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					                                                                                                        AZ1

FEBRUARY 17, 2007
                                             ARIZONA
 I.    Automatic Restoration of Rights: Conviction of a felony suspends the right to vote, to
       hold office, to sit on a jury, and to possess firearms. Ariz. Const. art. VII, § 2(c); Ariz. Rev.
       Stat. §§ 13-904(A)(1); 16-101(A)(5); 21-201(3). See also § 14-3203 (right to serve as
       executor); § 14-5651(C)(3)(fiduciary). For a first felony offender (state or federal), civil
       rights, other than those pertaining to firearms, are automatically restored upon completion
       of the term of probation, or upon an unconditional discharge from imprisonment and upon
       completion of payment of any fine or restitution. Ariz. Rev. Stat. § 13-912. Repeat
       offenders, including federal offenders, must apply for judicial restoration or pardon (see II
       A and B(1), below). (If repeat out-of-state offenders lose rights under Arizona law, which
       is not entirely clear, it is also not clear how they may regain their rights. Presumably out-
       of-state recidivists must seek restoration in the jurisdiction of their conviction.)

       Firearms rights may be regained only by pardon, or by application to court (see II B(2) and
       (3), below).

 II.   Discretionary Restoration Mechanisms:

        A. Pardon:
              • Authority: The Governor has the authority to grant pardons, except in cases of
                treason or impeachment, but his authority may be restricted by statute. Ariz.
                Const. art. V, § 5. Under Ariz. Rev. Stat. § 31-402A, “no reprieve,
                commutation or pardon may be granted by the governor unless it has first been
                recommended by the [Board of Executive Clemency].” Governor is required to
                publish reasons for each grant, and must report to legislature at the beginning of
                every regular session. §§ 31-445, 31-446.
              • Administration: Board of Executive Clemency consists of five persons appointed
                 by the Governor to five-year terms, from lists developed by a selection
                 committee consisting of the director of the department of public safety, the
                 director of the state department of corrections and three other persons. Ariz.
                 Rev. Stat. § 31-401. Chairperson selected by Governor. Id. Board members
                 serve on a full-time basis, and must meet at least once a month. Id. Three
                 members constitute a quorum, ex. that the chairperson may designate two as a
                 quorum. Id. The powers and duties of the Board are set forth in § 31-402.
              •    Eligibility: At any time after discharge from prison, if conviction has not been
                  vacated or set-aside. Board does not accept applications from misdemeanants.
                  Persons convicted under federal law or convicted under the law of another state
                  are ineligible for a Governor’s pardon. Source: Board of Executive Clemency.
              •   Effect: A state pardon “absolves convicted person of all legal consequences of
                  his crime.” 68 Ariz. Op Att’y Gen. 17. Pardoned person must still report
                  conviction, and conviction may be considered as predicate offense. Pardon
                  restores firearms privileges only if specified in the pardon document.
        Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction, February 2007
                                                                                                    AZ2

      •    Process: Board is required to meet at least once a month. Ariz. Rev. Stat § 31-
           401(F). Applicant submits form to Board, Ariz. Admin. Code R5-4-
           201(E)(2004), which asks court of conviction and county attorney to provide
           facts and recommendation. Ariz. Rev. Stat § 31-441. Under § 31-402C (4),
           Board may also receive applications for pardon “in extraordinary cases.” Ariz.
           Rev. Stat. § 31-442 requires publication of notice of intention to apply. Board is
           required to hold public hearing on application, at which it votes (by majority)
           either to deny the request or to recommend a pardon. If denied, applicant may
           not reapply for three years. Ariz. Admin. Code R5-4-201(G). Majority writes
           up recommendation for Governor, dissents may be filed. Ariz. Admin. Code
           R5-4-201(F). If a clemency board vote is unanimous, automatically if the
           governor does not act.
      • Frequency of Grants: Very few pardon applications through mid-1980s, but
        those recommended by Board were generally granted. Since 1992, the number
        of applications has increased steadily, but about 2/3 of those who are
        recommended by the Board are turned down by the Governor. For example,
        25 applied in FY 2002 (12 recommended, three granted); 33 applied in FY 2003
        (19 recommended, six granted); 25 applied in FY 2004 (9 recommended, three
        granted, three still pending). Source: Arizona Board of Executive Clemency.*
      •    Contact Information : Erin Warzecha, Executive Director, Arizona Board of
           Executive Clemency, 1645 West Jefferson, Suite 326
           Phoenix, AZ 85007
           Tel: (602) 542-5656
           Fax: (602) 542-5680
           Erin.warzecha@aboec.state.az.us
           http://www.az.gov/webapp/portal/displaycontent.jsp?id=2242
           http://www.sos.state.az.us/public_services/Title_05/5-04.pdf

           AZ Attorney General’s office
           John Pressley Todd
           John.Todd@azag.gov

*
  The governor approves even fewer commutation applications. Under Board rules, prison inmates can
apply for commutation once they are in the system for two years, or the sentencing judge can file a request
with the Board to entertain an inmate petition within 90 days of admission. In 2003 and 2004, the Board
reviewed over 400 commutation applications each year, and forwarded 40 and 32 petitions respectively to
the Governor’s Office with favorable recommendations. The Governor approved three commutations in
2003 and one in 2004. See Amanda J. Crawford and Ryan Konig, “Clemency voice goes unheeded:
Board's advice on sentences largely ignored by governor,” The Arizona Republic, May 22, 2005,
http://www.azcentral.com/news/articles/0522clemency22.html. In recent years commutation applications
have skyrocketed, from 67 in FY 96 to 708 in FY 03, and Board continues to recommend between 6% and
12% favorably despite the Governor’s continued declination to grant more than a handful. Source: Arizona
Board of Executive Clemency. Note that “any recommendation for commutation that is made unanimously
by the members present and voting and that is not acted on by the governor within ninety days after the
board submits its recommendation to the governor automatically becomes effective.” Ariz. Rev. Stat. § 31-
402(D),


Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction, February 2007
                                                                                                   AZ3

             Mary Jane Gregory
             maryjane.gregory@azag.gov


B. Judicial restoration and set-aside:

     o Judicial restoration of rights to repeat offenders: A person convicted under
       Arizona law of more than one felony and sentenced to a term of imprisonment for
       the most recent offense may apply to have his civil rights restored by the sentencing
       judge two years after unconditional discharge from imprisonment. Ariz. Rev. Stat.
       Ann. §§ 13-906, 13-908. A repeat offender completing a term of probation may
       have his rights restored by the court that discharged him from probation. § 13-
       905(A). See also Ariz. R. Crim. P. 29.1 (“Prior to his or her absolute discharge, a
       probationer shall receive from his or her probation officer, or the court if there is no
       probation officer, a written notice of the opportunity to have his or her civil rights
       restored, to withdraw his or her plea of guilty or no contest, or to vacate his or her
       conviction.”). A person whose civil rights were lost by virtue of a federal felony
       conviction may apply for restoration of civil rights to the presiding judge of the
       superior court of his county of residence, after a two-year wait in the case of those
       sentenced to a term of imprisonment. §§ 13-909(A), 13-910(A)-(B). There are no
       provisions in Arizona law for restoration of any rights under Arizona law that may
       have been lost as a result of a felony conviction in another state.

     o Restoration of firearms rights: The automatic restoration of civil rights provision
       for first offenders “does not apply to a person’s right to possess weapons as defined
       in § 13-3101,” Ariz. Rev. Stat. Ann. § 13-912(B); instead, the first offender must
       make an application to the court pursuant to Ariz. Rev. Stat. Ann. §§ 13-905
       (following discharge from probation) or 13-906 (at least two years following
       discharge from prison). Persons convicted of a “serious offense” (generally
       common law felonies, crimes against children, and sexual offenses) must wait ten
       years for restoration. § 13-906. Under § 13-906(c), firearms privileges are never
       restored to persons convicted of a “dangerous offense” (namely the discharge or use
       of a deadly weapon or the intentional infliction of serious physical injury upon
       another); see also § 13-912.01 (restoration for persons adjudicated delinquent upon
       completion of probation).

     o Judicial set-aside - Arizona law also permits all state offenders except those
       convicted of serious violent offenses, to have their convictions “set aside” or
       “vacated” by the sentencing court, and the charges against them dismissed, upon
       successful completion of probation or sentence and discharge. Ariz. Rev. Stat. Ann.
       §§ 13-907(A). Convicted persons are entitled to be informed of their “right” to a
       set-aside at the time of discharge. Id. See also Ariz. R. Crim. P. 29.1, supra,
       requiring notice to probationers at time of discharge of right to have conviction
       “vacated.” This relief restores all rights and generally releases the person “from all
       penalties and disabilities resulting from the conviction.” However, it does not
       eliminate the conviction, and thus does not relieve the offender from having to
       report the conviction if asked. Id. See also Russell v. Royal Maccabees Life Ins.
   Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction, February 2007
                                                                                                     AZ4

           Co., 974 P.2d 443, 449 (Ariz. Ct. App. 1999)(must report conviction in application
           for insurance even if set aside). The fact that a conviction is set aside or vacated
           does not release the person from certain motor vehicle restrictions, if applicable,
           and the conviction may still be used as a predicate offense in any subsequent
           prosecution. § 13-907(A). Set-aside unavailable to anyone convicted of a criminal
           offense involving the infliction of serious physical injury, the use of a deadly
           weapon or dangerous instrument, a victim less than 15 years old, or a violation of
           the state’s laws defining sexual offenses. § 13-907(B). Set-aside does not relieve
           duty to register as sex-offender, see Ariz. Rev. Stat. § 13-3821, and does not
           remove firearms disability for purposes of federal firearms prosecution. See U. S. v.
           Herrell, 588 F.2d 711 (9th Cir.), cert. denied 440 U.S. 964 (1978).

       o Nonconviction records: Records can be amended to notate that a person has been
         cleared of any arrests or indictments that did not lead to conviction. Ariz. Rev. Stat.
         § 13-4051.


     C.    Administrative certificate: N/A


III. Nondiscrimination in occupational licensing and employment:

       A person may not be disqualified from public employment “solely because of a prior
       conviction for a felony or misdemeanor,” nor may a person who has had his civil rights
       restored be disqualified from an occupation for which a license is required “solely
       because of” a conviction. Ariz. Rev. Stat. Ann. § 13-904(E). A person may be
       disqualified from public employment or denied a license by reason of conviction only if
       “the offense has a reasonable relationship to the functions of the employment or
       occupation for which the license, permit or certificate is sought.” Id. Subsection (E)
       does not apply to positions in law enforcement. § 13-904(F). Any complaints
       concerning a violation of this subsection shall be adjudicated in accordance with the
       Arizona administrative procedures act, including judicial review. § 13-904(G). See
       also “Rehabilitating the Ex-felon: Impact of Arizona's pardons and civil rights
       restoration statutes,” Law & Soc. Ord., 1971, p. 793. No provisions governing private
       employment.




     Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction, February 2007

				
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