Restoration of Rights, Pardon, Expungement & Sealing
Last updated: June 16, 2016
I. Restoration of Civil Rights/Firearms Privileges
Persons “convicted of a felony” may not register to vote “for a period of time equal to the time prescribed in the judgment and sentence.” 26 Okla. Stat. Ann. § 4-101(1). This means that a person may register to vote after completion of a court-imposed sentence.
Felony offenders and persons convicted of a misdemeanor involving embezzlement are disqualified from office for 15 years after completion of sentence or until pardoned. 26 Okla. Stat. Ann. §§ 5-105a(A), (B). A person convicted of a felony is permanently disqualified from election to the state legislature. Okla Const. art. V, § 18. In addition, a sitting member of the legislature who commits any of the offenses specified in 21 Okla. Stat. Ann. §§ 301 et seq. (“Crimes Against the Legislative Power”) is permanently disqualified from holding legislative office. 21 Okla. Stat. Ann. § 312.
Persons who have been convicted of any felony or who have served a term of imprisonment in any penitentiary, state or federal, for the commission of a felony may not sit on a jury, unless they have been “fully restored to his or her civil rights” by pardon. 38 Okla. Stat. Ann.§ 28(C)(5).
A person convicted of any felony in any court may not possess a concealable firearm (“any pistol, imitation or homemade pistol, altered air or toy pistol, machine gun, sawed-off shotgun or rifle, or any other dangerous or deadly firearm”), and may not ride as a passenger in a vehicle containing such a weapon. 21 Okla. Stat. Ann. § 1283(A). A person convicted of a “nonviolent felony” and who has received a “full and complete pardon” and has not been convicted of any other felony offense which has not been pardoned, “shall have restored the right to possess any firearm or other [prohibited] weapon . . . the right to apply for and carry a handgun, concealed or unconcealed, pursuant to the Oklahoma Self-Defense Act and the right to perform the duties of a peace officer, gunsmith, or for firearms repair.” § 1283(B). A pardoned conviction from another state may trigger firearms disabilities in Oklahoma absent proof that the foreign pardon restored firearms rights. Kellogg v. State, 504 P.2d 440, 442 (Okla. Crim. App. 1972).
II. Discretionary Restoration Mechanisms
A. Executive pardon
The governor’s pardon power cannot be exercised except pursuant to a favorable recommendation from a majority of the Board of Pardon and Parole. Okla. Const. art. VI, § 10. The governor must report to the legislature on each clemency grant at each regular session, though he is not required to state the reasons for his decisions. Okla. Const. art. VI, § 10. (The governor must also approve all parole decisions, and commutation recommendations are interspersed with parole recommendation on monthly report to the governor. See http://www.ppb.state.ok.us (Docket Results, Hearing Schedule).)
The Board has five members, three of whom are appointed by the governor, the other two, respectively, by the chief justice of the Supreme Court and the presiding judge of the Oklahoma Criminal Court of Appeals. Their terms expire with the governor’s. The Board chooses its own chairman. 57 Okla. Stat. Ann. § 332.4(A). Okla. Const. art. VI, § 10 provides:
“It shall be the duty of the Board to make an impartial investigation and study of applicants for commutations, pardons or paroles, and by a majority vote make its recommendations to the Governor of all deemed worthy of clemency. Provided, the Pardon and Parole Board shall have no authority to make recommendations regarding parole for convicts sentenced to death or sentenced to life imprisonment without parole.”
Eligibility for executive pardon is triggered after service of sentence – or after five years of supervised parole, whichever is shorter. If supervision is terminated early, the period of supervision must run. An individual is not eligible for pardon if there are pending charges against him. Persons convicted in other states and federal offenders are ineligible to apply for an Oklahoma pardon. Misdemeanants may apply if they are not eligible for expungement, and if the applicant can demonstrate that the misdemeanor is prohibiting them from something like holding a state license. See Pardon and Parole Board, Policies and Procedures Manual (2000), Policy 004 (Eligibility Criteria) (available from Pardon and Parole Board). See also Board of Pardon and Parole, Frequently Asked Questions, http://www.ppb.state.ok.us/ (“BPP, FAQs”).
Pardon restores the right to hold office and restores firearms privileges for non-violent offenders. See 21 Okla. Stat. Ann. § 1283(B) (person convicted of a nonviolent felony who has received a “full and complete pardon” regains gun rights, including right to serve as peace officer, and to carry a weapon); BPP, FAQs (“A pardon is executive recognition that someone has turned their life around and has become a productive citizen.”). A person convicted of a violent felony may not possess a firearm even with a pardon. See 1283(A). All offenses, including federal and out-off-state, must be pardoned in order to hold a liquor license, and the spouse and business partners of a convicted person also cannot legally obtain a liquor license. Pardon Application at p. 3, http://www.ppb.state.ok.us/Docs/all3in1/Application%20for%20Pardon%202012.doc. According to the pardon instructions, a pardon may or may not help with a licensing decision, since some boards give effect to a pardon and some do not. “A pardon has little direct effect under Oklahoma law. However, it can be useful in helping you to present yourself as a responsible citizen. A pardon serves as recognition that you have adjusted well to society since completing your sentence.” Id. at 4. 1
Non-violent offenders who are pardoned may seek expungement in a circuit court 10 years after the date of conviction. 22 Okla. Stat. Ann. § 18(11), amended by 2012 Okla. Sess. Law Serv. ch. 183, § 2 (H.B. 3091) (renumbered and slightly revised effective Nov. 1, 2012). A person who was under 18 at the time of conviction who is pardoned may have his conviction expunged. § 18(6), amended by 2012 Okla. Sess. Law Serv. Ch. 183, § 2 (H.B. 3091) (renumbered effective Nov. 1, 2012).
Pardon requires a public hearing, a majority vote by the Board, and a published recommendation. The applicant must submit a completed application form and documents relating to his conviction, including proof that fines and restitution have been paid (credit report, proof of employment and residence, etc.). The application must state specific reasons for applying. The instructions warn that pardon is not a sign of vindication of innocence. The Board takes into account acceptance of responsibility, remorse and atonement. Pardon Application, supra, at 4 (application form copied from federal pardon application form).
The investigation of a pardon application is conducted by a Department of Corrections parole officer – the applicant is advised to be candid, and to present himself as a “responsible and productive citizen.” (“Information you might consider negative will not necessarily hurt your application. It may serve to show how you were able to overcome a problem and actually improve your chances of receiving a Pardon.”) When an applicant lives in a different state, information is requested from authorities there about employment and living arrangements. The application with a report from the D.O.C. is then submitted to the Board for consideration. Pardon and Parole Board, Policies and Procedures Manual, supra, Policy 004-10 (Pardon Consideration).
The Board holds a public hearing in every case and may take official action only in an open public meeting, pursuant to the Oklahoma Open Meeting Act. 57 Okla. Stat. Ann. § 332.2(G). Unlike hearings in commutation cases, however, where the applicant, official witnesses, and victim are all entitled to appear and give testimony, hearings on Pardon Applications are held by “Jacket Review,” with the applicant not ordinarily present. Okla. Admin. Code § 515:1-7-1(d)(1). The Board may grant the applicant the opportunity to appear, but this happens rarely. According to Board staff, the process generally takes about six months to complete. Pardon Application, supra, at p. 1.
The Board meets once a month or at the call of the chairman. The Board must provide prosecutors a list of persons to be considered for pardon 20 days before hearing, and must also notify victims. 57 Okla. Stat. Ann. §§ 332.2(B), (C); Okla. Admin. Code § 515:1-5-2(d). Victims, members of public, and law enforcement officials may also speak at the hearing, subject to strict time limitations. Okla. Admin. Code §§ 515:1-7-1, 515:1-7-2.
Recommendations must be posted on the Board’s website. Okla. Admin. Code § 515:1-5-2(b). The Board forwards favorable recommendations to the governor within 30 days, and the governor has 90 days to act. If the governor does not approve the recommendation, it is deemed denied. 57 Okla. Stat. Ann. § 332.19.
Frequency of Grants
For at least the past fifteen years, the Oklahoma governor has approved about 100 pardons every year (about 80% of those that apply). The Board recommends pardons in 7-8 cases each month, and the governor generally approves those recommended by the Board. The Board also considers a number of commutation applications each month.2 Source: Oklahoma Pardon and Parole Board, https://www.ok.gov/ppb/Dockets_and_Results/index.html.
Oklahoma Pardon and Parole Board
B. Judicial sealing or expungement
Effective November 1, 2014, Oklahoma made it easier for less serious offenders to have their records sealed. The 2014 amendments to 22 Okla. Stat. Ann. § 18 reduce the waiting time for expungement from two years to one in cases of deferred adjudication of misdemeanor charges. Prior misdemeanor convictions will no longer be disqualifying in any expungement cases. The eligibility waiting period remains at ten years for deferred felony charges, misdemeanor convictions, and pardoned felony convictions, but in these cases too prior misdemeanor convictions will no longer be disqualifying
Misdemeanor convictions: As of November 2016, a person convicted of a misdemeanor that was sentenced to a fine $500 or less and no suspended sentence or term of imprisonment may petition for expungement immediately upon satisfaction of the fine so long as no charges are pending and the person has never been convicted of a felony. 22 Okla. Stat. Ann. § 18(A)(10) (as amended by HB 2397 (2016)). Otherwise, misdemeanor convictions may be expunged 5 years (reduced from 10 years in 2016 by by HB 2397) after conviction if no charges are pending against the person, and if the person has no prior felony offenses. § 18(A)(11).
Pardoned felony offenses: A person convicted of no more than one non-violent felony offense who has received “a full pardon” for that conviction may petition to have the record expunged 10 years after conviction, as long as the person has no misdemeanor convictions within the last 15 years. 22 Okla. Stat. Ann. § 18(A)(12). See Holder v. State, 219 P.3d 562, 565 (Okla. Civ. App. Div 2 2008). As of November 2016, a person with no more than two pardoned felonies may petition for expungement after 20 years. § 18(A)(13) (as amended by HB 2397 (2016)). Pardoned offenses committed by persons under age 18 may be expunged without a waiting period. § 18(A)(6).
Deferred adjudication leading to expungement: In cases where a person is charged with a misdemeanor or minor felony, the court may defer judgment for a period not to exceed ten years, and may require a defendant to make restitution and meet a variety of community-based conditions, including up to 90 days in jail. 22 Okla. Stat. Ann. 991c(A). Only misdemeanants and first felony offenders and people who have not received deferred judgment in the previous 10 years are eligible, unless the district attorney grants a waiver. § 991c(F). Defendants found guilty or who plead guilty or nolo contendere to a sex offense required by law to register pursuant to the Sex Offenders Registration Act are not eligible. § 991c(G). Upon successful completion of probation, the court “shall order the verdict or plea of guilty or plea of nolo contendere to be expunged from the record and the charge shall be dismissed with prejudice to any further action.” § 991c(C). The defendant may petition to court to have the filing of the indictment and the dismissal expunged from the public index and docket sheet. § 991c(C)(5). The effect of expungement is to delete from the court docket, except that the clerk of the court keeps a record for criminal history purposes. § 991c(C). See also Oklahoma Community Sentencing Act, 22 Okla. Stat. Ann. §§ 988.1 et seq.3 “This section shall not be mutually exclusive of Section 18 of this title.” § 991c(C)(5).
Additional expungement provisions: Under § 18 of Title 22, a person who pleads guilty to a misdemeanor but has judgment deferred is eligible to have his record expunged after one year (reduced in 2014 from two years) if the charge was dismissed following the successful completion of probation, provided that no misdemeanor or felony charges are pending against the person and that the person has never been convicted of a felony. 22 Okla. Stat. Ann. § 18(A)(8). A person who is charged with a non-violent felony who successfully completes probation is also eligible to have his record expunged after ten years. § 18(A)(9). In 2014 the requirement that a defendant have no prior misdemeanors to qualify for expungement was deleted from subsections (A)(8) and (A)(9).
Non-conviction records: Arrest records may be expunged if the person is acquitted, his conviction is reversed, his factual innocence is established by DNA evidence, his pardon is based on governor’s finding of actual innocence, or no charges were ever filed. 22 Okla. Stat. Ann. §§ 18(A)(1)-(5). Expungement is also available to those charged with a felony or misdemeanor where the charge was dismissed; there are no other pending charges; the person has never been convicted of a felony; and the statute of limitations has expired on the charges or the prosecuting authority has confirmed that it does not intend to re-file charges. 18(A)(7), amended by 2012 Okla. Sess. Law Serv. ch. 183, § 2 (H.B. 3091).
Expungement means “the sealing of criminal records, as well as any public civil record, involving actions brought by and against the State of Oklahoma arising from the same arrest, transaction or occurrence.” 22 Okla. Stat Ann. § 18(B). Expunged conviction records (including those for pardoned offenses) and records expunged following successful completion of probation remain available to law enforcement and may be used in subsequent prosecutions. § 18(D). Any conviction that has been sealed may be ordered “obliterated or destroyed” after an additional 10 years. § 19(K).
Employment: No public or private employer may ask about or consider a sealed conviction. An applicant for employment need not, in answer to any question concerning arrest and criminal records, provide information that has been sealed, “and may state that no such action has ever occurred.” 22 Okla. Stat. Ann. § 19(F). Such an application “may not be denied solely because of the applicant’s refusal to disclose arrest and criminal records information that has been sealed.” Id.
The procedures for sealing are set forth in 22 Okla. Stat. Ann. § 19. A person must petition the district court in the jurisdiction where records are located, which must schedule a hearing with 30 days’ notice to the district attorney. § 19(A), (B).
“Upon a finding that the harm to privacy of the person in interest or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records, the court may order such records, or any part thereof except basic identification information, to be sealed. If the court finds that neither sealing of the records nor maintaining of the records unsealed by the agency would serve the ends of justice, the court may enter an appropriate order limiting access to such records.”
§ 19(C). Any order may be appealed to the Oklahoma Supreme Court by the applicant, district attorney, arresting agency, or Oklahoma Bureau of Investigation. Id.
“Upon the entry of an order to seal the records, or any part thereof, the subject official actions shall be deemed never to have occurred, and the person in interest and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such action ever occurred and that no such record exists with respect to such person.”
§ 19(D). Inspection of expunged records will then be permitted by the court only upon petition by the person in interest who is the subject of such records, the Attorney General, the district attorney, and only to those persons and for such purposes named in such petition. § 19(E).
“Employers, educational institutions, state and local government agencies, officials, and employees shall not, in any application or interview or otherwise, require an applicant to disclose any information contained in sealed records. An applicant need not, in answer to any question concerning arrest and criminal records provide information that has been sealed, including any reference to or information concerning such sealed information and may state that no such action has ever occurred. Such an application may not be denied solely because of the applicant’s refusal to disclose arrest and criminal records information that has been sealed.”
A petitioner denied expungement may have the matter reconsidered at a later time upon a showing of changed circumstances. Id.
Oklahoma’s expungement statute is “clearly intended to aid those who are acquitted, exonerated, or who otherwise deserve a second chance at a ‘clean record.’ ” Buechler v. State, 175 P.3d 966, 969 (Okla. Civ. App. 2007), quoting McMahon, 959 P.2d 607, 609 (Okla. Civ. App. 1998).
“Once the presumption of harm is established [by petitioner seeking expungement of criminal records], the burden then shifts to the agencies opposing expungement to show that keeping such records public does not harm privacy interests and would serve the ends of justice. In determining whether the State has met this burden, the trial court should balance the personal harm to privacy and other adverse consequences of open records against the public interest in keeping those records open.”
Buechler, 175 P.3d at 971 (internal citation and quotations omitted).
2. Deferred sentencing and probation for first-time drug offenders
Under a separate statutory authority, persons not previously convicted of drug offenses under state or federal law are eligible for deferred sentencing leading to automatic expungement. 63 Okla. Stat. Ann. § 2-410(A). Conditions of probation may include participation in a treatment program. Id. Following expungement, the arrest or conviction “shall not thereafter be regarded as an arrest or conviction for purposes of employment, civil rights, or any statute, regulation, license, questionnaire or any other public or private purpose.” § 2-410(B). However, an expunged conviction may be treated as a predicate offense in any subsequent recidivist drug prosecution for a period of ten years, provided there has been no conviction for misdemeanor involving moral turpitude or felony in the interim. Id.
3. Juvenile Records
Expungement of juvenile records is governed by Okla. Stat. tit. 10A, § 2-6-109. To be eligible, a person must be at least age 21; have completed all requirements of the past juvenile proceeding; and have no subsequent arrests, convictions, or pending charges. 2-6-109(A). The court may order expungement upon a finding that the harm to the individual’s privacy or the risk of unwarranted consequences outweighs the interest in maintaining the records. § 2-6-109(C). An expunged record is sealed and can be destroyed after 10 years if not unsealed. Id. at (J). The person may deny the existence of an expunged juvenile record. § 2-6-109(D). Individuals who are not adjudicated delinquent may have records sealed upon court order in certain situations. § 2-6-108(B). The person may deny the existence of a sealed record. § 2-6-108(D). Sealed records can only be accessed by court order in certain situations. § 2-6-108(G).
In 2014, 10A Okla. Sta. Ann. § 2-2-402(F) was enacted, providing that juvenile adjudications “shall not be considered an arrest, detention or conviction for purposes of employment, civil rights, or any statute, regulation, license, questionnaire, application, or any other public or private purposes, unless otherwise provided by law.”
III. Nondiscrimination in Licensing and Employment
No public or private employer may ask about or consider a sealed conviction. See Part II B, supra. An applicant for employment need not, in answer to any question concerning arrest and criminal records, provide information that has been sealed, “and may state that no such action has ever occurred.” 22 Okla. Stat. Ann. § 19(F). Such an application “may not be denied solely because of the applicant’s refusal to disclose arrest and criminal records information that has been sealed.” See also 63 Okla.Stat. Ann. § 2-410(B)(following expungement of the record in cases of first time drug offenders, the arrest or conviction “shall not thereafter be regarded as an arrest or conviction for purposes of employment, civil rights, or any statute, regulation, license, questionnaire or any other public or private purpose”).
Ban-the-box in state hiring
On February 24, 2016, Governor Mary Fallin signed Executive Order 2016-03, ordering all state agencies to remove from their employment applications all questions about criminal history “unless a felony conviction would automatically render an applicant not qualified.” See https://www.sos.ok.gov/documents/executive/1023.pdf. Agencies may still inquire about criminal history during the interview process. The Order does not apply to “sensitive governmental positions in which a criminal history would be an immediate disqualification.”
Legislation enacted in 2015, HB 2168, limits the authority of most specialized licensing boards to deny, suspend, or revoke a license based on a criminal conviction to instances where the conviction was for a felony that “substantially relates to the practice” or “poses a reasonable threat to public safety.” See, e.g., 59 Okl. St. §§ 199.11 (Board of Cosmetology and Barbering), 46.14 (Board of Governors of the Licensed Architects, Landscape Architects and Registered Interior Designers).
- See also Frequently Asked Questions, at p. 7, http://www.ppb.state.ok.us/FAQ/faq’s.doc :
“Under Oklahoma law, a pardon by itself will not clear a person’s record. It does not prevent a prior criminal record from being considered when decisions are made concerning employment or other matters. Even if one is granted a pardon, their record may continue to affect them. A person who was less than 18 years old at the time the offense was committed and who has received a pardon may seek to have their record expunged. See Title 22 O.S. §18(5). Also any person convicted of a non-violent felony that has received a pardon for the offense and has not been convicted of any other misdemeanor or felony and has no felony or misdemeanor charges pending, may after 10 years have passed (since the conviction) file a motion for expungement. See Title 22 O.S. § 18(7). The motion for expungement must be filed with the District Court where the conviction occurred. The Pardon and Parole Board is not involved in the expungement proceeding. If you have additional questions concerning expungement you should contact an attorney.”
- Oklahoma is the only state in the country that still requires its governor to approve all prison releases by parole or commutation. As a result, until quite recently, the Oklahoma governor granted hundreds of commutations annually. Both forms of discretionary release have dropped dramatically since 2004, and the Oklahoma legislature recently authorized the Parole Board to release certain less serious offenders without the requirement of the governor’s signature.
- Section 988.8 gives the sentencing court a wide menu of community sentencing options for eligible offenders (eligibility is determined pursuant to a risk-based index). “When ordering a community sentence or community punishment, the court shall first impose a deferred or suspended sentence for the offense as prescribed by law, and shall then order the appropriate community punishment as a condition of that deferred or suspended sentence.” 22 Okla. Stat. Ann. § 988.19(A).