Friday, October 8, 2010

Exceptional Pardons & Expungement of Convictions

After my previous post on expungements of arrest records and court files when charges have been dismissed or trial results in acquittal, I have received inquiries about whether South Dakota permits expungement of convictions. My initial answer was no, South Dakota law does not provide for expungement of convictions. However, after a bit more research, I have found that there is an additional procedure which may accomplish some of the same goals as expungement of a conviction, but which has several restrictions on its use--an exceptional pardon.

Exceptional pardons are considered "executive clemency" and are governed by SDCL Chapter 24-14 and ARSD 17:60:05. According to the South Dakota Board of Pardons and Paroles Executive Clemency Application, "[i]f it has been five years since your release from a Department of Corrections facility, and you have only been convicted of one felony, and your only felony was not punishable by life imprisonment, you are eligible for an Exceptional Pardon."

Once an individual receives an exceptional pardon, the records relating to that conviction are sealed, meaning that no one can look at the file without an order of the court. However, the exceptional pardon itself is maintained by the Secretary of State's office, and is a public record open to inspection for five years after the pardon is granted. After five years, the exceptional pardon document is also sealed. Immediately upon the granting of an exceptional pardon, the individual cannot be prosecuted for perjury for failure to disclose the conviction, arrest, information, indictment, or trial on the pardoned offense. Court files, from other types of executive clemency (i.e. anything other than an exceptional pardon), are not entitled to be sealed.

There are several documents that must be received by the Board of Pardons and Paroles to consider a request for an exceptional pardon:
- The completed Executive Clemency Application (with questions answered fully or with "N/A").
- The completed Notice to State's Attorney form.
- The completed Executive Clemency Application Release of Information.
- Letters of recommendation (referencing that the letter writer is aware that the applicant is seeking executive clemency) from minister, former & present employers, reputable persons in the community, family and friends are strongly encouraged, although not required. If the applicant does not include letters of recommendation, an explanation is required.
- A psychosexual evaluation (for sex offenders only).
- A chemical dependency evaluation (for those convicted for drugs and alcohol only).
- A psychological evaluation (for those with diagnosed mental health issues only).
- Proof of payment of court costs, fines and restitution for each conviction.
- A Department of Corrections Discharge Certificate.
- Certified Copy of Sentence and Judgment.
- Proof of Service on each State's Attorney.
- Written statement of the applicant describing the crime/incident.
- Letter of personal plea from the applicant.

It is possible for an applicant to submit these materials pro se (without being represented by an attorney). However, consulting with a criminal defense attorney is wise, as that individual will have experience in handling these types of applications, and can advise the applicant as to the likely merits of the application and how to best posture the application (i.e. whether certain letters are helpful, whether the applicant should seek treatment, counseling, etc.).

Whether the applicant chooses to apply pro se or chooses to seek the assistance of an attorney, it is wise for the materials to be presented in the most coherent and organized fashion as possible. Having the documents put into a binder or binding the application is a good idea, so that materials cannot be separated and lost. Using tabs and separating pages is a great idea, so that the Board is able to easily find the documents that they are looking for.


  1. I am interested in finding a way to seal my violation of a protection order, filed by my boyfriends half-sister. I entered a guilty plea against my true desire to defend myself. All in all I have never been in trouble with the law prior, and wish to provide a home for my daughter who is due in March 2011 but I am being denied adequet living arrangements because of this conviction. What can you do for me?( minor traffic violations only)

  2. Each case is different, so it is difficult to say from the very brief description that you provide in this comment whether you would qualify for an exceptional pardon. For example, you do not state whether the conviction was more than 5 years ago. If you are interested in pursuing an exceptional pardon, or would like to discuss the possibility of proceeding, please feel free to give my office a call. However, do remember that no attorney-client relationship has been formed until the time an engagement agreement has been signed.

  3. I was convicted of a forgery of checks about 25 years ago, recently I denied from buying a firearm. Although I have a ccw permit, never lost gun privileges (nonviolent crime). Is an exceptional pardon a good option to get firearm privileges back federally?

  4. Upon further research, do I need any kind of pardon, ASL my civil right have between restored a per state law, doesn't the federal govt accept this, I have read quite a bit of things that say they do.

  5. Thank you so much for helping by your caring and sharing all of the information you have provided pertaining to people like me who are already faced with barriers caused by their record. I will be passing this information and your site to anyone who feels like there’s no hope at all that could improve there situation and future.

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