Expungements and Pardons in Arkansas

Posted by on September 13, 2012 in Blog, Criminal Law

I receive a lot of questions about removing a conviction from someone’s criminal history — usually so that the client can apply for a better job or better educational opportunity.  So, today I want to talk a little about the two options available in Arkansas in those situations – Expungement and Pardon.

Expungement is the removal of a conviction from a person’s criminal record; generally in the case of a first offense.  § 16-90-901 of the Arkansas Code allows for the expungement of certain criminal records in cases where the statute defining the offense provides for expungement.  Shelton v. State, 870 S.W.2d 398 (1994). Some examples of the types of crimes that allow for expungement include but are not limited to: theft, minor drug charges, battery, and vandalism –type offenses.  To seek an expungement, you need to provide certain required information in filling out official forms that are required by law, and then serve them on the necessary parties.  Depending on the facts of your conviction, there may often be a hearing involved, where someone objects to the expungement.  I would not advise you to attempt this without the assistance of legal counsel, as it can be fraught with peril if not done correctly.

In general, an expungement restores the privileges and rights to those who have been convicted. These rights include the right to vote, and the right to own a firearm. Once a record has been expunged the conduct will be ‘deemed as a matter of law never to have occurred.’ Ark. Code Ann.  §16-90-602.  When a record is expunged it is sealed by the court and can only be disclosed under certain circumstances. These circumstances include requests from the individual or his/her attorney, made in writing, requests from criminal justice agencies with whom the individual is seeking employment, courts when determining guilt for other offenses at later dates, the prosecuting attorney when prosecuting a new offense, or the Arkansas Crime Information Center (ACIC), which is the official center of information for state law enforcement  agencies.  See generally, Ark. Code Ann. § 16-90-903.

Expungements are not available in all cases.  For example, in cases of sexual offenses, especially where the victim is a minor, the law in Arkansas prohibits expungment.  Under a recent change in the law in Arkansas, some long-standing crimes that were not expungeable, are now eligible (e.g., in cases of negligent homicide, third-degree battery, indecent exposure, public sexual indecency, fourth-degree sexual assault, third-degree domestic battery, or driving while intoxicated).  Those records can now be expunged, but not until at least five years after sentencing, absent evidence the charge should not be expunged (i.e. a similar charge, extremely brutal nature of the crime, etc.). Ark. Code Ann. §16-90-904.  There is some confusion right now between state agencies as to how exactly this works in the case of a DWI, so if you are trying to expunge a 5+ year old DWI, be sure that your attorney is up to speed on the latest interpretation of the law, as not every agency is quite on the same page yet.

The other area where expungement law sometimes gets confusing is when a potential employer, educational facility, or licensing entity does a background check, but rather than run the individual’s criminal history through the ACIC, they use a third party background check agency, and a false or inaccurate report comes back.  Those individuals may not get an explanation as to why they were denied, or even if they are told about “failing” the background check, they are given no chance to explain or otherwise contact the agency to request clarification and/or a correction.  In short, just because you have a conviction expunged does not guarantee that it won’t pop up on some third party database in the future, due to a clerical error.  I advise clients to keep copies of their expungement paperwork, just in case such a situation arises.

A pardon on the other hand is a different mechanism entirely. Pardons, along with requests for clemency (or shortened sentencing), remission of fine or forfeiture, etc., can only be granted by the Governor in criminal cases, and are quite document-intensive and time-consuming.  Procedurally, the individual must fill out an application under oath, which is then referred to the Parole Board for investigation.  After their investigation, which can be quite lengthy and exhaustive, the Board will submit a recommendation to the Governor.   Ark. Code Ann. §16-93-204.  While that recommendation is non-binding on the Governor, historically, there have been very few pardons granted that didn’t have the Board’s approval.  Pardons cannot be granted for treason or impeachment unless further congressional approval is granted.  The power to exercise clemency is allowable only where punishment results from passion or prejudice and is a clear abuse of jury’s discretion, as well as barbarous and unknown to law, or disproportionate to nature of offense as to shock the moral sense of community.  Williams v. State, 898 S.w.2d 38 (1995). Due to the cost and resources involved, pardons are much harder to obtain and granted in only a proportionally very small amount of cases.

Standard attorney disclaimer:  Nothing contained in this post is intended to be construed as legal advice.  Unless otherwise stated, no attorney-client relationship exists between the author and the reader.  Past performance should not create an expectation of future results.  You should consult an attorney for advice regarding your individual situation.  While I invite you to contact my office and welcome your calls, letters and electronic mail, simply contacting my office does not create an attorney-client relationship.  Please do not send any confidential information to my office until such time as an attorney-client relationship has been established.