Restoration of Rights, Pardon, Expungement & Sealing
Last updated: July 28, 2017
I. Restoration of Civil/Firearms Rights
Persons convicted of “a felonious or infamous crime” are ineligible to vote and hold office unless “restored to political rights.” N.M. Const. art. VII, §§ 1, 2. See also State ex rel. King v. Sloan, 253 P.3d 33, 36-37 (N.M. 2011) (status as qualified elector ends upon conviction of felony, and ability to hold public office ceases at the same time). The right to vote is restored automatically upon completion of sentence, and a certificate of voting rights restoration is furnished for voter registration purposes. N.M. Stat. Ann. §§ 31-13-1. Felony offenders are ineligible for jury service until completion of sentence. Id. § 38-5-1.
The right to hold office is restored by a pardon from the governor, N.M. Stat. Ann. § 31-13-1(E), or by a conditional discharge under N.M. Stat. Ann. § 31-20-3. See United States v. Reese, No. 33,950, N.M. Sup. Ct. (May 1, 2014)(completion of conditions and discharge restores all civil rights). A pardon to restore the right to hold office is available to federal and out-of-state offenders.
It is unlawful for “a felon” to receive, transport or possess any firearm or destructive device for ten years after completion of sentence, including probation. See N.M. Stat. Ann. § 30-7-16(A). See also id. at (C)(2) (defining “felon” as someone for whom “less than ten years have passed since the person completed serving his sentence or period of probation for the felony conviction,” who has not been pardoned for the felony conviction, or who has not received a deferred sentence”). See also State v. Sundeen, 17 P.3d 1019, 1020 (N.M. 2001) (definition of “felon” requires that person have been convicted and sentenced to a year or more of imprisonment; court looks to the actual sentence imposed not the maximum sentence authorized under the statute). Firearms rights are not lost if sentencing was deferred pursuant to § 31-20-9, and the person has successfully completed the period of deferment. § 30-7-16; N.M. A.G. Op. No. 85-29 (1985). If lost, firearms rights may be regained prior to the ten-year period through a governor’s pardon, though the governor may also decline to restore firearms rights in an otherwise unconditional pardon. See N.M. A.G. Op. No. 92-09 (1992); 1992 N.M. AG Lexis 9. The governor may, in his discretion, release New Mexico offenders from federal firearms disabilities as well as the provisions of § 30-7-16; however, the governor cannot release those convicted under federal law or by another state from federal firearms restrictions. See id.; see also Beecham v. United States, 511 U.S. 368 (1994). Those who successfully complete probation pursuant to a deferred adjudication disposition automatically regain civil rights, including firearms rights, and are thus not subject to federal prosecution under the federal firearms laws. United States v. Reese, No. 33,950, N.M. Sup. Ct. (May 1, 2014).
C. Juvenile dispositions
Juvenile dispositions do not “impose any civil disabilities ordinarily resulting from conviction of a crime nor shall it operate to disqualify the child in any civil service application or appointment.” N.M. Stat. Ann. § 32A-2-18.
II. Discretionary Restoration Mechanisms
A. Executive pardon
The pardon power rests exclusively with the governor. N.M. Const. art. V, § 6 (“Subject to such regulations as may be prescribed by law, the governor shall have power to grant reprieves and pardons, after conviction for all offenses except treason and in cases of impeachment.”); see also N.M. Stat. Ann. § 31-13-1(E). The governor’s power extends to all state offenses but does not include convictions for violations of municipal ordinances. See Pardon Guidelines § I, available at http://www.governor.state.nm.us/uploads/files/Pardon%20Guidelines.pdf. The general rules on pardons applied by Governor Susana Martinez are summarized on the New Mexico governor’s website at http://www.governor.state.nm.us/Pardon_Request.aspx.
The New Mexico Parole Board is authorized to investigate requests for pardon, at the request of the governor. N.M. Stat. Ann. § 31-21-17.
Those who have completed their sentences and have been discharged from supervision may apply for a pardon, or for a pardon to restore civil rights. Pardon Guidelines, supra II; see also N.M. Stat. Ann. § 31-13-1(E). Per the guidelines established by Governor Martinez after her election in 2010, applicants seeking restoration of civil rights must remain free from arrest for five to twenty years following discharge from supervision, depending upon the seriousness of the offense. Pardon Guidelines § IV.1 Governor Martinez will not accept pardon applications for first degree felony convictions, or for misdemeanor domestic violence. Id. Similarly, “[s]exual offenders, habitual offenders (including multiple convictions for Driving Under the Influence of Intoxicating Liquors and/or Drugs, Assault or Battery Against a Household Member), multi-felony offenders, or offenders convicted of a crime of violence against a child are not eligible for a pardon.” Id. § III.2 Misdemeanor or petty misdemeanor convictions are not eligible for a pardon, “except on application for the restoration of the right bear arms.” Id.
A pardon restores rights of citizenship and relieves other legal disabilities under state law. A pardon does not expunge arrest or conviction records, and does not preclude use of a conviction as a predicate offense to enhance a subsequent sentence. Shankle v. Woodruff, 324 P.2d 1017, 1020-21 (N.M. 1958) (holding pardon does not prevent use of prior conviction for habitual offender sentencing). (Prior to the new guidelines, restoration of gun rights via a pardon had to be specifically requested and required an additional one year wait.) The Pardon Guidelines explain that a pardon “does not remove any disabilities imposed by federal law.”
The pardon application form (updated as of May 2017) is available on governor’s website: http://www.governor.state.nm.us/uploads/files/Pardon%20Notice%20and%20Application.pdf. Completed application forms must be submitted to the governor’s office by mail (not electronically). The governor may then forward it to the Parole Board for investigation, and may request a recommendation from the Parole Board, the attorney general, the sentencing judge, the prosecuting attorney, and/or the corrections secretary. See Pardon Guidelines, supra § III.b, V.b, and V.c. If the governor determines that the Parole Board’s involvement is necessary, the Board will call for a field investigation by the Corrections Department. Id. § V.b. Applicants must include a letter stating the facts of the crime and the reasons for requesting pardon, and a copy of the judgment and sentence. See Application Form.
All victims of crimes enumerated in the Victims of Crime Act, N.M. Stat. Ann. § 31-26-1 et seq., “will be notified and his/her opinion will weigh heavily on the Governor’s decision.” Pardon Guidelines § III.e.
If an applicant is denied a pardon, the applicant is not eligible to reapply until four years following the date of the application. Pardon Guidelines § V.f. Applicants who were denied a pardon by a prior administration are eligible to reapply two years after the date of the original application. Id. § V.e.
Criteria and Standards
An “application for a pardon to restore civil rights shall include proof of the applicant’s ability to act as a responsible and contributing member of society.” Pardon Guidelines, supra III.c. Applicants should include any significant achievements, such as employment and educational accomplishments, and should provide evidence of good citizenship and details about charitable and civic activities or other contributions made to the community. Id. In addition to a clear record, “[d]ue consideration will be given to consistent employment history, lack of criminal record since discharge (including municipal, state and federal offenses).” Id.
Frequency of Grants
Pardons are relatively infrequent. Governor Susana Martinez’ website states that pardons will be granted only in “extraordinary circumstances.” See http://www.governor.state.nm.us/Pardon_Request.aspx. Former Governor Bill Richardson issued 80 pardons in his eight years in office (2002-2010). He also restored rights to one individual with a federal conviction, and commuted one prison sentence. No figures on the number of applications are available. Between 1995 and 2002, 110 pardons were granted out of 2000 eligible applicants. Source: Governor’s Office.
Assistant General Counsel
Office of the Governor
State Capitol Building, Suite 400
Santa Fe, NM 87501
B. Judicial sealing or expungement
Deferred imposition of sentence
N.M. Ann. § 31-20-3 provides for deferred imposition of sentence after a guilty plea (resulting in conviction under New Mexico law), and restoration of all civil rights upon discharge. See United States v. Reese, 326 P.3d 454 (N.M. 2014)(completion of conditions and discharge restores all civil rights). In Reese, the New Mexico Supreme Court stated that “[u]nder New Mexico Law, a dismissal order following the completion of a deferred sentence is effectively a legislatively created judicial pardon.” Slip op. at 7. No statutory authority for expungement.
Conditional discharge without an adjudication of guilt is available, at the court’s discretion, after successful completion of probation in all cases except those involving a first degree felony so long as the person has no prior felony convictions.3 See N.M. Ann. § 31-20-3 (qualifying offenses); § 31-20-13 (conditional discharge authority). “A conditional discharge order may only be made available once with respect to any person.” § 31-20-13. No statutory authority exists for expungement of records in cases resulting in a conditional discharge under § 31-20-13, and courts have held that § 31-20-13 does not provide implicit authority to grant expungement in such cases. See State v. C.L., 242 P.3d 404, 406-07 (N.M. Ct. App. 2010).
Though a conditional discharge does not result in an adjudication of guilt or a conviction, it may be used for subsequent habitual offender sentencing. See § 31-18-17. Gun rights are apparently not lost under state law following discharge, see § 30-7-16(c)(2), nor are federal gun rights lost under 18 U.S.C. § 921(a)(20), see United States vs. Valerio, 441 F.3d 837, 841 (9th Cir. 2006).
Conditional discharge for first-time drug possession
In addition to the general conditional discharge authority under N.M. Stat. Ann. § 31-20-13, first time drug possession offenders may also receive a conditional discharge under distinct authority at § 30-31-28(C). Conditional discharge under § 30-31-28(C) operates in substantially the same manner as discharge under the general statute, and is only available once. Records of proceedings resulting in conditional discharge as a first-time drug possession offender may be expunged, but only if the offender was 18 or younger at the time of commission. 30-31-28(D). Discharge under section 30-31-28 “shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime including the penalties prescribed under this section for second or subsequent convictions or for any other purpose.” § 30-31-28(C).
Sealing is governed by N.M. Stat. § 32A-2-26. Upon motion to the court, records are automatically sealed after finding that a juvenile is not a delinquent offender. § 32A-2-26(H). If a juvenile is adjudicated delinquent, sealing is available, upon motion, after a two-year waiting period, during which there was no subsequent adjudication or conviction for any felony or misdemeanor involving moral turpitude. § 32A-2-26(A). The person is only eligible if there are no charges pending and the person is at least age 18 or there exists good cause to seal before age 18. § 32A-2-26(A). A sealed record is treated as though proceedings never took place, and a person may deny the existence of any sealed record. § 32A-2-26(C). See also § 31-30-28, discussed supra, allowing for expungement of drug possession proceedings.
A person may petition the department [of public safety] to expunge arrest information on the person’s state record or federal bureau of investigation record if the arrest was for a misdemeanor or petty misdemeanor offense and the arrest was not for a crime of moral turpitude. If the department cannot locate a final disposition after contacting the arresting law enforcement agency, the administrative office of the courts and the administrative office of the district attorneys, the department shall expunge the arrest information.
N.M. Stat. Ann. § 29-3-8.1(a). The question whether courts have the authority to direct expungement of arrest records is now before the New Mexico Supreme Court. See Stump v. Albuquerque Police Dept., No. S-1-SC-35912 (argued March 1, 2017). The legislature has passed four bills on the topic since 2005, but two were vetoed by Gov. Bill Richardson and the others by current Gov. Susana Martinez.
III. Nondiscrimination in Licensing and Employment
A. Criminal Offender Employment Act (1974)
N.M. Stat. Ann. §§ 28-2-1 et seq. Section 28-2-2 describes the goal of the Act as follows: “The legislature finds that the public is best protected when criminal offenders or ex-convicts are given the opportunity to secure employment or to engage in a lawful trade, occupation or profession and that barriers to such employment should be removed to make rehabilitation feasible.” In determining eligibility for public employment or a license, the “agency having jurisdiction may take into consideration a conviction, but the conviction shall not operate as an automatic bar to obtaining public employment or license or other authority to practice the trade, business or profession.” § 28-2-3(A).
A person may be disqualified for public employment or licensure based on prior conviction only if: 1) conviction relates directly to the position sought; 2) or the board or other agency determines after investigation that the person so convicted has not been sufficiently rehabilitated to warrant the public trust; or 3) an applicant for a teaching certificate or employment at child-care facility has been convicted of drug trafficking or sex offenses, regardless of rehabilitation. N.M. Stat. Ann. § 28-2-4(A)(1)-(3); see also Weiss v. N.M. Bd. of Dentistry, 798 P.2d 175, 179-81 (N.M. 1990) (proof of felony conviction of making false claim for reimbursement, as distinguished from proof of the conduct underlying the conviction, was sufficient basis for revoking license to practice dentistry under Dental Act and Criminal Offender Employment Act because conviction directly related to dentistry profession and Board made finding that licensee had not been sufficiently rehabilitated to warrant public trust). Completion of parole or probation or a three-year period following release from incarceration creates a presumption of rehabilitation. N.M. Stat. Ann. § 28-2-4(B). An agency must state the reasons for disqualification in writing if a decision is based on the relationship between crime and employment, a finding that the convicted person has not been sufficiently rehabilitated, or on nature of offense in case of teaching or child-care licensure. Id.; see also Weiss, 798 P.2d at 181. Although the requirement of non-rehabilitation as a condition for denying or revoking a license is set out only in § 28-2-4(A)(2) for cases where there is no direct relationship, the New Mexico Supreme Court has held that in light of the purpose of the Criminal Offender Employment Act, a finding on rehabilitation should be made even where a conviction directly relates to the employment sought. Id. at 181.
B. Ban-the-Box for public employment
In 2010, a “ban-the-box” provision applicable to state employment was added to the Act: “A board, department or agency of the state or any of its political subdivisions shall not make an inquiry regarding a conviction on an initial application for employment and shall only take into consideration a conviction after the applicant has been selected as a finalist for the position.” N.M. Stat. Ann. § 28-2-3(A). Records of arrest not resulting in conviction, and misdemeanor convictions not involving “moral turpitude,” may not be considered in any application for public employment or licensure. § 28-2-3(B).
C. Caregiver employment
A wide variety of offenses (including violent offenses, drug, and fraud offenses) disqualify from caregiver employment (including hospitals). N.M. Stat. Ann. § 29-17-5. A care provider, such as a hospital, may continue to employ a caregiver despite a disqualifying felony conviction, if the Department of Health, upon a request for reconsideration, determines that “the employment presents no risk of harm to a care recipient or that the conviction does not directly bear upon the applicant’s, caregiver’s or hospital caregiver’s fitness for the employment.” § 29-17-5(F). But see Spencer v. Health Force, Inc., 107 P.3d 504, 512 (N.M. 2005) (reversing summary judgment for care provider on negligent hiring claim, where care provider failed to conduct a criminal background check on caregiver with extensive criminal record, and caregiver gave patient a fatal injection of heroin).
- Under prior policy the maximum waiting period was ten years.
- Prior to these guidelines, such offenders were ordinarily not granted pardons. Additionally, although the previous governor agreed to entertain pardon applications from individuals who had successfully completed a deferred sentence due to the applicability of federal firearms laws to state offenders, no specific guidance on such cases is provided in the new guidelines.
- A conditional discharge under § 31-20-13 is distinct from deferred sentencing under § 31-20-3. Though both provisions allow for discharge and dismissal following a period of probation, a deferred sentence results in an adjudication of guilt (and, therefore, a conviction), while a conditional discharge is not accompanied by an adjudication of guilt and does not result in a conviction. See State v. Herbstman, 974 P.2d 177, 180 (N.M. Ct. App. 1999).