Restoration of Rights, Pardon, Expungement & Sealing
Last updated: March 4, 2017
I. Restoration of Civil Rights/Firearms Privileges
A. Civil Rights
Pursuant to 2012 legislation, persons convicted of a felony are removed from the voter rolls for the duration of their sentence, including a sentence to probation. S.D. Codified Laws § 12-4-18, as amended by HB 1247.1 Prior to the passage of this law, the right to vote was suspended only if a person was sentenced to a prison term, pursuant to S.D. Codified Laws § 23A-27-35. Other civil rights remain governed by that provision:
A sentence of imprisonment in the state penitentiary for any term suspends the right of the person so sentenced, to hold public office, to become a candidate for public office and to serve on a jury. Any such person so sentenced forfeits all public offices and all private trusts, authority, or power during the term of such imprisonment. After a suspension of sentence pursuant to Section 23A-27-18, upon the termination of the time of the original sentence or the time extended by order of the court, a defendant’s rights withheld by this section are restored. However, the voting rights of any person sentenced to imprisonment in the state penitentiary shall be governed by Title 12.
Id.; see also S.D. Const. art. 3, § 3 (disqualifying from legislative office those who cannot vote)2; S.D. Codified Laws § 16-13-10 (convicted felons may not sit on jury unless civil rights restored). Rights are lost even if a prison sentence is suspended by the court, and they are not restored until “the termination of the time of the original sentence or the time extended by order of the court.” S.D. Codified Laws § 23A-27-35.
Upon issuance of a discharge certificate by Secretary of Corrections, a person is considered “restored to the full rights of citizenship.” S.D. Codified Laws §§ 24-5-2, 24-15A-7. A discharge certificate is not issued until the entire prison sentence is completed, including any period of parole. Id. However, the certificate is issued upon grant of early final discharge from supervision as a parolee. § 24-5-7.3
Firearms rights are not lost unless a person is convicted of a “crime of violence” or certain drug felonies, in which case rights are restored automatically after fifteen years without another conviction for a crime of violence or certain drug felonies. S.D. Codified Laws § 22-14-15 (amended by 2005 S.D. Sess. Laws 120); see also § 22-1-2(9) (defining “crime of violence”). Earlier relief by pardon is available only if specified in the pardon document. § 24-14-12.
II. Discretionary Restoration Mechanisms
A. Executive pardon
According to the Supreme Court of South Dakota, there are two legally distinct types of pardons in South Dakota. See Doe v. Nelson, 680 N.W.2d 302, 313 (S.D. 2004). Under the first type of pardon, the governor may act independently under article 4, section 3 of the South Dakota Constitution. D. Const. Article IV, § 3. Under the second type, the governor may pursue the advisory route recognized in section 24-14-1 of the South Dakota Code and delegate, by executive order, advisory authority to the Board of Pardons and Paroles, in which case the record of the conviction and the pardon itself may be sealed. S.D. Codified Laws § 24-14-11; see also Doe, 680 N.W.2d at 313. The Board may also recommend to the governor first offender “exceptional pardons.” § 24-14-8, discussed below. Answers to “FAQs” are posted on the Board’s website. Frequently Asked Questions, S.D. Dep’t of Corrections, http://doc.sd.gov/about/faq/clemency.aspx. Prior to 2002, many pardons were issued privately by the governor each year without consultation with the Parole Board or notification to the legislature. That practice has now evidently ceased. 4
The Board of Pardons and Paroles is a nine member appointed board charged with the authority to make decisions of parole, the revocation of parole, and parole policy and procedure. S.D. Codified Laws §§ 24-13-1, 24-13-2. Three of the board members are appointed by the governor, three are appointed by attorney general, and the remaining three are appointed by the South Dakota Supreme Court. Id. One of the appointees by each appointing authority must be an attorney. Id. Each member of the board must be a resident of South Dakota and be appointed for a four-year term with the advice and consent of the Senate, and may be reappointed. Id.; see also Board of Pardons and Paroles, S.D. Dep’t of Corrections, http://doc.sd.gov/parole/. The Board is required by law to meet at least every three months, and names its own chair. §§ 24-13-4, 24-13-6. The Board is administered under the jurisdiction and direction of the Department of Corrections but retains “quasi-judicial, quasi-legislative, advisory and other non-administrative functions” independent of the Department of Corrections. § 24-13-3.
As a general standard, the Board applies a five-year eligibility waiting period, measured from completion of sentence. Out of state convictions are ineligible. See United States v. Capito, 992 F.2d 218, 219-20 (8th Cir. 1993); Thompson v. United States, 989 F.2d 269, 270-71 (8th Cir. 1993). The application form is available at http://doc.sd.gov/documents/ExecutiveClemencyPardonApplication_3_.pdf.
First offenders may qualify for an “exceptional pardon” five years after release, if their offense was not punishable by life imprisonment. S.D. Codified Laws § 24-14-8 (amended by 2005 S.D. Laws 132, § 7). Applicants must comply with all procedures applicable to ordinary pardons except for the requirement of newspaper publication in section 24-14-4 of the South Dakota Code. § 24-14-9. According to the Board of Pardons, as of August 2012 no exceptional pardons had been granted.
Per S.D. Codified Laws § 24-14-11, persons pardoned pursuant to statutory provisions are
released from all disabilities consequent on the person’s conviction [except for firearms privileges if not specified, § 24-14-12] . . . . The pardon restores the person, in the contemplation of the law, to the status the person occupied before arrest, indictment, or information. No person as to whom such order has been entered may be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of such person’s failure to recite or acknowledge such arrest, indictment, information, or trial in response to any inquiry made of such person for any purpose.
In addition, upon the granting of a pardon under the provisions of the statute, the records are sealed:
[T]he governor shall order that all official records relating to the pardoned person’s arrest, indictment or information, trial, finding of guilt, application for a pardon, and the proceedings of the Board of Pardons and Paroles shall be sealed. The governor shall file a public document with the secretary of state certifying that the governor has pardoned the person in compliance with the provisions of this chapter. The document shall remain a public document for five years and after five years that document shall be sealed.
§ 24-14-11. The pardoned offense shall be considered a prior conviction for the sole purpose of sentencing for subsequent offenses, determination of habitual offender status, or prior DUI convictions. Id. The South Dakota Supreme Court has held that records of a pardon issued by the governor alone pursuant to his constitutional power, “without following the provisions of this chapter,” may not be sealed. See Doe v. Nelson, 680 N.W.2d 302, 309 n.8, 313 (S.D. 2004) (quoting S.D. Codified Laws § 24-14-11); see also 3 S.D. Op. Att’y Gen. 01 (2003), 2003 WL 21406288.
In cases where a pardon application is referred to the Board for advice pursuant to section 24-14-1 of the South Dakota Code, the Board investigates the case and refers it back to governor with a non-binding recommendation for action. S.D. Codified Laws § 24-14-5. The Board meets in open session at facilities provided by the Department of Corrections “at least every three months” to hear applications for parole, for the discussion and adoption of policy, for revocation decisions, “and upon request of the Governor, [to] make recommendation for pardon, commutation, reprieve, or remission of fines or forfeitures.” Id. § 24-13-6. The Board is required to “publish annually a schedule of hearing dates and locations for the next calendar year.” S.D. Admin. Code § 17:60:01:04 (2011).
Clemency applicants must give notice to the prosecutor, Attorney General, and sentencing judge thirty days before the application is considered. S.D. Codified Laws § 24-14-3 (amended by 2005 S.D. Sess. Laws 132, § 5). The Board must give notice to the victim at least two weeks prior to the hearing. § 24-14-4.1. Unless the applicant qualifies for an exceptional pardon as a first offender (see above), he must also publish notice of application in a newspaper of general circulation in the county where the crime was committed once a week for three weeks. § 24-14-4 (amended by 2005 S.D. Sess. Laws 132, § 6).
An individual board member may act as hearing examiner, though cases are ordinarily heard in panels of two. Unmeritorious cases are weeded out at that point. Cases that go on to the next stage may be required to supply an evaluation, depending on the nature of the crime (e.g., drug and sex offenses). The hearing panel makes a recommendation to the full Board, which will hold a public hearing. S.D. Codified Laws § 24-13-6. The Board has subpoena power. § 24-13-8. Favorable pardon recommendations must be by majority, and must be in writing. §§ 24-13-4.6, 24-14-7. The Board keeps a record of its findings and reasons for its recommendations. § 24-14-7. Instructions and application form available at http://doc.sd.gov/forms/clemency/. Typically, a case takes six to eight months from the Board’s receipt of an application to final decision by the governor. Bob Mercer, State saving time with streamlined pardons, Rapid City Journal (October 10, 2014), available at http://rapidcityjournal.com/news/local/state-saving-time-with-streamlined-pardons/article_2abf9435-711b-59a4-b31d-50d0c2cc92a6.html.
Factors to be considered by the Board in regulations that are relevant to post-sentence pardon include:
The applicant has shown remarkable rehabilitation; . . . Review of the totality of applicant’s circumstances indicates that applicant has carried the stigma of the crime for a long enough period to justify its removal; . . . The applicant wishes to pursue a professional career from which society can benefit, but a felony conviction prevents it.
S.D. Admin. R. 17:60:05:12 (2011). According to an e-mail from Board staff in 2009, “typical reasons given for applying for a pardon include obtaining more gainful/beneficial employment, obtaining specific licensing and/or attend specific schooling, hunting/firearms rights, carrying the stigma long enough, etc.”
Expedited Pardons for Certain Misdemeanors
In 2014, the Board of Pardons and Paroles implemented a policy that expedites the pardon process for certain misdemeanors. Class II misdemeanors and petty offenses are eligible for expedited processing after five years, and non-violent Class I misdemeanors are eligible after ten years. See Expedited Pardon Instructions 1, available at http://doc.sd.gov/documents/forms/clemency/ExpeditedPardonInstructions.pdf. Expedited processing is not available for persons convicted of another offense (other than a traffic offense) during the waiting period. Pardons sought to regain firearms rights are not eligible for expedited processing. Id. The expedited pardon process differs from the traditional process by eliminating the initial two-member screening, allowing for an immediate initial panel consideration followed by recommendation to the full Board. Id. at 3. Additionally, applicants for an expedited pardon are not required to appear in person at a hearing. Id. The expedited process is expected to take 30 to 60 days. Expedited processing is currently being carried out by Board policy, though the process will be formalized in the Board’s rules. Id. Instructions and application form available at http://doc.sd.gov/forms/clemency/. The new expedited process is discussed in Mercer, Saving Time, supra.
Frequency of Grants
|Fiscal Year||Number of applicants||Recommended to governor|
Source: Board of Pardons and Paroles
In the fall of 2014, after implementation of the expedited process described above, the Board reported hearing six to eight regular requests for pardons and three to four expedited requests each month. See Mercer, Saving Time, supra. Pardon applications increased significantly in 2014 after the impelementation of the expedited process described above. Most of the pardons recommended by the Board are granted by the governor. Governor Dennis Daugaard issued 137 pardons between January 2011 and September 2014. Grants are made at regular intervals through the year. Source: Board of Pardons and Paroles. Between 2002 and 2012, there were a total of 315 pardons granted by the South Dakota governor upon recommendation of the Parole Board. Between 1995 and 2002, 279 pardons were issued, many by the governor alone without involvement of Parole Board. See note 4, supra.
Parole Board Office Manager
Director, S.D. Board of Pardons and Paroles
Box 5911 Sioux Falls, SD 57117-5911
Phone (605) 367-5040
Fax (605) 367-5025
B. Judicial sealing or expungement
Automatic “sealing” of low-level conviction & arrest records after ten years
S.D. Codified Laws § 23A-3-34 authorizes automatic removal from a defendant’s public record any charge or conviction resulting from low-level offenses after ten years. The new law provides in full:
Any charge or conviction resulting from a case where a petty offense, municipal ordinance violation, or a Class 2 misdemeanor was the highest charged offense shall be automatically removed from a defendant’s public record after ten years if all court-ordered conditions on the case have been satisfied. However, the case record will remain available to court personnel or as authorized by order of the court.
Prior to this law’s enactment in June 2016, the only mechanism available to shield conviction case records from public view was an executive pardon.5
Deferred adjudication sealing for first offenders
Deferred adjudication procedure is available for first offenders, which results in no conviction. “The purpose of suspended imposition of sentence is ‘to allow first-time offender to rehabilitate himself without the trauma of imprisonment or the stigma of conviction record.’” State v. Schempp, 498 N.W. 2d 618, 620 (S.D. 1993) (quoting State v. Marshall, 247 N.W. 2d 484, 487 (S.D. 1976)).6 Under section 23A-27-12.2 (felony) and 23A-27-13 (misdemeanor) of the South Dakota Code, a court may suspend imposition of sentence and place on probation a person with no prior convictions. Upon successful completion of sentence, the person is discharged without an adjudication of guilt, S.D. Codified Laws 23A-27-14, and the court “shall order” that the records be sealed. § 23A-27-17.
The effect of such order is to restore such person, in the contemplation of the law, to the status he occupied before his arrest or indictment or information. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of his failure to recite or acknowledge such arrest, indictment or information, or trial in response to any inquiry made of him for any purpose.
Id. The recipient of a suspended imposition of sentence may continue to vote even though serving time in jail or the penitentiary was part of the conditions of a suspended imposition of sentence. S.D. Op. Att’y. Gen. No. 05-01 (2005). The proceeding shall not be deemed a conviction for purposes of disqualification from licenses and employment, except for sex offenders seeking to obtain teaching certificates. However, probation without adjudication may be considered by court in imposing subsequent sentence.
“Destruction” of certain records after ten years
The Director of the Bureau of Criminal Statistics may authorize the destruction of information and records of misdemeanor offenses whose final date of disposition occurred at least ten years prior to authorized destruction date. S.D. Codified Laws § 23-6-8.1. The Director may also authorize destruction of records of persons seventy-five years of age or older who have been crime-free for at least ten years. Id.
S.D. Codified Laws § 23A-3-27:
An arrested person may apply to the court that would have jurisdiction over the crime for which the person was arrested, for entry of an order expunging the record of the arrest:
(1) After one year from the date of any arrest if no accusatory instrument was filed
(2) With the consent of the prosecuting attorney at any time after the prosecuting attorney formally dismisses the entire criminal case on the record; or
(3) At any time after an acquittal.
Court “may enter an order of expungement if satisfied that the ends of justice and the best interest of the public as well as the defendant or the arrested person will be served by the entry of the order.” § 23A-3-30. Expungement seals record, § 23A-3-31, and “restore[s] the defendant or arrested person, in the contemplation of the law, to the status the person occupied before the person’s arrest or indictment or information.” § 23A-3-32. “Expungement does not imply the physical destruction of records.” § 23A-3-26.
See above regarding automatic “sealing” of arrest records for low-level offenses after 10 years.
There is no provision for juvenile expungement. Juvenile delinquency records may be sealed by the court the later of one year after the youth is released from the court’s jurisdiction or discharged from the Department of Corrections. S.D. Codified Laws § 26-7A-115. The court will grant a petition to seal upon a finding that there have been no subsequent adjudications, there are no pending charges for a serious offense, and the youth is rehabilitated. Id. Upon court order, limited inspection of sealed files remains available. § 26-7A-116.
III. Nondiscrimination in Licensing and Employment: N/A
- HB 1247 modified § 12-4-18 as follows: “Any voter identified as deceased or who receives a felony sentence to the adult state penitentiary system including a suspended execution of a sentence is serving a sentence for a felony conviction shall be removed from the voter registration records.” It is not clear whether this change in the law would include people who receive a suspended imposition of sentence. A summary of South Dakota’s felony disenfranchisement scheme prepared by the Secretary of State is at http://sdsos.gov/content/viewcontent.aspx?cat=elections&pg=/elections/electionprocess_felon.shtm.
- The 2012 legislation disenfranchising probationers appears to render them ineligible to run for office under the constitution, notwithstanding the provisions of S.D. Codified Laws § 23A-27-35.
- The Administrative Office for U.S. Courts has taken the position that federal offenders on supervised release are entitled to register and vote. See opinion dated October 31, 2008, the General Counsel, , opined that federal supervised release, as a penalty imposed separately from a prison sentence, is analogous to probation as opposed to parole. See memorandum from Joe Gergits, Assistant General Counsel, Administrative Office for U.S. Courts, October 31, 2008 (on file with author). Given the extension of South Dakota’s felony disenfranchisement law to probationers it would appear that federal offenders on supervised released may no longer be eligible to vote.
- Under section 5 of the 1898 South Dakota Constitution, the Board of Pardons was composed of the presiding judge, the secretary of state and the attorney general, and its approval was required for executive clemency except in minor cases (sentence of two years or less in prison, fine of less than $200). The 1960 amendment of section 5 reconstituted this board as the Board of Pardons and Paroles, required its approval for all cases of executive clemency, and gave the Board the power to parole. In 1972, the Board’s statutory role in advising the Governor was eliminated, as was the requirement that the Governor report all pardons to the legislature. See S.D. Const. art. 4, § 3 historical note. The subsequent successful effort by the South Dakota legislature to regain control over the pardon process is described in Eric R. Johnson, Doe v. Nelson, The Wrongful Assumption of Gubernatorial Plenary Authority over the Pardoning Process, 50 S.D. L. Rev. 156 (2005). See also Margaret Colgate Love, Reinvigorating the Federal Pardon Process: What the President Can Learn from the States, 9 U. St. Thomas L. Rev. 730, 750-51 (2013). In 2004 the Supreme Court of South Dakota upheld the legislature’s indirect regulation of the governor’s authority in Doe v. Nelson, 680 N.W.2d 302, 313 (S.D. 2004)(holding that the governor had no authority to order the sealing of 279 pardons granted between 1995 and 2002 without consultation with the Board). Since then the governors of South Dakota have refused to grant a pardon except upon the Board’s recommendation. The public pardon process turns out to be a very efficient one: between sixty and seventy people apply for a pardon each year, the Board recommends more than half of them to the governor, and the governor customarily accepts the Board’s recommendations. The entire process takes less than six months from beginning to end.
- Records kept by the Bureau of Criminal Statistics are non-public, and the Director of the Bureau may authorize the destruction of information and records of misdemeanor offenses whose final date of disposition occurred at least ten years prior to authorized destruction date. S.D. Codified Laws § 23-6-8.1. The Director may also authorize destruction of records of persons seventy-five years of age or older who have been crime-free for at least ten years. Id.
- In Schempp, the South Dakota Supreme Court held that where two convictions were part of a single course of conduct (participation in student riot and subsequent assault on police officer), though separately indicted and separately sentenced, they would be treated as a single conviction for purposes of this ameliorative statute. 498 N.W.2d at 620.