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I. Loss & restoration of civil/firearms rights
A. Civil Rights
The rights to vote and to hold public office are lost upon conviction of a felony and sentencing to imprisonment “during the term of actual incarceration.” N.D. Cent. Code § 12.1-33-01. Both rights are restored upon release from prison. § 12.1-33-03(1). Release from incarceration also restores the right to sit on a jury, except for certain offenses. See § 27-09.1-08(2)(e).
B. Firearms
Firearm rights are lost for a ten-year period upon conviction of a felony involving violence or intimidation (dating from release from incarceration or probation), and five years after conviction for a non-violent felony or violent Class A misdemeanor. N.D. Cent. Code §§ 62.1-02-01(1)(a), (b). Under a law passed in 2011, a person with a felony offense subject to the five-year bar may petition the court in his county of residence for restoration of firearms rights. § 62.1-02-01.1. The court must determine by clear and convincing evidence that the individual has successfully completed all terms of his sentence and paid all fines, and that “[t]he individual’s record and reputation are such that the individual is not likely to act in a manner dangerous to the safety of others.” Id. A pardon will also restore firearms rights but only if the pardon document so states. North Dakota Pardon Information, Pardon411.com, http://www.pardon411.com/wiki/North_Dakota_Pardon_Information (last visited July 20, 2013). Whether a particular offense is a felony is determined under the law of the jurisdiction of conviction. State ex rel. Olson v. Langer, 256 N.W. 377, 388-89 (N.D. 1934).
II. Pardon policy & practice
A. Authority
The state constitution vests the pardon power (except in cases of treason or impeachment) in the governor. N.D. Const. art. 5, § 7. The governor may (but is not required to) appoint a “pardon advisory board,” consisting of the state attorney general, two members of the Parole Board, and two citizens. N.D. Cent. Code § 12-55.1-02.1 The Board is staffed by a “pardon clerk” at the Parole Board, which is part of the state Department of Corrections. See § 12-55.1-05.
B. Eligibility
There are no general eligibility requirements for people with North Dakota offenses. Cf. the 2019 program on marijuana possession convictions, which require a 5-year conviction-free period. Persons convicted under federal law or the laws of another state are ineligible for a state pardon.
C. Standards for relief
Under Pardon Advisory Board rules, an applicant “must have encountered a significant problem with the consequences of the conviction or sentence (e.g. inability to obtain or maintain licensures or certifications necessary for employment)” or demonstrate some other “compelling need for relief as a result of unusual circumstances.” Pardon Advisory Board, N.D. Dep’t of Corr. & Rehab., http://www.nd.gov/docr/adult/tps/advisory.html.2 The pardon clerk emphasizes the central importance of this “need” requirement: A generalized need for forgiveness will not suffice; the applicant must have a specific employment-related or other disability that would be relieved by a pardon.
Marijuana possession pardons: In 2019 the pardon board policy was revised to authorize people convicted of marijuana possession who have had no convictions in the past five years to “submit a Summary Pardon Application.” An application form is available here (published July 2019). In January 2020, the governor pardoned 16 people pursuant to this new authority (out of 26 recommended by the board). See Washington Post, January 17, 2020, https://www.washingtonpost.com/national/national-digest-north-dakota-governor-pardons-16-with-pot-convictions/2020/01/17/c44ba494-342d-11ea-9313-6cba89b1b9fb_story.html. See also North Dakota Pardon Advisory Board still seeking more applicants under new marijuana policy, Bismarck Tribune, Feb. 10, 2020, https://bismarcktribune.com/news/local/crime-and-courts/north-dakota-pardon-advisory-board-still-seeking-more-applicants-under/article_7fa40ea7-5355-50a4-aaa4-9dcff9551fc3.html.
D. Effect
Ordinarily a pardon relieves collateral legal penalties, but it does not expunge conviction. N.D. Cent. Code § 12-55.1-01(4). See also Attorney General’s Opinion, No. 85-44, 1985 WL 257704 (Dec. 03, 1985) (“[A] pardon acts to remove the punishment resulting from a criminal conviction, but does not act to remove the fact of guilt and other circumstances surrounding the commission of the crime.”). A pardoned conviction may be used as a predicate offense or to enhance a sentence for a subsequent crime. See State v. Webb, 162 N.W. 358, 361 (N.D. 1917) (“The courts have uniformly held that the fact that the accused was pardoned [for a prior conviction] does not exempt him from increased punishment on a subsequent conviction.”). A pardon will also restore firearms rights but only if the pardon document so states. North Dakota Pardon Information, Pardon411.com, http://www.pardon411.com/wiki/North_Dakota_Pardon_Information (last visited July 20, 2013).
E. Process
The Pardon Advisory Board meets twice a year to consider cases, and applications must be filed at least 90 days in advance. Pardon Advisory Board, N.D. Dep’t of Corr. & Rehab., https://www.docr.nd.gov/parole-pardon-boards. The application form is available at http://www.nd.gov/docr/adult/tps/pboard_APPLICATION.pdf. After the application is filed, the pardon clerk must notify the sentencing judge and the state’s attorneys in the county where the applicant was convicted, and they in turn may file their recommendations with the Board. N.D. Cent. Code §§ 12-55.1-07, -09. The pardon clerk also directs field investigations and prepares a packet of cases for the Board’s semi-annual meeting. § 12-55.1-05; Pardon Advisory Board Policies and Procedures, N.D. Dep’t of Corr. & Rehab., 5 (Nov. 9, 2010), http://www.nd.gov/docr/adult/tps/policy2010.pdf. There is no provision for a personal appearance. Pardon Advisory Board Policies and Procedures, supra, at 5. Applicants are immediately notified of the Board’s recommendation to the governor. The governor’s office follows up by sending a letter notifying the applicant of the governor’s decision. State law provides for reconsideration and revocation of the pardon within 30 days of the decision. § 12-55.1-08.
The Pardon Advisory Board is not an administrative agency as defined under N.D. Cent. Code § 28-32-01(2)(a) and is not subject to the Administrative Agencies Practice Act. N.D. Cent. Code § 28-32-01(2)(n); Pardon Advisory Board Policies and Procedures, N.D. Dep’t of Corr. & Rehab., 5 (Nov. 9, 2010), http://ww.nd.gov/docr/adult/tps/policy2010.pdf. Any rules the Board may adopt need not be published in the North Dakota Administrative Code. Pardon Advisory Board Policies and Procedures, supra, at 2.
F. Frequency of grants
The Board reviews about 50 pardon applications each year, but the governors have pardoned very few individuals in recent years. Only two pardons were granted in 2015, and one in both 2014 and 2013. Between January 2008 and December 2012, The Board reviewed 259 pardon applications, and only eight pardons were granted. Source: North Dakota Pardon Advisory Board.
The Office of the Governor estimates that 175,000 people may be eligible for relief under the new marijuana pardon policy, and has begun soliciting applications. The governor pardoned 16 individuals under this new program in January 2020, and the Board expects to consider additional grants in the spring. See Bismarck Tribune, Feb. 10, supra.
Contact
Janice Young
Pardon Clerk, North Dakota Pardon Advisory Board
P.O. Box 5521
Bismarck, ND 58506-5521
701-328-6193 (phone)
jyoung@state.nd.us
Ken Sorenson
Legal Counsel
ksorenso@state.nd.us
III. Expungement, sealing & other record relief
A. General sealing under 2019 law
Until 2019, North Dakota had no general authority to seal conviction records, and very limited authority to limit public access even to non-conviction records. With the enactment of HB1246 in April 2019, that changed dramatically. The law created a new Chapter 12-60.1 which authorizes people with both misdemeanor and felony offenses to apply for sealing, after a charge-free waiting period of three and five years from the date of release, respectively. Anyone convicted of a felony involving violence or intimidation must wait 10 years (the period in which the person may not possess a firearm under N.D. Cent. Code §§ 62.1-02-01(1)(a) (see above). It does not apply to anyone required by the court to register as a sexually violent offender. In 2021 the eligibility criteria were relaxed to require a conviction-free waiting period of three or five years. See HB 1196 (2021).
Procedure: A petition to seal must be filed in the original criminal court, and the procedure is described in N. D. Cent. Code §§ 12-60.1-03 and 04. The court may grant the petition if it finds that the petitioner has made a showing of good cause and that “The benefit to the petitioner outweighs the presumption of openness of the criminal record.” Also, it may grant if it finds that the “petitioner has completed all terms of imprisonment and probation for the offense,” and “has paid all restitution ordered by the court for commission of the offense,” which appears to mean that fines and fees need not be paid. § 12-60.1-04(6).
A series of criteria to be applied by the court are set forth in the statute, including such standard aggravating and mitigating factors as the seriousness of the crime, the age of the petitioner when it was committed, rehabilitation, etc. The court must notify the prosecutor and any victims, and the prosecutor may “stipulat[e] to seal a criminal record without a hearing or more expeditiously than provided in this section.” § 12-60.1-04(5). There is no appeal from a denial of relief from a district court (denial by a municipal court may be appealed to the district court) and if denied a person must wait three years to reapply. The 2021 amendments to the law described above modified this three-year waiting period, making it dependent on the court’s finding good cause to require a waiting period, and requiring the court to state its reasons. See See HB 1196 (2021).
Effect: “Seal” is defined this new sealing law as “to prohibit the disclosure of the existence or contents of court or prosecution records unless authorized by court order.” The effect of sealing is described in § 12.1-32-07.2(2): The clerk of the court must seal the records, with access only available to the clerk; a judge; the juvenile commissioner; probation officers; the defendant and their counsel; and the state’s attorney. See also § 12-60.1-04(9):
If a court grants a petition to seal a criminal record, the court shall state in the court order that the petitioner is sufficiently rehabilitated but is subject to the provisions of section 12.1-33-02.1 [on consideration of conviction in licensing], and shall release the information when an entity has a statutory obligation to conduct a criminal history background check.
B. Reduction of minor felonies to misdemeanors
North Dakota law provides procedures by which a minor state felony conviction may be reduced to a misdemeanor after service of sentence. See N.D. Cent. Code § 12.1-32-02(9) (person convicted of a felony and sentenced to imprisonment for not more than one year “is deemed to have been convicted of a misdemeanor” upon successful completion of the term of probation imposed as part of the sentence). Reduction of a felony conviction to a misdemeanor has the effect of releasing the defendant from all penalties and disabilities resulting from the offense, except for sex offender registration and firearms disabilities.
C. Sealing for deferred imposition of sentence (deferred adjudication)
After a guilty plea, “[a] court, upon application or its own motion, may defer imposition of sentence” and place a person on probation. N.D. Cent. Code § 12.1-32-02(4). “An order deferring imposition of sentence is reviewable upon appeal from a verdict or judgment.” Id. Upon successful completion, the defendant is discharged, and the court in its discretion may set aside the guilty plea or verdict, and dismiss the charges. § 12.1-32-07.1. If the plea is withdrawn or the verdict set aside, the clerk of the court must seal the records, with access only available to the clerk; a judge; the juvenile commissioner; probation officers; the defendant and their counsel; and the state’s attorney. § 12.1-32-07.2(2). See State v. Siegel, 404 N.W.2d 469, 470-73 (N.D. 1987); cf. N.D. R. Crim. P. 32.1 (a file is sealed “61 days after expiration or termination of probation” for infractions and misdemeanors). “In any subsequent prosecution . . . , the prior conviction for which imposition of sentence is deferred may be pleaded and proved, and has the same effect as if probation had not been granted or the information or indictment dismissed under § 12.1-32-07.1.”
D. Sealing for first offender marijuana possession
N.D. Cent. Code § 19-03.1-23(9):
When a person pleads guilty or is found guilty of a first offense regarding possession of one ounce…or less of marijuana and a judgment of guilt is entered, a court, upon motion, shall seal the court record of that conviction if the person is not subsequently convicted within two years of a further violation of this chapter and has not been convicted of any other criminal offense. Once sealed, the court record may not be opened even by order of the court.
E. Sealing for victims of human trafficking
N.D. Cent. Code § 12.1-41-14:
G. Sealing and expungement for non-conviction records
Inherent judicial authority to expunge unlawful arrests, dismissals, and acquittals: Under the North Dakota Supreme Court’s administrative rules, the public may not access the records of “deferred impositions of sentences or pretrial diversions resulting in dismissal.” In addition, the court may limit public internet access to a defendant’s electronic court record if the charges are dismissed or the defendant is acquitted. N.D. Sup. Ct. Admin. R. 41(r)(b)(9); (6)(a).
A request to prohibit access may be made by any party to a case, or on the court’s own motion with notice to all parties. R. 41(6)(a). The court must decide whether there is an “overriding interest” to “overcome the presumption of openness of court records,” and the court must articulate this interest along with specific findings that allow a reviewing court to determine whether the order was proper. Id. The closure must be “no broader than necessary to protect the articulated interest” with the “least restrictive means” to achieve the purposes of the rule and the needs of the requestor. Id. If the court concludes, after conducting the balancing analysis and making findings, that “the interest of justice will be served,” it may prohibit public internet access to an individual defendant’s electronic court record in a criminal case, and the search result for the records must display the words “Internet Access Prohibited under N.D.Sup.Ct. Admin.R 41.” Id. There is also a process by which anyone may request access to records where access is prohibited, and the court weighs the same factors as above. R. 41(6)(b)-(c).
The North Dakota Supreme Court has held that state courts have inherent authority to expunge arrest records only if the arrest is unlawful, and not in other cases where the charges are dismissed or in which the defendant has been acquitted. State v. Howe, 308 N.W.2d 743, 749 (N.D. 1981) (“We hold that the courts of this state have the authority to order, and an arrestee who is not subsequently convicted is entitled to, expunction of arrest records when the arrest is unlawful in violation of the arrestee’s constitutional rights.”).
General executive branch restrictions on access to non-conviction records: The Bureau of Criminal History Information may not disclose to the public non-conviction records that are more than three years old. § 12-60-16.6. This authority presumably covers records of arrests that are not charged.
F. Destruction of juvenile records
Records of juvenile adjudications are treated as confidential and generally unavailable to the public. N.D. Cent. Code, § 27-20-51(1); N.D.R. Juv. P. Rule 19(a). Adjudication records are destroyed automatically 10 years after satisfaction of the final order in the case, or upon the individual’s 18th birthday (whichever is later). See N.D. Sup. Ct. Admin. R., Record Records Retention Schedule (https://www.ndcourts.gov/court/rules/Administrative/Ar19sch.htm). An individual may petition for destruction of juvenile records at any time so long as no charges are pending, upon a showing of good cause. N.D.R. Juv. P. Rule 19(d). Once destroyed, a record is treated as if it never existed. N.D. Cent. Code § 27-20-54(2).
See also authority to vacate and expunge juvenile adjudications for prostitution, theft and forgery, and drug possession linked to being victim of human trafficking. N.D. Cent. Code § 12.1-41-12, § 12.1-41-14.
IV. Criminal record in employment & licensing
A. Employment
Ban-the-box in public employment
In 2019, North Dakota enacted a law banning inquiries into or consideration of criminal history by public employers “until the applicant has been selected for an interview by the employer.” N.D. Cent. Code § 12.1-33 -05.1. The law does not apply to the department of corrections or to “a public employer that has a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee’s criminal history during the hiring process.” The term “public employer” means “the state or a county or city government, or an instrumentality or agency of the state or of a county or city government. The term includes a park district but does not include a school district.” § 12.1-33-05.4.
B. Occupational, professional and business licensing
N.D. Cent. Code § 12.1-33-02.1 (“Prior conviction of a crime not bar to state licensures”) provides:
A person may not be disqualified to practice, pursue, or engage in any occupation, trade, or profession for which a license, permit, certificate, or registration is required from any state agency, board, commission, or department solely because of prior conviction of an offense. However, a person may be denied a license, permit, certificate, or registration because of prior conviction of an offense if it is determined that such person has not been sufficiently rehabilitated, or that the offense has a direct bearing upon a person’s ability to serve the public in the specific occupation, trade, or profession.
A state agency, board, commission, or department shall consider the following in determining sufficient rehabilitation:
a. The nature of the offense and whether it has a direct bearing upon the qualifications, functions, or duties of the specific occupation, trade, or profession.
b. Information pertaining to the degree of rehabilitation of the convicted person.
c. The time elapsed since the conviction or release. Completion of a period of five years after final discharge or release from any term of probation, parole or other form of community corrections, or imprisonment, without subsequent conviction shall be deemed prima facie evidence of sufficient rehabilitation.
d. If conviction of an offense is used in whole or in part as a basis for disqualification of a person, such disqualification shall be in writing and shall specifically state the evidence presented and the reasons for disqualification. A copy of such disqualification shall be sent to the applicant by certified mail.
e. A person desiring to appeal from a final decision by any state agency, board, commission, or department shall follow the procedure provided by the chapter of this code regulating the specific occupation, trade, or profession. If no appeal or review procedure is provided by such chapter, an appeal may be taken in accordance with chapter 28-32, except for attorneys disbarred or suspended under chapter 27-14.
The “direct bearing” standard and “rehabilitation” tests of this statute are incorporated into dozens of occupational, professional, and business licensing statutes in the North Dakota Century Code, including: liquor licenses (§ 5-03-01.1), teachers (§§ 15.1-13-25(1)(d), (e)), residential treatment centers for children (§ 25-03.2-04), architects and landscape architects (§ 43-03-13(2)(a)), lawyers (§ 27-14-02(1)), barbers (§ 43-04-31.1), electricians (§ 43-09-09.1), funeral service directors (§ 43-10-11.1), and pharmacists (§ 43-15-18.1).
- Until a 1996 constitutional amendment, the pardon power in North Dakota was exercised by the Board of Pardons, composed of the governor, the Attorney General, the Chief Justice, and two appointees of the governor. See N.D. Const. art. 5, § 6 (1995). The Board’s procedures and administrative processes were detailed in N.D. Cent. Code § 12-55-01 et seq. (1995). See Nat’l Governors’ Ass’n, Guide to Executive Clemency Among the American States 122-24 (1988).
- The Board rules and an application form are available from the Pardon Clerk. An online version of the application form is available at http://www.nd.gov/docr/adult/tps/pboard_APPLICATION.pdf.
