Restoration of Rights, Pardon, Expungement & Sealing
Last updated: March 23, 2016
I. Restoration of Civil/Firearms Rights
A. Civil Rights
The rights to vote and to hold public office are lost upon conviction of a felony and sentencing to imprisonment “during the term of actual incarceration.” N.D. Cent. Code § 12.1-33-01. Both rights are restored upon release from prison. § 12.1-33-03(1). Release from incarceration also restores the right to sit on a jury, except for certain offenses. See § 27-09.1-08(2)(e).
Firearm rights are lost for a ten-year period upon conviction of a felony involving violence or intimidation (dating from release from incarceration or probation), and five years after conviction for a non-violent felony or violent Class A misdemeanor. N.D. Cent. Code §§ 62.1-02-01(1)(a), (b). Under a law passed in 2011, a felony offender subject to the five-year bar may petition the court in his county of residence for restoration of firearms rights. § 62.1-02-01.1. The court must determine by clear and convincing evidence that the individual has successfully completed all terms of his sentence and paid all fines, and that “[t]he individual’s record and reputation are such that the individual is not likely to act in a manner dangerous to the safety of others.” Id. A pardon will also restore firearms rights but only if the pardon document so states. North Dakota Pardon Information, Pardon411.com, http://www.pardon411.com/wiki/North_Dakota_Pardon_Information (last visited July 20, 2013). Whether a particular offense is a felony is determined under the law of the jurisdiction of conviction. State ex rel. Olson v. Langer, 256 N.W. 377, 388-89 (N.D. 1934).
II. Discretionary Restoration Mechanisms
A. Executive pardon
The state constitution vests the pardon power (except in cases of treason or impeachment) in the governor. N.D. Const. art. 5, § 7. The governor may (but is not required to) appoint a “pardon advisory board,” consisting of the state attorney general, two members of the Parole Board, and two citizens. N.D. Cent. Code § 12-55.1-02.1 The Board is staffed by a “pardon clerk” at the Parole Board, which is part of the state Department of Corrections. See § 12-55.1-05.
There are no eligibility requirements for North Dakota offenders. Persons convicted under federal law or the laws of another state are ineligible for a state pardon.
Under Pardon Advisory Board rules, an applicant “must have encountered a significant problem with the consequences of the conviction or sentence (e.g. inability to obtain or maintain licensures or certifications necessary for employment)” or demonstrate some other “compelling need for relief as a result of unusual circumstances.” Pardon Advisory Board, N.D. Dep’t of Corr. & Rehab., http://www.nd.gov/docr/adult/tps/advisory.html.2 The pardon clerk emphasizes the central importance of this “need” requirement: A generalized need for forgiveness will not suffice; the applicant must have a specific employment-related or other disability that would be relieved by a pardon.
Ordinarily a pardon relieves collateral legal penalties, but it does not expunge conviction. N.D. Cent. Code § 12-55.1-01(4). See also Attorney General’s Opinion, No. 85-44, 1985 WL 257704 (Dec. 03, 1985) (“[A] pardon acts to remove the punishment resulting from a criminal conviction, but does not act to remove the fact of guilt and other circumstances surrounding the commission of the crime.”). A pardoned conviction may be used as a predicate offense or to enhance a sentence for a subsequent crime. See State v. Webb, 162 N.W. 358, 361 (N.D. 1917) (“The courts have uniformly held that the fact that the accused was pardoned [for a prior conviction] does not exempt him from increased punishment on a subsequent conviction.”). A pardon will also restore firearms rights but only if the pardon document so states. North Dakota Pardon Information, Pardon411.com, http://www.pardon411.com/wiki/North_Dakota_Pardon_Information (last visited July 20, 2013).
The Pardon Advisory Board meets twice a year to consider cases, and applications must be filed at least 90 days in advance.3 Pardon Advisory Board, N.D. Dep’t of Corr. & Rehab., http://www.nd.gov/docr/adult/tps/advisory.html. After the application is filed, the pardon clerk must notify the sentencing judge and the state’s attorneys in the county where the applicant was convicted, and they in turn may file their recommendations with the Board. N.D. Cent. Code §§ 12-55.1-07, -09. The pardon clerk also directs field investigations and prepares a packet of cases for the Board’s semi-annual meeting. § 12-55.1-05; Pardon Advisory Board Policies and Procedures, N.D. Dep’t of Corr. & Rehab., 5 (Nov. 9, 2010), http://ww.nd.gov/docr/adult/tps/policy2010.pdf. There is no provision for a personal appearance. Pardon Advisory Board Policies and Procedures, supra, at 5. Applicants are immediately notified of the Board’s recommendation to the governor. The governor’s office follows up by sending a letter notifying the applicant of the governor’s decision. State law provides for reconsideration and revocation of the pardon within 30 days of the decision. § 12-55.1-08.
The Pardon Advisory Board is not an administrative agency as defined under N.D. Cent. Code § 28-32-01(2)(a) and is not subject to the Administrative Agencies Practice Act. N.D. Cent. Code § 28-32-01(2)(n); Pardon Advisory Board Policies and Procedures, N.D. Dep’t of Corr. & Rehab., 5 (Nov. 9, 2010), http://ww.nd.gov/docr/adult/tps/policy2010.pdf. Any rules the Board may adopt need not be published in the North Dakota Administrative Code. Pardon Advisory Board Policies and Procedures, supra, at 2.
Frequency of Grants
The Board reviews about 50 pardon applications each year. Only two pardons were granted in 2015, and one in both 2014 and 2013. Between January 2008 and December 2012, The Board reviewed 259 pardon applications, and only eight pardons were granted. Source: North Dakota Pardon Advisory Board
Pardon Clerk, North Dakota Pardon Advisory Board
P.O. Box 5521
Bismarck, ND 58506-5521
B. Judicial sealing or expungement
After a guilty plea, “[a] court, upon application or its own motion, may defer imposition of sentence” and place an offender on probation. N.D. Cent. Code § 12.1-32-02(4). “An order deferring imposition of sentence is reviewable upon appeal from a verdict or judgment.” Id. Sealing is automatic upon successful completion. § 12.1-32-07.2(2). See State v. Siegel, 404 N.W.2d 469, 470-73 (N.D. 1987); cf. N.D. R. Crim. P. 32.1 (a file is sealed “61 days after expiration or termination of probation” for infractions and misdemeanors). “In any subsequent prosecution . . . , the prior conviction for which imposition of sentence is deferred may be pleaded and proved, and has the same effect as if probation had not been granted or the information or indictment dismissed under § 12.1-32-07.1,” which is discussed in more detail below. § 12.1-32-02(4).
Expungement of non-conviction records
The Bureau of Criminal History Information may not disclose to the public non-conviction records more than three years old. N.D. Cent. Code, § 12-60-16.6. The North Dakota Supreme Court has held that state courts have inherent authority to expunge arrest records for unlawful arrests; and, upon motion, to seal online court records for criminal cases in which the charges are dismissed or for which the defendant has been acquitted. State v. Howe, 308 N.W.2d 743, 749 (N.D. 1981)(“We hold that the courts of this state have the authority to order, and an arrestee who is not subsequently convicted is entitled to, expunction of arrest records when the arrest is unlawful in violation of the arrestee’s constitutional rights.”). Under the North Dakota Supreme Court’s administrative rules, the court may limit public Internet access to a defendant’s electronic court record if the charges are dismissed or the defendant is acquitted. N.D. Sup. Ct. Admin. R. 41(6) (authorizing court to limit public Internet access to certain nonconviction records “[i]f the court concludes, after conducting the balancing analysis and making findings as required by paragraphs (1) through (5), that the interest of justice will be served. . . . ”). “If the court grants a request to prohibit public Internet access to an electronic court record in a criminal case, the search result for the record must display the words ‘Internet Access Prohibited under N.D. Sup.Ct. Admin..R 41.’”
Reduction of minor felony offenses to misdemeanors
North Dakota law provides procedures by which a minor state felony conviction may be reduced to a misdemeanor after service of sentence. See N.D. Cent. Code §§ 12.1-32-02(9) (person convicted of a felony and sentenced to imprisonment for not more than one year “is deemed to have been convicted of a misdemeanor” upon successful completion of the term of probation imposed as part of the sentence). Reduction of a felony conviction to a misdemeanor has the effect of releasing the defendant from all penalties and disabilities resulting from the offense, except for sex offender registration and firearms disabilities. However, the court has no authority to expunge or seal conviction records.
Expungement for first offender marijuana possession (misdemeanor)
N.D. Cent. Code § 19-03.1-23(9):
“When a person pleads guilty or is found guilty of a first offense regarding possession of one ounce 1 or less of marijuana and a judgment of guilt is entered, a court, upon motion, shall seal the court record of that conviction if the person is not subsequently convicted within two years of a further violation of this chapter and has not been convicted of any other criminal offense. Once sealed, the court record may not be opened even by order of the court.”
Records are sealed automatically at the conclusion of juvenile proceedings. N.D. Cent. Code § 54-23.4-17(5). Records are later permanently destroyed after a specified time depending on the adjudication, or earlier upon petition. N.D. Sup. Ct. Admin. R. 19(9). Once destroyed, a record is treated as if it never existed. N.D. Cent. Code § 27-20-54(2).
III. Nondiscrimination in Licensing and Employment
N.D. Cent. Code § 12.1-33-02.1 (“Prior conviction of a crime not bar to state licensures”) provides:
- A person may not be disqualified to practice, pursue, or engage in any occupation, trade, or profession for which a license, permit, certificate, or registration is required from any state agency, board, commission, or department solely because of prior conviction of an offense. However, a person may be denied a license, permit, certificate, or registration because of prior conviction of an offense if it is determined that such person has not been sufficiently rehabilitated, or that the offense has a direct bearing upon a person’s ability to serve the public in the specific occupation, trade, or profession.
- A state agency, board, commission, or department shall consider the following in determining sufficient rehabilitation:
- The nature of the offense and whether it has a direct bearing upon the qualifications, functions, or duties of the specific occupation, trade, or profession.
- Information pertaining to the degree of rehabilitation of the convicted person.
- The time elapsed since the conviction or release. Completion of a period of five years after final discharge or release from any term of probation, parole or other form of community corrections, or imprisonment, without subsequent conviction shall be deemed prima facie evidence of sufficient rehabilitation.
- If conviction of an offense is used in whole or in part as a basis for disqualification of a person, such disqualification shall be in writing and shall specifically state the evidence presented and the reasons for disqualification. A copy of such disqualification shall be sent to the applicant by certified mail.
- A person desiring to appeal from a final decision by any state agency, board, commission, or department shall follow the procedure provided by the chapter of this code regulating the specific occupation, trade, or profession. If no appeal or review procedure is provided by such chapter, an appeal may be taken in accordance with chapter 28-32, except for attorneys disbarred or suspended under chapter 27-14.
The “direct bearing” standard and “rehabilitation” tests of this statute are incorporated into dozens of licensing statutes in the North Dakota Century Code, including: liquor licenses (§ 5-03-01.1), teachers (§§ 15.1-13-25(1)(d), (e)), residential treatment centers for children (§ 25-03.2-04), architects and landscape architects (§ 43-03-13(2)(a)), lawyers (§ 27-14-02(1)), barbers (§ 43-04-31.1), electricians (§ 43-09-09.1), funeral service directors (§ 43-10-11.1), and pharmacists (§ 43-15-18.1).
- 35 grams ↩
- Until a 1996 constitutional amendment, the pardon power in North Dakota was exercised by the Board of Pardons, composed of the governor, the Attorney General, the Chief Justice, and two appointees of the governor. See N.D. Const. art. 5, § 6 (1995). The Board’s procedures and administrative processes were detailed in N.D. Cent. Code § 12-55-01 et seq. (1995). See Nat’l Governors’ Ass’n, Guide to Executive Clemency Among the American States 122-24 (1988).
- The Board rules and an application form are available from the Pardon Clerk. An online version of the application form is available at http://www.nd.gov/docr/adult/tps/pboard_APPLICATION.pdf.
- The application form is available at http://www.nd.gov/docr/adult/tps/pboard_APPLICATION.pdf.