Restoration of Rights & Record Relief
Last updated: May 8, 2020
I. Loss & restoration of civil/firearms rights
A. Civil rights
A person convicted of a felony forfeits the right to vote, to serve on a jury, and to hold public office. See Wyo. Const. Art 4, § 5; Wyo. Stat. Ann. §§ 6-10-106(a). These rights may be restored by petition to the governor under § 7-13-105(a) when the “term of sentence expires,” or by pardon. For persons convicted of no more than one nonviolent felony (or felonies arising out of the same case) after January 1, 2010, voting rights are restored automatically; the department of corrections issues a certificate of restoration of voting rights when “the person has completed all of his sentence, including probation or parole.” § 7-13-105(b)(i). Non-violent first offenders whose sentence was completed prior to January 1, 2010, and those with out-of-state and federal convictions must apply to the department for restoration of rights. A 5-year eligibility period was repealed effective January 1, 2016. See § 7-13-105(b)(iii).
A person convicted of a “violent felony,” or a felony involving attempt to cause bodily injury to a peace officer engaged in lawful performance of official duties, may not possess firearms (including long guns and black powder rifles, Harris v. State, 137 P.3d 124 (Wy. 2006)), unless pardoned. See Wyo. Stat. Ann. §§ 6-8-102, 6-1-104(a)(xii) (defining violent felony). (Note that a person convicted of any felony under Wyoming law is barred from possessing a firearm under 18 U.S.C. § 922(g), unless the requirements of § 921(20) are satisfied.)
In addition, Wyoming law makes it a crime to carry a concealed deadly weapon without a permit, which must be denied or revoked if the person has committed certain drug crimes, and may be denied in the event a person has committed crimes of domestic violence within the last three years. Mandatory disqualification results from any conviction that would make it a federal crime to possess a firearm under 18 U.S.C. § 922(g) or the corresponding Wyoming statute, § 6-8-102; or from conviction of a felony (permanent) or misdemeanor (one year) violation of the Wyoming Controlled Substances Act; or commitment to a drug abuse facility within the past year. See § 6-8-104(b)(iv), (v). Misdemeanants may apply for expungement pursuant to § 7-13-1501 (see discussion Part IIB infra).1
II. Pardon policy & practice
The governor has authority under the constitution to pardon. Wyo. Const. Art 4, § 5. The constitution provides that the legislature may control the manner of applying, but this provision has been held not to bind the governor. In re Moore, 31 Pac. 980 (Wyo. 1893). The constitution also provides that the legislature may create crimes punishable by life without parole that cannot be pardoned and may limit commutation of a death sentence to unpardonable life without parole. Wyo. Const. Art. 3, § 53. The governor may also grant restoration of voting rights either by statute or through his pardon power. See Wyo. Stat. §§ 6-10-106(a)(ii); 7-13-105(a).
The governor must report to the legislature at each session on clemency grants and the reasons for each one. Wyo. Const. Art. 4, § 5 (“He shall communicate to the legislature at each regular session each case of remission of fine, reprieve, commutation or pardon granted by him, stating the name of the convict, the crime for which he was convicted, the sentence and its date, and the date of the remission, commutation, pardon or reprieve with his reasons for granting the same.”).
Under applicable executive branch policy, persons seeking a pardon, or restoration of voting rights (other than nonviolent first offenders), must wait ten years and five years respectively (previously twenty years and ten years) from the time of completion of sentence before applying. Federal and out-of-state offenders are also eligible for restoration of rights and similar eligibility criteria apply. The governor’s policy generally excludes persons convicted of sexual crimes or crimes involving a child as a victim from consideration.
Pardon applications are submitted directly to the governor’s office. The statutes describing the process appear to contemplate petitions from prisoners seeking commutation, as opposed to post-sentence pardons, and are barebones. See Wyo. Stat. Ann. §§ 7-13-803 through 806. Information that must be provided consists of sentence-related data, plus “any pertinent information the governor may request such as parole and work release records.” 7-13-804(a). The governor must give notice to the DA three weeks prior to acting, and the DA must provide details of the offense. § 7-13-805(b). According to the Wyoming Attorney General’s Office, the entire pardon process generally takes about 4-6 weeks to complete from submission of application to final disposition. The Wyoming Board of Parole has a role only in commutation cases, and in statutory restoration of voting rights.
D. Frequency of grants
The last two governors of Wyoming have granted no pardons. Governor Freudenthal (2003-2011) granted 22 pardons and 28 restorations of rights, approximately 25% of applications filed. The governor’s biennial reports to the legislature are available from the Legislative Service Office.
Senior Assistant Attorney General
Legislative Service Office
Wyoming Parole Board
III. Expungement, sealing & other record relief
A. Felony expungement
Wyoming law allows expungement of a single felony conviction ten years after the sentence expires, if the applicant has no other felony convictions and has paid restitution. Wyo. Stat. Ann. § 7-13-1502. This relief is not available for firearm felonies, violent felonies, many sexual crimes, child endangerment, bribery, perjury, felony DUI, and drug distribution felonies. Notice requirements apply, and the court must find that the applicant is not a danger to himself, another, or society generally. Id.
Expungement is defined as
classification of the record maintained in the files of the state central repository . . . in a manner reasonably tailored to ensure that the record will not be available for dissemination purposes other than to a criminal justice agency of any state or a federal criminal justice agency, to be used solely for criminal justice purposes.
Wyoming courts have no inherent authority to expunge criminal records, except in cases of a pardon for innocence. See Oler v. U.S., 17 P.3d 27 (Wyo. 2001); Stanton v. State, 686 P.2d 587 (Wyo. 1984). See also Wyo. Stat. Ann. § 7-13-307.2
B. Misdemeanor expungement
Wyo. Stat. Ann. § 7-13-1501 authorizes the court to expunge a conviction for misdemeanor simple assault, battery, domestic violence, reckless endangerment and breach of peace, five years after completion of sentence.3 Offense may not have involved the use of a firearm, and relief is available only once. A hearing is required only in the event that the prosecutor or victim object.
C. Deferred sentencing
The First Offender Statute, Wyo. Stat. Ann. § 7-13-301, permits delayed imposition of sentence for first offenders, except serious violent offenses, sex offenses, and certain vehicular crimes committed by a commercial driver’s license holder. With consent of the defendant and the state and without entering a judgment of guilt or conviction, the court may defer further proceedings and place the person on probation for a period of at least one year and no more than five (5) years upon terms and conditions set by the court.
If the court finds the person has fulfilled the terms of probation and that his rehabilitation has been attained to the satisfaction of the court, the court may at the end of five (5) years, or at any time after the expiration of one (1) year from the date of the original probation, discharge the person and dismiss the proceedings against him.
§ 7-13-301. Discharge and dismissal under this section “shall be without adjudication of guilt and is not a conviction for any purpose.” There shall be only one (1) discharge and dismissal under this section or under any similar section of the probationary statutes of any other jurisdiction. The prosecutor’s consent is essential; and the court also has discretion to refuse to invoke the first offender statute despite the prosecutor’s consent. Rawson v. State, 900 P.2d 1136 (1995). Deferred adjudication in another state makes an individual ineligible, and the defendant bears the burden of demonstrating eligibility. Id. Expungement may be authorized under See § 7-13-1401.
D. Vacatur for victims of human trafficking
At any time after the entry of a conviction for prostitution, the court in which it was entered may vacate the conviction if the defendant’s participation in the offense is found to have been the result of having been a victim. Official documentation of the defendant’s status as a victim at the time of the offense from a federal, state or local government agency shall create a presumption that the defendant’s participation in the offense was a result of having been a victim, but shall not be required for granting a motion under this section. Wyo. Stat. Ann. § 6-2-708. Presumably the record becomes a non-conviction record and may then be expunged.
E. Expungement of non-convictions
Wyo. Stat. Ann. § 7-13-1401(a) authorizes the court to expunge arrest records after 180 days if no charges were filed, or 180 days after a non-conviction disposition, including dismissal of the proceedings, if no charges are pending. A hearing is held only if the prosecutor objects. “If the court finds that the petitioner is eligible for relief under this section, it shall issue an order granting the expungement of the applicable record.” § 7-13-1401(d). See definition of expungement, supra.
F. Juvenile records
Juvenile records are generally unavailable to the public. Wyo. Stat. § 14-6-203. Upon reaching age 18, individuals who can establish rehabilitation may petition the court for expungement, except in cases of violent felonies, as long as they have no subsequent felony convictions or pending criminal proceedings. § 14-6-241(a). Effective July 1, 2019, a verified petition must be served on the prosecuting attorney, who has 20 days to file an objection. Id.; HB 44 (2019). If no objection is filed, the court may summarily enter an order if the court finds the petitioner is otherwise eligible for relief. Id. If an objection is filed, the court shall set the matter for hearing. Id. If, after investigation, the court finds that the petitioner has no subsequent felony convictions or pending felony proceedings and rehabilitation has been attained to the satisfaction of the court or the prosecuting attorney, the court shall order all records expunged. Id. If the state filed the petition (as authorized by § 7-13-1401, discussed above), the prosecutor, “to the extent practicable,” shall inform the juvenile of the order of expungement and its effects.
In addition, the following changes are effective July 1, 2019. HB 44 (2019). The state may file a petition pursuant to §§ 7-13-1401(a), (k) for the expungement of juvenile arrest records, charges, or dispositions, without service on the juvenile (as of that date expungement of juvenile records will mean destruction of records). No filing fee may be charged for a petition to expunge a juvenile record under this section. § 14-6-241(j). Expungement is available in the same manner as above for: (1) a minor admitted to a diversion program or granted a deferral pursuant to Wyoming statute; and (2) a minor whose arrest, charges, or disposition result in dismissal, declined prosecution, or otherwise not resulting in a conviction or adjudication of delinquency or being a child in need of supervision. § 14-6-241(d)-(e). “Expungement” of juvenile records or criminal records of minors covered by § 14-6-241 is defined to mean “to permanently destroy or delete all records, including physical and electronic records, documents and images of documents. If a minor’s name appears on a court list, index or other compilation containing other information not subject to expungement, ‘expungement’ means to redact by obliterating the minor’s name from the record.” § 14-6-241(f). After an order of expungement is issued, no record of the minor’s identification may be retained by a law enforcement agency, juvenile court, municipal court, circuit court, or state agency or department, except to comply with federal reporting requirements (and then expunged within 10 years of the initial case) or when inaccessible prior to restoring a backup database. § 14-6-241(g). The state or municipality is authorized to petition the court for expungement pursuant to subsections (a) through (c), upon the person reaching the age of majority. § 14-6-241(h).
IV. Criminal record in employment & licensing
In March 2018, Wyoming amended its general state licensing code to establish standards for consideration of conviction by all licensing agencies not otherwise subject to a specific contrary statutory standard. See Wyo. Stat. § 33-1-304. See Enrolled Act 63 (March 2018), available at http://www.wyoleg.gov/2018/Enroll/SF0042.pdf. The new law states that it is public policy “to reduce recidivism by addressing barriers to employment and encouraging appropriate employment and licensure of persons with arrest and conviction records.” § 33-1-304(a).4
The law prohibits consideration of prior convictions that are more than 20 years old, except where the person is still under sentence or the sentence was completed fewer than 10 years before, unless the elements of the offense are “directly related to the specific duties and responsibilities of that profession or occupation.” § 33-1-304(c). Agencies are also directed to ensure that applicants have an adequate opportunity to appeal a denial.
A board that licenses any healing profession “may always determine that a crime of violence or sexual misconduct is relevant to the ability to practice the profession or occupation, but in making a licensing, certification or registration decision may consider the circumstances of the offense.” § 33-1-304(b). Any board shall be immune from civil liability “for acting in accordance with this section.” § 33-1-304(d).
The new law also amended more than a dozen specific professional and occupational licensing statutes to rescind standards inconsistent with the new “directly related” standard as well as vague qualifications like “good moral character,” and to substitute functional criteria specifically tying the nature of a particular crime to the licensed activity. Licensing schemes affected include those regulating teachers, guides and outfitters, engineers, veterinarians, and nursing home administrators. Licensing standards for chiropractors, nurses, optometrists, dental hygienists, social workers, and marriage and family counselors and substance abuse counselors were also amended. Securities dealers and investment advisers, insurance agents, and athlete agents are covered by the reforms.
- As originally enacted in 2004, § 1501 extended to all misdemeanor convictions, but its effect was limited to restoring firearms rights, evidently to address federal firearms disability based upon misdemeanor domestic violence convictions. 18 U.S.C. § 922(g)(9). The federal government took the position, approved by the 10th Circuit Court of Appeals, that the partial expungement authorized by the pre-2009 version of this statute is not effective to relieve federal firearms disabilities. See Wyoming ex re. Crank v. United States, 539 F.3d 1236, 1239 (10th Cir. 2008) (“Congress intended the terms ‘expunge’ and ‘set aside,’ as used in § 921(a)(33)(B)(ii), to require a state procedure that completely removes the effect of the prior misdemeanor conviction in question. . . § 7-13-1501 falls short of this standard.” ). As amended in 2009, the effect of expungement is not limited to the restoration of firearm rights, and thus would appear to satisfy the requirements of 18 U.S.C. §§ 921(a)(20) and 933(B)(ii). According to the District Attorney for Sheridan County, the United States Attorney (D. Wyo.) has agreed not to prosecute misdemeanants whose convictions have been expunged pursuant to the pre-2009 version of § 1501.
- Wyoming was noted in a 1962 NCCD report as the only state in the Nation that then made expungement available by statute to persons sentenced to a prison term. Nat’l Council on Crime & Delinquency, Annulment of a Conviction of Crime: A Model Act, 8 Crime & Delinq. 97, 99-101 (1962).), cited in Margaret Colgate Love, Paying Their Debt to Society: Forgiveness, Redemption, and the Uniform Collateral Consequences of Conviction Act, 54 Howard L. J. 753, 765 (2011).
- See note 1, supra.
- The law’s policy goals in full are:
(i) It is public policy to reduce recidivism by addressing barriers to employment and encouraging appropriate employment and licensure of persons with arrest and conviction records;
(ii) It is public policy to consider whether the elements of an offense are directly related to the specific duties and responsibilities of that profession or occupation;
(iii) It is public policy to consider whether the profession or occupation offers the opportunity for the same or a similar offense to occur;
(iv) It is public policy to consider the relationship of the offense to the purposes of regulating the profession or occupation; and
(v) It is public policy to consider whether there is ample opportunity for a person denied a license due to a prior criminal conviction to appeal the denial.