Out of court

Friday, October 1, 2010

Can I Get My Rights Back?

After a person is convicted of a felony they automatically lose these civil rights: to vote, to serve on a jury, to hold public office, and to possess a firearm. Several misdemeanors that involve domestic violence also cause a person to lose the right to possess a firearm. The good news is that many people convicted of various nonviolent crimes can get their civil rights reinstated, including the right to possess a firearm..

Under Washington law, RCW 9.94A.637, if a person completes all requirements of a sentence, they are entitled to a certificate of discharge that will restore all civil rights except the right to possess a firearm. To restore the right to possess a firearm, a person must petition a court under RCW 9.41.040. And to be eligible, the crime must not be a "serious felony," as defined by RCW 9.41.010(16). That means if the person was convicted of a violent crime, various sex crimes, or a crime with a deadly weapon, the person is not eligible. So most property crimes, including theft, possession of stolen property, burglary, and drug offenses qualify..

Recently a former client of mine who was convicted of mail fraud in federal court asked if he could get his civil rights including his right to possess a firearm restored. If you have a federal conviction for a felony the short answer is "FHUGGETABOUTIT!" In truth, there is no mechanism short of a presidential pardon to get your civil rights restored following a federal felony conviction..

The U.S. Supreme Court in a convoluted way has said this much: "We express no opinion on whether a federal felon cannot have his civil rights restored under federal law. This is a complicated question, one which involves the interpretation of the federal law relating to federal civil rights, see U.S. Const., Art. I, § 2, cl. 1 (right to vote for Representatives); U.S. Const., Amdt. XVII (right to vote for Senators); 28 U.S.C. § 1865 (right to serve on a jury); consideration of the possible relevance of 18 U.S.C. § 925(c) (1988 ed., Supp. IV), which allows the Secretary of the Treasury to grant relief from the disability imposed by § 922(g); and the determination whether civil rights must be restored by an affirmative act of a Government official, . . ." Beecham v. United States, 511 U.S. 368, 373 (1994)..

In Beecham, the defendants had prior federal felony convictions, and then had their residential states "restore their civil rights, including the right to possess a firearm." They were later prosecuted under federal law for possessing firearms as convicted felons. They argued that since there was no mechanism for restoration of civil rights in federal court, the state court restorations immunized them from prosecution for being felons in possession of a firearm. The U.S. Supreme Court ruled that only the federal government could restore their civil rights since they had federal convictions. Their convictions were upheld. Conversely, if their underlying convictions were state crimes, then the restoration of gun rights by the state court would have immunized them from prosecution for felon in possession of a firearm..

Based on that case, the only hope, short of the Pres pardoning a federal felon, is to write the Sec'y of the Treasury, Tim Geithner, and see what happens. I suspect nothing..

State law not only restores rights, but certain convicted felons can have their records vacated as well under RCW 9.94A.640. The crimes have to be nonviolent and nonsex, and must be either class B (ten year maximum) or class C (5 year max) to qualify. For a class B crime, a person must be crime-free for 10 years following the date they are discharged from their sentence; for class C crimes, 5 years of crime free conduct. Similarly for certain misdemeanors, it takes a 3 year crime free period to qualify. Misdemeanors involving violence, domestic violence or driving under the influence are not eligible for vacation..

One caveat: people who receive 'deferred sentences' on misdemeanors are often told by the judge that if they comply with the sentence just imposed, their record will be clear. Wrong! Although it is true that if they successfully complete probation following a deferred sentence the case will be "dismissed," that does not mean the record will be "cleared." Without an order vacating the conviction, the Washington State Patrol (WSP) will still show a "record." The WSP "record" will show the crime and its disposition as: "dismissed." But if you get the case vacated, then a WSP record check, will come back as: "no record." And that is what you want when you apply for a job..

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