Restoration of Rights & Record Relief
Last updated: August 27, 2023
I. Loss & restoration of civil/firearms rights
A. Civil rights
Persons convicted of “treason or felony in any state” lose the right to vote, hold office, and sit on a jury “unless restored to civil rights.” Nev. Const. art. 2, § 1; id. art. 15, § 3; Nev. Rev. Stat. § 6.010. Prior to June 2019, Nevada had one of the most complicated civil rights restoration schemes in the country, in which the loss and restoration of civil rights depended upon the nature of an individual’s crime and overall criminal record. HB 431 simplified that system dramatically.1 Under the 2019 law, a person loses the right to vote only if sentenced to prison, and only for the period of actual incarceration. See Nev. Rev. Stat. §§ 213.157(1)(b); 293.540. This rule is applied to persons convicted in other jurisdictions.2
The right to sit on a civil jury is regained upon discharge from probation or parole, or upon release from incarceration if no period of parole is served; and the right to sit on a criminal jury is regained six years after discharge from probation or parole or release from incarceration. §§ 176A.850, 213.155, 213.157. The right to hold office is regained four years after discharge from probation or parole or release from incarceration. Id.
B. Juvenile adjudications
Except as provided by a specific statute, a juvenile adjudication “does not impose any of the civil disabilities ordinarily resulting from conviction.” Nev. Rev. Stat. § 62E.010.
“A person shall not own or have in his possession or under his custody or control any firearm if he . . . has been convicted of a felony in this or any other state.” Nev. Rev. Stat. § 202.360(1)(a). Firearms rights may be restored only by pardon. Id.; see also § 213.090(1). Presumably people with federal and out-of-state offenses may have their firearms rights restored under Nevada law only by a pardon in the jurisdiction of their conviction.
Persons with repeat offenses or convicted of a serious felony who reside in Nevada, or who enter the state on more than five occasions in a month, must register with the local sheriff. Nev. Rev. Stat. §§ 179C.100(1)-(2). Convicted persons who have had their civil rights restored may be relieved of this obligation by the sentencing court, the Board of Parole Commissioners, or Board of Pardons Commissioners. § 179C.100(6). No such relief is available from sex offender registration requirements. § 179D.490.
E. Collateral consequences inventory
Under Nev. Rev. Stat. Ann. § 176.0125(9), enacted in 2013 and amended in 2017, the Advisory Commission on the Administration of Justice3 is directed to “cause to be identified any provision in the Nevada Constitution, the Nevada Revised Statutes and the Nevada Administrative Code which imposes a collateral sanction or authorizes the imposition of a disqualification, and any provision of law that may afford relief from a collateral consequence.” In carrying out this duty it “may rely on the study of this State’s collateral sanctions, disqualifications and relief provisions prepared by the National Institute of Justice described in section 510 of the Court Security Improvement Act of 2007, Public Law 110-177.” Further, it “[m]ust include the posting of a hyperlink on the Commission’s website to any study of this State’s collateral sanctions, disqualifications and relief provisions prepared by the National Institute of Justice described in section 510 of the Court Security Improvement Act of 2007, Public Law 110-177.”
II. Pardon policy & practice
The Nevada Constitution gives certain short-term clemency powers to the governor (reprieves, suspensions). Nev. Const. art. 5, § 13. However the full clemency power is entrusted to a panel consisting of “the governor, justices of the supreme court, and attorney general, or a major part of them.” Id. art. 5, § 14. The legislature has constituted this group as the Board of Pardons Commissioners. Nev. Rev. Stat. § 213.010(1). A majority of the Board can grant a pardon, but the governor must be among the majority. Nev. Const. art 5, § 14.
The legislature has specified Board operating procedures (see below) but it may not modify or restrict Board’s powers. King v. Board of Regents, 200 P.2d 221 (Nev. 1948).4 The Board meets semiannually in the second weeks of November and May, or more often as determined by the Board. Nev. Rev. Stat. § 213.010(2); Nev. Admin. Code § 213.020(1), (2). The governor must report to the legislature at the beginning of each session every clemency action (no reasons necessary). Nev. Const. art 5, § 13.
In 2020, the Nevada Constitution was amended by Ballot Initiative 3 to (1) expressly provide for the State Board of Pardons Commissioners; (2) eliminate the requirement that the Governor vote in the majority for any action; (3) require the State Board of Pardons Commissioners to meet at least quarterly; (4) authorize any member of the State Board of Pardons Commissioners to submit matters for consideration by the Board; and (5) and provide that a majority of the members of the State Board of Pardons Commissioners is sufficient for any action taken by the Board. Nev. Const. Art. 5, § 14, as amended.
The Chairman of the State Board of Parole Commissioners appoints a person to serve as secretary of the Board of Pardons Commissioners. Nev. Rev. Stat. § 213.017(1).
The application revised in 2012 no longer contains criteria for assessing pardon petitions, but provides only that
An application for a pardon will ordinarily not be considered unless a significant amount of time has passed since the applicant’s final discharge . . . . [during which period] an applicant is expected to demonstrate complete and total rehabilitation.
See Board of Pardons, Criteria and Application Instructions in Community Cases, available at http://pardons.nv.gov/Downloads/Community_Case_Pardons_Application_2012/.5 The Board accepts applications only from people with state offenses, including applications from people with misdemeanors, which represent about 20% of its caseload. People with sex offenses may apply for pardon only after they have obtained relief from registration requirements by a court of competent jurisdiction. See Nev. Rev. Stat. § 179D.490.
“A person who is granted a full, unconditional pardon by the Board is restored to all civil rights . . . and is relieved of all disabilities incurred upon conviction.” Nev. Rev. Stat.§ 213.090(1). “A pardon granted by the Board shall be deemed to be a full, unconditional pardon unless the official document issued pursuant to subsection 3 explicitly limits the restoration of the civil rights of the person or does not relieve the person of all disabilities incurred upon conviction.” § 213.090(2); see also 2003 Attorney General Opinion, supra note 4 (full and unconditional pardon removes all disabilities, including licensing bars, but does not “erase conviction” or dispense with licensing boards’ authority to condition licensure on finding of good moral character). See also Board of Pardons Commissioners, “Effect of a Pardon,” available at http://pardons.nv.gov/About/Effect_of_a_Pardon/(a pardon does not erase the conviction and does not attest to rehabilitation).6
For people with sex offenses, pardon does not obviate need to register. 2003 Attorney General Opinion, supra, at p. 14; http://pardons.nv.gov/About/Effect_of_a_Pardon/. In re Sang Man Shin, 206 P.3d 91, 91 (Nev. 2009) (pardon did not supersede Nevada law prohibiting the sealing of a sex offense).
A pardon is the only mechanism in Nevada law for removing firearms disabilities, and a pardon may be unconditional (restoring firearms rights) or conditional (without). Nev. Rev. Stat. § 213.090; see also id. § 202.360(1)(a), and a pardoned conviction releasing the person from all penalties and disabilities cannot serve as a predicate felony for federal firearms prosecution. 2003 Attorney General Opinion, supra, at p. 15 (citing U.S. v. Laskie, 258 F.3d 1047, 1052-53 (9th Cir. 2001) (state conviction that had been set-aside cannot serve as predicate felony for federal firearms prosecution)).
A public hearing is required in all cases where pardon is to be granted. Nev. Rev. Stat. §§ 233B.010 et seq., 213.020 et seq.; Nev. Admin. Code § 213.020 et seq.. Application form for community cases available http://www.pardons.nv.gov/About/Application. The Division of Parole & Probation prepares an extensive background investigation report for the Board’s consideration, a process that generally takes 2-3 months, after which cases will be chosen for a hearing. Nev. Admin. Code §§ 213.073(1), (2). The Board may hear cases twice a year. (In recent years, for budgetary reasons, the Board has held only one hearing each year.) Nev. Rev. Stat. § 213.010(2); Nev. Admin. Code § 213.020. All applications must be submitted at least 90 days beforehand. Nev. Admin Code § 213.040(2). The Board’s agenda is posted on the Pardons Board web site at http://www.pardons.nv.gov/Meetings. Copies of this agenda are mailed to every Nevada judge, every Nevada district attorney, and every person on the mailing list of the Board of Pardons. The Board must notify the county attorney and court of conviction 30 days before the hearing, and any victims 15 days before the hearing. Nev. Rev. Stat. §§ 213.010(3), 213.020(4). The County district attorney also gives notice to victims. Applications are generally presented to the Board only after the recommendation of the Department of Corrections and/or Secretary of the Board. See Nev. Admin. Code §§ 213.073, 213.183. Hearings are informal, though the Board may require the applicant’s presence. Nev. Admin. Code § 213.190. The Board’s decision is by a majority, which must include Governor. Nev. Const. art. 5, § 14(1). Proceedings are subject to the Nevada Administrative Procedure Act, so that the public receives 3 working days advance notice of a hearing, and minutes of meetings are public, including how each member voted. Nev. Rev. Stat. § 233B.010 et seq. The Board may grant unconditional pardons (with firearms rights) and conditional ones (without).
Expedited process for non-violent first time offenses: In August 2010, the Board adopted regulations providing for an expedited process to consider pardon applications filed by people with non-violent first-time offenses without a hearing, as long as there is no objection from district attorney, judge, or victim. See Nev. Admin Code § 213.077. See also Rev. Stat. Ann. § 213.017 (authorizing the Board to establish procedures for pardon and restoration of civil rights).
Summary pardons for marijuana possession: On June 17, 2020, the Board passed an resolution to summarily pardon 15,000 individuals convicted of possession of one ounce or less of marijuana between 1986 and 2017, when this conduct was decriminalized. See FAQs, and https://www.marijuanamoment.net/nevada-pardons-more-than-15000-people-with-marijuana-convictions-under-governors-resolution/. The measure was introduced to the board by Gov. Steve Sisolak (D) last week: “While pardons don’t void convictions, they can restore rights such as the ability to vote, own a firearm or serve on a jury. Those who are eligible for the pardon also have the opportunity to submit a form for expedited processing of documentation reflecting their status change.” The Board was unable to identify the records of this offense for: 1) people charged prior to 2001, when this offense was a felony; 2) people charged with this offense who pled to other offenses. Nonetheless, these convictions can still be pardoned upon application.
F. Frequency of grants
In recent years the Board has received 50-80 new pardon applications from “community cases,” of which more than half have typically been granted a hearing. Some cases held over from prior years may also be heard. Until 2017 the Board met only once a year, but a second meeting was held in 2017 after a meeting in May resulted in 19 grants (the Board finished 2017 with 57 grants (3 of them conditional) from 60 cases heard, for a grant rate of over 95%). In 2018 the Board granted 29 pardons (3 conditional) of 35 cases heard, and in 2019 the Board granted 24 pardons (4 conditional), a substantial percentage of those considered (either heard or considered on a consent calendar) . See reports published on the Board’s website, http://pardons.nv.gov/Meetings/.
Between 2006 and 2011 there were about 20 grants each year, a substantial majority of those following hearings. See Nevada Pardons Board Historical Actions (1997-present).7 The Board’s 2009 authority to adopt an expedited process for non-violent first offenses began to show up in its case processing statistics after 2011.
Marijuana pardons – See above for the mass self-executing pardon of the more than 15,000 people who were convicted for possessing up to one ounce of marijuana between 1986 and 2017.
The Board receives about 1000 commutation petitions each year, hears about 10 cases each year, and in the past decade has granted only a small percentage of them. See Nevada Pardons Board Historical Actions (1997-present), supra.
Executive Secretary, Board of Pardons Commissioners
1677 Old Hot Springs Road, Suite A
Carson City, NV 89706
Phone: 775-687-5049, ext. 225
III. Expungement, sealing & other record relief
A. Sealing convictions
Legislation passed in June 2017 declares that it is “the public policy of this State . . . to favor the giving of second chances to offenders who are rehabilitated and the sealing of the records of such persons. . . ” Even before the 2017 law, Nevada had one of the broadest record-closing laws in the Nation, making all convictions but those for crimes against a child, sex offenses, and certain DUI offenses eligible for sealing after a waiting period. Almost all felonies are eligible for sealing, including Category A felonies and felonies involving violence.
After an eligibility waiting period that varies depending on the seriousness of the offense (for felonies, two-to-10 years after discharge from probation or parole or release from actual custody, whichever is later, depending on the seriousness of the offense; for misdemeanors, one or two years, except for misdemeanors involving domestic violence for which the waiting period is seven years), a person may petition the court in which he was convicted to seal all records related to the conviction. Nev. Rev. Stat. § 179.245(1).8 Sealing relief is not available to those convicted of crimes against a child, sex offenses, and certain DUI offenses, § 179.245(5), or to anyone who has been convicted during the eligibility waiting period. § 179.245(5); see also In re Sang Man Shin, supra, 206 P.3d at 91 (pardon did not supersede Nevada law prohibiting the sealing of a sex offense). Also effective October 1, 2017, probationers not given an honorable discharge from probation or parole are for the first time eligible to have their records sealed if they otherwise meet the eligibility standards of § 179.245. See AB-327, § 1 (2017).
Finally, the law provides “a rebuttable presumption that the records should be sealed if the applicant satisfies all statutory requirements for the sealing of the records.” This presumption does not apply to an individual who was not honorably discharged from probation or parole. See § 179.2455.
Sealing is also available for successful reentry program participants (§ 179.259), and persons convicted of drug possession after a three-year waiting period (§§ 453.336, 453.3365).
Pardoned convictions: In 2021, the state police and court were directed to seal a pardoned conviction upon receipt of a certified copy of the pardon from the board, and courts were directed to seal pardoned conviction upon petition, providing no opportunity for objection from prosecutors, without charging a fee. See AB219.
Automatic sealing bill vetoed: In 2023 the governor vetoed a bill that would hav authorized automatic sealing of all convictions presently eligible for petition-based sealing, and provided detailed procedures. See AB 160.9
B. Vacatur for human trafficking victims
Victims of human trafficking convicted of any non-violent offense may petition to have their convictions vacated and sealed “after the petitioner has ceased being a victim of trafficking or involuntary servitude or has sought services for victims of such trafficking or involuntary servitude.” Nev. Rev. Stat. § 179.247.10 Prior to October 1, 2019, only prostitution and related offenses were eligible.11 Vacating and sealing is discretionary, and the court must “[t]ake into consideration any reasonable concerns for the safety of the defendant, family members of the defendant or other victims that may be jeopardized by the granting of the petition.” Id. Nev. Rev. Stat. § 179.247(2)(b); § 179.247(4). The court is required to notify the prosecutor who obtained the conviction and allow the prosecutor “to testify and present evidence” at a hearing on the petition. § 179.247(5)(a). If the prosecutor stipulates to vacating and sealing the conviction, then the court may grant the petition without a hearing. § 179.247(6). If an individual has multiple convictions in different counties, he may file a single “petition in district court for the sealing of all such records.” § 179.2595(1).
C. Deferred sentencing and sealing for substance abusers
Nev. Rev. Stat. § 458.300 authorizes deferred sentencing in the case of persons convicted of a crime and adjudged an addict or alcoholic. Certain crimes are not eligible. See §§ 458.300(1)-(7). Upon successful completion of a treatment program, the conviction may be set-aside and the record sealed. §§ 458.330(1), (4). Deferred sentencing and sealing is also available for first-time drug offenses. See § 453.3363.
D. Veterans and mental health courts
Nev. Rev. Stat. § 176A.290 authorizes deferred sentencing and dismissal in specialized treatment courts for veterans or members of the military, and § 176A.260 establishes similar specialized courts for persons with mental illness or intellectual disabilities. After dismissal, sealing would then be available under § 179.255 (below). Certain serious and violent offenses are not eligible. Amendments in 2019 deleted a requirement that placement in these programs be approved by the prosecutor, which was held unconstitutional as a violation of separation of powers in State v. Hearn, 134 Nev. Adv. Op. 96 (2018). The 2019 amendments also created a two track system for eligible felonies and gross misdemeanors, on the one hand, and all other misdemeanors, on the other. For less serious misdemeanors, judgment is deferred and dismissal is mandatory upon successful completion of probation. For the more serious offenses, a conviction is entered and set aside in the court’s discretion upon successful completion.
E. Pre-prosecution diversion for misdemeanors
Individuals charged with non-violent misdemeanors who have no prior criminal record (other than minor traffic offenses) may be assigned by the court to a “preprosecution program” prior to accepting a guilty plea. Nev. Rev. Stat. § 174.031. A defendant has “no right to complete a preprosecution diversion program or to appeal the decision of the justice court or municipal court relating to the participation of the defendant in such a program.”§ 174.031(4). If the charges are dismissed, the court “shall order those records sealed without a hearing unless the district attorney petitions the court, for good cause shown, not to seal the records and requests a hearing thereon.” § 174.034(1). “If the justice court or municipal court orders the record of a defendant sealed, the defendant must send a copy of the order to each agency or officer named in the order.”§ 174.034(1).
In 2021 persons arrested or cited for prostitution and solicitation of prostitution were specifically made eligible for preprosecution diversion. See SB164.
F. Sealing decriminalized offenses and certain marijuana and alcohol offenses
On May 29, 2019, Governor Sisolak signed the Nevada Second Chance Act or AB 192 into law. See Nev. Rev. Stat. § 179.271. Its effective date is July 1, 2019. The law establishes procedures for sealing conviction records for offenses that the Nevada legislature has since decriminalized. If a court orders sealing of a record pursuant to this provision, a person’s civil rights will immediately be restored. See § 179.275.
Section 1 provides that persons convicted of an offense that was later decriminalized may have “any record of criminal history relating to the conviction be sealed.” AB 192 is retroactive; it applies to offenses decriminalized “before, on and after July 1, 2019.” (It applies to all offenses “no longer punishable as a crime,” under Nevada’s criminal code. The law does not apply to traffic offenses.) A person seeking to have his record sealed must “submit a written request” to the court in which the person was convicted. The court will notify the prosecutor who obtained the conviction. If the prosecutor does not object within 10 days of receiving notification, “the court shall grant the request.” If the prosecutor files an objection, the court will hold a hearing, and the court “shall” grant the request unless the prosecutor “establishes, by clear and convincing evidence, that there is good cause not to grant the request.” Courts or related agencies cannot charge fees for requests for sealed records under this section.
AB 192 applies to all decriminalized conduct. However, it will particularly affect individuals with marijuana possession convictions. Nevada legalized recreational use of marijuana (1 ounce) in 2016, but the stigma surrounding marijuana-related convictions still harms Nevadans. When announcing signing the bill, Governor Sisolak remarked that AB 192 will remove “barriers that many Nevadans with a previous marijuana conviction face to obtaining credit, getting an apartment, or securing reliable employment.”
In 2021, AB 158 was enacted, requiring courts to seal the records of the following offenses, if the person completes the terms and conditions imposed by the court: a person under 21 years of age purchasing, consuming or possessing alcohol or falsely representing himself or herself to be 21 years of age to obtain alcohol or cannabis; or possession of one ounce or less of marijuana without being authorized to possess it. Nev. Rev. Stat. § 453.336.
G. Non-conviction records
Non-conviction records relating to a dismissal, declination or acquittal are presumptively eligible for sealing after the charges are dismissed, declined for prosecution (after the limitations period has run or 8 years or stipulation of the parties), and required if a person is acquitted. Nev. Rev. Stat. § 179.255. In addition, if a court, law enforcement agency, or prosecutor “determines that a person was wrongfully arrested, the person may submit to the court a single page application to expunge all records relating to the arrest including, without limitation, any photographs, fingerprints or biological evidence, on a form provided by the court.” See AB 315 (adding new section to Ch. 179 of NRS).
H. Juvenile records
Records are sealed automatically within 60 days reaching age 18 for most juvenile offenses (reduced from age 21 by a 2021 law). Nev. Rev. Stat. § 62H.140. Records for certain violent and sexual offenses may be sealed upon petition when the person reaches age 30. § 62H.150. Those under age 21 may petition for sealing if they have not been adjudicated in or referred to juvenile court for the preceding three-year period. Id. Before sealing, the court holds a hearing to determine whether the person has been convicted of any felony or misdemeanor involving moral turpitude and whether the applicant has been rehabilitated. § 62H.130. Upon sealing, a person may deny any existence of the records. § 62H.170. In 2021 the provisions for sealing juvenile records were strengthened, by authorizing expungement for less serious offenses (misdemeanor-level), further limiting disclosure. See AB251.
I. Applicable procedures
The July 2017 legislation simplified the application process by relieving requirements that applications be accompanied by extensive records. When the court receives an application to seal the record, it must notify the prosecutor. Under the June 2017 legislation, if the prosecutor stipulates, the court need not hold a hearing but may seal the record. If an applicant seeks to have more than one record sealed, he or she may file a single petition in district court for the sealing of all records. The new law also authorizes the district court to order the sealing of any records in the justice or municipal courts in certain circumstances. As noted, there is a rebuttable presumption that eligible records should be sealed. A 2021 law authorized appeals from denial of sealing.
J. Effect of sealing
If the court seals the records, “all proceedings recounted in the record are deemed never to have occurred,” and the person “may properly answer accordingly to any inquiry . . . concerning the arrest, conviction, dismissal or acquittal and the events and proceedings related to the arrest, conviction, dismissal or acquittal.” Nev. Rev. Stat. § 179.285. A person whose records have been sealed may also vote, hold office and serve as a juror. Id.; see also § 179.285(b). A sealed conviction may not be utilized to prove an element in a new crime or as an enhancement for a new conviction. In addition, with the exception of gaming and insurance licensing (see below), a sealed conviction may not be used as the basis for denial or revocation of a professional license. See Baliotis v. Clark County, 729 P.2d 1338, 1339-40 (Nev. 1986) (finding that licensing officials cannot use sealed convictions as basis for denying license, but licensing authorities may use independent knowledge of criminal behavior to make decision); see also Nev. Op. Att’y Gen. No. 83-13 (1983), available at http://ag.nv.gov/uploadedFiles/agnvgov/Content/Publications/opinions/1983_AGO.pdf.
However, sealing does not restore firearms rights under state law, for which a pardon is necessary. See § 179.285(2)(b).
Sealed records may be inspected under certain circumstances by prosecutors, § 179.295, agencies changed with gaming and insurance licensing, the Central Repository for Nevada Records of Criminal History, law enforcement, and the State Board of Pardons Commissioners. § 179.301. Sealed conviction records may be used to deny gaming employment if the crime “relates to the applicant’s suitability or qualifications to hold the work permit,” § 179.301(1), but there is no similar limiting caveat where insurance licensing is concerned. § 179.301(2). In addition, somewhat anomalously, professional licensing authorities are entitled to inspect records of sealed drug possession convictions “for purposes of determining suitability for a license or liability to discipline.” See Nev. Rev. Stat. § 453.3365(4); Yllas v. State, 920 P.2d 1003, 1005 n.3 (Nev. 1996). ).
IV. Criminal record in employment & licensing
A. Public employment
Ban-the-Box and standards for considering conviction record: In June of 2017, the Nevada legislature enacted a nondiscrimination law that regulates consideration of convictions in public employment. See Nev. Rev. Stat. §§ 245.046, 268.402.12 Under this provision, employers may not consider the criminal history of an applicant for a position in the classified or unclassified service of the state until after the earliest of the following: (1) the final interview; (2) a conditional offer of employment; or (3) if applicable, the applicant has been certified by the Administrator. The law does not apply to persons who would be disqualified by state or federal law for employment in a particular position because of their particular criminal history and does not apply to certain positions (firefighter or peace officer and “any position that entails physical access to a computer or other equipment used for access to the Nevada Criminal Justice Information System or the National Crime Information Center”).
Under the new law, a public employer may refuse to certify an applicant or rescind a conditional offer of employment on the basis of a prior conviction or charges pending or filed within the last six months only after considering the following factors:
(a) Whether any criminal offense charged against the person or committed by the person directly relates to the responsibilities of the position for which the person has applied or is being considered;
(b) The nature and severity of each criminal offense charged against the person or committed by the person;
(c) The age of the person at the time of the commission of each criminal offense;
(d) The period between the commission of each criminal offense and the date of the application for employment in the unclassified/classified service; and
(e) Any information or documentation demonstrating the person’s rehabilitation.
§ 245.046(3). Applications for employment must include a statement that a conviction record will not necessarily bar the applicant from employment and that the employer will consider the factors outlined above.
The law requires that written notice be sent to an applicant “specifically stat[ing] the evidence presented and the reason for the rejection of the applicant” if criminal history is a basis for rejection, failure to certify, or rescission of a conditional offer. The applicant must be given an opportunity to discuss the basis for rejection or rescission of the conditional offer.
Non-conviction records: Employers are prohibited at any time from considering (a) arrests that did not result in conviction (unless charges are pending or have been filed within the last six months); (b) a record of conviction which was dismissed, expunged or sealed; or (c) an infraction or misdemeanor for which a sentence of imprisonment in a county jail was not imposed. § 245.046(4).
Enforcement: The new law also creates an enforcement mechanism, providing that failure to comply with its procedures is an unlawful employment practice and authorizing complaints to be filed with the Nevada Equal Rights Commission. See Sections 6.5 & 6.7 of AB 384, amending Nev. Rev. Stat. 613.330(8) & 613.405(2).
Section 5, 6, and 6.3 of the AB 384 provide similar provisions relating to public employment in counties, cities, and towns.
B. Occupational and professional licensing
Until 2019, Nevada had no generally applicable law regulating consideration of conviction in occupational licensure.13 HB 319, signed into law on June 7, 2019, added new sections to Chapter 622 of the Nevada Revised Statutes to impose some very loose and arguably weak rules on licensing agency decision-making. The law requires licensing agencies to develop and implement a process by which a person with a criminal history may petition for a preliminary determination whether that history will disqualify them from obtaining a license from the regulatory body. The agency must respond within 90 days, and may not charge more than $50. However, the law explicitly states that licensing agencies are “not bound” by those determinations and may rescind them “at any time,” which tends to undermine the purpose behind the petition process. If the agency proposes disqualification, it “may” advise the person what can be done to qualify. The agency also “may” post on its website a list of crimes that would result in a disqualification determination.
On the other hand, there is some provision for legislative oversight built into the law that promises a more robust effort in the future: Nev. Rev. Stat. § 622.001 was amended to require each licensing agency to submit quarterly reports to the legislature on the number of petitions received, the number of determinations of disqualification, and the reasons for each. Under a new section of Chapter 232B, the “Sunset Subcommittee” of the Legislative Commission is charged with reviewing the reports of each agency “to determine whether the restrictions on the criminal history of an applicant for an occupational or professional license are appropriate.” Similar requirements are specifically imposed on various certifying entities of state government and the courts through additions to various chapters of the Nevada statutes, for certifications as varied as court interpreter, firefighter, boiler inspector, driller, milk tester, and medical marijuana provider.
C. Juvenile adjudications
Juvenile adjudications “must not be used to disqualify the child in any future application for or appointment to the civil service.” Nev. Rev. Stat. Ann. § 62E.010.
- Prior to the passage of HB431 in 2019, persons with first offenses convicted of all but the most serious and/or violent offenses were restored automatically to the right to vote and sit on a civil jury upon successful completion of sentence; to hold office after four years; and to sit on a criminal jury after six years. See Nev. Rev. Stat. §§ 213.157(1) (completion of sentence), 213.155(1) (discharge from parole), 176A.850(3) (discharge from probation). Persons convicted under Nevada law of Category A and violent Category B felonies resulting in substantial bodily harm, or who had more than one Nevada felony conviction, were required to seek restoration of civil rights in the court in which they were convicted, or from the Board of Pardons Commissioners. §§ 213.090(2), 213.155(2), 213.157(2), 176A.850(4). Until 2019, persons not “honorably” discharged from parole or probation (either because they were in fugitive status or because they were not excused from an obligation to pay court-ordered restitution) were also not eligible for automatic civil rights restoration under the law presently in effect. Legislation enacted in 2017, and effective January 1, 2019, extended automatic civil rights restoration to all individuals upon discharge from probation or parole even if they had not fully paid restitution. However, this same legislation required anyone convicted of violent Category B felonies not resulting in substantial bodily harm to wait two additional years for restoration of voting rights. See AB-181, § 1 & 2 (2017) (amending Nev. Rev. Stat. §§ 213.155 & 176A.850). This exception was repealed in 2019 by AB 431.
- Prior to 2019, people with out-of-state and federal offenses seeking to regain the right to vote were required to seek restoration of their rights in the jurisdiction where they were convicted. See Nev. Rev. Stat. §§ 293.540(3), 293.543(2)(b)(2), incorporating the results of Nev. Op. Att’y Gen. No. 96-27 (1996)(providing for full faith and credit to restoration of civil rights where a person was convicted), available at http://ag.nv.gov/uploadedFiles/agnvgov/Content/Publications/opinions/1996_AGO.pdf.
- The Advisory Commission includes as statutory members a representative group of criminal justice practitioners, judges, legislators, corrections officials, and members of the public, many of them appointed by the governor. The Attorney General sits on the Commission ex officio. See Nev. Rev. Stat. Ann. § 176.0123.
- In 2003 the Nevada legislature sought to limit authority of the Board of Pardons Commissioners under Nev. Rev Stat. § 213.090 by imposing on the pardon application process the same eligibility requirements and waiting periods that apply to restoration of rights for first offenses under Nev. Rev. Stat. § 213.157. Seehttp://www.leg.state.nv.us/Session/72nd2003/bills/AB/AB55_EN.pdf. This law was found constitutionally problematic by the Nevada Attorney General. See Nev. Op. Atty Gen. (Nov. 18, 2003), available at http://www.pardons.nv.gov/sites/pardons/files/pdf/PardonInformalOpinion.pdf (hereinafter “2003 Attorney General Opinion”). In 2005 the statute was amended again to restore the Board’s previous authority. See http://www.leg.state.nv.us/Session/73rd2005/bills/SB/SB445_EN.pdf.
- The application form in effect in 2011 varied the eligibility waiting period by type of conviction, and also provided that good conduct should be judged by “(1) post-conviction conduct, character, and reputation; (2) seriousness and relative recency of the offense; (3) acceptance of responsibility, remorse, and atonement; and (4) need for relief.” Criteria set forth a number of disqualifying factors based on institutional conduct; parole status; criminal charges, investigations, or appeals; and time and sentence. Id.
- Specifically, with respect to the effect of a pardon “good moral character” requirements in licensing laws, the Board website notes:
Where a statute limits rights based on the underlying conduct and not the pardoned offense itself, a pardon would not remove or erase the disability of past conduct. If there is a requirement that the license applicant has not been convicted of a felony, the pardon would permit licensing. However, if the licensing standard is good moral character, the pardon does not erase the moral guilt associated with the commission of a criminal offense and the fact giving rise to that conviction may be considered in determining whether that person is of ‘good moral character.’
- Prior to July 2010, the Pardons Board was authorized by regulation to issue “Certificates of Good Conduct” under Nev. Admin. Code § 213.130 et seq. According to a 2003 Attorney General opinion, these certificates served: “1) To remove a legal disability incurred through conviction; 2) to furnish evidence of good moral character where it is required by law; or 3) upon proof of the person’s performance of outstanding public services or if there is unusual and compelling evidence of his rehabilitation.” See 2003 Attorney General Opinion, supra note 2, at p. 21. However, per this opinion, only a pardon can remove the state firearms disability, so that the federal bar under 18 U.S.C. §921(a)(20) would still apply. See id. at p. 22-23. Additionally, the opinion noted that the Certificate could relieve other disabilities such as those in licensing and employment laws, but each one must be listed. See id. at p. 21. In July 2010, in recognition of the fact that it had not issued a Certificate of Good Conduct in many years, the Board rescinded the regulations authorizing Certificates based on its prior conclusion that these certificates were indistinguishable from pardons.
- A category A felony, a crime of violence pursuant to NRS 200.408 or burglary pursuant to NRS 205.060 after 10 years from the date of release from actual custody or discharge from parole or probation, whichever occurs later; A category B, C or D felony after 5 years from the date of release from actual custody or discharge from parole or probation, whichever occurs later; A category E felony after 2 years from the date of release from actual custody or discharge from parole or probation, whichever occurs later; any gross misdemeanor after 2 years from the date of release from actual custody or discharge from probation, whichever occurs later; Any other misdemeanor after 1 year from the date of release from actual custody or from the date when the person is no longer under a suspended sentence, whichever occurs later. Some misdemeanors involving domestic violence or violation of a protection order are subject to a 7-year waiting period. Waiting periods were reduced in 2017 from seven-to-15 years for felonies, and one-to-seven for misdemeanors.
- AB 160 would have authorized automatic sealing of all conviction and arrest records for which petition by petition is currently authorized (includes all convictions, including Category A crimes and crimes of violence, except for crimes against a child, sex offenses, and certain DUI offenses) using the same eligibility waiting periods as currently authorized (in contrast to automatic sealing authorities enacted by other states). As amended and approved by the Assembly Committee on the Judiciary, bill provided that the Department of Public Safety and the Administrative Office of the Courts must identify a process no later than January 1, 2026 by which lists of eligible records are identified by the DPS and approved by the AOC, and then send to individuals courts. Requires the AOC to submit certain annual reports to the Legislature beginning on January 31, 2027. Established an Advisory Task Force on Automatic Record Sealing, and requires the AOC before January 1, 2025, to adopt rules to streamline the process for filing a petition for the sealing of records, as recommended by the Task Force.
- Prior to the enactment of AB-243 in 2017, vacatur was available for human trafficking victims, but sealing was not explicitly authorized.
- On May 16, 2019, Governor Sisolak signed SB 173 into law, expanding the list of offenses that victims of human trafficking may petition for vacatur and sealing to include any non-violent offense, effective October 1, 2019. The new law adds a provision to § 179.247, making any non-violent conviction eligible for vacatur and sealing, so long as the individual committed the offense because she was a victim of human trafficking or involuntary servitude. SB 173 defines a “crime of violence” as “[a]ny offense involving the use or threatened use of force or violence against the person or property of another” or “[a]ny felony for which there is a substantial risk that force or violence may be used against the person or property of another in the commission of the felony.” § 179.247(10).
- added by Assembly Bill 384, amending Chapter 284 of the Nevada Statutes. https://www.leg.state.nv.us/App/NELIS/REL/79th2017/Bill/5421/Overview.
- Prior to the enactment of HB 319 in 2019, Nevada applied a direct relationship test in connection with some licenses. See, e.g., Nev. Rev. Stat. § 625.410(4) (discipline permissible based on “[c]onviction of . . . any crime an essential element of which is dishonesty or which is directly related to the practice of engineering or land surveying”).