range from one year for a violation, three years for misdemeanors, five years for a class B felony and ten years for a Class A felony and sexual assault, indecent exposure, and lewdness. § 651:5(III). If denied, a petitioner must wait three years to reapply. § 651:5(IV). Certain crimes are ineligible for annulment, including obstruction of justice, violent crimes, and crimes for which an extended sentence was imposed under § 651:6, which includes crime as a major source of livelihood, exceptional cruelty resulting in serious bodily harm, crime against (or by) a law enforcement officer, and hate crimes. See § 651:5(V). Recidivists must satisfy waiting periods for all crimes, and may not have any excludable crime. § 651:5(VI). For rules governing applications to annul records of conviction and sentence see N.H. Super. Ct. R. 108 & N.H. Dist. Ct. R. 2.18 (as amended by 2012 N.H. Ct. Order 0002).
Records of arrest that did not result in conviction, or where charges dismissed, may also be annulled subject to same “public welfare” standard. N.H. Rev. Stat. Ann. § 651:5(II).
The Department of Corrections is required to report to the court on a petitioner’s criminal history, for which petitioners must pay a statutory fee of $100 unless the petitioner is indigent, or has been found not guilty, or the case has been dismissed or not prosecuted. There is also a $100 fee payable to the Department of Safety for researching and correcting the criminal history record. The court shall provide a copy of the petition to the prosecutor of the underlying offense and permit them to be heard regarding the interest of justice in regard to the petition. N.H. Rev. Stat. Ann. § 651:5(IX).
Upon entry of an order of annulment, the person “shall be treated in all respects as if he had never been arrested, convicted or sentenced,” except that, upon conviction of any later crime, the annulled conviction may be taken into account for sentencing purposes and may be counted toward habitual offender status. N.H. Rev. Stat. Ann. § 651:5(X)(a). See Panas v. Harakis, 129 N.H. 591 (1987) (this section effectively “erases” the conviction but does not prevent introduction of evidence of the incident that underlies the conviction); Brown v. Brown, 133 N.H. 442 (1990) (civil litigant properly prohibited by this section from using defendant’s annulled conviction to establish the occurrence of an assault).
In any application for employment, license or other civil right or privilege, or in any appearance as a witness in any proceeding or hearing, a person may be questioned about a previous criminal record only in terms such as “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?”
N.H. Rev. Stat. Ann. § 651:5(X)(f).
Effective in 2013, annulled records are only available to the person receiving the annulment and to law enforcement. § 651:5(XI)(c) (as amended by 2013 NH Ch. 123 (HB 450)). Prior to 2013, annulled records remained available to the public, though they were required to be marked as having been annulled.
Sealing is governed by N.H. Rev. Stat. Ann. § 169-B:35. Upon reaching age 21, court and individual institutional records are closed and placed into an inactive file. Law enforcement officials may still access the files to investigate and prosecute criminal activity. Id.
III. Nondiscrimination in Licensing and Employment
As of January 2015, no board or commission may deny, suspend, or revoke an occupational or business license “because of a prior conviction of a crime in and of itself.” N.H. Rev. Stat. Ann. § 332-G:10. However, a license may be denied or impaired “after considering the nature of the crime and whether there is a substantial and direct relationship to the occupation, trade, vocation, or profession for which the person has applied, and may consider information about the rehabilitation of the convicted person, and the amount of time that has passed since the conviction or release.” Id.
As noted in Part II, N.H. Rev. Stat. Ann. § 651:5(X)(f) limits questions from employers and licensing boards about annulled convictions.
- As originally enacted, annulment applied only to youthful offenders (under 21) sentenced to probation or conditional discharge, including payment of a fine. See State v. Comeau, 142 N.H. 84 (1997); State v. Roger M., 121 N.H. 19 (1981). The statute was completely rewritten in 1994 and extended to certain adult offenders. In Comeau, the retroactive application of the longer waiting periods under the new statute was held not to violate the ex post facto clause. 142 N.H. at 89.