Restoration of Rights & Record Relief
Last updated: August 5, 2020
I. Loss & restoration of civil/firearms rights
A. Vote and Office
Under the Iowa Constitution, persons convicted of an “infamous crime” (any crime punishable by imprisonment in the penitentiary, which may include aggravated misdemeanors as well as felonies) are ineligible to vote or hold public office. Iowa Const. art. II, § 5; see Iowa Code § 48A.30(d). The rule in Iowa has been that “[a]ny crime punishable by imprisonment in the penitentiary is an infamous crime.” State ex rel. Dean v. Haubrich, 248 Iowa 978, 980 (1957). In 2016, the Iowa Supreme Court upheld the state’s policy of lifetime disenfranchisement of anyone convicted of any felony as being consistent with the state Constitution. See Griffin v. Pate, No 15-1661 (June 20, 2016). Two years earlier, the court held that repeat DWI, an aggravated misdemeanor carrying a potential prison term, was not an “infamous crime” so as to constitute a bar to eligibility for office. See Chiodo v. Section 43.24 Panel, No 14-0553 (April 15, 2014). However, the court stressed that the category of “infamous crime” was broader than “felony.”
On August 5, 2020, Governor Kim Reynolds issued Executive Order No. 7, restoring the right to vote and hold office automatically to any person who has “discharged his or her sentence upon completion of any term of confinement, parole, probation, or other supervised release for all felony convictions.” A person is restored even though they have not paid restitution and other court debt, but the order does not discharge it. The order specifically also restores the vote to those convicted of federal and out-of-state offenses. The governor has also pledged to continue to restore these rights “on a daily basis.” Those disqualified by virtue of a homicide conviction are excepted from the order and may regain the right to vote only by applying directly to the office of the governor. See Iowa Code § 914.2. The application form is available at https://governor.iowa.gov/sites/default/files/documents/Application%20for%20Restoration%20of%20Voting%20Rights.pdf. To qualify for restoration a person must have completed parole, probation, and “completed repayment of court costs, restitution, and fines or must be current on a payment plan.” https://governor.iowa.gov/services/voting-rights-restoration.
Persons who completed their sentences prior to July 4, 2005, were restored to the vote automatically by action of Governor Vilsack’s Executive Order 42. 1
People with federal and out-of-state convictions may regain their voting rights through filing an application for Restoration of Rights. See application form, supra (“An individual convicted in Iowa State Court, Federal Court, and a court outside of Iowa may apply to have their right to vote and hold public office restored.”) However, persons with out-of-state convictions may also regain their rights through the restoration procedures in their jurisdiction of conviction. See governor’s website on clemency, Frequently Asked Questions, https://governor.iowa.gov/sites/default/files/documents/FAQ%20-%20Voting.pdf (“If your voting rights were restored in the State where you lost your rights because of a felony conviction, your voting rights are restored.”). According to the Office of the Governor, a person with an out-of-state felony conviction that did not result in disenfranchisement is considered to have had his rights “restored” and may vote in Iowa.
Governor Kim Reynolds has supported efforts to amend the state constitution to restore voting rights to most convicted individuals. In May 2020, the state took the first step toward amending its constitution by a law restoring the vote automatically to all who have “discharged” their sentence, defined to include completion of supervision and payment of restitution. See Iowa Code § 48A.6 and § 48A.6A.
Conviction or adjudication of a felony or conviction of misdemeanor domestic violence, renders an individual ineligible to possess a firearm. Iowa Code § 724.26. See also §§ 724.8(4), 724.15(1)(b). In addition, a person convicted within the previous three years of “any serious or aggravated misdemeanor defined in chapter 708 not involving the use of a firearm or explosive” may not possess a firearm. Iowa Code § 724.8(5). See also § 724.15(1)(b). The governor may restore firearms rights after a five-year waiting period following completion of sentence, or by pardon which requires a 10-year waiting period. https://governor.iowa.gov/pardons-firearm-rights-and-commutations. Iowa Code §§ 724.27; 914.7(1). See Part IIA, infra.
II. Pardon policy & practice
The governor has the authority, except in cases of treason or impeachment, to grant reprieves, commutations, and pardons, after conviction, “subject to such regulations as may be provided by law.” Iowa Const. art. IV, § 16; accord Iowa Code §§ 914.1-914.7. Application for clemency may be made at any time either to the governor, or to the Board of Parole which is charged by statute with giving the governor non-binding recommendations in pardon and restoration cases. Iowa Code § 914.2.2 Every two years, the governor must report to the legislature on pardons issued, “and the reasons therefor . . . .” Iowa Const. art. IV, § 16. The pardon power includes the power to restore rights of citizenship, including to someone with a federal or out-of-state conviction. See State ex rel. Dean v. Haubrich, 83 N.W.2d 451, 455-56 (Iowa 1957).
B. Restoration of civil rights, firearms rights
Restoration of the right to vote and hold public office is handled by the Office of the Governor, and a special application form. See https://governor.iowa.gov/services/voting-rights-restoration. Eligibility is immediate upon full discharge of sentence, including payment of court costs.
There is a special process for restoration of firearms rights. The governor’s website on executive clemency includes application forms and instructions as well as frequently asked questions. See https://governor.iowa.gov/pardons-firearm-rights-and-commutations. (accessed November 12, 2019). The Board of Parole is authorized to make recommendations to the governor on restoration of rights, but only firearms cases are included in the Board’s annual reports. Iowa Code § 914.3(1); https://bop.iowa.gov/administration/annual-reports.
Applications for pardon may be submitted directly to the governor. However, the Board of Parole “shall” periodically review applications for pardon and make recommendations to the governor for all applications by persons convicted of criminal offenses. Iowa Code § 914.3(1). However, the governor’s power to pardon and restore rights of citizenship “shall not be impaired” by this administrative scheme. Iowa Code § 914.1; see State v. Duff, 122 N.W. 829 (Iowa 1909) (statute authorizing board to parole prisoners does not confer power upon the board to reprieve or pardon and hence does not violate the constitutional provision granting such power to the governor).3 In addition, the board “shall, upon request of the governor, take charge of all correspondence in reference to an application filed with the governor” and provide the governor with advice and recommendation concerning “any person for whom the board has not previously issued a recommendation.” § 914.3(2). The governor is required to respond to recommendations of the Board within 90 days; he must “state whether the recommendation will be granted and shall specifically set out the reasons for such action.” § 914.4.
Restoration of citizenship (vote and office)
Application for restoration of civil rights may be made directly to the Office of the Governor at any time following conviction. Iowa Code § 914.2. The application form is available at https://governor.iowa.gov/services/voting-rights-restoration. Ordinarily, to qualify for restoration a person must have completed parole, probation, and “completed repayment of court costs, restitution, and fines or must be current on a payment plan.” https://governor.iowa.gov/services/voting-rights-restoration. Persons with federal and out-of-state convictions may obtain a restoration of civil rights, but not restoration of firearms rights or pardon. Iowa residents with out-of-state convictions may vote if their rights have been restored in the jurisdiction of their conviction. See Part I, above.
“Special Restoration of Citizenship (Firearms)”
Firearms restoration must be applied for separately, and requires a waiting period of five years from the date of discharge of sentence. All fines and restitution must be paid. Persons convicted of forcible felonies, or felonies involving drugs or weapons, are ineligible to have their firearms rights restored, even by pardon. Iowa Code § 914.7.
Application may be submitted “at any time following the conviction,” Iowa Code § 914.2, though it is the general policy of the governor’s office to require at least ten years to pass from the date that a person is discharged from the sentence of that person’s most recent conviction before granting a pardon. An applicant must submit criminal history and credit history information. Evidence of rehabilitation and good character must be demonstrated, and the applicant is invited to submit as many letters of recommendation as possible. Review appears to be a paper review, since no in-person hearing specified.
The governor’s website on executive clemency includes application forms and instructions as well as frequently asked questions. See https://governor.iowa.gov/constituent-services/restoration-of-citizenship-rights (accessed October 14, 2018).
Restoration of rights restores right to vote and hold public office. Pardon relieves all legal disabilities (including public employment disabilities), but it “will not erase or expunge the record of conviction.” https://governor.iowa.gov/constituent-services/restoration-of-citizenship-rights. See also Slater v. Olson, 299 N.W. 879 (Iowa 1941) (invalidating a statute barring convicted persons who had been pardoned from civil service positions, on ground that it encroached upon the governor’s constitutional powers).
Firearms rights may be restored by pardon, restoration of rights, or expungement of a conviction for a disqualifying offense, Iowa Code § 724.27, except for persons convicted of forcible felonies or firearms offenses, § 914.7.
Role of Board
The Board “shall recommend to the governor the reprieve, pardon, commutation of sentence, remission of fines or forfeitures, or restoration of the rights of citizenship for persons who have by their conduct given satisfactory evidence that they will become or continue to be law-abiding citizens.” Iowa Code § 914.3(1); see Iowa Admin. Code rules 205-14.3-14.4. For violent crimes, notice of application for commutation or pardon must be given to registered victims. Iowa Code § 915.19; see paragraph above on governor’s obligation to respond to Board recommendations and give his reasons; see also http://www.bop.state.ia.us/pdf/07-01-2009.205.pdf (last visited July 27, 2013).
Restoration of citizenship
There is a streamlined statutory process for restoration of citizenship by the governor. Persons sentenced to prison must initiate application under section 914.2, and upon request from the governor, the warden or superintendent of prison shall provide the government with a statement of the prison conduct and recommendation “as to the propriety of restoration.” Iowa Code § 914.5(3). For those sentenced to probation, upon discharge the sentencing judge “shall forward to the governor a recommendation for or against restoration of citizenship rights . . . .” § 907.9(4)(a). The abbreviated process takes from four to six months. A list of the persons whose rights have been restored must be delivered to the state registrar of voters at least once each month. § 914.6(3).
An application may be filed with Board of Parole or directly with the governor. Each application is forwarded to the Department of Public Safety for a full review of criminal and traffic violations as well as a credit history. According to law, these materials will be reviewed by the Board of Parole, and a recommendation will be submitted to the governor. The governor may ask the judge and prosecutor for facts or a recommendation. Upon receipt of recommendation from the Board of Parole, the governor must act on it within 90 days, stating whether or not the recommendation will be granted. The governor may interview an applicant personally. The governor must give reasons for decision in either case. If the governor does not grant the recommendation, the recommendation shall be returned to the board of parole and may be re-filed with the governor at any time. Iowa Code § 914.4.
G. Frequency of Grants
The Annual Reports of the Iowa Board of Parole contain statistics on the number of pardons sought and granted, and reveal that in recent years fewer than a dozen applications for pardon are filed each year. In the past three years, more than half of these have been recommended favorably. https://bop.iowa.gov/administration/annual-reports. However, the Board’s “FAQ” states that “less than 10% of applications are granted each year.” People also apply for the “Special Restoration of Rights” that restores gun rights, and a somewhat higher percentage of those are recommended favorably.
Board of Parole
III. Expungement, sealing & other record relief
A. Misdemeanor expungement
In 2019, Iowa enacted its first authority to expunge conviction records. SF 589 (signed May 16, 2019) enacted a new § 901C.3 providing for expungement of a single misdemeanor conviction if at least eight years have passed since conviction, the defendant has no pending criminal charges, has not been granted more than one deferred judgment, and has paid all court costs, fees, fines, restitution, and any other financial obligations ordered by the court or assessed by the clerk of court. A lengthy list of ineligible crimes includes weapons offenses, misuse of public office, weapons offenses, livestock abuse, and a variety of violent or sexual offenses. See Iowa Code § 901C.3(2). A person may be granted only one expungement, unless more than one charge arose out of the same incident. See § 901C.3(3). Expungement limits public access to the court record, as well as to records of Department of Public Safety.
B. Deferred adjudication and expungement
For most offenses (excluding forcible felonies, certain sex offenses, and other listed offenses), if the person was not previously convicted of a felony, and has not had any prior deferred adjudications—or had only one previously and it was more than five years prior to this offense—the court may defer judgment and place the defendant on probation. Iowa Code § 907.3(1).4 At any time, if the court determines that the purposes of probation have been fulfilled and fees have been paid, the court may order the discharge of a person from probation. § 907.9(1). If the defendant is discharged from probation, no conviction occurred in strict legal sense because no adjudication of guilt was made. State v. Farmer, 234 N.W.2d 89, 92 (Iowa 1975); accord Daughenbaugh v. State, 805 N.W.2d 591, 597 (Iowa 2011). Upon successful completion of probation, “the court shall forward to the governor a recommendation for or against restoration of citizenship rights to that person . . . .” § 907.9(4)(a). In addition, a person who has been discharged from probation “shall no longer be held to answer for the person’s offense,” id. and “the court’s criminal record with reference to the deferred judgment shall be expunged,” § 907.9(4)(b). The court’s record “shall not be expunged in any other circumstances, unless authorized by law.” Id.; see Op. Iowa Att’y Gen. No. 75-9-11, 1975 WL 368808 (Sept. 10, 1975) (“expungement” refers only to that part of the court’s criminal record “with reference to the deferred judgment” and there is no authority for expunging the docketing or indexing of the case, the defendant’s name, the charge filed or the plea).5
Expunged records are “segregated in a secure area or database which is exempted from public access.” Iowa Code § 907.1. However, a deferred judgment that has been expunged may be used to enhance punishment for a subsequent offense. State v. Moore, 569 N.W.2d 130, 131-32 (Iowa 1997). Convictions expunged under this authority count as prior convictions under the U.S. Sentencing Guidelines. See United States v. Townsend, 408 F.3d 1020, 1025 (8th Cir. 2005) (concluding that “Iowa state-court conviction for third-degree burglary was not expunged due to constitutional invalidity, innocence, or a mistake of law . . . [i]nstead, the conviction was exempted from public access to permit [defendant] Townsend a clean start and to restore some civil rights”).
C. Non-conviction records
Effective January 1, 2016, “upon application of a defendant or a prosecutor in a criminal case, or upon the court’s own motion in a criminal case, the court shall enter an order expunging the record of such criminal case” when “[t]he criminal case contains one or more criminal charges in which an acquittal was entered for all criminal charges, or in which all criminal charges were otherwise dismissed.” Iowa Code § 901C.2(a)(1). All “court costs, fees, and other financial obligations ordered by the court or assessed by the clerk” in the particular criminal case sought to be expunged must be paid, including the cost of indigent counsel. § 901C.2(a)(2). See State v. Doe,
§ 907.4. See also Iowa Code § 692.17(1): “Criminal history data in a computer data storage system shall not include arrest or disposition data or custody or adjudication data after the person has been acquitted or the charges dismissed . . . .”ame definition of expungement as for deferred adjudication under
D. Juvenile records
Adjudication records in delinquency proceedings arising on or after July 1, 2016 are presumptively confidential if they do not involve a forcible felony offense. Iowa Code Ann. §§ 232.147(3), 232.149B(1) (amended and enacted by 2015 SF 2288). Forcible felony records may be treated as confidential if, upon petition, the court finds that the juvenile’s interest in making the records confidential outweighs the public’s interest in the records remaining public. § 232.149A(1). Confidential records are not available to the general public but remain available to law enforcement, county attorneys, and military recruiters, among others. §§ 232.147(3), 232.149A(3).
For non-forcible felony offenses, presumptively confidential records may be made public while the juvenile court holds jurisdiction if the court finds, upon a motion by the court or anyone else, any of the following: that the public interest in disclosure outweighs the juvenile’s interest in confidentiality; that, in certain “youthful offender” cases, jurisdiction will be transferred to district court upon the juvenile’s 18th birthday; or the juvenile was subsequently charged with or adjudicated for a serious misdemeanor, aggravated misdemeanor, or felony. § 232.149B(2), (3). Records made public may be subsequently sealed under § 232.150, discussed below. § 232.149B(4).
Sealing is governed by Iowa Code Ann. § 232.150(1). The court is required to schedule a sealing hearing two years after the last official action in a case or on the person’s 18th birthday, whichever is later. Id. For offenses other than aggravated misdemeanors and felonies, the court will seal upon a finding that the person is at least age 18; at least two years have elapsed since the last official action on the person’s case; there have been no subsequent felony or aggravated misdemeanor convictions; the person was not placed on youthful offender status, transferred to adult court, and sentenced for the underlying offense; and that the person was not adjudicated for an OWI (DUI). Id. Aggravated misdemeanors may be sealed upon application if they meet the same eligibility requirements (excepting the youthful offender and OWI criteria) and if sealing is in the best interests of the person and the public. § 232.150(1)(b). Unlike “confidential” records, sealed records “shall no longer be deemed to exist as a matter of law.” § 232.150(5). Courts and agencies shall respond to requests for sealed records that no such records exist. Id. “All agencies and persons having custody of [sealed records] shall send such records to the court issuing the [sealing] order,” and “all index references to sealed records shall be deleted.” Id.
Status of records at age 21
Iowa Code Ann. § 692.17(1):
Criminal history data shall not include custody or adjudication data, except as necessary for the purpose of administering chapter 692A, after the juvenile has reached twenty-one years of age, unless the juvenile was convicted of or pled guilty to a serious or aggravated misdemeanor or felony between age eighteen and age twenty-one.
E. Administrative certificate: “Certificate of Employability”
In 2008, the Iowa legislature authorized the Board of Parole to develop and implement a “certificate of employability program” for certain formerly incarcerated persons on parole (no sex offenders), or no longer on parole but unemployed or underemployed. The purpose of the program is to “maximize the opportunities for rehabilitation and employability of a person and provide protection of the community, while considering the needs of potential employers.” Iowa Code § 906.19(2). The program developed by the Board is described at Chapter 9 of the Parole Board Rules, http://www.bop.state.ia.us/pdf/07-01-2009.205.pdf (last visited May 29, 2012).
Certificates may be issued by the board at the time the offender is released from prison or at any time thereafter, with a positive recommendation from the department of corrections or community-based corrections in the state of Iowa. The Board must determine that relief “is consistent with the employability of the eligible offender,” and “consistent with the public interest.” Iowa Code § 9.3(2). The certificate may be revoked during the parole period for a new arrest, or afterwards for a new conviction. § 9.3(3). A certificate of employability may be presented to any public agency or private employer, except where a statutory bar exists to employment. The only legal effect given a certificate under the Board Rules relates to licensing: Under section 9.2(2), licensing agencies cannot deny a license based on the felony conviction or based on a lack of good moral character, unless the agency makes a determination that there is a direct relationship between the offense and the license sought or that the issuance of the license involves unreasonable risk to property or the safety and welfare of specific individuals or the general public.
Under the general licensing standards enacted in 2020, a certificate must be given effect in determining the rehabilitation of a candidate for licensure. See IVA below.
IV. Criminal record in employment & licensing
A. Occupational licensing
In 2019 the legislature had narrowed licensing standards for certain skills learned in prison. See Iowa Code Ann. §§ 103.6 et seq. (electrician and related licenses); 105.10 et seq. (for plumber, mechanical professionals, and contractor licenses). But until 2020, Iowa had no general law regulating consideration of conviction in occupational licensing. HF2627 added a new section to Chapter 272C of the Iowa Code to impose an unusually robust and license-specific “direct relationship” test on all but a few health-related licenses.6
Effective January 1, 2021, each covered board must provide a list of offenses that “directly relate to the duties and responsibilities of the profession,” and may not deny a license based on non-conviction records or any finding that an applicant “lacks good character” or “suffers from moral turpitude.” Iowa Code Ann. §272C.15. Under the new section, an agency “shall grant” an exception to an individual “who would otherwise be denied a license due to a criminal conviction” if the individual is determined to be rehabilitated and an “appropriate candidate for licensure” based on a list of factors that include the nature and seriousness of the crime, the passage of time, and other mitigating or aggravating factors. There is a rebuttable presumption that an applicant is “rehabilitated” five years after release from incarceration, unless the conviction was for certain violent or sexual crimes. The board shall consider whether a “certification of employability” has been issued, see Section III-E above, and any letters of reference.
A prospective applicant may petition for a preliminary determination, for which a board may charge a fee of $25. §272C.15(5). Grounds for denial must be in writing, and the applicant must be given an opportunity to appeal, and informed that evidence of rehabilitation will be considered on reapplication. The board’s findings on each criterion specified must be “sufficient for review by a court.” The board has the burden of proving direct relationship. An individual may be requested to submit a “complete criminal record,” which includes the complaint and judgment for each conviction. §272C.15(6).
B. Fair employment
In April, 2019 the governor signed SF 650 prohibiting suits against employers for the tort of negligent hiring based on their employment of a person with a criminal record, unless the person committed the crime “while performing duties substantially similar to those reasonably expected to be performed in the employment” and considering a test involving the nature and seriousness of the offense, the age of the person at the time of its commission, and the time elapsed since; or, if the conviction was for a lengthy list of crimes involving violence; or, if the negligent hiring suit involves the misuse of funds or property by the convicted person.
- Between 2005 and 2011, an executive order issued by Governor Tom Vilsack automatically restored the right to vote and to hold public office to offenders who had completed their court-imposed sentences. See Iowa Exec. Order No. 42, available at http://publications.iowa.gov/3762/1/EO_42.pdf. According to news accounts of Governor Vilsack’s action, the order restored the right to vote to some 80,000 persons then unable to vote in Iowa. His successor Chet Culver continued this automatic restoration policy, and rights were restored to offenders completing their sentences on a monthly basis (about 25,000 individuals over his four-year term). Governor Terry Branstad rescinded the Vilsack order on January 14, 2011, so requests for restoration of rights are again handled on a case-by-case basis by the Office of the Governor. See Iowa Exec. Order No. 70, available at http://publications.iowa.gov/10194/1/BranstadEO70.pdf.
- An exception is stated under section 902.2, which provides that persons sentenced to life in prison may apply for clemency “no more frequently than once every ten years.” This provision, enacted in 1995, was sustained against constitutional challenge under the ex post facto clause in Snodgrass v. Robinson, 512 F.3d 999 (8th Cir.), cert. denied, 555 U.S. 813 (2008). To the extent this provision appears to require the Governor to send applications for clemency to the Parole Board, it may be constitutionally problematic. See State ex rel. Gary R. Allison v. Vilsack, No. EQCV 018165.
- The predecessor statute to section 914.3 did not require the governor to present a case to and obtain a recommendation from the Board of Parole before granting a pardon, and his failure to consult the board was challenged unsuccessfully in 2005 in the context of Governor Vilsack’s blanket restoration of voting rights to all persons who had completed their court-imposed sentences. See Iowa Exec. Order No. 70; see also Ruling on Mot. for Summ. J., State ex rel. Gary R. Allison v. Vilsack, No. EQCV 018165 (Oct. 27, 2005).
- If a case qualifies for disposition under section 907.3, a defendant is entitled to be considered for deferred judgment. See State v. Johansen, Nos. 6-451, 05-1106, 2006 WL 1751285, at *1 (June 28, 2006).
- In Dickerson v. New Banner Institute, the Supreme Court held that a guilty plea and deferred sentence that was expunged under the Iowa deferred adjudication scheme did not relieve a defendant of federal firearms disabilities. 460 U.S. 103 (1983), superseded by statute, Firearms Owners’ Protection Act, 100 Stat. 449 (1986), as recognized in Logan v. United States, 552 U.S. 23, 27-28 (2007) (citing 18 U.S.C. § 921(a)(20)). Congress subsequently amended the Federal Firearms Act to give effect to state relief provisions, including set-aside and expungement provisions. See 18 U.S.C. § 921(a)(20).
- “Directly relates” is defined to mean that the “actions taken in furtherance of an offense are actions customarily performed within the scope of practice of a licensed profession” or the “circumstances under which an offense was committed are circumstances customary to a licensed profession.” §272C.1(7).