Restoration of Rights & Record Relief
Last updated: December 2, 2021
I. Loss and restoration of civil/firearms rights
The right to vote is lost upon conviction of a felony, and automatically restored upon completion of sentence, including any term of probation or parole, and payment of fines and restitution. Ark. Const. art. III, §§ 1 (lawful registration to vote required for electors), 2 (prohibiting restrictions on suffrage “except for the commission of a felony, upon lawful conviction thereof”); amended by Ark. Const. art. 51, § 11(a)(4) (requiring city registrars to cancel the registration of voters “[w]ho have been convicted of a felony and have not discharged their sentence or been pardoned”).1 See also Ark. Const. amend. 51, § 11(d)(2)(A) (requiring convicted persons seeking re-enfranchisement to provide proof they have “paid all applicable court costs, fines, or restitution”).
This provision applies to felony convictions from any jurisdiction. See Merritt v. Jones, 533 S.W.2d 497, 500 (Ark. 1976) (conviction from another jurisdiction is a “felony” if punishable in that jurisdiction by imprisonment in a penitentiary, or death).1
Arkansas law disqualifies from jury service those “who have been convicted of a felony and not pardoned.” Ark. Code Ann. § 16-31-102(a)(4).
The Arkansas Constitution disqualifies anyone “convicted of embezzlement of public money, bribery, forgery or other infamous crime” from election to the General Assembly and holding any “office of trust or profit in this State.” Ark. Const. art. V, § 9. “Infamous crimes” include any felony and misdemeanors involving fraud or dishonesty. Ark. Const. art. V, § 9. Unlike the right to serve on a jury, a pardon does not restore eligibility to hold office for those convicted of “infamous” crimes, see State v. Oldner, 206 S.W.3d 818, 826 (Ark. 2005); Ridgeway v. Catlett, 379 S.W.2d 277 (Ark. 1964). See also Webb v. Gray, 2020 Ark. 385 (Ark. 2021)(federal misdemeanor conversion convictions held to be “infamous” and thus disqualifying, not relieved by presidential pardon). In 2016, the Arkansas Supreme Court held that the right to run for office was restored to a man convicted of a “hot-check” crime, which it determined to be an “infamous crime,” was restored to his rights when the record was sealed under the Comprehensive Criminal Record Sealing Act, Ark. Code Ann. § 16-90-1401 et. seq. See Haile v. Johnston, 2016 Ark. 52 (2016) (explaining that effect of sealing was that conviction never occurred).
Those convicted of “public trust” crimes are held to a higher standard. Ark. Code Ann. § 21-8-305. In 2019, the law disqualifying a person from office based on conviction of a public trust crime was revised to require disclosure of any sealed conviction in the election process, and consideration by “a court of competent jurisdiction for an action concerning the person’s filing for, candidacy for, or holding of a constitutional office.” Ark. Code Ann. § 21-8-305(b)(3).
In 2021, § 21-8-305 was further amended to extend disqualification to county and municipal offices as well. See Act 540, SB 490. See discussion in Part III, below.
No person convicted or adjudicated guilty of a felony (including suspended sentences and probation) may possess or own any firearm unless: 1) the person’s conviction is dismissed and sealed or expunged under Ark. Code. Ann. § 16-93-301 et seq. (first offense deferred adjudication) or § 16-98-303(g) (drug court) (see infra Part III); 2) the person is granted a pardon expressly restoring the ability to possess a firearm; or 3) the governor restores firearms rights based on the recommendation of the chief law enforcement officer in the person’s residence to “restore” the ability to possess a firearm (available only if the underlying felony or adjudication did not involve a weapon and occurred more than 8 years prior). See Ark Code. Ann. § 5-73-103; see also Irvin v. State, 784 S.W.2d 763 (Ark. 1990) (under prior version of statute that made expungement mandatory, no prior conviction for purposes of statute despite fact that state officer had not completed ministerial duties necessary for expungement).
There is a separate law prohibiting possession of a concealed handgun. See Arkansas Code § 5-73-309. As amended in 2019, that law permits such possession 1) if the person is granted a pardon expressly restoring such right; 2) if the person’s pre-1995 conviction was sealed or expunged; or, 3) if the person’s post-1995 conviction “was dismissed and sealed or expunged under § 16-93-301 et seq. or § 16-98-303(g).” § 5-73-309(5).
II. Pardon policy and practice
The governor has full clemency authority, except in cases of treason and impeachment, “under such rules and regulations as shall be prescribed by law.” Ark. Const. art. VI, § 18. By statute, all applications for clemency “shall be referred to the Parole Board for investigation.” Ark. Code Ann. § 16-93-204(a).2 The Parole Board “shall thereupon investigate each case and shall submit to the Governor its recommendation, a report of the investigation, and all other information the board may have regarding the applicant.” § 16-93-204(b). While the governor is thus required to seek the non-binding advice of the Parole Board, his own power does not depend upon receiving a favorable recommendation. Under Constitution, governor must report to legislature on all grants and give reasons. Ark. Const. art. VI, § 18. (Pending legislation requiring detailed reasons has stalled.)
Parole Board consists of seven full-time members appointed by governor to seven-year terms. Four constitutes a quorum. Grounds for removal for cause may not include any proper official action. Ark. Code Ann. § 16-93-201(a).
Only people with state offenses are eligible for a governor’s pardon, but there is no waiting period for in-state convictions.
Pardon restores jury eligibility but not right to hold public office, which may be restored only by sealing or expungement. See Part I. Pardon removes conviction-related barriers to licensing and employment. Under state habitual offender statute, a pardoned conviction cannot be used to enhance a later sentence. Duncan v. State, 494 S.W. 2d 127 (1973).
Sealing follows automatically upon receipt of pardon for all but a few serious offenses: “The Governor shall notify the court upon issuing a pardon, and the court shall issue an order sealing the record of a conviction of the person pardoned.” Ark. Code Ann. § 16-90-1411(a)(1). Exceptions where victim under 18, sex offenses, and where death or serious physical injury results. § 16-90-1411(a)(3). For effect of sealing see below.
Pardon must specifically restore firearms privileges. Ark. Code Ann. § 5-73-103(b)(3). The governor may also restore firearms rights separately.
See http://www.paroleboard.arkansas.gov/. Policies and procedures are at http://www.paroleboard.arkansas.gov/clemency/pages/default.aspx. The application form is at http://www.paroleboard.arkansas.gov/Websites/parole/images/PardonApplication050415.pdf.
Before considering an application for pardon, Parole Board must request a (non-binding) recommendation of sentencing court, prosecuting attorney, and sheriff of county of conviction. Ark. Code Ann. §§ 5-4-607(d)(1);16-93-204(d)(1). (Notice to victim and solicitation of recommendation required only in connection with capital murder cases and class Y, A, and B felonies. § 16-93-204(d)(2).) Ordinarily no formal hearing is required in pardon cases. If a majority of Board votes to recommend pardon, sends written recommendation to governor. Board must give 30-days public notice of intention to make favorable recommendation to governor, and must also send notice to judge and prosecutor. § 16-93-204(e).
Before acting, governor must give 30 days notice (including statement of reasons) to Secretary of State, judge, prosecuting attorney, sheriff, and, if applicable, the victim. § 16-93-207(a)(1). A failure to give proper notice renders grant void. Id at (a)(2). If Governor does not act on a Board recommendation within 240 days, application deemed denied. If an application is denied by the Governor in writing, applicant must wait four years from time of original application before reapplying; if denial by inaction, applicant may reapply immediately. § 16-93-207(c).
F. Frequency of Grants
Pardons are processed by the Board at monthly hearings, and acted on by the governor on a regular monthly basis. Since 2004, between 400 and 500 pardon applications have been received each year, of which about 100 are granted. As of March 2020, Governor Asa Hutchinson had granted more than 500 pardons since taking office in January 2015. The governor’s monthly press releases announcing his intention to pardon are at https://governor.arkansas.gov/our-office/clemency-and-extraditions/. Governor Beebe (2007-2014) granted over 700 pardons during his tenure (many without restoring firearms, and some restoring firearms only). While sentence commutations in recent years have occasionally given rise to controversy and legislative limits on the pardon power, no similar concerns have been expressed about post-sentence pardons, with one conspicuous exception.3 In July of 2004, Governor Huckabee was reported to have pardoned a total of 567 persons in his eight years in office (1996-2004). See Bob McCord, “Huckabee’s Pardons,” Arkansas-Times (July 29, 2004), http://www.arktimes.com/arkansas/huckabees-pardons/Content?oid=948418. He granted another 200 pardons after that time.
Counsel for Clemency and Corrections
Office of the Governor
III. Expungement, sealing & other record relief
A. Comprehensive Criminal Record Sealing Act of 2013
In 2013 the Arkansas legislature enacted an entirely new chapter of Title 16 of the Arkansas Code to simplify and reconcile its laws on sealing of criminal records. See Ark. Code Ann. § 16-90-1401, et seq. Effective January 1, 2014, the Comprehensive Criminal History Sealing Act of 2013 repealed a number of authorities for expungement and sealing of conviction records that had accumulated over 40 years.4 Certain existing authorities for non-conviction dispositions were left undisturbed, including the authority in § 16-93-314 authorizing deferred adjudication and probation for first offenders.5 The new sealing law is intended to supersede all other provisions for sealing of criminal records except under the Arkansas Drug Court Act, § 16-98-301, and those applicable to juvenile records under § 16-90-1403.
In 2019, HB 1831 further amended the sealing law, including to eliminate or shorten waiting periods, announcing itself as “the first step in a multi-step process to attempt to make the sealing of certain records of a person’s criminal history that involve nonviolent and nonsexual offenses an automatic operation.”2 Further amendments were made in 2021 by Act 341, HB1256.
Conviction records: Non-violent Class C and D felonies and Class A and B drug felonies are eligible for sealing after completion of sentence and payment of court costs. § 16-90-1406 (a). “Completion of sentence” is defined in § 16-90-1404(1) to include payment of “fine, court costs, or other monetary obligation as defined in § 16-13-701 in full, unless the obligation has been excused by the sentencing court.” Violent Class C and D felonies must wait an additional five years. § 16-90-1406 (b). A person may not have more than one previous felony conviction–all felony offenses committed as part of the same episode are counted as a single conviction for these purposes). § 16-90-1406 (c). Most misdemeanor convictions and infractions are eligible for sealing after completion of sentence, § 16-90-1405, except that certain serious offenses including DUIs have a waiting period. The 2019 law eliminated a 5-year waiting period and a predicate felony disqualification for non-violent felony convictions, and eliminated a 60-day waiting period for some misdemeanors and retained it for others. It also eliminated filing fees. There is a special provision for sealing certain drug possession convictions immediately upon completion of sentence in § 16-90-1407.
Ineligible for sealing: Class A and B felonies (other than drug felonies), violent and sexual felonies, felonies for which the maximum sentence is 10 years or more, motor vehicle felonies committed by a holder of a commercial driver’s license. § 16-90-1408.
In 2021, a provision of this statute making anyone who had served a prison sentence ineligible was repealed. See Act 341, HB1256.
Non-conviction records: A person may petition a district circuit court to have arrest records sealed if no charges are filed or the prosecutor files a nolle prosequi within one year, and records in which charges are dismissed or acquitted with no waiting period indicated. §§ 16-90-1409, 1410. The petition process involves serving the prosecutor and law enforcement agency. The court “shall seal” the non-conviction records, unless it finds that it would “place the public at risk” or “not further the interests of justice.” § 1415(d).
Pardoned offenses: Most pardoned offenses are sealed immediately, but certain serious offenses may not be sealed even if pardoned. § 16-90-1411.
Victims of human trafficking: See below.
Payment of court debt: A person is eligible for sealing after “completion of sentence.” Ark. Code Ann. §§ 16-90-1405(a), 16-90-1406(a). “Completion of sentence” is defined in § 16-90-1404(1) to include payment of “fine, court costs, or other monetary obligation as defined in § 16-13-701 in full, unless the obligation has been excused by the sentencing court.” 16-13-701 provides, in relevant part: “(b) As used in this subchapter, ‘fine’ means a monetary penalty imposed by a court, including without limitation: (1) A monetary fine; (2) Court costs; (3) Court-ordered restitution; (4) Probation fees; (5) Supervision fees; (6) Public service supervisory fees; and (7) Other court-ordered fees.”
Procedures for sealing are set forth in § 16-90-1413, and include filing a uniform petition that must be served on the prosecuting attorney. A filing fee is prohibited. § 16-90-1419. A hearing will be scheduled in the case of misdemeanors only if the prosecutor objects, but must be scheduled in every case where felonies are concerned. Provisions on release of sealed records in certain circumstances are set forth in §16-90-1416 (to criminal justice agencies in case of application for employment, to courts and prosecutors).
In 2021, per SB 1256 (supra) § 16-90-1413(b) was amended to require the prosecutor to object within 30 days, and to require a hearing in felony sealing cases only in cases where the prosecutor objects.
3. Standards and Burden of proof
There is a presumption in favor of sealing in misdemeanor and violation cases (court “shall seal” the record unless the court “is presented with and finds that there is clear and convincing evidence that a misdemeanor or violation conviction should not be sealed”). § 1415(a). The court “may seal” the record of eligible felonies, including drug possession cases, “if the court finds by clear and convincing evidence that doing so would further the interests of justice,” considering certain factors related to the likelihood of recidivism (including the person’s other criminal history, the pendency of other charges, and input from the victim. §1415(b) and (c). The court “shall seal” the non-conviction records, including records of cases in which charges dismissed, unless it finds there is a public safety risk. § 1415(d). An appeal of the grant or denial of the petition to seal may be taken by either party. § 1415(f).
4. Effect of sealing
§ 16-90-1417: A person whose record has been sealed under this subchapter shall have all privileges and rights restored, and the record that has been sealed shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law. Sealing does not restore the right to carry a firearm if that right was removed as the result of a felony conviction. A sealed conviction “shall be deemed as a matter of law never to have occurred, and the person may state that the underlying conduct did not occur and that a record of the person that was sealed does not exist.” § 16-90-1417(b)(1). That notwithstanding, a sealed conviction may be used as a predicate and to enhance a subsequent sentence. Id. at (b)(2).
B. Deferred adjudication and sealing
First offender deferred adjudication: A person with no prior felony conviction who pleads guilty or nolo contendere is eligible for deferred adjudication under Ark. Code Ann. § 16-93-303. No provision for prosecutor consent. After successfully completing a period of probation, the defendant may be discharged without adjudication of guilt, the case may be dismissed and the record sealed pursuant to the Comprehensive Record Sealing Act of 2013. Ark. Code Ann. §§ 16-93-303 (b), 16-93-314 (b). Serious violent felonies and certain sex offenses are ineligible.
Pre-adjudication probation: Persons charged with non-violent, non-sexual felonies are eligible to participate in pre-adjudication probation program established by court. Both court and prosecutor must agree on admission. Ark. Code Ann. § 5-4-901 et seq. No provision relating to prior record. Dismissal and sealing on recommendation of prosecutor is available after successful completion, with determination by judge that dismissal and sealing “is appropriate.” § 5-4-906. “Court orders for costs, fees, and restitution shall remain an obligation of the participant in the pre-adjudication probation program with court monitoring until fully paid.” § 5-4-907(c).
C. Human trafficking victims – sealing
A person convicted of a prostitution offense as a result of being a victim of human trafficking may petition for sealing at any time. Ark. Code Ann. § 16-90-1412. Sealing is mandatory so long as the court finds by a preponderance of the evidence that the conviction was the result of being a victim of human trafficking. In addition to restoring the individual’s rights in the manner specified above, the petitioner’s name is redacted from all records and files related to arrest and conviction.
D. Drug and other specialty court expungement
Drug court: Under Ark. Code Ann. § 16-98-303, each district may establish its own drug court. May be pre-adjudication or post-adjudication, and all but violent and sex offenses eligible. Upon successful completion, court may order dismissal of charges and sealing of the record, with concurrence of prosecuting attorney, if after considering the person’s past criminal history the judge feels this relief is appropriate. Court may also seal a case from another Arkansas court, with the concurrence of that court. Burglary, breaking and entering, and fourth DUI are ineligible for expungement. § 16-98-303(g). Those convicted of or currently charged with violent felonies, and those required to register are sex offenders, are not eligible for drug court programs. § 16-98-303(c)(1).
Other specialty courts: Arkansas has other specialty court programs, but not all of them offer dismissal and sealing. For example, in 2021 a Veterans Treatment Court and a DWI/BWI treatment court were authorized but only the former programs lead to dismissal and sealing. See Ark. Code Ann. § 16-101 et seq. See Act 58, HB 1059.
E. Juvenile record expungement
Most juvenile records are automatically expunged (destroyed) upon turning 21, and may be expunged earlier subject to the discretion of the court. Ark. Code Ann. § 9-27-309(b)(2). Records of delinquency adjudications where the person could have been tried as an adult and records of “extended juvenile jurisdiction offenders” must be retained for 10 years, and may be expunged thereafter subject to the court’s discretion. § 9-27-309(b)(1), (c).
IV. Criminal record in employment & licensing
Arkansas has no fair employment law that would generally restrict how employers consider a conviction record, but relief mechanisms such as pardon and sealing are routinely available. Occupational licensing entities are subject to robust regulation, and may not consider non-conviction records, misdemeanor convictions (except misdemeanor sex offenses and misdemeanors involving violence), and convictions that have been pardoned or expunged. Per a 2019 law, a long list of offenses are subject to mandatory disqualification, but for all but the most serious violent offenses the disqualification lasts only for five years after completion of sentence with no intervening conviction. A waiver is available even for the most serious crimes. (Those licensed prior to passage of the 2019 law are grandfathered.) If a license is denied because of the applicant’s criminal record, the licensing entity must provide written reasons.
- In 2019 the Arkansas legislature closed a loophole in the law that had disenfranchised juveniles sentenced as adults by specifically authorizing the parole board to discharge them from parole after five years without incident. See Ark. Code Ann. § 16-93-622, enacted by SB 573.
A study of the Comprehensive Criminal Record Sealing Act of 2013, § 16-90-1401 et seq., will be undertaken in the interim to propose any recommended or necessary legislation for the 2021 Regular Session, as well as an overall study of the funding of the criminal justice system, where applicable.
A. Occupational licensure
The Criminal Offender Rehabilitation Act of 2010 established standards for occupational licensure of people with a criminal record: “It is the policy of the State of Arkansas to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the assumption of the responsibilities of citizenship. The public is best protected when offenders are given the opportunity to secure employment or to engage in a meaningful trade, occupation, or profession.” Ark. Code Ann. § 17-1-103(a). However, such convictions “shall not operate as an automatic bar to registration, certification, or licensing for any trade, profession, or occupation.” § 17-1-103(b).
Arrest records not leading to felony conviction, convictions that have been pardoned or expunged, and misdemeanor convictions (except misdemeanor sex offenses and misdemeanors involving violence) may not be “used, distributed, or disseminated” in connection with an application for a license. § 17-1-103(b)(2). Completion of parole or probation supervision plus five years after release from prison will be “prima facie evidence of rehabilitation.” § 17-1-103(e).
In 2019, notwithstanding the prohibition on automatic bars in § 17-1-103(b), SB 451 established mandatory disqualification from licensure for a long list of specific state or federal crimes, from the most serious violent offenses to theft of property, aggravated assault, and controlled substances offenses, unless the conviction has been sealed, expunged or pardoned. § 17-3-102(a). Such crimes may be waived according to specific standards, § 17-3-102(b), and all but the most serious may only be considered disqualifying for a 5-year crime-free period. § 17-3-102(c). A shorter list of specified serious violent offenses “shall result in permanent disqualification for licensure,” unless disqualification is waived. § 17-3-102(e) (as modified in 2021). Disqualification may be waived on the following grounds:
(A) The age at which the offense was committed;
(B) The circumstances surrounding the offense;
(C) The length of time since the offense was committed;
(D) Subsequent work history since the offense was committed;
(E) Employment references since the offense was committed;
(F) Character references since the offense was committed;
(G) Relevance of the offense to the occupational license; and
(H) Other evidence demonstrating that licensure of the applicant does not pose a threat to the health or safety of the public.
§ 17-3-102(b). In 2021, HB1520 authorized waiver for the most serious offenses in § 17-3-102(e), and also provided that individuals convicted of disqualifying offenses and licensed prior to passage of the 2019 law (or was a student at the time and would have been qualified) would not need to obtain a waiver.
Finally, licensing boards may not “(1) Use vague or generic terms, including without limitation the phrase ‘moral turpitude’ and ‘good character’; or (2) Consider arrests without a subsequent conviction.” § 17-3-102(d). Applicants may petition for a preliminary determination, § 17-3-103.
SB 451 made various specific licenses subject to differing standards, including CPAs and accountants. Does not apply to teacher licensure or certification, or nursing licensure and certification, which are governed by §§ 6-17-410 and 17-87-312 respectively. § 17-1-103(g).
Boards and agencies shall “state explicitly in writing the reasons for a decision which prohibits the applicant from practicing the trade, occupation, or profession if the decision is based in whole or in part on conviction of a felony.” § 17-1-103(c). Complaints are adjudicated under Arkansas APA. § 17-1-103(e). Secretary of State must make section known to any affected agency. § 17-1-103(f)(2). See also Bolden v. Watt, 719 S.W.2d 428 (Ark. 1986) (criminal offender act benefits person with DWI offense seeking licensure as taxi driver, in spite of specific prohibition in taxi licensing law, since individual could be prevented from obtaining particular job because of direct connection between nature of conviction and job).
B. Teachers License
Ark. Code Ann. § 6-17-410 provides for revocation or denial of teaches license for conviction of a wide variety of crimes. However, under § 410(f)(2) the revocation provisions of subsection (c) of this section may be waived taking into account:
(A) The age at which the crime or incident was committed;
(B) The circumstances surrounding the crime or incident;
(C) The length of time since the crime or incident;
(D) Subsequent work history;
(E) Employment references;
(F) Character references; and
(G) Other evidence demonstrating that the applicant does not pose a threat to the health or safety of school children or school personnel.
C. Nursing license
Ark. Code Ann. § 17-87-312(g)(2) provides substantially the same scheme as for teachers.
D. Elder Care License
Ark Code Ann. § 20-33-213 imposes mandatory record checks, and § 20-38-105(b) bars licensure for wide variety of offenses for limited periods of time (five years for misdemeanors, ten years for felonies) as long as applicant has not been convicted in the meantime. § 20-38-105(d). Permanent disqualification for smaller group of violent offenses, including expunged convictions. § 20-38-105(c).
Ark. Code Ann. § 6-82-107: “A criminal conviction shall not be used as a basis to disqualify a person from eligibility for a scholarship, grant, loan forgiveness program, or other benefit subsidized by state funds under this chapter unless there is a specific statutory reason for denial that relates to the basis of assistance.”
- When Merritt was decided, Arkansas law defined a felony as a crime punishable by imprisonment in a penitentiary or death. Today, § 5-1-106 defines a felony as any crime so designated by statute. ↩
- The Arkansas legislature reconstituted the Post Prison Transfer Board as the Parole Board in 2005, and made other modifications in parole and pardon policy. See Acts 1033, 85th Gen. Sess., 2005. ↩
- The Board recommended that Governor Beebe pardon his son, who had been convicted of a minor marijuana offense in 2003, reasoning that the case was similar to others it had recommended favorably. See Lucy McCalmont, “Arkansas governor to pardon own son,” Politico (Nov. 13, 2014), http://www.politico.com/story/2014/11/arkansas-gov-mike-beebe-pardon-son-112857.html. ↩
- See § 16-90-1401 (“The General Assembly recognizes that historically the laws of this state involving the procedure a person must follow to have his or her prior criminal history information sealed have been confusing, from the standpoint of both practicality and terminology. . . . It is the intent of the General Assembly to provide in clear terms in what instances and, if applicable, how a person may attempt to have his or her criminal history information sealed.”) ↩
- See also the Community Punishment Act of 1993 (“Act 531”), Ark. Code Ann. § 16-93-1201 et seq.; Ark. Code Ann. § 5-4-312 (authorizing the court to suspend any sentence to community corrections). ↩