For clients looking to restore their firearm rights a fundamental question is whether to pursue a pardon or an expunction (i.e. expungement). There are many factors which affect the ultimate decision, and we will consider some of these today.
To start, you should determine whether you qualify for a pardon or an expunction. If you don’t qualify for one or the other, then your choice on how to proceed becomes much easier.
Anyone who has been convicted of a crime by South Carolina, served his time, and paid any fees due is technically eligible for a pardon. (The likelihood of receiving a pardon is affected by the crime or crimes, the time since last arrest, and how well you present your case.)
If you have not yet served your time, then you must have the most extraordinary circumstances to qualify for a pardon. These cases are very rare, but may include persons suffering from a terminal disease or other similar circumstances.
Charges that are ultimately dismissed without a conviction can be expunged. This allows the innocent to clear his record after defending the charge.
Expungements of convictions are restricted to only a few types of crimes. Generally, only the most minor misdemeanors are eligible for expunction. Expunctions are further restricted to the first offense.
Minor misdemeanors include crimes punishable by less than thirty (30) days in jail. Additionally, you can expunge a failure to stop for a blue light, a first fraudulent check if the amount is minor, and some criminal domestic violence charges.
Misdemeanors punishable by more than thirty (30) days in jail, such as illegally carrying a handgun, generally cannot be expunged.
Even where the crime qualifies for expunction, before qualifying, you must wait several years and remain trouble free during the time. And you are allowed only one expungement per category per life. The SC Legislature established the expunction procedures as a second chance meant only for those who demonstrate their ability to abide by the law. The statutes are designed to prevent third, fourth, or further chances.
This requirement to have only one conviction and no follow up conviction disqualifies many persons from seeking an expunction. However, where several crimes result from one action and charge date, it may still be possible to expunge some or all of the convictions.
As a rule, felony convictions cannot be expunged. But there are exceptions to everything. If the convicted were specifically and explicitly sentenced under the Youthful Offender Act, and the crime is non-violent, then it can be expunged. There are still other restrictions that must be met, such as those mentioned above regarding no prior or subsequent convictions.
Comparing the Two
A pardon is forgiveness from the State. The conviction remains on your record, but you are absolved of the legal effects of the conviction. (There are minor exceptions to this such as the requirement to register on the sex-offender list.) Private parties will still be able to see the conviction and to act on this knowledge, but you can show that you have made amends with the State and done all you can to restore your standing as a citizen.
An expunction completely removes the conviction from your public State record. (A copy of the conviction, along with the order to expunge, is retained by SLED to prevent a recipient from receiving a second. Private companies and the Federal Government may retain their records and require additional paperwork to remove the same.) Therefore your record from the SC State Law Enforcement Division (SLED) will no longer show the conviction. (Technically, that conviction no longer exists.)
So far, the expunction is the better option since it removes the conviction rather than absolving the effects of the conviction. An expunction does cost a few hundred more than a pardon: a really minor point, but one to mention.
The most significant difference surfaces when we examine the effect of a pardon and an expunction on the right to own and bear arms. (i.e. your gun rights).
Restoration by Pardon
In SC, the Supreme Court has held that a Pardon restores your right to own guns. Read Pardons and Pistols. Generally, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and the Federal Bureau of Investigations (FBI) recognize and respect this ruling. Therefore, with a pardon, you can buy and possess a firearm knowing there is legal precedent to support this position.
Divided Opinions on Expunctions
The landscape is not nearly as clear with an expunction. While Federal law, 18 U.S. Code § 921(a)(20)(B) and 18 U.S. Code § 921(a)(33)(B)(ii), recognizes the effects of an expungement to restore firearm rights, interpreting case law requires the record to be completely destroyed and the recipient to be absolved of all legal effects of the conviction.
The ATF, placing emphasis on the “absolved of all legal effects of the conviction”, recognizes a SC expunction as effectively restoring the right to bear arms. SC SLED agrees with this interpretation and also recognizes the effect of an SC expunction.
The FBI however focuses on the language requiring complete destruction of the record. Because SC SLED retains a copy of the conviction and expunction to prevent a recipient from seeking a second expunction, the FBI refuses to recognize the restoration of firearm rights by an SC expunction. Therefore, even with an expunction, a purchaser of a firearm will be denied by the National Instant Criminal Background Check System (NICS) which is administered by the FBI.
Where your main purpose is to clear your record, an expunction is the only mechanism that actually removes a conviction from your record. However, the FBI may retain copies of that record and refuse to recognize the restoration of your firearm rights. Therefore, if gaining back your right to own a gun is important, a Pardon is the best path forward. If you want to accomplish both of these, nothing prevents you from seeking both a pardon and an expunction: provided you qualify for each.