Restoration of Rights & Record Relief
Last updated: October 28, 2022
I. Loss & restoration of civil/firearms rights
Disenfranchisement occurs only upon conviction of one of the crimes listed in the Mississippi Constitution as disqualifying. See Miss. Const. art. 12, § 241 (murder, rape, bribery, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy). Most statutory offenses involving an unlawful taking of property are disqualifying. See Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998).1 A recent change added voter fraud to the list of disenfranchising crimes. 2021 Miss. Laws, ch. 517. Drug crimes are not disqualifying.
The right to vote, if lost, may be regained by pardon or by a two-thirds vote of legislature. Miss. Const. art. 5, § 124 (executive’s power to pardon limited in cases of treason and impeachment); art. 12, § 253. Informal requirement of seven-year wait to apply for pardon after completion of sentence. There is a separate statutory procedure by which a defendant may request, upon “discharge from probation” by the court, that a report be sent to the governor for consideration for restoration of citizenship rights. Miss. Code Ann. § 47-7-41 .2
Only convictions obtained in Mississippi state courts are disqualifying. See Middleton v. Evers, 515 So.2d 940, 944 (Miss. 1987) (disqualification not applicable if person was convicted in another state); Op. Miss. Atty.Gen. No. 2005-0193 (Wiggins, April 26, 2005). The Mississippi Attorney General’s office advises that only felony convictions are disqualifying. See McLaughlin v. City of Canton, 947 F.Supp. 954 (S.D. Miss. 1995) (misdemeanor “false pretenses” conviction does not constitute a conviction for fraud within the constitution, and is thereby not disqualifying; equal protection issues discussed in dicta).3
B. Jury and Office
Persons convicted of an “infamous crime,” defined as an offense “punished with death or confinement in penitentiary,” are ineligible for jury service. See Miss. Code Ann. §§ 13-5-1; 1-3-19.
The right to hold office is lost upon conviction of certain felonies, and restored only by pardon. Miss. Const. art. 4, § 44(1)-(3); Miss. Code Ann. § 99-19-35 (“A person convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement, or bigamy, shall not be allowed to practice medicine or dentistry, or be appointed to hold or perform the duties of any office of profit, trust, or honor, unless after full pardon for the same.”). A person convicted in another state, or in federal court would not fall within the scope of this prohibition. State ex rel. Mitchell v. McDonald, 145 So. 508 (Miss. 1933); Op. Miss. Att’y Gen., 1990 WL 547896 (Harris, Aug. 29, 1990).
Persons convicted of a felony may not possess a firearm unless pardoned, granted federal relief under 18 U.S.C. § 925(c), or granted a “certificate of rehabilitation” by a court. See Miss. Code Ann. § 97-37-5(1), discussed in Part II, infra.
II. Pardon policy & practice
The governor has full clemency authority in all criminal cases (except treason and impeachment), subject to rules and regulations prescribed by law. Miss. Const. art. 5, § 124. Mississippi law gives the Parole Board “exclusive responsibility” for investigating pardon cases at the governor’s request. Miss. Code Ann. § 47-7-5(3). See also § 47-7-31. The Board is composed of five full-time salaried members appointed by the governor, who also appoints the chair. § 47-7-5(1). The Board reports annually to the governor and legislature. § 47-7-15.
According to the Governor’s Office, informal policy requires applicants to wait seven years after the completion of sentence. Completion of sentence may include payment of fines and restitution. Federal and out-of-state offenders are not eligible for a state pardon.
Pardon restores civil rights and removes employment disabilities, including gun rights. Legislative relief does not restore gun rights. Statutes barring convicted people from jobs in education and health care give specific effect to pardon. See, e.g., Miss. Code Ann. §§ 37-9-17(3) (teachers and school administrators); 37-29-232(3) (admission to health care professional training program). See also 45-33-47(4) (pardon relieves obligation to register as sex offender). A pardon does not expunge a conviction. See Hentz v. Mississippi, 152 So. 3d 1139 (Miss. 2014), http://law.justia.com/cases/mississippi/supreme-court/2014/2013-ca-01217-sct.html.
Under the Mississippi Constitution, all applicants for executive clemency must post notice in a newspaper in the county of conviction 30 days prior to making application to governor, setting forth the reasons why clemency should be granted. Miss. Const. art. 5, § 124.4 Facially meritorious cases filed with the governor’s office are sent to the Parole Board for investigation. The Board generally requires letters of recommendation from the community and family, and a statement of unusual circumstances. The application form is available at http://www.cjpf.org/clemency/MississippiApp.pdf. The Board holds a hearing on meritorious applications at which the victim (if any) may be present. See Miss. Code Ann. § 99-45-1.
E. Frequency of Grants
Governor Bryant indicated at the outset of his administration, doubtless influenced by the scandal connected with the irregular pardons issued by Governor Haley Barbour at the end of his term, that he intended to use the pardon power sparingly and only in cases of wrongful conviction. See Huma Khan, Pardon No More? Mississippi’s New Governor Eyes Tougher Rules for Clemency, ABCNEWS.com ( 16, 2012), http://abcnews.go.com/blogs/politics/2012/01/pardon-no-more-mississippis-new-governor-eyes-tougher-rules-for-clemency. He adhered to this position and issued no pardons through his eight years in office, and stated in November 2019 that he intended to grant none at the conclusion of this term. The Parole Board reportedly received very few applications during this period.
Governor Barbour granted no more than a handful of pardons until the very end of his tenure in 2012, when he issued 215 clemency grants. Of these final grants, 189 were full pardons granted to persons no longer in prison, most (though not all) of whom had completed their sentences.5 According to the Parole Board, it received more than 500 applications during Governor Barbour’s eight-year tenure. Of those, just over 250 met the required standards for consideration and were sent on to the governor’s office. Of the 215 grants issued at the end of his term, 185 had been processed through the established procedure. http://www.reuters.com/article/2012/01/20/us-usa-mississippi-pardons-idUSTRE80J25K20120121. According to the Mississippi Attorney General’s office, there are several dozen legislative pardons granted pursuant to Bills of Suffrage each year, and some of those granted end-of-term pardons by Governor Barbour had previously received such restorations.6 Source: Mississippi Attorney General’s Office.
Mississippi Parole Board (601) 576-3520; also Paul Hirst, Governor’s Office at (601) 350-3150; Phil Carter, Attorney General’s Office, (601) 359-3680, email@example.com
III. Expungement, sealing & other record relief
A. Expungement of convictions
Any misdemeanor conviction other than a traffic offense, may be expunged by the convicting court upon petition, if the person is a “first offender.” Miss. Code Ann. § 99-19-71(1). A person may in addition seek expungement of one non-violent felony conviction, with some exceptions (including drug trafficking and sexual offenses), five years after completion of sentence, including payment of fines and restitution. § 99-19-71(2). The “first offender” proviso does not appear in this section, indicating that a prior conviction is not disqualifying. “One conviction” includes “all convictions that arose from a common nucleus of operative facts as determined in the discretion of the court.” § 99-19-71(2)(a).7
For felony expungement there is a five year waiting period after completion of sentence. §§ 99-19-71(2)(a). The District Attorney must be given 10 days’ notice before any hearing. § 99-19-71(2)(b). The court may grant such a petition if it determines, “on the record or in writing,” the applicant is rehabilitated. Id. “Upon entering an order of expunction under this section, a nonpublic record thereof shall be retained by the Mississippi Criminal Information Center solely for the purpose of determining whether, in subsequent proceedings, the person is a first offender.” § 99-19-71(3). Expunged records may be retained for law enforcement purposes. Id.
Miss. Code Ann. § 99-19-71(3):
The effect of the expunction order shall be to restore the person, in the contemplation of the law, to the status he occupied before any arrest or indictment for which convicted. No person as to whom an expunction order has been entered shall be held thereafter under any provision of law to be guilty of perjury or to have otherwise given a false statement by reason of his failure to recite or acknowledge such arrest, indictment or conviction in response to any inquiry made of him for any purpose other than the purpose of determining, in any subsequent proceedings under this section, whether the person is a first offender.
At the same time, “[t]he existence of an order of expunction shall not preclude an employer from asking a prospective employee if the employee has had an order of expunction entered on his behalf.” Id. A person as to whom an order has been entered, upon request, shall be required to advise the court, in camera, of the previous conviction and expunction in any legal proceeding wherein the person has been called as a prospective juror. The court shall thereafter and before the selection of the jury advise the attorneys representing the parties of the previous conviction and expunction. Id.
B. Intervention courts – drug, veterans, mental health
Mississippi law establishes a number of specialized problem-solving courts, including drug courts, mental health courts, and veterans courts. In 2019, HB 1352 reorganized these courts as “intervention courts,” and made an Intervention Courts Advisory Committee responsible for coordinating the policies and operation of these courts through the State. See Miss. Code Ann. §§ 9-23-1, 9-23-9. These courts are primarily aimed at reducing the incidence of drug abuse as a driver of criminal behavior, but they are aimed at different populations and have differing eligibility requirements. See, e.g., § 9-25-1 (veterans courts); § 9-27-7 (mental health courts). These courts all offer the possibility that successful participants in their programs may avoid a conviction, and be eligible for expungement of the record upon successful completion under the general authority applicable to non-conviction records (see below).
C. Vacatur for human trafficking victims
Any person convicted of an offense under the Mississippi Human Trafficking Act (2013 Miss. Laws Ch. 543 (H.B. 673)), whose offense was committed because they were a victim of human trafficking, may file a motion to vacate the conviction. Miss. Code Ann. § 97-3-54.6(5). While not required to vacate a conviction, documentation from a government agency showing the person’s status as a victim at the time of the offense creates a presumption that the person was a victim. Id.
D. Deferred adjudication and pretrial intervention
Deferred adjudication is authorized for felonies and misdemeanors, except crimes against the person and crimes involving embezzlement of public funds. Miss. Code Ann. § 99-15-26(1) et seq. (“Dismissal of action upon successful completion of certain court-imposed conditions”). Expungement required upon successful completion. § 99-15-26(5)(“upon petition therefore, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case”).
Pre-trial intervention is also available from the prosecutor except for crimes against the person and drug crimes. Miss. Code Ann. § 99-15-101 et seq. Upon petition after successful completion, “the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.” § 99-15-123(3).
E. Non-conviction records
Records of cases in which charges were either not brought or were dismissed by the prosecutor are eligible for expungement under Miss. Code Ann. § 99-19-71(4): “Upon petition therefor, a justice, county, circuit or municipal court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.” In 2019 cases in which “the person was found not guilty at trial” were added to this list by Section 34 of HB 1352.
In addition, records of misdemeanor cases in which no charges were brought or charges were dismissed may be expunged under Miss. Code Ann. § 99-15-59.
See also § 99-15-26(5) (deferred adjudication) and Intervention Courts (above).
F. Juvenile records
“Youth court” records are generally confidential and “shall not be disclosed, other than to necessary staff of the youth court, except pursuant to an order of the youth court specifying the person or persons to whom the records may be disclosed,” and only to specified persons or for specified purposes. Miss. Code Ann. § 43-21-261. The “youth court” may also at any time, on its own motion or upon application of a party, seal the record of a juvenile adjudication if the defendant has reached age 20, or if the case was dismissed or the court set aside the adjudication. § 43-21-263. In addition, “[t]he youth court, in its discretion, may order the destruction of any records involving children except medical or mental health examinations.” § 43-21-265.
G. Judicial certificate of rehabilitation
Miss. Code Ann. § 97-37-5(1) provides that a person with a felony offense will no longer be subject to prosecution as a felon in possession if he has received a certificate of rehabilitation from the court of conviction. Section 97-37-5(3) authorizes the court to issue a certificate of rehabilitation, “upon a showing to the satisfaction of the court that the applicant has been rehabilitated and has led a useful, productive and law-abiding life since the completion of his sentence and upon the finding of the court that he will not be likely to act in a manner dangerous to public safety.” Certificates are referred to in Miss. R. Evid. 609(c) as sufficient to rehabilitate a testimonial witness, indicating that it may be issued under a common law authority not exclusively created for firearms restoration.
IV. Criminal record in employment & licensing
Mississippi has no general law regulating consideration of conviction in connection with employment.
B. Occupational licensing
Until 2019, Mississippi also had no general law regulating consideration of conviction in connection with occupational licensing, although it applied a direct relationship test in connection with some licenses.8 Under the Fresh Start Act of 2019, effective July 1, 2019, no one may be disqualified from engaging in any licensed occupation “solely or in part because of a prior conviction of a crime, unless the crime for which an applicant was convicted directly relates to the duties and responsibilities for the licensed occupation.” Section 3 of SB2781 (not yet codified). Only law licensure is excepted. Under Section 4, licensing authorities shall not include in their rulemaking “vague or generic terms including, but not limited to, ‘moral turpitude,’ ‘any felony,’ and ‘good character.'” Absent applicable state law, licensing authorities “may only consider criminal records that are specific and directly related to the duties and responsibilities for the licensed occupation when evaluating applicants.” In determining whether a conviction is “directly related,” the licensing authority shall make its determination by a clear and convincing standard of proof based on the following factors:
(a) The nature and seriousness of the crime for which the individual was convicted;
(b) The passage of time since the commission of the crime;
(c) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the occupation; and
(d) Any evidence of rehabilitation or treatment undertaken by the individual that might mitigate against a direct relation.
Under Section 5, an individual with a criminal record may petition a licensing authority at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. The licensing authority must inform the individual of his standing within thirty (30) days of receiving the petition, and may charge a fee not to exceed $25.00. If a licensing authority denies an individual a license solely or in part because of the individual’s prior conviction of a crime, the licensing authority shall notify the individual in writing of the following:
(a) The grounds and reasons for the denial or disqualification;
(b) That the individual has the right to a hearing to challenge the licensing authority’s decision;
(c) The earliest date the person may reapply for a license; and
(d) That evidence of rehabilitation may be considered upon reapplication.
If an applicant’s criminal history does not require a denial of a license under applicable state law, “any written determination by the licensing authority that an applicant’s criminal conviction is directly related to the duties and responsibilities for the licensed occupation must be documented in written findings for each of the [factors in Section 4], “by clear and convincing evidence sufficient for a reviewing court.” In any administrative hearing or civil litigation, “the licensing authority shall carry the burden of proof on the question of whether the applicant’s criminal conviction directly relates to the occupation for which the license is sought.”
- Until the Fifth Circuit’s 1998 decision in Cotton v. Fordice, the constitutional list of crimes was given a narrow literal reading by the state Attorney General. Since that decision, the Attorney General has expanded the list of statutory theft-related crimes that are disqualifying. See Op. Miss. Att’y Gen. No. 2001-0278 (Scott, May 11, 2001) (car-jacking); Op. Miss. Atty.Gen. No. 99-0186 (Vowell, April 30, 1999) (timber larceny). Similarly, since 1998 the category of “false pretenses” offenses has also been more expansively interpreted to include statutory offenses. However, the Attorney General has made clear that crimes involving drugs or other controlled substances generally do not “fall under one of the twenty-one (21) crimes listed above and therefore would not be disqualifying,” though “we caution that an independent determination would have to be made on each specific crime.” See Op. Miss. Att’y Gen. No. 2004-0171 (Karrem, April 23, 2004). Other distinctions are explained in Op. Miss. Att’y Gen. Nos. 2000-0454 (Scott, August 18, 2000) (conviction for receiving stolen property or felony shoplifting results in disenfranchisement, but conviction for burglary does not); 2000-0169 (Salazar, April 7, 2000) (forgery does, prescription forgery does not); 2001-0278, supra (rape does, sexual battery does not).
- Miss. Code Ann. § 99-19-37(11) establishes administrative procedures for restoring the vote automatically to any convicted person who served honorably in World War I or World War II, referring to legislative authority in section 253 of the Mississippi constitution.
- Prior to 1995, the Mississippi Attorney General had historically opined that misdemeanor offenses falling within the constitutional list of crimes were disqualifying. See, e.g., Op. Miss. Att’y Gen Nos. 1992-0153 (March 3, 1992); 1985-744 (Pittman, November 22, 1992).
- On March 8, 2012, the Mississippi Supreme Court declined to invalidate certain pardons issued by outgoing Governor Barbour despite the beneficiaries’ failure to comply with the notice requirement in the Mississippi constitution, holding that compliance with constitutional provisions that were procedural in nature and committed solely to another branch of government was not justiciable. See In re Hooker, 87 So. 3d 401 (Miss. 2012).
- Of the twenty-six persons in custody, Governor Barbour granted ten full pardons; thirteen medical releases; one suspension of sentence; one conditional, indefinite suspension of sentence; and one conditional clemency. In re Hooker, supra, 87 So. 3d 403.
- See Marc Mauer & Tushar Kansal, Barred for Life: Voting Rights Restoration in Permanent Disenfranchisement States, Sentencing Project (Feb. 2005) at 16,available at http://www.sentencingproject.org/pdfs/barredforlife.pdf (reporting that between 2001 and 2004, 55 “bills of suffrage” passed while 57 were defeated).
- Prior to 2010, expungement was available only for misdemeanor convictions. See Laws, 2010, ch. 460, § 1. In 2010, the legislature added a handful of minor felonies: bad check, drug possession, false pretense, larceny, malicious mischief, and shoplifting. In 2019 an authority to expunge single youthful felony offenses in § 99-19-71(2)(b) was merged with the expanded general authority to expunge adult felonies. See Section 34, 2019 Miss. Laws Chapter 466, HB 1352.
- See, e.g., Miss. Code Ann. § 73-67-27(1)(e) (massage therapy license may be denied or revoked if person has conviction or charges “that directly relates to the practice of massage therapy or to the ability to practice massage therapy”).