Restoration of Rights & Expungements

Update March 17, 2023: The Wyoming Legislature passed and Governor Mark Gordon signed a new law allowing first-time, nonviolent felons to restore all of the civil rights lost due to their felony conviction five (5) years after they complete their sentences. Read more about it here: https://justiceforcowboys.com/2023/03/13/wyo-legislature-expedites-restoration-of-gun-civil-rights-for-first-time-nonviolent-felons-also-correctly-strips-gun-rights-from-nonviolent-felons/

-RAS

This post is all about rehabbing your legal rights and formal background after a criminal conviction. If you or a loved one has lost their right to vote, their gun rights, or has a checkered background that’s preventing them from getting a job, obtaining a legal immigration status, or from achieving any other important goal, keep reading to learn more about your options.

I. How Criminal Convictions Cause Problems Beyond Jail Time

We are all endowed by our Creator with certain unalienable rights. As Americans, we are endowed by our system of self-government with certain fundamental, yet very much alienable rights: for example, the right to vote, the right to serve on a jury, the right to hold public office, and the right to keep and bear arms.

You can lose these rights if you are convicted of certain crimes.

For a full list of the crimes/legal events that can affect your Second Amendment rights, check out my post on possession and purchase of firearms. The basic rules are: if you are convicted of a felony, a misdemeanor crime of domestic violence, or are subject to an order of protection/restraining order sought by a girlfriend/boyfriend, current/former spouse, or current/former domestic partner, you cannot purchase or possess firearms under federal law.

As to your right to vote, it depends on what state you live and vote in. Some states allow people with felony convictions to vote; others allow felons to vote only in certain circumstances or if they meet certain qualifications; others disenfranchise felons altogether. Still, as a general rule, only felony convictions will affect your right to vote as well as your right to serve on a jury or hold public office.

Under Wyoming law, a person convicted of a felony–a crime punishable by more than 1 year of incarceration–in Wyoming or any other jurisdiction, cannot vote, serve as a juror, or hold elected office. See Wyo. Stat. Ann. § 6-10-106(a).

Moreover, certain criminal convictions will impact a person’s immigration status or eligibility to obtain a lawful immigration status/U.S. citizenship, or a person’s ability to enter or remain in the United States. Legislative attorneys Sarah Herman Peck and Hillel R. Smith of the Congressional Research Service provided the following summary:

Some criminal offenses, when committed by an alien who is present in the United States, may render that alien subject to removal from the country. And certain criminal offenses may preclude an alien outside the United States from being either admitted into the country or permitted to reenter following an initial departure. Further, criminal conduct may disqualify an alien from certain forms of relief from removal or prevent the alien from becoming a U.S. citizen. In some cases, the INA directly identifies particular offenses that carry immigration consequences; in other cases, federal immigration law provides that a general category of crimes, such as “crimes involving moral turpitude” or an offense defined by the INA as an “aggravated felony,” may render an alien ineligible for certain benefits and privileges under immigration law.

Sarah Herman Peck & Hillel R. Smith, Immigration Consequences of Criminal Activity, Congressional Research Service Report (April 5, 2018).

TLDR: A criminal conviction can change your life or restrict your rights in more ways than requiring you to spend time behind bars.

II. Restoring Your Rights After a Wyoming Conviction

To restore your full rights after being convicted of a crime in a Wyoming state court, you will need to petition for an expungement of your conviction. You submit the petition to the court where you were convicted. The petition asks the court to issue an order commanding the central repository of criminal records maintained by the Division of Criminal Investigation to remove any records of your conviction from further dissemination and restore any rights removed by the conviction.

There are limits on what kinds of convictions can be expunged and when you can seek expungement. Moreover, you are only allowed to seek an expungement for one misdemeanor conviction or related set of misdemeanor convictions and one felony conviction or related set of felony convictions in your lifetime.

This chart outlines the mechanics of misdemeanor/felony expungements in Wyoming:

Type of Conviction	Waiting Period	State’s Response Due	Required Qualifications
Misdemeanor	5 years from expiration of sentence/completion of probation	30 days after petition is served	-conviction does not involve use or attempted use of a firearm -petitioner does not represent a substantial danger to himself, any identifiable victim, or society
Felony	10 years from expiration of sentence/completion of probation	90 days after petition is served	-conviction does not involve use or attempted use of a firearm -must not be a conviction for, including accessory to/accomplice to, certain offenses (listed below this chart) – petitioner does not represent a substantial danger to himself, any identifiable victim, or society

Certain felony convictions, including felony convictions for accessory to certain substantive offenses, cannot be expunged. These felonies are:

• Any “violent felony,” including: murder, manslaughter, kidnapping, sexual assault in the first or second degree, robbery, aggravated assault, strangulation of a household member, aircraft hijacking, arson in the first or second degree, aggravated burglary, or a third, or subsequent, domestic battery;
• Homicide by vehicle or aggravated homicide by vehicle
• Drug induced homicide
• Sexual assault in the first degree, second degree, or third degree
• Sexual abuse of a minor in the first degree, second degree, third degree, or fourth degree
• Soliciting a person under 14 years old or purporting to be under 14 years old to engage in illicit sexual relations
• Aggravated assault and battery
• Assault and battery on a corrections or detention officer
• Child abuse
• Terroristic threats
• Stalking
• Abuse, neglect, abandonment, intimidation, or exploitation of a vulnerable adult
• Strangulation of a household member
• Domestic battery
• Sexual exploitation of children/possession or manufacture of sexual exploitation imagery (child porn)
• Incest
• Endangering children
• Bribery
• Interference with a peace officer
• Escape from official detention or escape by violence or assault
• Use of a firearm while committing a felony
• Use or possession of a firearm by a person convicted of certain felonies
• Any felony conviction requiring a person to register as a sex offender

As of March 26, 2021, the Wyoming Legislature is considering amending the misdemeanor and felony expungement statutes to reduce the “waiting period” before seeking an expungement from 5 to 3 years for misdemeanors and 10 to 5 years for felonies. The bill, House Bill 0212, passed the House of Representatives on March 17, 2021, and was introduced in the Senate and referred to the Judiciary Committee on March 18, 2021. This post will be updated if HB0212 passes the Senate and is signed into law by the governor.

UPDATE APRIL 7, 2021: The proposed legislation to shorten the “waiting periods” for expungements of misdemeanors and felonies referred to above died in the Senate Judiciary Committee.

MAY 31, 2022: The statutes related to expungements in Wyoming remain the same.

In short: if a Wyoming state court convicted you of a crime that has affected your rights, you can seek an expungement in that court if your offense qualifies, if you have waited the proper period, and if the State does not respond to your petition or does not object to your petition. If the State objects, a hearing will be held to decide if an expungement ought to be granted.

Even if you do not qualify for an expungement, there are a few other avenues that may restore your rights. These options are either much harder to obtain or do not cause your full rights to be restored.

First, you could appeal your conviction through a direct appeal or habeas petition. If your conviction is reversed or annulled, your rights will be restored in full. See Wyo. Stat. Ann. § 6-10-106(a)(i). The challenges for obtaining a reversal of your conviction are legion. Each appeal or habeas petition is unique and depends upon the presence of a legal or factual error that requires reversal. Don’t count on it.

Second, you could receive a pardon from the governor, which would restore your rights in full. See Wyo. Stat. Ann. § 6-10-106(a)(ii). The U.S. president cannot pardon you for a state conviction; only the governor can. And there is no legal guidelines or established rubric for securing a governor’s pardon. So, once more, good luck.

Third, your voting rights are supposed to be automatically restored if you have been convicted of a “nonviolent felony” or related set of “nonviolent felonies” after you complete your sentence, including any term of probation or parole. But double-check with your probation and parole officer because the government is a slow and cumbersome beast.

If you completed your sentence and required term of probation or parole before January 1, 2010, you will need to make a written application to the department of corrections to have your voting rights restored. Once more, this only applies to folks who have been convicted of a “nonviolent felony” or related set of “nonviolent felonies.” You can access this written application here, at the Wyoming Department of Corrections’ website.

And, restoration of your voting rights does not give you back your gun rights or your rights to serve on a jury or hold elected office. Only an expungement or a governor’s pardon can do that.

III. Restoring Your Rights After a Federal Conviction

While the overwhelming majority of crimes are prosecuted on the state level, some people will lose their voting rights, gun rights, or other rights due to federal criminal felony conviction.

However, there is no federal expungement statute. So, you cannot just apply for an expungement of a federal conviction as you can with a state court conviction.

There is a very narrow and vague mechanism for seeking an expungement in federal court according to federal caselaw. Basically, you’d need to be able to show that your federal felony conviction was invalid because it was “unconstitutional, illegal, or obtained through government misconduct.” See Tokoph v. United States, 774 F.3d 1300, 1305 (10th Cir. 2014). For almost everyone, this option is not available. In other words, if you lost your gun rights or any other rights due to a federal felony conviction, you are very likely stuck.

There is one option for restoration of your gun rights for a federal criminal conviction: a presidential pardon. A presidential pardon will “restore various rights lost as a result of the pardoned offense and should lessen to some extent the stigma arising from a conviction, [but] it will not erase or expunge the record of your conviction.” See Pardon Information and Instructions, available at https://www.justice.gov/file/1113616/download (last accessed Mar. 26, 2021). A presidential pardon will not restore your voting rights or right to serve on a jury or hold elected office — as these rights are granted by state governments and are not restored through a federal process.

Presidential pardons are exceptionally rare. Do not count on ever getting one. Still, there is, at least, a process for seeking a presidential pardon.

You must submit a petition to the Office of the Pardon Attorney. You can email your petition to USPardon.Attorney@usdoj.gov or mail your petition to U.S. Department of Justice, Office of the Pardon Attorney, 950 Pennsylvania Avenue, Washington, D.C. 20530. The petition must be legible, typed or printed in ink, and must be completed fully, accurately, and notarized. You can find the petition for a pardon here.

You must wait five years from the day you were released from confinement to file your petition. If no confinement, including “community confinement” or “home confinement,” was required, you must wait five years from the date of your sentencing before filing your petition.

In your petition, you will be asked to provide a reason for seeking a pardon. The Office of the Pardon Attorney instructs petitioners to anwer as follows:

You should state the specific purpose for which you are seeking pardon and, if applicable, attach any relevant documentary evidence that indicates how a pardon will help you accomplish that purpose (such as citations to applicable provisions of state constitutions, statutes, or regulations, or copies of letters from appropriate officials of administrative agencies, professional associations, licensing authorities, etc.). In addition, you should bear in mind that a presidential pardon is ordinarily a sign of forgiveness and is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or release from confinement. A pardon is not a sign of vindication and does not connote or establish innocence. For that reason, when considering the merits of a pardon petition, pardon officials take into account the petitioner’s acceptance of responsibility, remorse, and atonement for the offense.

Pardon Information and Instructions, available at https://www.justice.gov/file/1113616/download (last accessed Mar. 26, 2021)

While a pardon is a real long-shot and a federal court expungement an equally tenuous proposition, you can, at least, restore your voting rights in Wyoming after a federal felony conviction through the same application process described in the previous section (i.e., fill out and send in this application to the Wyoming Department of Corrections).

IV. Restoring Your Rights in Wyoming After an Out-Of-State Conviction

An out-of-state conviction is treated by the State of Wyoming just as a federal conviction. So, if it is a felony, it will affect your gun rights, voting rights, and rights to serve on a jury and hold elected office. If it is a misdemeanor, it should not affect these particular rights (though it may affect other parts of your life).

Fortunately, most states have expungement statutes. So, you can seek expungement in those states.

And, once more, you can always seek restoration of your voting rights through an application to the Wyoming Department of Corrections.

V. Learn From Your Mistakes and Do Better Going Forward

The best advice on how to bounce back from a criminal conviction is to learn from your mistakes. Whether you hotly contested the allegations against you and still feel burned by the system or whether you are a completed changed soul who will never be seen in those parts or around those crazy people again, you should use your criminal conviction as a catalyst to change yourself.

You can’t control other people or the government. But you can control your own actions and choices. If you want to move past your criminal issues, before thinking about all the fancy ways you can restore your rights, make sure you do the work to make yourself better first. Otherwise, you will be doomed to repeat the same mistakes as your decision-making remains faulty or your judgment remains clouded by the same ailments that caused you to be convicted in the first place.

We are only human. That includes you too. Be kind to yourself. Grow forward with the wisdom earned from your past mistakes. Don’t stay stuck in your past.