Restoration of Rights/Delaware

delaware flagI.  Restoration of Civil/Firearms Rights
A.  Vote

A person convicted of a felony forfeits the right to vote.  See Const. art. V, § 2; Del. Code Ann. tit. 15, § 1701.  In addition, persons guilty of certain misdemeanor election law violations are prohibited from voting for ten years following completion of sentence.  Del. Const. art. V, § 7; Del. Code Ann. tit. 15, § 1701.  Under a 2013 amendment to the Delaware Constitution, most persons disenfranchised because of a conviction may regain the vote upon expiration of sentence.1 Prior to 2016, Del. Code Ann. tit. 16, § 6102 required that outstanding fines and restitution be paid before rights could be restored, but that requirement has now been repealed. Individuals seeking to have voting rights restored may apply to their county department of elections and, following a review initiated by the State Election Commissioner, restoration is automatic upon a determination of eligibility.  Del. Code Ann. tit. 15, §§ 6103-05.  Convicted persons shall not be registered earlier than expiration of sentence unless pardoned.  Del. Code Ann. tit. 15, § 6103(c).  Persons convicted of certain serious offenses (murder, manslaughter, bribery or public corruption, sex offense) are constitutionally barred from voting unless pardoned.2

B.  Public Office

Article II, section 21 of the Delaware Constitution states that no person convicted of “embezzlement of the public money, bribery, perjury or other infamous crime, shall be eligible to a seat in either House of the General Assembly, or capable of holding any office of trust, honor or profit under this State.” The governor may remove from office a public officer convicted of misbehavior in office or an “infamous” crime.  See Del. Const. art. XV, § 6.  See also Slawik v. Folsom, 410 A.2d 512 (Del. 1979) (power to remove from office includes removal for federal convictions).  A pardon does not remove this bar.  See Del. Code. Ann. tit. 11, § 4364 (even if granted pardon, person convicted of infamous crime is ineligible to hold a seat in the General Assembly or other office of honor, trust, or profit in the State).  In In re Request of the Governor for an Advisory Opinion, 950 A.2d 651, 653 (Del. 2008), the court ruled that an offense committed when as a juvenile that was subsequently pardoned did not constitute an “infamous offense” so as to disqualify an individual from being appointed as a family court commissioner, citing State ex rel. Wier v. Peterson, 369 A.2d 1076, 1081 (Del. 1976) for the proposition that “the totality of the circumstances in each case must be examined before a determination may be made that a specific felony is infamous.”  Because the constitutional disqualification depends upon “character,” it is not automatically relieved by a pardon.

C.  Jury

Convicted felony offenders may not serve on juries, unless pardoned.  Del. Code Ann. tit. 10, § 4509(b)(6).

D.  Firearms

Persons convicted of “a felony or a crime of violence involving physical injury to another, whether or not armed with or having in possession any weapon during the commission of such felony or crime of violence crime of violence;” a drug offense; or a crime of domestic violence lose firearms rights, unless pardoned.  Del. Code Ann. tit. 11, §§ 1448(a)(1), (3), (7); see also Op. Att’y Gen. 03-IB04, 2003 WL 1088725 (Feb. 4, 2003) (while a Delaware pardon does not remove guilt for the underlying criminal offense, it nonetheless restores the right to purchase and possess firearms).  However, a prohibition based on a crime that is not a felony lasts only five years.  § 1448(d).

II.  Discretionary Restoration Mechanisms:
A.  Executive pardon
Authority

The power to pardon, except in cases of impeachment, is vested in the governor.  Del. Const. art. VII, § 1.  The governor cannot grant a pardon or commutation in the absence of an affirmative recommendation of a majority of the Board of Pardons after a full hearing, but the governor is not bound to accept the Board’s affirmative recommendation, and exercises independent judgment in all cases submitted to him or her following an affirmative recommendation by the Board.  Id.  The governor must “fully set forth in writing the grounds of all reprieves, pardons and remissions, to be entered in the register of official acts and laid before the General Assembly at its next session.”  Id.  The Board of Pardons consists of the chancellor, lieutenant governor, secretary of state, state treasurer, and auditor of accounts.  Del. Const. art. VII, § 2.  Under the Board’s rules, the lieutenant governor is president of the Board, and the secretary of state acts as secretary.  Del. Bd. of Pardons, Rules of the Board of Pardons, Rule 5(c)-(d) (re-adopted Apr. 2009), available at http://pardons.delaware.gov/rules/.

Effect

“Except as otherwise provided by the Delaware Constitution, or expressly by any provision of the Delaware Code or any court rule, the granting of an unconditional pardon by the Governor shall have the effect of fully restoring all civil rights to the person pardoned.” Del. Code Ann. tit. 11, § 4364.  Such civil rights include, but are not limited to, the right to vote, the right to serve on a jury if selected, the right to purchase or possess deadly weapons and the right to seek and hold public office provided however, that this section shall not limit or affect the Governor’s authority to place lawful conditions upon the granting of a pardon.”  Id.; see also Heath v. State, 983 A.2d 77 (Del. 2009) (individual pardoned unconditionally allowed to deregister as a sex offender);  Del. Op. Att’y Gen. 03-IB04 (2003), 2003 WL 1088725 (unconditional pardon restores right to possess firearms).  According to the Board of Pardons, a pardon also relieves employment-related and other legal disabilities.  However, the generally prevailing rule is that a pardon does not preclude consideration of the conviction in sentencing for a subsequent offense.  State v. Robinson, 251 A.2d 552, 556 (Del. 1969).  Moreover, a pardon does not remove the prohibition against persons convicted of “embezzlement of the public money, bribery, perjury or other infamous crime” from holding a seat in either House of the General Assembly or holding any office of trust, honor or profit in the State.  Del. Code Ann. tit. 11, § 4364.  See  State ex rel. Wier v. Peterson, supra Part I.

With certain exceptions, misdemeanor and violation convictions that have been unconditionally pardoned may be expunged in the discretion of the court, with petitioner required to prove manifest injustice by a preponderance of the evidence.  Del. Code Ann. tit. 11, § 4375.  “The fact that the petitioner was convicted of the criminal offense that is the subject of that petitioner’s expungement application shall be considered by the Court as prima facie evidence that the continued existence and possible dissemination of information relating to the arrest in question does not constitute a manifest injustice to the petitioner.”  Id.

Eligibility

According to Board staff, a waiting period after conviction is informally imposed by Board:  three to five years after sentence completed, depending on seriousness of offense, unless a legitimate hardship can be demonstrated (e., a need for employment, pending deportation, etc.).  Applications from misdemeanants are accepted.  See http://pardons.delaware.gov/frequently-asked-questions/.  Out-of-state and federal convictions are ineligible for a pardon by the Delaware Governor.

Process

Applications for a pardon or commutation are made in writing through the office of the Secretary of State, who acts as the secretary of the Board.  See Rules of the Board of Pardons, supra, at Rule 3; Bd. of Pardons, Pardon Application Package, available at http://pardons.delaware.gov/wp-content/uploads/sites/42/2017/03/PardonApp-pack.pdf.  The Board meets on the final Thursday of each month in Dover in open session (except for July and August), and hears every application it receives.  Rules of the Board of Pardons, supra, at Rule 1; http://pardons.delaware.gov/meeting-calendar/.  Before the Board may consider applications relating to certain crimes, including from certain violent and sex offenders, such an applicant must have been recently examined by a psychiatrist and psychologist, who must submit an opinion to Board as to the applicant’s mental and emotional health, and likelihood of re-offending.  Del. Code Ann. tit. 11, § 4362.  The Board must also request a full report on each case, including an opinion concerning the state of rehabilitation, from the Board of Parole.  Rules of the Board of Pardons, supra, at Rule 3(f) (citing Del. Code Ann. tit. 11, § 4363).  A hearing is generally held within a year of filing.  See Frequently Asked Questions, http://pardons.delaware.gov/frequently-asked-questions/.  If an application is denied, the applicant must wait for fifteen months before refiling, and a hearing will not be scheduled for a full eighteen months after denial, unless the Board agrees in advance to consider the new application sooner.   Rules of Board of Pardons, at Rule 7(c).

Application

The applicant must complete an application form that includes an explanation of the offense and reasons for seeking a pardon. Bd. of Pardons, Pardon Application Package, supra.  As a requirement of filing a petition for pardon and commutation, the applicant must notify the judge who imposed the sentence on the applicant, the Attorney General, the chief of police having jurisdiction of the place where the crime occurred, and the Superintendent of the Delaware State Police.  Rules of the Board of Pardons, supra, at Rule 2(d).  The Attorney General’s office is responsible for notifying the victim (or, if deceased, surviving family members) and witnesses when a convicted felon applies for a pardon or commutation.  Del. Code Ann. tit. 11, § 4361(d).  If the victim or surviving family members wish, the Attorney General is responsible for presenting the position of the victims, and the Board requests that a legal representative from the Attorney General’s office attend all sessions of the Board.  Rules of the Board of Pardons, supra, at Rule 8.

Public Record

The hearings of the Board are public hearings at which any person with an interest in the matter will normally be accorded an opportunity to speak.  Del. Code Ann. tit. 11, § 4361(d).  Individuals may and are encouraged to represent themselves before the Board when their cases are scheduled for presentation.  The Board has full subpoena power and may require the attendance of witnesses and production of evidence.  Id. § 4361(a).  It may also administer oaths, and those who testify falsely are subject to criminal penalties.  Id. §§ 4361(a), (c).  Decisions of the Board with respect to an application are often made in executive session of the Board at which the Board may discuss and debate the record.  The Board announces its recommendation from the bench.  Rules of the Board of Pardons, supra, at Rule 5(a).  A decision reached by majority is recorded and filed in the office of the Secretary of State, who in turn notifies the Governor.  Del. Const. art. VII, § 1.  The Governor’s decision may take several months.

Standards

In reaching its decisions, the Board considers nature and age of crime, rehabilitation of applicant and contributions to the community, applicant’s remorse, employment-related need for a pardon, official support, and lack of opposition by the victim.

Frequency of Pardon Grants

2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016

Total Number of Petitions for Pardon
130
153
129
129
160
231
230
300
321
343
411
432
466
468

Pardons Recommended to the Governor
116
134
106
112
146
191
188
246
278
282
337
352
388
411

Pardons Denied by the Board
9
13
21
13
13
23
22
30
38
44
68
71
75
48

Pardons Granted by the Governor
32
130
97
105
140
105
175
214
246
204
207
336
472
366

Pardons Denied by the Governor
13
4
8
6
5
5
9
6
4
17
5
15
25
9

Source: Delaware Board of Pardons

Recent increase in pardon applications/grants

Governor Jack Markell granted 1569 pardons during his 6-year tenure.  He noted that there have been “50 different pieces of legislation” requiring a background check, and that people are seeking pardon to improve their job prospects.  The board caseload has gone from about a dozen each month 20 years ago to over 50.  The Attorney General’s office has begun providing some staff assistance to the board in briefing cases.  See Cris Barrish and Jonathan Starkey, Dramatic Rise in Pardons in Delaware, http://www.delawareonline.com/story/news/local/2015/04/25/dramatic-rise-pardons-delaware/26374339/pcts./ See also Barrish and Starkey, Pardons Driven by Getting Jobs, http://www.delawareonline.com/story/news/local/2015/04/25/pardons-driven-getting-jobs/26354375/.  According to Board staff, the increase in applications relates to more stringent employer background checks since 9/11.  Sixty percent of applications come from misdemeanants.3

Contact

Judy A. Smith
Board of Pardons
401 Federal Street
Townsend Building, Suite 3
Dover, DE 19901
Phone: (302) 739-4111
Fax: (302) 739-7654

Smith@state.de.us.

B.  Judicial sealing or expungement

The expungement laws (Del. Code Ann. tit. 11, §§ 4372, et seq.) were revised in July 2008 in part to facilitate consideration for qualifying non-conviction records, including deferred adjudication and first offender drug diversion (“facilitate the rehabilitative efforts”). Delaware House Bill No. 496 (2008), at Synopsis, available at http://legis.delaware.gov/LIS/lis144.nsf/6073710c7262e49f85257426006e8626/f39d948b58119365852572de006d94b7?OpenDocument.

Deferred adjudication & diversion

Expungement may be ordered by the court where charges have been dismissed pursuant to Probation Before Judgment program, § 4218, or the first offenders controlled substances diversion program, id., tit. 16 § 4767.  See Ryan v. State, 791 A.2d 742, 744 (Del. 2002) (even if the petitioner was not innocent in fact, his completion of probation before judgment and subsequent dismissal of charges rendered him “innocent as a matter of law”).  A 2010 amendment eliminated the five-year waiting period for people who received probation before judgment, and the two-year waiting period for first offenders who completed a controlled substance diversion program to apply for expungement.  See 77 Del. Laws 348 (2010), § 7 (repealing Del. Code Ann. tit. 11, § 4378 in its entirety).  In 2014, Del. Code Ann. tit. 10, § 1025 and tit. 11, § 4372 were amended to add cases resolved by probation before judgement to the list of cases “terminated in favor of the accused,” making them eligible for expungement subject to the same criteria and procedures applicable to other non-conviction records.  See “Non-conviction records” infra.

Pardoned misdemeanor convictions

With some of the same exceptions as specified in Title 11, section 4373 of the Delaware Code (regarding mandatory expungement), misdemeanor and violation convictions that have been unconditionally pardoned may be expunged in the discretion of the court, with petitioner required to prove manifest injustice by a preponderance of the evidence.  Del. Code Ann. tit. 11, § 4375.  “The fact that the petitioner was convicted of the criminal offense that is the subject of that petitioner’s expungement application shall be considered by the Court as prima facie evidence that the continued existence and possible dissemination of information relating to the arrest in question does not constitute a manifest injustice to the petitioner.”  Id.

Old age expungement

The State Bureau of Identification may not destroy information identifying a person until a person reaches age eighty, or reaches age seventy-five with no criminal activity listed on the person’s record in the past forty years.  Del. Code Ann. tit. 11, § 8506(c).

Juvenile records

New laws regarding expungement of juvenile delinquency records took effect in January 2012.  Del. Code Ann. tit. 10, §§ 1014-1020.  The purpose of the laws is to “protect children and citizens from unwarranted damage which may occur as a result of a juvenile arrest record[.]” Id. § 1014.  The new scheme mirrors the one applicable to adult expungement, i.e., provides for mandatory and discretionary expungements.  Id. §§ 1017, 1018.   Under § 1018, a court may to grant a petition for expungement of a juvenile record “provided the petitioner has no other subsequent adjudication of delinquency or adult conviction.” Traffic offenses do not constitute disqualifying subsequent adjudications. See Fuller v. State, 2014 Del. LEXIS 504 (Del. 2014).

Non-conviction records

Title 11, section 4372 of the Delaware Code authorizes expungement of non-conviction records where the case results in acquittal, nolle prosequi, or all charges are otherwise dismissed — including discharge following probation before judgement.  Expungement is mandatory upon request for those charged with misdemeanors or certain violations (except for specified excluded offenses, including sex and violent offenses) who have not previously or since been convicted of another crime.  Del. Code Ann. tit. 11 § 4373.  Discretionary judicial expungement for other non-conviction records is authorized by section 4374.  A petitioner requesting discretionary expungement under this provision must establish to the satisfaction of the court, by a preponderance of the evidence, that “the continued existence and possible dissemination of information relating to the arrest of the petitioner causes, or may cause, circumstances which constitute a manifest injustice to the petitioner. . . .”  Id. § 4374(c).  The existence of a prior record (other than the one that is the subject of the expungement petition) will be prima facie evidence that disclosure will not constitute manifest injustice.  Id.

Effect of expungement

With certain exceptions applicable to use of records for law enforcement purposes, it is unlawful (Class B misdemeanor) for any person having or acquiring access to an expunged court or police record to open or review it or to disclose to another person any information from it without an order from the court that ordered the record expunged.  Del. Code Ann. tit. 11, § 4376(a)(f).4  State records repositories must respond to non-law enforcement requests for records “that there is no record.”  § 4376(b).

General availability of records

Criminal records policy is:  state criminal records are not generally publicly available except for limited research and statistical purposes, or to prospective employers.  § 8513.  However, courts have discretion to provide news media and employers with identification and conviction information only.  Id. §§ 8502(2) (defining “conviction data”), 8513(c); see also Bd. of Managers of Del. Criminal Justice Info. Sys. v. Gannett Co., 847 A.2d 1123, 1125 (Del. Super. Ct. 2004) (holding media outlet in this case was entitled to police officer identification information, but not non-conviction data or geographic information).  Delaware provides for civil and criminal penalties for knowingly providing criminal history records information for profit (felony), or to unauthorized persons (misdemeanor), and may be grounds for dismissal from public employment.  Del. Code Ann. tit. 11, § 8523(c)-(e).

III.  Nondiscrimination in Licensing and Employment
A.  Ban-the-Box

In May 2014 the legislature amended § 711 of Title 19 of the Delaware Code to make it an unlawful employment practice for public employers to inquire into or consider the criminal record, criminal history or credit history or score of an applicant “during the initial application process, up to and including the first interview.”  Del. Code Ann. tit. 19, § 711(g)(1). In addition, a public employer may inquire into or consider an applicant’s criminal record “only after it has determined that the applicant is otherwise qualified and has conditionally offered the applicant the position.” § 711(g)(2).  A public employer “may disqualify an applicant from employment based on criminal history where the exclusion is job related for the position in question and consistent with business necessity.” § 711(g)(3).  In connection with any hiring decision, a public employer “shall consider” the following factors: “a. The nature and gravity of the offense or conduct; b. The time that has passed since the offense or conduct and/or the completion of the sentence; and c. The nature of the job held or sought.” Id.5 The law does not apply to police forces, the Department of Correction, the Department of Justice or Public Defender, or “any position where federal or state law requires or expressly permits the consideration of an applicant’s criminal history.  § 711(g)(4).

B.  Uniform Licensing Policy

Legislation enacted in 2004 created a uniform approach throughout Title 24 of the Delaware Code relating to professions and occupations, regarding disqualifications for licensure.  74 Del. Laws 262 (2004).  The act requires that the refusal, revocation or suspension of licenses for professions and occupations regulated under Title 24 be based upon conviction of crimes that are “substantially related” to the profession or occupation at issue, and not for crimes that are unrelated to the profession or occupation.  See, e.g., Del. Code Ann. tit. 24, § 107 (accountancy); § 307 (architecture); § 508 (podiatry); § 707 (chiropractic); §§ 1122, 1126 (dentistry); § 1204 (in application for license to operate a security business, evidence of lack of good character includes “convictions for crimes involving offenses against the person, dishonesty or fraud”); § 1922 (nursing).6   Boards of affected professions and occupations are required to promulgate regulations that specifically identify the crimes that are “substantially related” to the profession or occupation.  In August 2009 this scheme was further amended to require affected boards to promulgate criteria for waiving disqualification based on convictions substantially related to the professions either by a hearing or a review of documentation to determine whether applicants meet the specified criteria for a waiver.  See 77 Del. Laws 199 (2009).  For waiver of disqualification in the case of a felony, five years must have elapsed since the conviction; for misdemeanors there is no waiting period, provided that applicants are not incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence, and are in substantial compliance with all fines, restitution and community service.  See Del. Code Ann. tit. 24, §§ 1808(a)(5), 1821(a)(7), 3319(a)(4).

C.  Governor’s Statement on Reentry

In his 2014 State of the State address, Governor Markell called on the legislature to repeal the law banning persons convicted of a drug offense from acquiring a driver’s license, criticized the law precluding the Department of Correction from hiring anyone with a felony conviction, and proposed a state-wide ban-the-box policy for public sector hiring. See http://governor.delaware.gov/speeches/2014StateOfTheState/unleashingpotential.pdf.


  1. Article V, section 2 of the Delaware Constitution provides in pertinent part:

    “[T]he General Assembly may impose the forfeiture of the right of suffrage as a punishment for crime. Any person who is disqualified as a voter because of a conviction of a crime deemed by law a felony shall have such disqualification removed upon being pardoned, or after the expiration of the sentence, whichever may first occur. The term “sentence” as used in this Section shall include all periods of modification of a sentence, such as, but not limited to, probation, parole and suspension. The provision [sic] of this paragraph shall not apply to (1) those persons who were convicted of any felony of murder or manslaughter, (except vehicular homicide); or (2) those persons who were convicted of any felony constituting an offense against public administration involving bribery or improper influence or abuse of office, or any like offense under the laws of any state or local jurisdiction, or of the United States, or of the District of Columbia; or (3) those persons who were convicted of any felony constituting a sexual offense, or any like offense under the laws of any state or local jurisdiction or of the United States or of the District of Columbia.”

    Prior to the 2013 amendment there was a five-year waiting period before persons could register to vote.  78 Del. Laws c. 332 (2012) initially approved the deletion of “five years” following “pardoned or” in the second sentence of Article V, a measure that was passed for a second time on April 16, 2013.

  2. See note 1, supra.  Under title 11, section 4347(i) of the Delaware Code, “civil rights” are automatically restored by certificate from Board of Parole upon discharge of sentence, but not earlier than one year after release from prison except when the sentence expires earlier thereto.  However, these rights have been ruled by Delaware Attorney General to include only “those commonly exercised in everyday life,” not the rights to vote, sit on jury, or hold office.  See U.S. Dep’t of Justice, Office of the Pardon Att’y, Civ. Disabilities of Convicted Felons: A State-by-State Survey, at 37-38, n.2 (1996), available at https://www.ncjrs.gov/pdffiles1/pr/195110.pdf.
  3. The Board also hears a number of requests for sentence commutation, and recommends a handful to the governor each year.  In 2006, the Board received twenty-one requests for commutation, recommended five favorably, of which the governor granted none; in 2007 the Board received twenty-five commutation requests, recommended three favorably, and two were granted by the Governor; in 2008, the Board received thirty-two commutation requests, recommended six, and one was granted; in 2009 the Board received thirty-seven requests, recommended thirteen favorably, and one was granted; in 2010, the Board received twenty-four requests, recommended thirteen favorably, of which seven were granted by the governor; in 2011 the Board received 54 requests, recommended 19 favorably, or which 10 were granted; in 2012 the Board received 65 requests, recommended 24, of which 2 were granted; in 2013 the Board received 73 requests, recommended 17 favorably, of which 2 were granted.  Until recently the Board held an in-person hearing in every commutation requests, but it has now begun to dispose of some on a paper record.
  4. Expunged records may be disclosed to law-enforcement officers acting in the lawful performance of their duties in investigating criminal activity, for the purpose of an employment application as an employee of a law-enforcement agency, or for the purpose of determining whether a person is eligible for probation before judgment or first offender controlled substance diversion.  Id. § 4376.
  5. Last-minute amendments to the law eliminated provisions that would have prohibited consideration of certain types of criminal records, including felony convictions more than ten years old and misdemeanor convictions more than five years old.
  6. The uniform regulatory scheme in Title 24 applies to the boards of Accountancy, Landscape Architecture, Architects, Podiatry, Chiropractic, Cosmetology & Barbering and Aestheticians, Dentistry and Dental Hygiene, Electrical Examiners, Medical Licensure and Discipline, Plumbing/HVACR Examiners, Nursing, Occupational Therapy, Examiners in Optometry, Pharmacy, Physical Therapists and Athletic Trainers, Professional Land Surveyors, Professional Engineers, Dietetics/Nutrition, Real Estate Services, Real Estate Appraisers, Mental Health and Chemical Dependency Professionals, Funeral Services, Veterinary Medicine, Examiners of Psychologists, Geologists, Speech/Language Pathologists, Audiologists, and Hearing Aid Dispensers, Clinical Social Work Examiners, Examiners of Nursing Home Administrators, Massage and Bodywork, Manufactured Home Installation, Athlete Agent Examiners, and Board of Home Inspectors (home inspector statutory provisions effective August 6, 2013).  See, e.g., 74 Del. Laws 262, supra; 74 Del. Laws 267 (2004) (professional engineers); 78 Del. Laws 170 (2011) (home inspectors).

Copyright © 2017

Restoration of Rights/Colorado

colorado flagI.  Restoration of Civil/Firearms Rights
A.  Vote

A person convicted of a felony loses the right to vote if sentenced to a prison term, and does not regain it until completion of parole.  See Colo. Const. art. 7, § 10 (A person shall not be eligible to vote “while confined in any public prison,” but shall be restored to the rights of citizenship “after serving out his full term of imprisonment.”); Col. Rev. Stat. § 1-2-103(4).1  Persons sentenced to a term of probation only do not lose the right to vote.  By statute, disenfranchisement continues through a period of parole.  See Col. Rev. Stat. § 1-2-103(4) (“No person while serving a sentence of detention or confinement in a correctional facility, jail, or other location for a felony conviction or while serving a sentence of parole shall be eligible to register to vote or to vote in any election.”).2  A person in pre-trial detention may vote by mail. § 1-2-103(4).  The Administrative Office for U.S. Courts has taken the position that federal offenders on supervised release are entitled to register and vote.3

B.  Office, Jury

Persons convicted of a felony are disqualified from public office only while incarcerated, or while on parole from a prison sentence, Col. Rev. Stat. § 18-1.3-401(3), with certain exceptions specified in the state constitution.  See Colo. Const. art XII, § 4 (embezzlement of public money, bribery, and perjury all result in permanent disqualification).  The right to sit on a jury is not lost at all (the disqualification statute was repealed in 1989).

C.  Firearms

Persons convicted of a felony may not possess firearms, unless pardoned.  Col. Rev. Stat. § 18-12-108(1), (2).  Penalty for illegal possession is enhanced if possession occurs within ten years of conviction or release from supervision, for burglary, arson, or any felony involving violence.   § 18-12-108(2)(c).

D.  Compilation of collateral consequences

The Colorado State Public Defender has compiled an inventory of collateral consequences and statutory relief provisions under Colorado law.  See The Consequences of Conviction: Sanctions Beyond the Sentence Under Colorado Law (2014 update), available at http://www.coloradodefenders.us/consequences-of-conviction-2/consequences-of-conviction-2/.  Provisions governing sealing and expungement are at pp. 5-9.  Mark Evans, Deputy State Public Defender, is the primary author of this very useful study.

II.  Discretionary Restoration Mechanisms:
A.  Executive pardon
Authority

The pardon power is vested in the governor, except in cases of treason or impeachment, “subject to such regulation as may be prescribed by law relative to the manner of applying for pardons.”   Colo. Const. art. IV, § 7.  In every instance where the governor exercises the power, he must “send to the General Assembly at its first session thereafter, a transcript of the petition, all proceedings, and the reasons for his action.”  Id.   The clemency power is regulated by Colo. Rev. Stat. §§ 16-17-101 and 102, and grants not issued in compliance with those provisions are invalid.  See People ex rel. Garrison v. Lamm, 622 P.2d 87 (Colo. App. 1980).  Section 16-17-102 provides that

“Before the governor approves [a pardon] application, it shall be first submitted to the present district attorney of the district in which the applicant was convicted and to the judge who sentenced and the attorney who prosecuted at the trial of the applicant, if available, for such comment as they may deem proper concerning the merits of the application, so as to provide the governor with information upon which to base his or her action. The governor shall make reasonable efforts to locate the judge who sentenced and the attorney who prosecuted at the trial of the applicant and shall afford them a reasonable time, not less than fourteen days, to comment on such applications.”

Administration

The governor is advised by the non-statutory Colorado Executive Clemency Advisory Board, established within the Office of the Governor and consisting of seven members appointed by the governor, including the Executive Director of the Corrections Department, the Executive Director of the Department of Public Safety, and one crime victim representative. Executive Order B008-07 (Aug. 29, 2007).  The Board must meet at least once every six months.  Id.  The Board is staffed by personnel from those two agencies, and assisted by the Colorado Bureau of Investigation for background investigations.

Eligibility

Pardon applications are not generally accepted until at least 10 years after completion of a sentence.  Persons convicted under federal law or in another state are not eligible for gubernatorial pardon.

Effect

Colo. Rev. Stat. § 16-17-103, enacted in 2013, provides that “A pardon issued by the governor shall waive all collateral consequences associated with each conviction” unless the pardon limits the scope.   Executive Order B007-8 provides:

“[T]he Board may make favorable recommendation for pardon on clemency applicants who have completed their sentences and demonstrate they are fully rehabilitated and reintegrated into society, and to:

  1. Restore civil rights, including but not limited to voting, jury service, holding public office and reinstatement of firearms privileges;
  2. Assist with licensing, certification or employment requirements;
  3. Recognize meritorious educational or vocational achievement;
  4. Reward exceptional or extraordinary citizenship.”
Process

See Colo. Rev. Stat. § 16-17-102.  After a conviction, all applications for commutation of sentence or pardon for crimes committed shall be accompanied by a certificate of the respective superintendent of the correctional facility, showing the conduct of an applicant during his confinement in the correctional facility, together with such evidences of former good character as the applicant may be able to produce. Before the governor approves such application, it shall be first submitted to the present district attorney of the district in which the applicant was convicted and to the judge who sentenced and the attorney who prosecuted at the trial of the applicant, if available, for such comment as they may deem proper concerning the merits of the application, so as to provide the governor with information upon which to base his action. The governor shall make reasonable efforts to locate the judge who sentenced and the attorney who prosecuted at the trial of the applicant and shall afford them a reasonable time, not less than ten days, to comment on such applications.   Favorable recommendations must receive the support of at least four Board members. Executive Order B007-8.

Qualifications

“Good character previous to conviction, good conduct during confinement in the correctional facility, the statements of the sentencing judge and the district attorneys, if any, and any other material concerning the merits of the application shall be given such weight as to the governor may seem just and proper, in view of the circumstances of each particular case, a due regard being had to the reformation of the accused.”   Colo. Rev. Stat. § 16-17-102.

Frequency of Grants

As of June 2017, Governor Hickenlooper had granted only one pardon since taking office in 2012, to a native of Cuba seeking to avoid deportation.  See Keith Coffman, Colorado Governor Pardons Man Facing Deportation to Cuba, http://www.reuters.com/article/us-usa-immigration-colorado-idUSKCN18G058.  Other than this controversial grant of clemency, Governor Hickenlooper has showed very little interest in his pardoning power. He created a Executive Clemency Advisory Board in 2012, but did not appoint its members until January 2015.  A total of 220 applications were pending at that time. 

In recent years, there have been very few pardons granted by Colorado governors. Governor Ritter (2007-2011) granted only three pardons until his final two weeks in office, when he granted 39 pardons (one posthumously) and ten commutations.  His predecessor Bill Owens granted 13 pardons over his eight years in office.  Source: Colorado Governor’s Office.   It seems fair to conclude that the pardon power in Colorado is not functioning in a meaningful fashion.

Contact

Mark Noel
(303) 866-2471
Noel@doc.state.co.us.

B.  Judicial sealing and other relief

Criminal records can be sealed only under limited circumstances. Instructions for sealing criminal records, as well as the documents necessary for doing so, can be found on the Colorado State Judicial Branch website. http://www.courts.state.co.us/Forms/SubCategory.cfm?Category=Seal.

In 2011 Colorado enacted a major revision of its laws on sealing, and in 2014 it relocated and revised these laws.  Further revisions were made in 2016.  An additional filing fee is charged only for sealing of controlled substances convictions.

1.  Sealing of conviction records
  a. Records relating to controlled substance convictions

Individuals may request the court to seal conviction records for selected offenses involving controlled substances committed after 2008. Colo. Rev. Stat. § 24-72-704 (convictions between 2008 and 2011), § 24-72-705 (convictions after July 1, 2011). For pre-2011 convictions, there is a 10-year waiting period after completion of sentence, during which the petitioner cannot have been “charged or convicted” of a crime.  For post-2011 convictions, there is a variable eligibility waiting period ranging from one year for petty offenses, 3-to-5 years for misdemeanors, and 7-to-10 years for felonies.  § 24-72-705(1)(b).  An additional filing fee of $200 is charged over and above the fee otherwise required by law, which is deposited in the “Judicial Stabilization Cash Fund.” § 24-72-704(2)(b)(III).  

Felony drug offense “knocked down” to misdemeanor

Effective July 1, 2013, persons convicted of less serious felony drug offenses (whether by plea or trial) with no more than one prior conviction may have their convictions vacated and reduced to a misdemeanor upon successful completion of probation.  Colo. Rev. Stat. § 18-1.3-103.5 (“In order to expand opportunities for offenders to avoid a drug felony conviction, to reduce the significant negative consequences of that felony conviction, and to provide positive reinforcement for drug offenders who work to successfully complete any community-based sentence imposed by the court, the legislature hereby creates an additional opportunity for those drug offenders who may not otherwise have been eligible for or successful in other statutorily created programs that allow the drug offender to avoid a felony conviction, such as diversion or deferred judgment.”)  Felonies otherwise ineligible for sealing, see above, may become eligible following reduction.

Decriminalized marijuana offenses 

Effective August 2017, courts must, upon petition, seal the records of misdemeanor marijuana possession or use offenses that would not have been crimes if committed on or after December 10, 2012.  Colo. Rev. Stat. § 24-72-710  (added by HB 17-1266).

  b.  Sealing of petty and other convictions

Conviction records pertaining to petty offenses and municipal violations may be sealed under § 24-72-708 after a three-year waiting period during which the person has not been charged with or convicted of a felony or misdemeanor.  Effective August 2017, the standard will be loosened to permit sealing of violations not related to domestic violence after 3 years even if there was intervening conviction, so long as there was only one conviction; it was not a felony and did not involve domestic violence, child abuse, or sex abuse; and the person has not been convicted of another felony or misdemeanor in the 10 years preceding final disposition (or release, if later) in the intervening case.  § 24-72-708(a)(II) (added by HB 17-1360 (2017)). Exclusions apply for misdemeanor traffic offenses committed by commercial drivers. § 24-72-708(1)(a)(III). 

Victims of human trafficking convicted of several types of offenses, § 24-72-706; people convicted of posting a private image for harassment or pecuniary gain, § 24-72-709; those convicted of theft of public transportation services by fare evasion. § 24-72-707.  In addition, anyone convicted or charged with underage possession or consumption of alcohol or marijuana may apply for sealing. § 18-13-122(13).

Effect of sealing

Under the revised sealing scheme, employers, landlords, and state and local government agencies are generally prohibited from requiring applicants to disclose any information contained in sealed records. § 24-72-703(4)(d).   Upon the entry of an order to seal the conviction records, the defendant and all criminal justice agencies may properly reply, upon an inquiry in the matter, that public conviction records do not exist with respect to the defendant.  § 24-72-703(4).  However, an order sealing conviction records does not deny access to courts and law enforcement agencies, or any “party or agency required by law to conduct a criminal history record check on an individual.”  Id.  Also, some organizations, including the bar committee, the Department of Education, and criminal justice agencies, may still have access to some information in records sealed under these provisions.  Id.  The Colorado State Public Defender notes that “Individuals with sealed convictions may face a difficult decision regarding whether to tell others about a conviction the individual is not required to disclose but could nevertheless be uncovered during a background check.”

Procedural issues

Individuals must be advised by the court at sentencing about the provisions for sealing, and by the probation officer or parole officer upon the conclusion of supervision.  Colo. Rev. Stat. § 24-72-703(1).   Sealing does not vacate the conviction, and it may be used in subsequent prosecutions.  Id. § 24-72-703(4).  Any member of the public may petition the court to unseal “upon a showing that circumstances have come into existence since the original sealing and, as a result, the public interest in disclosure now outweighs the defendant’s interest in privacy.”  Id.  If a defendant is convicted of a new criminal offense after an order sealing conviction records is entered, the court shall order the conviction records to be unsealed. Id.

The office of the state court administrator shall post on its web site a list of all petitions to seal conviction records that are filed with a district court. A district court may not grant a petition to seal conviction records until at least thirty days after the posting. Id. at (5).   In regard to any conviction of a defendant resulting from a single case in which the defendant is convicted of more than one offense, records of the conviction may be sealed pursuant to the provisions of this part only if the records of every conviction of the defendant resulting from that case may be sealed.  Id. at (7). Conviction records may not be sealed if the defendant still owes restitution, fines, court costs, late fees, or other fees ordered by the court in the case that is the subject of the petition to seal conviction records.  Id. at (8).

Standards

The court may order the record sealed after a hearing “if the court finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records.” §§ 24-72-702(b), 703(c), 704(c).  In the case of conviction records, the court “shall, at a minimum, consider the severity of the offense that is the basis of the conviction records sought to be sealed, the criminal history of the defendant, the number of convictions and dates of the convictions for which the defendant is seeking to have the records sealed, and the need for the government agency to retain the records. §§ 704(c)(1), 705(e).  In the case of nonconviction records, the court is required to give notice of the reasons for denial. § 24-72-702(b).

2.  Sealing of non-conviction records

Under Colo. Rev. Stat. § 24-72-702, individuals may petition the court to seal arrest and criminal records other than those pertaining to a conviction if:

The records pertain to official actions involving a criminal offense for which the person in interest completed a diversion agreement, or was not charged and any applicable statute of limitations has run, or was not charged but the person is no longer being investigated by law enforcement, or a case which was completely dismissed, or a case in which the person was acquitted ….

Sealing may also be sought where a case was dismissed pursuant to a plea agreement in a separate case, after a 10-year waiting period following final disposition of all criminal proceedings against the person, as long as there are no intervening criminal charges.

Non-conviction records (other than those involving deferred dispositions) “shall” be sealed if eligible. § 24-72-702(1)(b)(II)(A).  Court is required to advise a defendant of the availability of this relief.  § 24-72-702(3).   Records pertaining to serious traffic offenses, and offenses involving holders of commercial drivers’ licenses, and sex offense, are not eligible for sealing. § 24-72-702(4).

Records pertaining to offenses resolved by pretrial diversion generally must be sealed, upon request by the defendant, following successful completion of the agreement. Colo. Rev. Stat. § 18-1.3-101(10)(c).

Sealed records are confidential, and criminal justice agencies receiving a record request must respond that “that no such record exists.”  An individual may deny the existence of the record in most instances, and employers, educational institutions, and state and local government agencies may not require disclosure. § 24-72-702(f)(I).

Expedited process for non-conviction sealing

In 2016, Colorado enacted Colo. Rev. Stat. § 24-72-702.5, creating an alternative expedited process for sealing non-conviction records.  Defendants may move immediately and informally to have the records of a case sealed at the time of acquittal or dismissal of all charges, including where charges are dismissed pursuant to diversion or deferred sentencing.  The eligibility requirements and standards applicable to sealing by petition apply. 

       Deferred Sentencing

Colo. Rev. Stat. § 18-1.3-102.  When a defendant enters a guilty plea, courts are authorized, with the consent of the defendant, his attorney, and the prosecutor, to “continue” the case, i.e. postpone the sentencing portion of the case.  The court may continue felony cases for up to four years, and misdemeanor cases for up to two years, during which the defendant is on probation.  Upon completion of the probationary period, the guilty plea is withdrawn and the charges are dismissed with prejudice.  If the defendant violates the terms of the probation, the prosecutor may move to revoke probation, and the judge decides, at a hearing, whether to revoke probation.  Deferred sentencing is used mostly for first-time drug offenders referred to drug court.  Sealing of arrest records is available if the charges are dismissed (see above).

       Pretrial Diversion

Effective August 7, 2013, each district attorney is authorized to establish a program for pretrial diversion available to all but specified serious sex offenses. See Colo. Rev Stat. § 18-1.3-101The purpose of the new authority is “to ensure defendant accountability while allowing defendants to avoid the collateral consequences associated with criminal charges and convictions.” § 18-1.3-101(1).  Eligibility:  In determining whether an individual is appropriate for diversion, the district attorney shall consider: (a) The nature of the crime charged and the circumstances surrounding it; (b) Any special characteristics or circumstances of the defendant; (c) Whether diversion is consistent with the defendant’s rehabilitation and reintegration; and (d) Whether the public interest will be best served by diverting the individual from prosecution.” § 18-1.3-101(3).  The term of diversion is generally two years.

“Upon the defendant’s satisfactory completion of and discharge from supervision, the court shall dismiss with prejudice all charges against the defendant. The effect of the dismissal is to restore the defendant to the status he or she occupied before the arrest, citation, or summons. A successfully completed diversion agreement shall not be considered a conviction for any purpose. A person with an order of dismissal entered pursuant to this article may not be subject to charge, prosecution, or liability under Colorado law of perjury or otherwise giving a false statement by reason of his or her failure to recite or acknowledge the arrest, citation, or summons in response to any inquiry made for any purpose.”

§ 18-1.3-101(10(b).

  Expungement of arrests based on mistaken identity:

“Notwithstanding any other provision of law, a court shall expunge the arrest and criminal records information of a person who was arrested as a result of mistaken identity and who did not have charges filed against him or her.” Colo. Rev. Stat. § 24-72-701.5 (enacted July 10, 2016).  The process is initiated by the arresting law enforcement agency, which must file an expungement petition with the district court within 90 days of “find[ing] that a person was arrested as a result of mistaken identity and no charges were filed.”  The court must expunge the records within 90 days of filing.  Employers, state and local agencies, and educational institutions may not require disclosure of records expunged under this authority, and a person may deny the fact of arrest without penalty.

3.  Expungement of juvenile records

A major rewrite of the juvenile expungement law, Colo. Rev. Stat. § 19-1-306, will take effect July 1, 2017.4 Under the new law, courts must expunge records of the following after 42 days: acquittals and dismissals (except in cases of diversion, deferred adjudication, or informal adjustment), and, upon completion of sentence, adjudications for petty offenses, class 3 & 4 misdemeanors, and level 1 & 2 drug misdemeanors. Colo. Rev. Stat. § 19-1-306(4)(a).  In the case of adjudications, exceptions apply for sex offenses, domestic violence, and crimes requiring victim notification.  § 19-1-306(4)(a)(III).

Most other less-serious dispositions, including some low-level felony adjudications, may be expunged through a process that it is automatically initiated 91 days after completion of diversion, deferred adjudication, adjustment, or adjudication for an eligible offense. § 19-1-306(5).5  The prosecutor (who receives notice of eligibility from the court after 91 days) and victim (who receives notice from the prosecutor) each have 84 days to object to the expungement.  § 19-1-306(5)(a) – (e).6  If neither objects, the court must order expungement. § 19-1-306(5)(d). If either objects, a hearing is held, to determine whether “the rehabilitation of the juvenile has been attained to the satisfaction of the court,” and that “the expungement is in the best interest of the juvenile and the community.”  § 19-1-306(5)(e) – (g).

Individuals adjudicated as “repeat offenders” and “mandatory sentence offenders” are not eligible for expugement under subsection (5), see § 19-1-306(5)(j), but may petition for expungement 36 months after completion of sentence if no charges or delinquency proceedings are pending.  § 19-1-306(6)(e).  The eligibility requirements, procedures, and standards set forth in subsection (5) apply.

Pursuant to § 19-1-306(8),

A court shall not expunge the record of a person who is:

(A) adjudicated as an aggravated juvenile offender pursuant to section 19-2-516 (4) or as a violent juvenile offender pursuant to section 19-2-516 (3);

(B) adjudicated of homicide and related offenses pursuant to part 1 of article 3 of title 18;

(C) adjudicated for a felony offense involving unlawful sexual behavior as described in section 16-22-102 (9); or

(D) charged, adjudicated, or convicted of any offense or infraction pursuant to title 42 [“Vehicles and Traffic”].

Records of municipal juvenile adjudications are automatically expunged 42 days after completion of sentence.  § 19-1-306(9).  The prosecutor may object, triggering a hearing in which the only issue is whether the sentence has been completed or the case is closed.  § 19-1-306(9)(c) – (e).

Expungement of records in other cases, including closed cases, is covered by subsection (6).

Expungement under § 19-1-306 seals the relevant records of the courts, law enforcement, the Division of Youth Corrections, and the Colorado Bureau of Investigation, and the records “are deemed never to have existed.” § 19-1-306(2)(g), (3); § 19-1-103(48).  An individual may deny the fact of arrest or adjudication. § 19-1-306(1)(a).

Separate sealing authority exists for juvenile records in cases of underage alcohol consumption/possession.  Sealing is available after 1 year if the person has not been arrested, charged, or convicted of a crime in the year following conviction.   See Colo. Rev. Stat. § 18-13-122(10).

Expungement of underage DUI offenses

Records of conviction for less serious underage DUI offenses (“UDD” offenses) may be         “expunged” after a person’s twenty-first birthday subject to certain conditions and exceptions.  See Colo. Rev. Stat. §§ 42-4-1715(1)(b),  42-2-121(5).

C.  Collateral Relief at Sentencing

Effective May 2013, the sentencing court imposing a non-prison sentence may enter an “order of collateral relief” “for the purpose of preserving or enhancing the defendant’s employment or employment prospects and to improve the defendant’s likelihood of success” while serving the non-prison sentence.  See subsection 1 of the substantially identical provisions of Colo. Rev. Stat. §§ 18-1.3-107 (sentencing alternatives), 18-1.3-213 (probation), and 18-1.3-303 (community corrections).  Under subsection 2 of the three provisions, an application for an order of collateral relief must cite the grounds for granting the relief, the type of relief sought, and the specific collateral consequence from which the applicant is seeking relief.   The applicant must provide a copy of the application to the district attorney and to the regulatory or licensing body that has jurisdiction over the collateral consequence from which the applicant is seeking relief, if any.  Subsection 3 of each of the three statutes provides:

An order of collateral relief may relieve a defendant of any collateral consequences of the conviction, whether in housing or employment barriers or any other sanction or disqualification that the court shall specify, including but not limited to statutory, regulatory, or other collateral consequences that the court may see fit to relieve that will assist the defendant in successfully completing probation or a community corrections sentence.

An order of collateral relief cannot relieve any collateral consequences imposed by law for licensure by the department of education or any collateral consequences7 imposed by law for employment with the judicial branch, the department of corrections, division of youth corrections in the department of human services, or any other law enforcement agency in the state of Colorado.  Certain offenses are not eligible, including crimes of violence and sexual offenses.  Standards for relief are set forth in subsection 6(a):

A court may issue an order of collateral relief if the court finds that: (I) The order of collateral relief is consistent with the applicant’s rehabilitation; and (II) Granting the application would improve the applicant’s likelihood of success in reintegrating into society and is in the public’s interest.

The court “may at any time issue a subsequent judgment to enlarge, limit, or circumscribe the relief previously granted,” or may revoke the relief upon evidence of a subsequent criminal conviction or proof that the defendant is no longer entitled to relief.  See subsection 6(b)-(c).

The Colorado State Judicial Branch has issued instructions for filing for orders of collateral relief, at http://www.courts.state.co.us/Forms/renderForm1.cfm?Form=869.

III.   Nondiscrimination in Licensing and Employment
A.  Consideration of conviction in public employment & licensing

Colo. Rev. Stat. § 24-5-101(1)(a):

[T]he fact that a person has been convicted of a felony or other offense involving moral turpitude shall not, in and of itself, prevent the person from applying for and obtaining public employment or from applying for and receiving a license, certification, permit, or registration required by the laws of this state to follow any business, occupation, or profession.8

Whenever any state or local agency is required to make a finding of “good moral character” as a condition of issuing a license or permit, the fact that someone has in the past been convicted  “shall be given consideration in determining whether, in fact, the applicant is a person of good moral character at the time of the application. The intent of this section is to expand employment opportunities for persons who, notwithstanding that fact of conviction of an offense, have been rehabilitated and are ready to accept the responsibilities of a law-abiding and productive member of society.”   § 24-5-101(2).    See Smith v. Colo. Motor Vehicle Dealer Bd., 200 P.3d 1115 (Colo. App. 2008) (conviction may serve as a basis for delaying, but not permanently denying, a motor vehicle salesperson license; fact that licensing statute specifies certain convictions within the past 10 years as potentially disqualifying does not create irreconcilable conflict with [§ 24-5-101(1)]”). See also City of Colo. Springs v. Givan, 897 P.2d 753 (Colo. 1995) (reversing intermediate court finding that city manager abused discretion in discharging long-time city employee because of incest conviction; though employee’s work record was excellent, and testimony of co-workers was equivocal on likely impact of his serious conviction on morale in workplace, city may consider both impact on employees he supervised and public perception of city).

Ban-the-Box and Standards for considering arrests and convictions

In May 2012, Colo. Rev. Stat. § 24-5-101 was amended to prohibit state agencies from performing a background check “until the agency determines that an applicant is a finalist or makes a conditional offer of employment to the applicant.” § 24-5-101(3)(b).  In determining whether a conviction disqualifies an applicant, the state or licensing agency must consider (1) the nature of the conviction; (2) the relationship of the conviction to the job; (3) the applicant’s rehabilitation and good conduct; and (4) time elapsed since conviction.  § 24-5-101(4).  The law prevents agencies from using arrests not leading to conviction in deciding whether to deny or withdraw an offer.  Agencies may not disqualify an applicant based on an expunged, sealed, or pardoned conviction or charges dismissed pursuant to a deferred judgment, unless they first consider the four factors listed above.  § 24-5-101(3)(d).  This law does not apply where a statute bars licensing based on criminal convictions.  § 24-5-101(3)(a).  Consideration of criminal history information that the applicant voluntarily provides is permitted.  § 24-5-101(3)(e).  The law addresses blanket bans in job ads by prohibiting the advertisement of a position with a statement that a person with a criminal record may not apply (unless the law itself prohibits hiring someone with a conviction).  § 24-5-101(3)(a).

Exceptions

Section 24-5-101(1) does not apply to certain persons seeking public office and persons seeking licensure and employment in positions involving direct contact with vulnerable persons, public safety, corrections, education, or with the public employees’ retirement association.9 Section 24-5-101 may also be overridden by statutory requirements related to specific licenses or employment.  See § 24-34-102(8.7) (§ 24-5-101 applies to licensing under titles 10 (“Insurance”) and 12 (“Professions and Occupations”) of the Colorado Statutes “[u]nless there is a specific statutory disqualification that prohibits an applicant from obtaining licensure”); see also § 27-90-111 (screening and disqualification requirements applicable to department of human services employees who have direct contact with vulnerable persons).

B.  General Assembly review of regulatory agencies

Under a law enacted in 2013, General Assembly must determine “Whether the agency through its licensing or certification process imposes any disqualifications on applicants based on past criminal history and, if so, whether the disqualifications serve public safety or commercial or consumer protection interests.” Colo. Rev. Stat. § 24-34-104(6)(b)(IX).  To assist in considering this factor, the department of regulatory agencies shall prepare an analysis including “data on the number of licenses or certifications that were denied, revoked, or suspended based on a disqualification and the basis for the disqualification.” Id.

C.  Sunrise provision for new licensing requirements

Any proposal to regulate a new profession or occupation must include “A description of any anticipated disqualifications on an applicant for licensure, certification, relicensure, or recertification based on criminal history and how the disqualifications serve public safety or commercial or consumer protection interests.” Colo. Rev. Stat. § 24-34-104.1(2)(f).  See also id. at (4)(b)(IV) (factors to be considered in deciding whether regulation is necessary include “Whether the imposition of any disqualifications . . . based on criminal history serves public safety or commercial or consumer protection interests”).

D.  Negligent Hiring

Colorado limits employer liability exposure by preventing the introduction of an employee’s criminal record in a civil action for negligent hiring if “[t]he nature of the criminal history does not bear a direct relationship to the facts underlying the cause of action.”  Colo. Rev. Stat. § 8-2-201(b). Information regarding an employee’s criminal history also will be excluded if the employee’s record is sealed, if the employee received a pardon, if the record involves an arrest or charge that did not result in a conviction, or if the individual received a deferred judgment at sentencing.  Id.  The legislative declaration accompanying this provision states that employers may be reluctant to hire employees with a criminal record “due to a lack of clarity regarding the employer’s risk of liability for such hire,” that there is “a direct correlation between employment and reduced recidivism” so that “it is in the public interest to clarify employer liability,” and that “it is necessary and appropriate for the General Assembly to reduce unnecessary barriers to employment for persons with a criminal conviction and thereby promote economic opportunity, poverty reduction, and public safety in the state of Colorado.”  See H.B. 10-1023, ch 42, p. 167, § 2 (2010)(An act concerning clarifying civil liability regarding negligent hiring practices for an employer that hires a person with a criminal record”).


  1. Col. Rev. Stat. § 1-2-103(4) was amended in May 2005 to add “for a felony conviction” to the text of the statute.  Prior to that time, the prohibition on voting applicable to incarcerated persons had been interpreted to extend to misdemeanants as well as felony offenders.
  2. Under the determinate sentencing law adopted by Colorado in 1993, a period of “mandatory parole” following a sentence to confinement “is no longer related to the unserved remainder of the sentence to confinement.”  People v. Norton, 63 P.3d 339, 343 (Colo. 2003).  In light of the constitutional direction that a person “shall be restored to the rights of citizenship after serving out his full term of imprisonment,” it is not clear whether the statutory extension of disenfranchisement to the period of parole in § 1-2-103(4) survives this change in Colorado’s sentencing law.
  3. In an opinion dated October 31, 2008, the General Counsel, Administrative Office for U.S. Courts, opined that federal supervised release, as a penalty imposed separately from a prison sentence, is analogous to probation as opposed to parole.  (Opinion on file with author.)
  4. Previously, expungement was available for less-serious offenses only by petition, and subject to the court’s discretion and a waiting period that varied based on the seriousness of the offense.
  5. Eligible dispositions and offenses are listed at § 19-1-306(5)(a):

    I) A juvenile diversion program, a deferred adjudication, or an informal adjustment;

    II) A juvenile sentence for an adjudication for a class misdemeanor or a petty or a misdemeanor offense that is not eligible for expungement under subsection (4) of this section, if the offense did not involve unlawful sexual behavior as defined in section 16-22-102 (9).

    III) A juvenile sentence for an adjudication for a misdemeanor offense involving unlawful sexual contact as described in section 18-3-404; or

    IV) A juvenile sentence for an adjudication for a felony offense or felony drug offense if:

    A) The felony offense did not constitute unlawful sexual behavior as defined in section 16-22-102 (9);

    B) The felony offense was not a crime of violence as described in section 18-1.3-406;

    C) The felony offense was not a class 1 or class 2 felony; and

    D) The juvenile had no prior felony adjudications.

  6. When accepting a plea, the prosecutor may agree, with the victim’s consent, not to object to expungement following completion of sentence.  In such cases, the court will automatically expunge the record.  § 19-1-306(5)(i).
  7. The term “collateral consequences” is defined in subsection 8 to include “collateral sanctions” and “disqualifications,” and those terms are defined in substantially the same terms as in the Uniform Collateral Consequences of Conviction Act.
  8. See Smith v. Colo. Motor Vehicle Dealer Bd., 200 P.3d 1115, 1117 (Colo. App. 2008):

    Section 24-5-101, in its original form, was part of the ‘Ex-Offenders’ Rights Act.’ See ch. 151, sec. 1, § 39-25-101, 1973 Colo. Sess. Laws 513; Ficarra v. Dep’t of Regulatory Agencies, 849 P.2d 6, 8 (Colo. 1993). This statute applies generally to state and local licensing agencies, see R & F Enters., Inc. v. Bd. of Cnty. Comm’rs, 606 P.2d 64, 66 (1980), and, according to the supreme court, ‘is an expression by the general assembly of a public concern that persons who have been convicted of felonies or crimes of moral turpitude should not be deprived of the right to gainful employment solely due to their past activities.’  Beathune v. Colo. Dealer Licensing Bd., 601 P.2d 1386, 1387 (1979).”

  9. § 24-5-101(1)(b):

    “(b) This subsection (1) shall not apply to:

    (I) The offices and convictions described in section 4 of article XII of the state constitution;

    (II) The certification and revocation of certification of peace officers as provided in section 24-31-305;

    (III) The employment of personnel in positions involving direct contact with vulnerable persons as specified in section 27-90-111, C.R.S.;

    (IV) The licensure or authorization of educators prohibited pursuant to section 22-60.5-107(2), (2.5), or (2.6), C.R.S.;

    (V) The employment of persons in public or private correctional facilities pursuant to the provisions of sections 17-1-109.5 and 17-1-202(1)(a)(I) and (1.5), C.R.S., and the employment of persons in public or private juvenile facilities pursuant to the provisions of sections 19-2-403.3 and 19-2-410(4), C.R.S.;

    (VI) The employment of persons by the public employees’ retirement association created pursuant to section 24-51-201 who, upon the commencement of that employment, will have access to association investment information, association assets, or financial, demographic, or other information relating to association members or beneficiaries; and

    (VII) The employment of persons by the department of public safety.”

Restoration of Rights/Connecticut

connecticut-flag-map-highway-sign-tee-women-s-v-neck-t-shirtI.  Restoration of Civil/Firearms Rights
A.  Civil Rights

Vote/Office:  The rights to vote and hold office are lost upon conviction of a felony and actual incarceration (“committal to the custody of the Commissioner of Correction for confinement in a correctional institution or facility or a community residence”). Conn. Gen. Stat. § 9-46(a). The right to vote is regained upon discharge from sentence, including payment of fines and any period of parole. Conn. Gen. Stat. § 9-46a(a) (right to vote “restored upon [proof of] the payment of all fines in conjunction with the conviction and once such person has been discharged from confinement, and, if applicable, parole”). Restoration of the right to vote results automatically in restoration of the right to hold public office. Id. §§ 9-46(b), 9-46a(b).  The Commissioner of Correction is required to inform prisoners of the rights and procedures to have their electoral rights restored, and to notify the Secretary of State, for transmission to local electoral boards, when prisoners are discharged from their sentences. Id. §§ 9-46a(d), (e). The Administrative Office for U.S. Courts has taken the position that federal offenders on supervised release are entitled to register and vote.1

Jury: The right to serve on a jury is lost upon conviction of a felony and restored automatically after seven years (unless the person is incarcerated).  Conn. Gen. Stat. § 51-217(a)(2).  A pardon will relieve this disability earlier.

B.  Firearms

A permit to carry a revolver or a pistol is prohibited to persons convicted of a felony or adjudicated delinquent for a “serious juvenile offense.”  See Conn. Gen. Stat. §§ 29-28(b), 29-32 (revocation of permit); see also § 53a-217(a) (felony possession of firearm). See Conn. Gen. Stat. § 29-36f(b) (denial of certificate of eligibility to purchase a pistol or revolver).  Firearms rights can only be restored through pardon.

II.  Discretionary Restoration Mechanisms
A.  Pardon (including Provisional Pardon and Certificate of Rehabilitation/Employability)
Authority

Pardons are issued by the Board of Pardons and Paroles, an autonomous state agency with administrative support provided by the Department of Correction. Conn. Gen. Stat. § 54-124a(f); http://www.ct.gov/doc/bopp. 2 The Board consists of ten full-time and five part-time members appointed by the Governor, with the advice and consent of both houses of the General Assembly. Conn. Gen. Stat. § 54-124a(a). The Governor appoints the chair. § 54-124a(a).  Five members consider pardon applications exclusively, seven members consider paroles and the chair does both. Id. § 54-124a(a). The Governor has limited power to grant reprieves after conviction. Conn. Const. art. 4, § 13. See www.ct.gov/doc/bopp for information about Board policies and procedures. See also OLR Research Report No. 2007-R-0533(“Board of Pardons and Paroles”), available at http://www.cga.ct.gov/2007/rpt/2007-R-0533.htm.

The Board offers two types of pardon: an absolute or “expungement” pardon, and a “provisional” pardon. Conn. Gen. Stat. § 54-130a(b).  See generally OLR Research Report No. 2007-R-0561 (“Pardons and Provisional Pardons”), available at http://www.cga.ct.gov/2007/rpt/2007-R-0561.htm. Effective January 1, 2015, the Board also offers a “Certificate of Rehabilitation” (COR),3 which is functionally and procedurally interchangeable with a provisional pardon – with the one significant difference that a Certificate of Rehabilitation is available from the Court Support Services Division (CSSD) to individuals under the court’s supervisory jurisdiction. Conn. Gen. Stat. § 54-130a(b); P.A. 14-27 § 3(a) (2014). By statute, both a provisional pardon and a COR share the same eligibility requirements, offer the same relief, and are subject to expansion and revocation under the same circumstances and to the same effect.4   A COR must be styled either a “certificate of employability” or a “certificate of suitability for licensure,” or both, depending on the scope of relief afforded. § 54-130e(b). Governor Malloy’s administration (2011 – ) has taken the position that it will no longer issue provisional pardons, and will grant CORs instead.  Source: Board of Parole & Probation.

Eligibility
Absolute Pardon

May be sought five years after conviction for felonies, three for misdemeanors. Eligibility period may be waived in “extraordinary circumstances.” Persons convicted under federal law or the laws of another state are ineligible for an absolute pardon. Conn. Gen. Stat. § 54-130a(c) (referring to jurisdiction over crimes “against the state”).

Provisional Pardon & Certificate of Rehabilitation/Employability

May be sought at any time after sentencing, if (1) the person was convicted of a crime in Connecticut or another jurisdiction and resides in the state (2) the relief in the provisional pardon may promote the public policy of rehabilitating ex-offenders through employment and (3) the relief is consistent with the public’s interest in safety and protecting property. Id. §§ 54-130e(a)(2), (c), (d). Individuals convicted under federal law or the law of another state are eligible for a provisional pardon or Certificate of Rehabilitation if they reside or do business in the state.

Effect
Absolute Pardon (“expungement pardon”)

Relieves all legal disabilities, including those relating to employment and licensure, and results automatically in “erasure” of court records relating to the offense. Conn. Gen. Stat. §§ 54-142a(d), (e) (see Part IIB below for effect of erasure).

Provisional Pardon & Certificate of Rehabilitation/Employability

[Provisional pardon] relieve[s] an eligible offender of barriers or forfeitures by reason of such person’s conviction of the crime or crimes specified in such provisional pardon. Such provisional pardon may be limited to one or more enumerated barriers or forfeitures or may relieve the eligible offender of all barriers and forfeitures. No provisional pardon shall apply or be construed to apply to the right of such person to retain or be eligible for public office.

Id. § 54-130e(b). “Barriers” and “forfeitures” are defined as mandatory automatic collateral penalties,5 so that the effect of a provisional pardon seems to be to remove the mandatory barriers and allow individualized consideration under the standards set forth in Connecticut’s nondiscrimination statute.  See Part III, infra.

A provisional pardon does not erase the record of the conviction of the offense, or relieve an obligation to disclose the existence of the conviction. A provisional pardon “merely states that the applicant is employable, making it illegal for the employer to deny employment based on the applicant’s criminal record alone.” http://www.ct.gov/doc/lib/doc/pdf/PardonFAQ.pdf. See also Conn. Gen. Stat. § 54-124e(a)(6) (it is a “form of relief to barriers or forfeitures to employment or the issuance of licenses”); Part III, infra (describing prohibitions on employment and licensing discrimination based on a conviction for which provisional pardon has been granted). Provisional pardon may be enlarged at any time. Id. § 54-124e(h). It is considered temporary while a person is on probation or parole, and may be rescinded in the event of a violation. Id. § 54- 124e(g). Legislation enacted in 2014 requires that a provisional pardon, temporary or otherwise, must be revoked upon conviction for a subsequent crime.  Id. § 54-124e(k) (as amended by P.A. 14-27 (2014)).

Applicable Procedures
Pardon

An application to the Board for a Pardon must describe the offense and reason for seeking a pardon. Instructions are available at http://www.ct.gov/doc/lib/doc/PDF/form/PardonClemencyInstructions.pdf. Application forms for both full and provisional pardons are available at http://www.ct.gov/doc/lib/doc/PDF/form/PardonFormerOffender.pdf. See also Frequently Asked Questions: http://www.ct.gov/doc/lib/doc/pdf/PardonFAQ.pdf. According to the Board, 35% of applications received in 2010 were denied without hearing (about 25% in 2009); about 26% of applications in 2010 (and 22% in 2009) went to hearings held eight times a year in a courtroom at alternating geographic locations throughout the state. See http://www.ct.gov/doc/lib/doc/PDF/PDFReport/PardonsCounts.pdf; Gen. Stat. § 54- 124a(k) (hearings required at least once every three months). The pardon process takes about one year. See http://www.ct.gov/doc/lib/doc/pdf/PardonFAQ.pdf.

Hearing procedure: The board sits in panels of three, and must have a hearing at least once every three months. Conn. Gen. Stat. §§ 54-124a(e), (k). Applications are sent to the States Attorney, who may appear. Conn. Agencies Regs. § 54-124a(j)(2)-6. Board members assigned to pardon hearings must issue written statements containing the reasons for rejecting any application for a pardon. Conn. Gen. Stat. §§ 54-124a (j)(3); Conn. Agencies Regs. § 54-124a (j)(3)-1.  Applicant generally are expected to appear.

Expedited proceeding for nonviolent crimes: The chair, in consultation with the executive director, is authorized by Conn. Gen. Stat. § 54-124a(j)(2) to promulgate rules to dispense with a hearing in cases of nonviolent crimes.   See Conn. Agencies Regs. §§ 54-124a (j)(2)-1a through 8a (expedited pardons process).  The waiting period for seeking pardon of these felonies without a hearing is five years for a felony and three for a misdemeanor.  Conn. Agencies Regs.  § 54-124a(j)(2)-6a.  At least two members of the Board must agree to grant a pardon without a hearing, and have discretion to require a full hearing depending upon the seriousness of the offense and other considerations. Id. § 54-124a (j)(2)-5a.

Procedures for provisional pardons and CORs

Though provisional pardons and CORs are functionally identical, a separate application exists for each. Unlike the provisional pardon application, the COR application does not require disclosure of criminal history, and the Board bears the burden of acquiring an applicant’s criminal history report. Unlike a full pardon, applications for a provisional pardon or COR are reviewed on a paper record. The entity that initially issues a COR (the Board or CSSD) retains the exclusive authority to revoke the certificate or enlarge its scope. Id. Upon revocation, the COR must be surrendered to the entity that issued it. Id. Applications for a COR from the Board are available at http://www.ct.gov/bopp/lib/bopp/BOPP_Certificate_Employability_Application_UPDATED.pdf; applications for a COR from the CSSD certificates are available at http://www.jud.ct.gov/WebForms/forms/AP187.pdf.

Connecticut Pardon Team

This organization offers assistance to individuals interested in applying for pardon, for a modest fee (packages start at $150, or hourly assistance at $75/hour). Their website is filled with helpful information about how to apply for a pardon, including coaching as to how to qualify. http://www.connecticutpardonteam.com/. “The Connecticut Pardon Team has provided information and education to thousands of individuals since 2004 which has helped them determine their eligibility to apply for an expungement pardon. By raising public awareness of the process of applying for a Pardon, and the procedures surrounding the Pardon Process, we have helped to publicize the process and make it more visible[.]” BOPP Forms and regulations are available on the website.6

Frequency of Grants

The number of pardon applications has soared in recent years, from 393 in 2006 to 1555 in 2016. According to Board staff, about half of all applications are from misdemeanants. More than half of those who applied were granted a full hearing, and most of those whose cases were heard were pardoned.  The overall grant rate has increased in recent years, from 47% in 2013 to 62% in 2016.  See http://www.ct.gov/bopp/cwp/view.asp?a=4331&q=550204.  Commutations are infrequent because state courts have general sentence modification authority, although commutations have occasionally been granted to make people eligible for parole.

Fiscal
Year
Applications received
Applications deemed eligible
Granted (Full Pardon/Provisional [COE]/Conditional)

Denied w/o hearing
Denied after hearing

2016
1555
842
672/101/0

407
62

2015
1178
740
366/168/0

328
39

2014
905
782

176/23/0


325
19

2013
926
901

254/48/12


341
14

2012
983
717
277/22/34

381
38

Year
Applications received
—-

Granted w/o public hearing (Administrative, No Shows and Provisional)

Granted after hearing
Denied w/o hearing
Denied after hearing

2011
849

147
(57 Prov. & 18 No- shows)
233
412
39

2010
925

215
(63 Prov. & 32 No- shows)
188
327
48

2009
1290

220
(66 Prov. & 8 No- shows)
259
318
26

2008
835

32 Prov.
467
304
32

2007
495

4 Prov.
312
155
17

2006
393

0
220
144
26

2005
347

0
188
121
38

Source: Connecticut Board of Pardons and Paroles, http://www.ct.gov/bopp/cwp/view.asp?a=4331&q=550204.
Multiple charts account for changes in statistical reporting by the Board.

Contact

Tara Brooks
Pardon Unit, Board of Pardons and Paroles
55 West Main Street
Waterbury, CT 06072
Phone: (203) 805-6643 (Pardons Unit)
Fax: (203) 805-6652
tara.brooks@ct.gov

B.  Judicial sealing or expungement
1.  Erasure of pardoned offenses

Conn. Gen. Stat. § 54-142a(d) provides that where an individual is granted an absolute pardon, “all police and court records and records of the state’s or prosecuting attorney pertaining to such case [are] erased.” Thereafter, “any person [or law enforcement agency] charged with retention and control of such records,” may not disclose to anyone (including law enforcement) any information pertaining to the charge erased and, upon request of the pardoned individual, must “cause the actual physical destruction of [all court] records.” Conn. Gen. Stat. § 54-142a(e); see also Doe v. Manson, 438 A.2d 859 (Conn. 1981) (holding not all prison records are “court records” subject to required destruction under § 54-142a). Although such physical destruction may not occur “until three years have elapsed from the date of the final disposition of the criminal case to which such records pertain,” upon erasure, the individual is “deemed to have never been arrested … with respect to the proceedings so erased and may so swear under oath.” Conn. Gen. Stat. § 54-142a(e); see also State v. Van Heck, 651 N.W. 2d 174, 177-79 (Mich. Ct. App. 2002) (describing effect of a Connecticut pardon).

2.  Diversion/Deferred adjudication programs leading to erasure of records

The erasure provisions of Conn. Gen. Stat. § 54-142a apply to several separate deferred adjudication programs. See Gen. Stat. § 29-33(h) (sale or transfer of pistols and revolvers); Conn. Gen. Stat. § 17a-692 et seq. (Suspended Prosecution or Conviction and Probation and Court-Ordered Treatment for Drug or Alcohol Dependency); § 46b-38c (Family Violence Education Program); § 53a-39a (Alternate Incarceration Program); § 53a-39c (Community Service Labor Program); § 54-56e (Accelerated Pretrial Rehabilitation); § 54-56g (Pretrial Alcohol Education) and § 54-56i (Pretrial Drug Education Program); § 54-56j (Pretrial School Violence Prevention Program).

3.  Juvenile and youthful offenders

Juveniles may petition for “erasure” of records. Conn. Gen. Stat. § 46b-146. Erasure is immediate when a case is dismissed and is entered 13 months after the entering of a nolle prosequi or prosecutorial inaction. , § 46b-133a(b).  Before seeking erasure, juvenile delinquents must wait two years for less serious offenses and four years for more serious offenses; good cause waivers are available. Id. § 46b-146. In addition, the juvenile must be at least age 17 and have no subsequent convictions or pending charges. Id. A person may deny the existence of an erased court record. Id.

4.  Non-conviction records

Conn. Gen. Stat. § 54-142a provides general authority for “erasure” of criminal records where charges have been dismissed or nulled, or where a person has been acquitted. Where the erasure statute applies, a court may proceed on its own motion to dismiss charges, and records will be automatically

Effect of erasure

Under Conn. Gen. Stat. § 54-142a(e), any person whose criminal records have been erased pursuant to that provision or youthful offender statutes, “shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.” See also Gen. Stat. § 31-51i(b), limitations on employer inquiries, below. In Martin v. Hearst, the federal court of appeals held that publishers could not be held liable in damages for refusing to remove from their internet site accounts of a woman’s arrest that had been erased, and that the “deemer” clause “does not purport to change history.” See Martin v. Hearst Newspapers, Docket No. 13-3315 (2d Cir., Jan. 28, 2015)  The court of appeals explained that the Erasure Statute was intended to operate in the context of the justice system, to prohibit disclosure by government agencies, to bar reliance on the arrest in any subsequent criminal proceeding, and to permit the person arrested to swear under oath that the arrest never occurred. However, it was not intended to create any duties on the part of private parties (notably including publishers) or create a cause of cause of action against them.

III.  Nondiscrimination in Licensing and Employment
A.  General Limitations on Consideration of Conviction in Public Employment and Licensing

With limited exceptions relating to law enforcement and certain mortgage-related licenses, public employers and licensing authorities may not disqualify a person automatically on the grounds of a prior conviction but must consider: 1) the nature of crime and its relationship to the job; 2) information pertaining to rehabilitation; and 3) time elapsed since conviction. Conn. Gen. Stat. §§ 46a-80(a) and (c).7 If a conviction of a crime is used as a basis for rejection of an applicant, such rejection shall be in writing and specifically state the evidence presented and reasons for rejection. § 46a-80(d). A copy of such rejection shall be sent by registered mail to the applicant. “In no case may records of arrest, which are not followed by a conviction, or records of convictions, which have been erased, be used, distributed or disseminated by the state or any of its agencies in connection with an application for employment or for a permit, license, certificate or registration.” § 46a-80(e). See Jennifer Leavitt, Walking a Tightrope: Balancing Competing Public Interests in the Employment of Criminal Offenders, 34 CONN. L. REV. 1281 (2002). The public policy in the statute is that “the public is best protected when criminal offenders are rehabilitated and returned to society prepared to take their places as productive citizens and that the ability of returned offenders to find meaningful employment is directly related to their normal functioning in the community.”  Conn. Gen. Stat. § 46a-79.

B.  Limits on discrimination in licensing and employment for provisionally pardoned offenses and certificates of rehabilitation
Private employment

“No employer or employer’s agent, representative or designee shall deny employment to a prospective employee solely on the basis that the prospective employee … had a prior conviction for which the prospective employee has received a provisional pardon or certificate of rehabilitation …” Conn. Gen. Stat. § 31- 51i(d). Discharge of an employee on the same basis is similarly prohibited. See id. § 31-51i(e).

Public employment and licensure

In 2014, new legislation augmented the law governing discrimination in public employment and licensing, see supra, to provide that “the state or any of its agencies shall give consideration to a provisional pardon . . . or a certificate of rehabilitation . . . , and such provisional pardon or certificate of rehabilitation shall establish a presumption that such applicant has been rehabilitated.” § 46a- 80(c) (as amended by P.A. 14-27 (2014)).

C.  Ban-the-Box in public & private employment

Governor Malloy signed HB 5237 in June 2016, banning the box in private and public employment effective January 1, 2017:

No employer shall inquire about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application, unless (1) the employer is required to do so by an applicable state or federal law, or (2) a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.

Conn. Gen. Stat. § 31-51i(b) (as amended by HB 5237 (2016)).  The new law covers “any person engaged in business who has one or more employees, including the state or any political subdivision of the state.”  § 31-51i(a).

HB 5237 did not explicitly repeal the existing ban-the-box provision at § 46a- 80(b), which applies only to state employers (not including political subdivisions of the state):

Except for a position for which any provision of the general statutes specifically disqualifies a person from employment by the state or any of its agencies because of a prior conviction of a crime, no employer, as defined in section 5-270, shall inquire about a prospective employee’s past convictions until such prospective employee has been deemed otherwise qualified for the position.

It is unclear whether this provision remains operative following HB 5237’s enactment. 

D.  Employer inquiries into erased convictions prohibited

No employer, including the state, may require an employee or prospective employee to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to § 54-142a(e). Conn. Gen. Stat. §§ 31-51i(c), (e) (prohibiting denial of employment on this basis), (f) (prohibiting discharge on this basis). An employment application form that contains any question concerning the criminal history of the applicant:

shall contain a notice, in clear and conspicuous language: 1) That the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased . . . 2) that criminal records subject to erasure . . . [include] records pertaining to a finding of delinquency . . . , an adjudication as a youthful offender, a criminal charge that has been dismissed or nulled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon, and 3) that any person whose criminal records have been erased . . . shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.

§ 31-51i(d). No employer may discharge, “or in any manner discriminate against” any person solely because of a conviction, the records of which have been erased. § 31-51i(f). The portion of the employment application containing criminal history may be available to employer’s personnel department and, as necessary in certain circumstances, disclosed by broker-dealers or insured banks under FDIC requirements of background check. §§ 31-51i(g), (h).


  1. In an informal opinion dated October 31, 2008 (on file with author), the General Counsel, Administrative Office for U.S. Courts, opined that federal supervised release, as a penalty imposed separately from a prison sentence, is analogous to probation as opposed to parole. California forbids parolees from voting and takes a similar position regarding those under community supervision: In 2015 the Secretary of State restored voting rights to those on community supervision, agreeing with a 2014 state Superior Court decision that determined that supervision was distinct from parole. See Press Release, California Secretary of State, Secretary Padilla Ends Appeal of Scott v. Bowen Case (Aug. 4, 2014), http://www.sos.ca.gov/administration/news-releases-and-advisories/2015-news-releases- and-advisories/secretary-padilla-ends-appeal-scott-v-bowen-case/; Briefs and Orders in Scott v. Bowen at https://www.brennancenter.org/legal-work/scott-v-bowen. This reversed a 2011 directive issued by the previous Secretary of State that denied voting rights to those on community supervision because it was akin to parole.
  2. Until 2004, pardon power was exercised by an independent Board of Pardons, under Conn. Gen. Stat. § 18-26 (2003). The Board was staffed by a private practitioner under contract. The Board of Pardons restructured and merged into the Parole Board in July 2004.  See Conn. Gen. Stat. § 54-124e.
  3. Both the Board and CSSD refer to the certificate as a “certificate of employability” on their website and in their applications.
  4. Though a certificate issued by CSSD may be revoked for a violation of probation or parole (as is the case with a certificate issued by the board), the statute governing CSSD-issued certificates is silent as to whether revocation of a CSSD-issued certificate is mandatory upon subsequent conviction as it is for board-issued certificates. However, the CSSD website states that “CSSD will automatically revoke any Certificate of Employability if you are convicted of any crime after you get a certificate.” See http://www.jud.ct.gov/CSSD/cert_emp.htm.
  5. A “barrier” is “a denial of employment or a license based on an eligible offender’s conviction of a crime without due consideration of whether the nature of the crime bears a direct relationship to such employment or license.” Id. § 54- 130e(a)(1). Direct relationship is defined to mean that the nature of the criminal conduct for which a person was convicted has a direct bearing on the person’s fitness or ability to perform one or more of the duties or responsibilities necessarily related to the applicable employment or license.” Id. § 54-130e(a)(2) (as amended by P.A. 14-27 (2014)). A “forfeiture” is “a disqualification or ineligibility for employment or a license by reason of law based on an eligible offender’s conviction of a crime.” Id. § 54-130e(a)(6).
  6. Thoughtful comments on the Pardon Team website suggest some of the common reasons people may apply for pardon:

    Does this sound like you?

    At some time in your past, you made a mistake. You were convicted of a crime, and you served your sentence or completed your probation or parole, and are now attempting to rebuild your life.

    Perhaps you’ve already rebuilt your life – you’ve worked hard, and are now raising a family.  You are a

    hard-working, good person who has a ‘spot’ on your record that is holding you back. You sometimes live in fear that someone will discover your past and hold it against you.

    You’re afraid that you could lose a job that you love, that provides shelter and essentials for your family, or that your past becoming public knowledge could subject those you love to ridicule and persecution.

    You don’t apply for supervisory positions or promotions at your job because you’re afraid that a background check might turn up your past indiscretion, even if it was more than 20 years ago. You have a degree or advanced training, but can’t put it to work because of your record.

    It’s time to stop worrying about your past and DO something about it. . . .

    http://www.connecticutpardonteam.com/aboutourparticipants.htm.

  7. Section 46a-80(a) provides in full as follows:

    “[With limited exceptions,] a person shall not be disqualified from employment by the state of Connecticut or any of its agencies, nor shall a person be disqualified to practice, pursue or engage in any occupation, trade, vocation, profession or business for which a license, permit, certificate or registration is required to be issued by the state of Connecticut or any of its agencies solely because of a prior conviction of a crime.”

    The statement accompanying the 2010 amendments to § 46a-80 provides as follows:

    With two exceptions, the law prohibits the state and its agencies from disqualifying a person from state employment or denying, suspending, or revoking a credential (such as a professional, trade, or business license) solely because of the person’s prior conviction. The exceptions are for law enforcement agencies and licensing mortgage lenders, correspondent lenders, and brokers. Instead, prior to making a decision based on a prior conviction, the relevant agency must consider the nature of the crime, its relation to the job, the person’s rehabilitation, and the time since the conviction or release before finding someone unsuitable for the position or credential.”

    An agency must consider these factors regardless of other law and even when another law purports to govern denying credentials due to lack of good moral character or suspending or revoking a credential due to a conviction.

    See http://www.cga.ct.gov/2010/FC/2010HB-05207-R000628-FC.htm.

Copyright © 2017

Restoration of Rights Series/California

California-Outline-and-Flag

Restoration of Civil/Firearms Rights

A.  Civil Rights

Vote

The right to vote is suspended while a person is “imprisoned or on parole for the conviction of a felony.”Cal. Const. art. II, § 4;Cal. Elec. Code § 21011 A person whose prison sentence is suspended does not lose the right to vote unless and until actually incarcerated in state or federal prison. A person regains voting rights automatically upon completion of any period of parole.  Those serving a term of felony probation, “mandatory supervision,” or “post-relief community supervision” may also vote.2 Presumably, federal offenders on supervised release would be regarded as similarly situated.

3: Jury

Persons convicted of a felony or malfeasance in office may not serve on a jury.  Cal. Civ. Proc. § 203(a)(5).  The California Constitution disqualifies from office anyone convicted of vote-buying, and authorizes laws disqualifying from public office anyone convicted of bribery, perjury, forgery, malfeasance in office, and other “high crimes.”  Cal. Const. art VII, § 8; See Cal. Gov’t § 1021; Cal. Penal §§ 67, 68, 74, 88, 98.  If lost, these civil rights may be regained only by a governor’s pardon.

B.  Firearms

A person convicted of a felony in any jurisdiction, or of a misdemeanor offense involving the violent use of a firearm, cannot own, purchase, receive, possess or exercise custody or control over any firearm. See Cal. Penal §§ 29800, 29805. Federal offenders lose rights under state law only if their offense would be a felony under California law or if they spent at least 30 days in prison.  § 29800(c). The right to possess a firearm is restored by pardon based on a certificate of rehabilitation except when the underlying offense involved the use of a dangerous weapon. § 4852.174  See People v.Frawley, 98 Cal. Rptr.2d 555, 563-64 (Cal. App. 2000);People v. Ratcliff, 273 Cal. Rptr. 253, 259 (Cal. App. 1990).   When granting a pardon, the governor may also provide for a restoration of firearm rights, except where the person was convicted of a felony involving a dangerous weapon.  Cal. Penal § 4854.  Federal offenders may regain right to possess firearms only through full and unconditional presidential pardon, and those convicted of out-of-state convictions may regain rights by pardon expressly restoring firearms rights. See 66 Op. Cal. Att’y Gen. 343 (1983).  Set-aside of conviction does not restore gun rights under state law. See Frawley, 98 Cal. Rptr.2d at 791 (set-aside remedy under Cal. Penal § 1203.4does not “expunge” a conviction so as to remove state firearms disabilities).  It is not entirely clear whether a California set-aside relieves federal firearms liability.5 See also infra Part II B.

Certain misdemeanor offenses, including domestic violence, may result in loss of firearms rights for a period of 10 years.  Cal. Penal § 29805.  Special relief provisions for law enforcement personnel and those convicted prior to enactment in 1991.  §§ 29855, 298606

C.  Summary of California Relief Mechanisms

California offers a variety of routes to restoration of rights, depending on the particular type of conviction or disposition, the individual’s circumstances (including residence), and the reasons for seeking relief.  These are listed below, and most are discussed in the pages that follow.  Individuals uncertain about which type of relief best suits their needs and circumstances should seek advice of a legal aid lawyer familiar with the range of possible routes to relief.

“Wobbler” felony reduction – PC § 17(b) Misdemeanor reduction – PC § 17(d)Early termination of probation – PC § 1203.3 Set aside & dismissal – probation imposed* – PC § 1203.4 Set aside & dismissal – no probation imposed* – PC § 1203.4a Set aside & dismissal – PC § 1170(h) sentence* – PC § 1203.41 Sealing misdemeanor adult conviction by minor – PC § 1203.45 Certificate of Rehabilitation & Pardon – Cal. Penal §§ 4852.01 .Direct Pardon (notably for out-of-state residents) –  Cal Penal § 4852.16Restoration remedy for veterans – PC § 1170.9 Certificate describing arrest as detention – PC § 851.6 Record sealing – juvenile misdemeanor arrest – PC § 851.7 Record sealing & destruction following arrest – factual innocence – PC § 851.8 Record sealing following acquittal – factual innocence – PC § 851.85 Record sealing following conviction – factual innocence – PC § 851.86 Record sealing following non-drug DEJ (NEW 01/01/2014) – PC § 851.87 Record sealing & registration following identity theft – PC § § 530.6/530.7 Record sealing following drug diversion – PC § 851.90 Juvenile Record Sealing & Other Juvenile Record Remedies – W & I Code §§ 781, 1772, 1179, PC § § 851.7, 1203.47Automatic destruction of records of some marijuana arrests/convictions – HS § 11361.5

* Also known as “expungement”

II.  Discretionary Restoration MechanismsA.  Governor’s PardonAuthority

For persons convicted of no more than one felony, the pardon power rests exclusively with the governor, who may request investigation and advisory recommendation from the Board of Parole Hearings (formerly the Board of Prison Terms).Cal. Const. art. V, § 8(a);Cal. Penal §§ 4800, 4812-4813. “The Governor may not grant a pardon or commutation to a person twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring.” Cal. Const. art. V, § 8.  The governor is required by statute to refer applications from persons convicted of two or more felonies to the BPH (though he is not bound by its recommendation). Cal. Penal § 4802.  The BPH, “after investigation, shall transmit its written recommendation upon such application to the Governor, together with all papers filed in connection with the application.”  § 4813.  Governor required by the constitution to report to the legislature “each reprieve, pardon, and commutation granted, stating the pertinent facts and the reasons for granting it.”Cal. Const. art. V, § 8; Cal. Penal § 4852.16.

Administration

By statute, the Board of Parole Hearings consists of 17 commissioners appointed by the governor to staggered three-year terms, which may be renewed. Commissioners are full-time employees, and can be removed by the governor only for misconduct or incompetence or neglect, after a full hearing.7 Cal. Gov. Code § 12838.4 Board of Parole Hearings, Dep’t of Corrs. & Rehab., http://www.cdcr.ca.gov/BOPH/.  Currently, only 12 commissioners sit on the Board. Board of Parole Hearings, Dep’t of Corrs. & Rehab, http://www.cdcr.ca.gov/BOPH/(last visited March 17, 2016).

Eligibility

Instructions issued by the Governor’s Office describe a pardon  as follows: :

A gubernatorial pardon is an honor that may be granted to people who have demonstrated exemplary behavior following their conviction. A pardon will not be granted unless it has been earned. Obtaining a pardon is a distinct achievement based upon proof of a productive and law-abiding life following conviction. Historically, governors have granted very few pardons.

Office of the Governor,How to Apply for a Pardon, available athttp://gov.ca.gov/docs/How_To_Apply_for_a_Pardon.pdf (revised Sept. 5, 2013).

Absent extraordinary and compelling circumstances, an application will not be considered unless the applicant has been discharged from probation or parole for at least 10 years without further criminal activity during that period. Federal offenders and persons convicted under the laws of a state other than California are ineligible for a gubernatorial pardon, and may regain their civil rights (other than the right to vote) only through a pardon or similar action in the jurisdiction of their conviction.

Process

There are two procedural routes to pardon.  For those who reside in the state, the pardon process ordinarily starts with an application for a Certificate of Rehabilitation in the county of residence. Convicted persons who reside outside the state, or who are otherwise ineligible for a COR (e.g. misdemeanants, certain sex offenders) may apply directly to the governor.  See How to Apply for a Pardon,supra.

Certificate of Rehabilitation

The process for petitioning for a Certificate of Rehabilitation (COR) is described in Part II-B-3, infra.  If a COR is issued, the court forwards to governor (and Supreme Court in the case of person convicted of more than one  felony) with a recommendation that the individual be pardoned.  Cal. Penal § 4852.14. The forwarded certificate itself serves as an application for pardon. §4852.16. Upon receipt of COR and recommendation from court, governor may request that BPH investigate and make a recommendation. § 4812. 8. DA and court are asked for views.§ 4803.  Indigent persons seeking a pardon through a certificate of rehabilitation are entitled to representation by a public defender. § 4852.08; Ligda v. Superior Court of Solano County, 85 Cal. Rptr. 744, 752 (Cal. Ct. App. 1970).

If the applicant was twice convicted of a felony, the governor must receive a recommendation from a majority of the Supreme Court before granting.§ 4852.16  No requirement that governor seek Court’s recommendation, and governor is not bound to grant if Court so-recommends.  If recommendation is sought, Court holds a hearing and application is treated like a case and assigned a number.  Cal. Sup. Ct., Internal Operating Practices and Procedures, § XIVA, XV.  BPH is obligated to make a recommendation in these cases as well, but this does not limit the governor’s ability to act. § 4813.  Notice must be given to DA at least 10 days before action.  § 4804.

“Direct pardon”

(Persons ineligible for Certificate of Rehabilitation) – Process explained in “How to Apply for a Pardon,”supra.  Application available athttps://www.gov.ca.gov/docs/Application_for_Pardon.pdf.  Applications are made directly to the governor, and court of conviction, DA, BPH, and the Supreme Court serve the same roles described above.   See Cal. Penal §§ 4801 – 4813.  There is no right to a public defender in direct pardon cases.

Effect

A pardon restores civil rights lost, but does not seal or expunge the record of conviction.  The conviction may still be considered in certain licensing proceedings.Cal. Penal §§ 4852.15,4853. 9

The right to possess a firearm is restored upon a full and unconditional pardon based upon a COR, except when the underlying offense involved the use of a dangerous weapon.  Cal. Penal § 4852.17.  A “direct” pardon only restores firearms rights if specified, and the same exception for dangerous weapon offenses applies.  See §4854.   Only a pardon restores civil rights  See Office of the Governor,How to Apply for a Pardon, available athttp://gov.ca.gov/docs/How_To_Apply_for_a_Pardon.pdf, comparing the effect of pardon and COR.  A pardon based on a COR  must be recorded on the person’s criminal record and reported to the FBI. § 4852.17.

Frequency of Grants

As of April 15, 2017, Governor Jerry Brown had issued 929 pardons during his third and fourth terms as governor. See Gov. Jerry Brown issues pardons, commutes sentences hours before Easter Sunday, http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-gov-jerry-brown-issues-pardons-1492284380-htmlstory.htmlMost of Governor Brown’s pardons went to ordinary citizens of California, though one “celebrity” pardon was granted in 2015.  See Robert Downey Jr. among Jerry Brown’s 91 Christmas pardons, The Sacramento Bee, http://www.sacbee.com/news/politics-government/capitol-alert/article51502260.html(Dec. 24 2015).  (During his first two terms (1976-1984) he issued 403 pardons.)  Brown’s pardons are generally issued at Easter and Christmas.  A majority of the convictions pardoned have been drug offenses, almost all more than two decades old, and all recipients residing in the state first received a certificate of rehabilitation from a court, in accordance with the established process. There are several thousand pardon applications filed each year through court-issued certificates of rehabilitation.

The pardoning record of recent previous governors is as follows:  Governor Schwarzenegger issued only 16 pardons during his two terms, two to the same person.  Governor Davis granted none; Governor Wilson granted 13; Governor Deukmejian, 328; Governor Jerry Brown, 403; Governor Reagan, 575.   Source: California Board of Parole Hearings.

Contact

Office of the Governor
(916) 445-0873.

B.  Judicial set-aside and sealing1.  Set-Aside of ConvictionEligibility

Probationers:  In any case where a person sentenced to probation (including felony offenders, but not including any sex offenders) has successfully completed the sentence and has no charges pending, “or in any other case in which a court, in its discretion and in the interests of justice, determines that a defendant should be granted the relief available under this section,” the person may apply to the court to withdraw the plea and the court must (“shall”) “set aside” the verdict of guilty.Cal. Penal § 1203.4(a)(1).  This has the effect of releasing the offender “from all penalties and disabilities resulting from the offense of which he or she has been convicted.” § 1203.4(a) also provides that “the probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon.”   No relief shall be granted under § 1203.4unless the prosecuting attorney has been given 15 days’ notice of the petition for relief.  § 1203.4(e)(1).

Misdemeanants not sentenced to probation, and those convicted of infractions (including traffic infractions, possession of small amounts of marijuana), may apply for change of plea and dismissal of charges one year from entry of judgment, which the court “shall” grant if the petitioner can show, in addition to successful completion of probation and no charges pending, that they have, “since the pronouncement of judgment, lived an honest and upright life and ha[ve] conformed to and obeyed the laws of the land.” Cal. Penal § 1203.4a(a). In 2011 a provision was added providing that the court “may” grant relief to misdemeanants who do not satisfy the “honest and upright life” standards in (a).  § 1203.4a(b).  Anomalous higher standard under this provision compared to § 1203.4 is noted in People v. Bradley,57 Cal. Rptr. 82, 84 (Cal. Ct. App. 1967).

Minor felony offenders sentenced to county jail: In October 2013 Governor Brown signed into law a new authority for courts to set aside the conviction of defendants sentenced to county jail for a felony under the so-called Realignment legislation enacted in 2011.  A defendant so sentenced may withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty, after the lapse of one or 2 years following the defendant’s completion of the sentence, provided that the defendant is not currently serving a sentence or charged with the commission of any offense. Cal. Penal § 1203.41(a).

Proposition 47:  Proposition 47 substantially expanded the number of offenses that are eligible for set-aside by reducing certain felonies to misdemeanors, and limiting sentences that may be imposed. A number of individuals previously convicted of felonies are permitted under this 2014 authority to return to court to have their convictions reduced to misdemeanors, and therefore become eligible for set-aside under Cal. Penal § 1203.4aCalifornia’s Proposition 47 and collateral consequences: Part II (reentry and restoration of rights), Collateral Consequences Resource Center,http://ccresourcecenter.org/2014/12/01/californias-proposition-47-collateral-consequences-part-ii-reentry-restoration-rights (Dec. 1, 2014).

Proposition 64:  Approved in November 2016, Proposition 64 (“Adult Use of Marijuana Act”) made a number of prior marijuana convictions eligible for set-aside, either directly or by reducing felony convictions to misdemeanors.  Seethe helpful memorandum prepared by Judges Richard Couzens and Tricia Bigelow on “Resentencing Procedures and Other Selected Provisions” (November 2016),  http://www.courts.ca.gov/documents/prop64-Memo-20161110.pdf.

Effect of set-aside

While these statutes are frequently characterized as authorizing “expungement,” the setting aside of a conviction does not seal or otherwise limit public access to the record.   UnderCal. Penal § 1203.4(a)(1), “the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.”  See, e.g., People v. Field,31 Cal. App. 4th 1778 (1995) (“Expungement, however, does not obliterate a conviction for all purposes, and records of an expunged conviction are accessible to the public”).

Under California law, convictions that are set aside may be used when sentencing petitioner for subsequent convictions, for prosecution for possession of firearm by ex-felon, for purposes of California’s “three strikes” law, and for denial of professional licenses. See Doe v. Brown, 177 Cal. App. 4th 408, 423 (Cal. App. 2009)(sex offender whose conviction set aside pursuant to § 1203.4 still required to register); People v. Frawley, 98 Cal. Rptr.2d 555, 563-64 (Cal. App. 2000) (set-aside does not “expunge” conviction so as to restore firearms rights); see also Jennings v. Mukasey, 511 F.3d 894 (9th Cir. 2007)(set-aside under § 1203.4 does not “expunge” a prior conviction for purposes of eliminating liability under 18 U.S.C. § 922(g), the federal felon in possession statute).  In addition, setting aside alien’s plea of guilty, substitution of plea of not guilty and dismissal of information pursuant to § 1203.4(a) does not expunge conviction for purposes of avoiding deportation. Garcia-Gonzales v. Immigration and Natur. Service, 344 F.2d 804, 806 (9thCir. 1965), cert. denied, 382 U.S. 840 (1965).   Finally, the 9th Circuit has held that state convictions that were “set aside” were not “expunged” for purposes of calculating defendant’s criminal history under United States Sentencing Guidelines.  U.S.  v. Hayden, 255 F.3d 768, 770 (9th Cir. 2001) (California set-aside does not amount to expungement under USSG 4A1.2(j)), cert. denied, 534 U.S. 969, 122 S. Ct. 383 (2001).

That said, there are substantial employment benefits for individuals in having a conviction set aside. See Cal. Labor Code § 432.7(a); Part IIIinfra.  In addition, under regulations of the California Fair Employment and Housing Commission, it is unlawful for a public or private employer to inquire into or seek information about a conviction that has been set-aside and dismissed pursuant to this authority. See Cal. Code Regs. tit. 2 § 11017(d)(1).State business and occupational licensing boards may not deny an applicant solely on the basis of a conviction that was set-aside and dismissed. Cal. Bus. & Prof. Code § 480(c).

Set-aside procedure

The procedure for obtaining a set-aside is explained at this advocacy website: Starting Over Strong, http://www.startingoverstrong.com/Home_Page.php A Cost-Benefit Analysis of Criminal Record Expungement in Santa Clara County, Stanford University, Public Policy Program, https://publicpolicy.stanford.edu/publications/cost-benefit-analysis-criminal-record-expungement-santa-clara-county.

2.  SealingUnder-age first offender misdemeanants

Misdemeanants who were under 18 at the time their crime was committed, and who are eligible for or who received relief under either 1203.4 or 1203.4a, may petition the court to have the record sealed. Cal. Penal § 1203.45(a).

Juvenile adjudications

Most juvenile adjudications may be sealed after 5 years upon petition to the court, by the individual or the probation department, after jurisdiction is terminated or after the child reaches age 18.  Court must find that 1) the child has not subsequently been convicted of a felony or a misdemeanor crime of moral turpitude; and 2) that “rehabilitation has been attained to the satisfaction of the court.”  See Cal. Welf. & Inst. § 781(a)(1)(A).  DA must be notified.  A sealing order may direct that a person be removed from sex offender registry.  § 781(a)(1)(C).  “The records shall be confidential and shall be available for inspection only by the court, jury, parties, counsel for the parties, and any other person who is authorized by the court to inspect them.”  § 781(b).  “Unless for good cause the court determines that the juvenile court record shall be retained, the court shall order the destruction of a person’s juvenile court records that are sealed pursuant to this section” after five years.  § 781(d).  DMV records remain available to insurers.  § 781(c).  Records of certain serious offenses committed after reaching age 14 may not be sealed.  § 781(a)(1)(D).   “Once the court has ordered a person’s records sealed, the proceedings in the case shall be deemed never to have occurred, and the person may properly reply accordingly to any inquiry about the events, the records of which are ordered sealed.” § 781(a)(1)(A).  Effective January 1, 2015, the juvenile court or probation officer must inform any person brought within their jurisdiction of the availability of sealing, and must develop explanatory materials.  See § 781(h).

Nonconviction records

Cal. Penal § 851.8(d):  In any case where a person has been arrested and an accusatory pleading has been filed, but where no guilty plea or conviction has occurred, the court may, with the concurrence of the prosecuting attorney, order that the records be sealed and destroyed.  Most juvenile misdemeanor arrest records may be sealed pursuant to § 851.7(a).

Expungement of certain marijuana convictions and arrests

Cal. Health & Safety Code §11361.5:  Authorizes destruction of arrest and conviction records for possession or transportation of small amounts of marijuana violations of marijuana laws, either by adult and juvenile offender, two years from the date of conviction or arrest if no conviction. Where violation occurs on school property by a person under the age of 18, “the records shall be retained until the offender attains the age of 18 years at which time the records shall be destroyed as provided in this section.”

** See Part III for discussion of prohibition on employer inquiry into and consideration of non-conviction records, sealed records, convictions that have been set aside

3.  Certificate of RehabilitationEligibility

A California resident convicted of a state law offense may apply to the Superior Court of his county of residence for a Certificate of Rehabilitation (COR).  Cal. Penal §§ 4852.01 through .06, 4852.19.  The COR is an order embodying a court’s finding that the defendant is rehabilitated and its recommendation that he be pardoned.  § 4852.13; see Section IIA, supra.  To obtain a COR, a convicted person must complete his or her sentence and period of parole, remain a resident of the state for a specified period with no further violations of the law, demonstrate good conduct, and satisfy other statutory requirements.  §§ 4852.01, 4852.03, 4852.05, 4852.06.   Prison wardens are required to advise prisoners of their right to apply for a COR upon their release from prison. § 4852.21.

A person may apply to court after completion of “period of rehabilitation” running from release from prison or release on probation:  five years’ residence in CA plus four years for serious offenses and two years for less serious offenses.  Court may order additional years in case of concurrent sentences.  (Sex offenders who are required to register, except for indecent exposure, have an additional five-year waiting period, for a total necessary rehabilitation period of 10 years.)  § 4852.03.  Effective January 1, 2014, a trial court hearing an application for a COR before the applicable period of rehabilitation has elapsed may grant the application if the court, in its discretion, believes relief serves the interests of justice. § 4852.22.

Persons convicted of misdemeanors are ineligible to obtain a COR, except for certain sex offenders.  See Newland v. Board of Governors 19 Cal. 3d 705, 712-714 (Cal. 1977).

Effect

Sections 480(b) and490 of the California Business & Professional Code provide that no one who has been granted a COR shall be denied an occupational license “solely” on the basis that he has been convicted of a felony.  See Part III, infra.  See alsoCal. Ed. Code § 44346.1(d) (teacher’s certificate; mandatory bar converted to discretionary). A COR mitigates the effect of some statutory employment barriers by removing mandatory bars, serving as a basis for waiver, and evidencing rehabilitation.  See, e.g., Cal. Health & Safety § 1522(g)(1)(A)(ii) (waiver for licensed community care facility employment; certain offenses excepted);Cal. Admin. Code tit. 10, § 3723 (factors into rehabilitation determination for real estate appraiser license); Cal. Ed. Code § 44830.1(f) (public school employment; may not deny solely on the basis of conviction if COR issued).  See also Doe v. Saenz, 45 Cal. Rptr. 3d 126, 142-43 (Cal. App. 2006) (limitation of certificate to certain serious offenses in connection with employment in community care and childcare facilities violates Equal Protection).

A COR provides relief from sex offender registration obligations for less severe offenses.  SeeCal. Penal § 290.5.

A COR does not restore civil rights, seal or expunge a criminal record, or allow an applicant for employment to claim they have not been convicted of a crime.  See Office of the Governor, How to Apply for a Pardon, available athttp://gov.ca.gov/docs/How_To_Apply_for_a_Pardon.pdf.

Procedure for Applying

The petition for COR must be filed in the superior court of the applicant’s current county of residence.  Cal. Penal § 4852.06.  The petition form can usually be obtained from the court clerk, probation department, or public defender’s office. The petitioner is required to notify the district attorney in their county of residence and the district attorney of each county in which the petitioner was convicted of a felony. The notice must identify all crimes for which the person is requesting a COR. The form for sending these notices can also be obtained from the court clerk, probation department, or public defender.  Once a petition is filed, the court will schedule a hearing. Before the hearing, the court may require an investigation by the district attorney. § 4852.10.  At the hearing, the court may require testimony and records pertaining to the petitioner, including information about the conviction offense and the person’s conduct while incarcerated and since release.

The petition form and additional information is available here: http://www.sdcourt.ca.gov/pls/portal/docs/PAGE/SDCOURT/GENERALINFORMATION/FORMS/CRIMINALFORMS/PKT016.PDF.

Representation

Persons applying for a COR are entitled to assistance in processing their petitions from the county probation office(s), state parole office(s), and for persons under the age of 30, from the California Youth Authority. The person may also be represented by counsel of his or her own selection. If the person does not have counsel, he or she may be represented by the public defender, the probation department, or the court may assign counsel. Cal. Penal § 4852.08.

Standards

Cal. Penal § 4852.13(a):

Except as otherwise provided in subdivision (b), if after hearing, the court finds that the petitioner has demonstrated by his or her course of conduct his or her rehabilitation and his or her fitness to exercise all of the civil and political rights of citizenship, the court may make an order declaring that the petitioner has been rehabilitated, and recommending that the Governor grant a full pardon to the petitioner. This order shall be filed with the clerk of the court, and shall be known as a certificate of rehabilitation.

(Exception in subsection (b) for registered sex offenders “if the court determines    that the petitioner presents a continuing threat to minors . . .

4. Felony treated as misdemeanor (“Wobbler” offenses)

A crime that is otherwise a felony (“punishable by either imprisonment in the state prison or the county jail”) may be treated as a misdemeanor “for all purposes” if the court imposes punishment other than a state prison term, or “grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” Cal. Penal § 17(b)(1) and (b)(3).  Also, the prosecutor may file a complaint treating the offense as a misdemeanor. § 17(b)(4).  Upon a request by California’s Commission on Peace Officer Standards and Training, the California Attorney General opined that the Commission’s power to revoke a peace officer license when an officer is convicted of a felony did not extend to convictions under § 17(b) which are to be treated as misdemeanors “for all purposes” unless the conduct itself involved moral turpitude or some other indication of the applicant’s unfitness to be a peace officer. 76 Op. Cal. Att’y Gen. 270, 275 (1993).  However, while a blanket prohibition would be inappropriate in light of the purposes of § 17(b), case-by-case analysis of an applicant’s conduct would permit denial of licensure by the California Commission on an individual basis.

III.  Nondiscrimination in Licensing and EmploymentA.  Licensing

Cal. Bus. & Prof. Code, §§ 480et seq. contains detailed provisions for considering conviction in the context of licensing. The list of boards covered by these provisions is at http://www.dca.ca.gov/about_dca/entities.shtml.

Denial of License – Effect of Certificate of Rehabilitation/Set-aside

Cal. Bus. & Prof. § 480(b) prohibits denial of a license based on a felony conviction if the person has received a certificate of rehabilitation, or based on a misdemeanor conviction if the person is deemed rehabilitated:

(b) Notwithstanding any other provision of this code, a person shall not be denied a license solely on the basis that he or she has been convicted of a felony if he or she has obtained a certificate of rehabilitation under Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code or that he or she has been convicted of a misdemeanor if he or she has met all applicable requirements of the criteria of rehabilitation developed by the board to evaluate the rehabilitation of a person when considering the denial of a license under subdivision (a) of Section 482.

Sections 481 and 482provide that each Board must develop criteria for determining rehabilitation, for considering rehabilitation, and for determining substantial relationship.   For example, criteria for determining rehabilitation for real estate appraiser license in Cal. Code Regs. tit. 10 § 3723, include passage of time, restitution to victim, judicial relief (certificate of rehabilitation), evidence of involvement in community and stability of family life, abstinence from controlled substances, testimony of affiant.  For procedure for denial oflicense based onconviction, see Cal. Bus. & Prof. §§ 485-489.

Cal. Bus. & Prof. Code § 480(c) provides that a license may not be denied solely on the basis of a conviction that has been set-aside and dismissed under Cal. Penal §§ 1203.4, 1203.4a, or 1203.41.

Suspension and Revocation of Licensee – Substantial Relationship Standard

Cal. Bus. & Prof. § 490: A board may suspend or revoke a license on the ground that the licensee has been convicted of a crime only if the crime is “substantially related” to the qualifications, functions, or duties of the business or profession for which the license was issued.  Compare Petropopulos v. Department of Real Estate, 47 Cal. Rptr 3d 812, 822-23 (Cal. App. 2006), modified on denial of rehearing (misdemeanor domestic battery not substantially related to real estate license) with Robbins v. Davi, 95 Cal. Rptr. 3d 792, 797 (Cal. App. 2009) (misdemeanor building code violations substantially related to license as real estate broker).  See § 494 for procedures foruspension andevocation.

Recognition of prison training in qualifications for license

Cal. Bus. & Prof. § 23.9:

[A]ny individual who, while imprisoned in a state prison or other correctional institution, is trained, in the course of a rehabilitation program approved by the particular licensing agency concerned and provided by the prison or other correctional institution, in a particular skill, occupation, or profession for which a state license, certificate, or other evidence of proficiency is required by this code shall not, when released from the prison or institution, be denied the right to take the next regularly scheduled state examination or any examination thereafter required to obtain the license, certificate, or other evidence of proficiency and shall not be denied such license, certificate, or other evidence of proficiency, because of his imprisonment or the conviction from which the imprisonment resulted, or because he obtained his training in prison or in the correctional institution, if the licensing agency, upon recommendation of the Adult Authority or the Department of the Youth Authority, as the case may be, finds that he is a fit person to be licensed.

B.  EmploymentConsideration of certain criminal records

Under amendments toCal. Labor Code § 432.7(a) that took effect January 1, 2014, public and private employers are prohibited in most situations from inquiring into or considering any arrest or detention that did not result in conviction, resulted in referral to any pretrial or post-trial diversion program, any conviction that has been ordered sealed, or judicially dismissed (set aside) pursuant to Cal. Penal §§ 1203.4, 1203.4a, 1203.41, or 1203.345, or (as of 2016) any arrests, dispositions, or other actions that occurred under juvenile court jurisdiction.  See Part II,supra; s Cal. Code Regs. tit. 2 § 11017.1(b). Cal. Labor Code § 432.8further specifies that employers may not inquire about non-felony marijuana convictions more than two years old.  These prohibitions on inquiry do not apply if the employer is required by law to obtain that information, the applicant would be required to possess or use a firearm in the course of his or her employment, an individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been sealed, statutorily eradicated, or judicially dismissed following probation, or if the employer is prohibited by law from hiring an applicant who has been convicted of a crime.

See also Cal. Labor Code § 432.7 (g)(1)-(3) (law enforcement agencies and others authorized to receive criminal history information may not disclose “with intent to affect a person’s employment” any information about arrest not resulting in conviction, or about referral to pretrial or post-trial diversion program).

In 2017 the regulations of the California Fair Employment and Housing Commission were amended to provide that consideration of criminal history by employers may violate the state’s Fair Employment and Housing Act if such consideration has “an adverse impact on individuals on a basis protected by the Act, including, but not limited to, gender, race, and national origin.”  Cal. Code Regs. tit. 2 § 11017.1(d) – (g).10 If such an adverse impact can be shown, an employer has the burden of showing that the practice at issue is “job-related” and “consistent with business necessity;” and, even then, the employer may still be in violation if “less discriminatory alternatives” would achieve the employer’s legitimate goals.

Ban-the-Box

Under Cal. Labor § 432.9, a state or local agency “shall not ask an applicant for employment to disclose, orally or in writing, information concerning the conviction history of the applicant . . . until the agency has determined the applicant meets the minimum employment qualifications, as stated in any notice issued for the position.”  This section does not apply to any position for which a background check is mandated by law, to any person working on a temporary or permanent basis for a criminal justice agency.  This provision is effective July 1, 2014.  Under policies put in place under Governor Schwarzenegger, questions asking about criminal convictions were removed from the state employment form.  Even where a criminal record is “pertinent” to a particular job, the Criminal Record Supplemental Questionnaire restricts inquiries to felonies and domestic violence misdemeanors.

In 2014 The Fair Chance Employment Act was enacted (codified at Cal Pub Contract Code § 10186), prohibiting state contractors providing onsite construction-related services from inquiring about the criminal history of applicants for construction jobs on an initial application.

Notice of reasons for denial of public employment

Cal. Gov. Code § 11546.6requires that a person, who is rejected as a result of a criminal background check by a state agency for employment, contract, or volunteer work involving confidential or sensitive information, be provided with a copy of his or her criminal record. Additionally, this law requires the state to institute a written appeals process for rejected individuals to challenge ineligibility determinations based on the individual’s criminal record.

C. Regulation of background-checking

California’s Investigative Consumer Reporting Agencies Act, Cal. Civ. C. § 1786 et seq. (the California analogue to FCRA), provides:

No consumer credit reporting agency shall make any consumer credit report containing any of the following items of information:
….

(6)  Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that in the case of a conviction a full pardon has been granted, or in the case of an arrest, indictment, information, or misdemeanor complaint a conviction did not result.

§ 1785.1311

Background check companies “may not make an inquiry for the purpose of preparing an investigative consumer report on a consumer for employment purposes if the making of the inquiry by an employer or prospective employer of the consumer would violate applicable federal or state equal employment opportunity law or regulation.” Cal. Civ. C. § 1786.20(c). Note that by inquiring into and reporting misdemeanors dismissed pursuant to Cal. Penal §§ 1203.4, 1203.4a, the background check company is going beyond what a private employer can do.

Effective in January 2013, every entity that conducts a criminal background check under the mandate of a state or local occupational or licensing law must automatically provide the subject of the background check with a copy of his or her state and federal rap sheet whenever the agency makes a negative decision based on the record.  SeeCal. Penal § 1110512

Effective January 2017, “imprisoned” in section 2101 is defined as “currently serving a state or federal prison sentence,” making it clear that those serving felony sentences in county jails retain their voting rights.  Cal. Elec. Code § 2101(c)(1) (as amended by AB-2466 The Criminal Justice Realignment Act of 2011 (CJRA) created three new categories of sentencing for people convicted of low-¬level felonies: mandatory supervision, post–release community supervision (PRCS), and a term in county jail. In 2014, a California court held that those on mandatory supervision and PRCS must be permitted to vote, and the State agreed to recognize the voting rights of more than 50,000 people in these two categories. See Briefs and Orders in Scott v. Bowen at https://www.brennancenter.org/legal-work/scott-v-bowen; Press Release, California Secretary of State, Secretary Padilla Ends Appeal of Scott v. Bowen Case (Aug. 4, 2014),http://www.sos.ca.gov/administration/news-releases-and-advisories/2015-news-releases-and-advisories/secretary-padilla-ends-appeal-scott-v-bowen-case/.  In 2016, AB 2466 amended the Elections Code to reflect the decision in Scott v. Bowen and clarified that the third category of CJRA sentencing – a term in county jail – likewise does not strip people of the right to vote.   Seenote 1, supra  In an opinion dated October 31, 2008, the General Counsel, Administrative Office for U.S. Courts, opined that federal supervised release, as a penalty imposed separately from a prison sentence, is analogous to probation as opposed to parole.  (Opinion on file with author.) § 4852.17:

Whenever a person is granted a full and unconditional pardon by the Governor, based upon a certificate of rehabilitation, the pardon shall entitle the person to exercise thereafter all civil and political rights of citizenship, including, but not limited to: (1) the right to vote; (2) the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 17800 and 23510 and Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.

In 2007, the federal court of appeals for the 9th Circuit followedFrawley in holding that a set-aside under § 1203.4 does not “expunge” a prior conviction for purposes of eliminating liability under 18 U.S.C. § 922(g), the federal felon in possession statute.  See , 511 F.3d 894 (9th Cir. 2007).  However, that court had earlier held in U.S. v. Laskie, 258 F.3d 1047 (9th Cir. 2001) that a Nevada conviction that had been set aside could not serve as predicate felony for federal firearms prosecution.Law enforcement personnel with a single misdemeanor domestic violence conviction may petition the court to regain firearms rights, but only once.  § 29855(a).  “In making its decision, the court shall consider the petitioner’s continued employment, the interest of justice, any relevant evidence, and the totality of the circumstances. The court shall require, as a condition of granting relief from the prohibition under this section, that the petitioner agree to participate in counseling as deemed appropriate by the court.”  § 29855(e).  Persons subject to this prohibition by virtue of a conviction prior to the date of enactment may also petition the court for relief, but here again only once. § 29860(a). In making its decision, the court may consider the interest of justice, any relevant evidence, and the totality of the circumstances. It is the intent of the Legislature that courts exercise broad discretion in fashioning appropriate relief under this paragraph in cases in which relief is warranted.” § 29860(e).  Effective July 1, 2005, a new California Department of Corrections and Rehabilitation (CDCR) assumed responsibility for all correctional services.  The BPH was created by collapsing three boards into one – the BPT, Youthful Offender Parole Board, and the Narcotic Addict Evaluation Authority.  See CA SB 737 (enrolled May 10, 2005).   Cal. Penal § 4812:

[T]he board shall examine and consider all applications so referred and all transcripts of judicial proceedings and all affidavits or other documents submitted in connection therewith, and shall have power to employ assistants and take testimony and to examine witnesses under oath and to do any and all things necessary to make a full and complete investigation of and concerning all applications referred to it.

Cal. Penal § 4852.15:

Nothing in this chapter shall be construed to abridge or impair the power or authority conferred by law on any officer, board, or tribunal to revoke or suspend any right, privilege, or franchise for any act or omission not involved in his or her conviction, or to require the reinstatement of the right or privilege to practice or carry on any profession or occupation the practice or conduct of which requires the possession or obtaining of a license, permit, or certificate. Nothing in this chapter shall affect any provision of Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code or the power or authority conferred by law on the Board of Medical Examiners therein, or the power or authority conferred by law upon any board that issues a certificate permitting any person to practice or apply his or her art or profession on the person of another. Nothing in this chapter shall affect any provision of Chapter 4 (commencing with Section 6000) of Division 3 of the Business and Professions Code or the power or authority in relation to attorneys at law and the practice of the law in the State of California conferred by law upon or otherwise possessed by the courts, or the power or authority conferred by law upon the State Bar of California or any board or committee thereof.

However, per Cal. Bus. & Prof. § 480(b), a license may not be denied solely on the basis of a felony if the applicant possesses a Certificate of Rehabilitation (COR). See also Part III-A, infra.

This provision tracks closely with the EEOC’s guidance on consideration of criminal records under Title VII of the federal Civil Rights Act which endorses a disparate impact theory of liability based on criminal history consideration that negatively impacts groups, such as racial minorities, protected under the Act.  See EEOC, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 915.002 (April 25, 2012), http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf .   Because the California’s ICRRA antedates the federal FCRA, its stricter limitations on credit reporting companies are not preempted by 15 U.S.C.§ 1681t(a).  See Love et al, Collateral Consequences of Criminal Conviction § 5:31. See Madeline Neighly & Maurice Emsellem, National Employment Law Project, Wanted: Accurate Background Checks for Employment 24 (July 2013), available at http://www.nelp.org/content/uploads/2015/03/Report-Wanted-Accurate-FBI-Background-Checks-Employment.pdf:

[I]n FY 2011/12, California exceeded one million FBI criminal background checks for employment and licensing purposes, thus representing a considerable share of the nearly 17 million rap sheets generated by the FBI for employment screening. California laws mandating FBI background checks cover a range of occupations, with the highest volume of FBI background checks produced for school employees, social services workers, private security guards, healthcare workers, and law enforcement personnel. California lawmakers and state officials have taken their responsibility seriously to ensure that the large numbers of FBI checks conducted for employment and licensing purposes are up to date and that workers have the information they need to verify accuracy. While the California state repository only has dispositions for 57 percent of all arrests, the California Department of Justice timely ensures the completeness and accuracy of records that are requested for employment and licensing decisions.

Restoration of Rights Series/Arkansas

ArkansasI.  Restoration of Civil/Firearms Rights
A.  Vote

The right to vote is lost upon conviction of a felony, and automatically restored upon completion of sentence, including any term of probation or parole.  Ark. Const. art. III, §§ 1 (lawful registration to vote required for electors), 2 (prohibiting restrictions on suffrage “except for the commission of a felony, upon lawful conviction thereof); amended by Ark. Const. art. 51, § 11(a)(4) (requiring city registrars to cancel the registration of voters “[w]ho have been convicted of a felony and have not discharged their sentence or been pardoned”).  This provision applies to felony convictions from any jurisdiction. See Merritt v. Jones, 533 S.W.2d 497, 500 (Ark. 1976) (conviction from another jurisdiction is a “felony” if punishable in that jurisdiction by imprisonment in a penitentiary, or death).1

B.  Jury/Office

Arkansas law disqualifies from jury service those “who have been convicted of a felony and not pardoned.”  Ark. Code Ann. § 16-31-102(a)(4).  The Arkansas Constitution disqualifies anyone “convicted of embezzlement of public money, bribery, forgery or other infamous crime” from election to the General Assembly and holding any office of trust or profit in this State.  Ark. Const. art. V, § 9.  Infamous crimes “include elements of deceit and dishonesty.” Unlike the right to serve on a jury, a pardon does not restore eligibility to hold office, see State v. Oldner, 206 S.W.3d 818, 826 (Ark. 2005); Ridgeway v. Catlett, 379 S.W.2d 277 (Ark. 1964), which can be restored only through expungement process set forth in Ark. Code. Ann. §§ 16-93-301 et seq. (first-time felony offender probation and expungement), or a similar expungement statute from another jurisdiction. § 7-6-102(d);   see Powers v. Bryant, 832 S.W. 2d 232 (1992) (coram nobis proceeding that declared conviction “null and void” meant person had not been “convicted” under art. 5, § 9); Tyler v. Shackleford, 799 S.W.2d 789, 790 (Ark. 1990) (same for convictions expunged under federal law). See discussion in Part III, below.

C.  Firearms

No person convicted or adjudicated guilty of a felony (including suspended sentences and probation) may possess or own any firearm unless: 1) the person’s conviction is dismissed and expunged under § 16-93-301 et seq. (first offender) or § 16-98-303(g) (drug court) (see infra Part II B); 2) the person is granted a pardon expressly restoring the ability to possess a firearm; or 3) the governor accepts the recommendation of the chief law enforcement officer in the person’s residence to “restore” the ability to possess a firearm (available only if the underlying felony or adjudication did not involve a weapon and occurred more than 8 years ago). See Ark Code. Ann. § 5-73-103; see also Irvin v. State, 784 S.W.2d 763 (Ark. 1990) (under prior version of statute that made expungement mandatory, no prior conviction for purposes of statute despite fact that state officer had not completed ministerial duties necessary for expungement) .

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

The governor has full clemency authority, except in cases of treason and impeachment, “under such rules and regulations as shall be prescribed by law.” Ark. Const. art. VI, § 18.  By statute, all applications for clemency “shall be referred to the Parole Board for investigation.”  Ark. Code Ann. § 16-93-204(a).2  The Parole Board “shall thereupon investigate each case and shall submit to the Governor its recommendation, a report of the investigation, and all other information the board may have regarding the applicant.” § 16-93-204(b).  While the governor is thus required to seek the non-binding advice of the Parole Board, his own power does not depend upon receiving a favorable recommendation.  Under Constitution, governor must report to legislature on all grants and give reasons.  Ark. Const. art. VI, § 18.  (Pending legislation requiring detailed reasons has stalled.)

Administration

Parole Board consists of seven full-time members appointed by governor to seven-year terms. Four constitutes a quorum. Grounds for removal for cause may not include any proper official action.  Ark. Code Ann. § 16-93-201(a).

Eligibility

Only state offenders are eligible for a governor’s pardon, but there is no waiting period for in-state convictions.

Effect

Pardon restores jury eligibility but not right to hold public office. See Part I, Pardon removes conviction-related barriers to licensing and employment.   Under state habitual offender statute, a pardoned conviction cannot be used to enhance a later sentence.  Duncan v. State, 494 S.W. 2d 127 (1973).

Expungement follows automatically upon receipt of pardon for all but a few serious offenses:  “Upon issuing a pardon, the Governor shall notify the sentencing court, and the court shall issue an order expunging the records relating to the conviction of the person pardoned.” Ark. Code Ann. § 16-90-605(a).  Exceptions where victim under 18, sex offenses, and where death or serious physical injury results.  16-90-605(c).  For effect of expungement see below.

Firearms

Pardon must specifically restore firearms privileges.  The governor may separately restore firearm privileges, upon the recommendation of the chief law enforcement officer of the jurisdiction in which the convicted person resides, if the offense occurred more than eight years before and did not involve the use of a weapon. Ark. Code Ann. § 5-73-103(a)(1), (b), (d).

Process

See http://www.paroleboard.arkansas.gov/.  Policies and procedures are at http://www.paroleboard.arkansas.gov/clemency/pages/default.aspx.   The application form is at http://www.paroleboard.arkansas.gov/Websites/parole/images/PardonApplication050415.pdf.

Before considering an application for pardon, Parole Board must request a (non-binding) recommendation of sentencing court, prosecuting attorney, and sheriff of county of conviction. Ark. Code Ann. §§ 5-4-607(d)(1);16-93-204(d)(1).  (Notice to victim and solicitation of recommendation required only in connection with capital murder cases and class Y, A, and B felonies. § 16-93-204(d)(2).)   Ordinarily no formal hearing is required in pardon cases.  If a majority of Board votes to recommend pardon, sends written recommendation to governor.  Board must give 30-days public notice of intention to make favorable recommendation to governor, and must also send notice to judge and prosecutor.  § 16-93-204(e).

Before acting, governor must give 30 days notice (including statement of reasons) to Secretary of State, judge, prosecuting attorney, sheriff, and, if applicable, the victim.  § 16-93-207(a)(1).  A failure to give proper notice renders grant void.  Id at (a)(2).  If Governor does not act on a Board recommendation within 240 days, application deemed denied.  If an application is denied by the Governor in writing, applicant must wait four years from time of original application before reapplying; if denial by inaction, applicant may reapply immediately. § 16-93-207(c).

Frequency of Grants

Pardons are processed by the Board at monthly hearings, and acted on by the governor on a regular basis.  Since 2004, between 400 and 500 pardon applications have been received each year.  In the past a substantial percentage of applications were granted, but Governor Asa Hutchinson has granted only about 10% of applications received.  See http://www.paroleboard.arkansas.gov/past-recommendations/.  As of July 1, 2017, Governor Hutchinson had granted about 175 pardons since taking office in 2015. See http://governor.arkansas.gov/clemency-extraditions. Governor Beebe (2007-2014) granted over 700 pardons during his tenure (many without restoring firearms, and some restoring firearms only).  While sentence commutations in recent years have occasionally given rise to controversy and legislative limits on the pardon power, no similar concerns have been expressed about post-sentence pardons, with one conspicuous exception.3  In July of 2004, Governor Huckabee was reported to have pardoned a total of 567 persons since taking office in 1996. See Bob McCord, “Huckabee’s Pardons,” Arkansas-Times (July 29, 2004), http://www.arktimes.com/arkansas/huckabees-pardons/Content?oid=948418.  He granted another 200 pardons after that time.

Year
Applications rec’d
Recommended fav.
Pardons Granted
Firearms only

2004
408
114
148
10

2005
480
204
117
11

2006
530
210
115
24

2007
503
196
46
20

2008
447
245
92
14

2009
404
232
129
7

2010
308
119
76
10

2011
366
175
100
6

Contact

Counsel for Clemency and Corrections
Office of the Governor
501-682-8184, -6447

B.  Judicial sealing or expungement
Comprehensive Criminal Record Sealing Act of 2013

In 2013 the Arkansas legislature enacted an entirely new chapter of Title 16 of the Arkansas Code to simplify and reconcile its laws on sealing of criminal records.  See Ark. Code Ann. § 16-90-1401, et seq.  Effective January 1, 2014, the Comprehensive Criminal History Sealing Act of 2013 repealed a number of authorities for expungement and sealing of conviction records that had accumulated over 40 years.4  Certain authorities for non-conviction dispositions were left undisturbed, including the authority in § 16-93-314 authorizing dismissal of charges for first offenders granted probation, and diversionary dispositions (including deferred adjudication) for persons sentenced to probation, first felony offenders, and juveniles.5  The new sealing law is intended to supersede all other provisions for sealing of criminal records except under the Arkansas Drug Court Act, § 16-98-301, and those applicable to juvenile records under § 16-90-1403.

Eligibility

Conviction records: This law expanded slightly the classes of offenders eligible for sealing relief to include minor felony offenders: Class C and D felonies and certain drug convictions are now eligible for sealing after five years (if no more than one prior felony), § 16-90-1406; and, misdemeanor convictions are eligible for sealing immediately after completion of sentence, § 16-90-1405.  Special provision for sealing certain drug convictions immediately upon completion of sentence are set forth in § 16-90-1407.  Serious violent and sexual offenses are ineligible for sealing, as are motor vehicle violations committed by a holder of a commercial driver’s license.  16-90-1408.

Non-conviction records: A person may petition a district circuit court to have arrest records sealed if no charges are filed within one year, §16-19-1409, and records in which charges are dismissed or no conviction is obtained. 16-90-1410.

Pardoned offenses: § 16-90-1411.  Certain serious offenses excepted even if pardoned.

Victims of human trafficking: See below.

Procedures

Procedures for sealing are set forth in § 16-90-1413, and include filing a uniform petition, which must be served on the prosecuting attorney.  A hearing will be scheduled in the case of misdemeanors only if the prosecutor objects, but must be scheduled in every case where felonies are concerned.  Provisions on release of sealed records in certain circumstances are set forth in §16-90-1416 (to criminal justice agencies in case of application for employment, to courts and prosecutors).

Standards and Burden of proof

There is a presumption in favor of sealing in misdemeanor and violation cases (court “shall seal” the record unless the court “is presented with and finds that there is clear and convincing evidence that a misdemeanor or violation conviction should not be sealed”). § 1415(a).  The court “may seal” the record of eligible felonies, including drug possession cases, “if the court finds by clear and convincing evidence that doing so would further the interests of justice,” considering certain factors related to the likelihood of recidivism (including the person’s other criminal history, the pendency of other charges, and input from the victim. §1415(b) and (c). The court “shall seal” the nonconviction records, including records of cases in which charges dismissed, unless it finds there is a public safety risk.  § 1415(d).  An appeal of the grant or denial of the petition to seal may be taken by either party. § 1415(f).

Effect of sealing

§ 16-90-1417:  A person whose record has been sealed under this subchapter shall have all privileges and rights restored, and the record that has been sealed shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law.  Sealing does not restore the right to carry a firearm if that right was removed as the result of a felony conviction.  A sealed convictionshall be deemed as a matter of law never to have occurred, and the person may state that the underlying conduct did not occur and that a record of the person that was sealed does not exist.”  § 16-90-1417(b)(1).  That notwithstanding, a sealed conviction may be used as a predicate and to enhance a subsequent sentence.  Id. at (b)(2).

Human trafficking victims

A person convicted of a prostitution offense as a result of being a victim of human trafficking may petition for sealing at any time.  Ark. Code Ann. § 16-90-1412.  Sealing is mandatory so long as the court finds by a preponderance of the evidence that the conviction was the result of being a victim of human trafficking.  In addition to restoring the individual’s rights in the manner specified above, the petitioner’s name is redacted from all records and files related to arrest and conviction. 

Expungement available in only two situations:

Juvenile offenses: An individual who was convicted of a nonviolent felony committed when the individual was less than 18 years old may petition for expungement. Ark. Code Ann. § 16-90-602.

Drug court: Under Ark. Code Ann. § 16-98-303, each district may establish its own drug court.  May be pre-adjudication or post-adjudication, and all but violent and sex offenses eligible.  Upon successful completion, court may order expungement, with concurrence of prosecuting attorney, if after considering the offender’s past criminal history the judge feels expungement and dismissal of the case is appropriate.  Court may also expunge a case from another Arkansas court, with the concurrence of that court.  Burglary, breaking and entering, and fourth DUI are ineligible for expungement.  § 16-98-303(g).  Those convicted of or currently charged with violent felonies, and those required to register are sex offenders, are not eligible for drug court programs.  § 16-98-303(c)(1).

C.  Administrative certificate: N/A
III.  Nondiscrimination in Licensing and Employment:
A.  Criminal Offender Rehabilitation Act

“It is the policy of the State of Arkansas to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the assumption of the responsibilities of citizenship. The public is best protected when offenders are given the opportunity to secure employment or to engage in a meaningful trade, occupation, or profession.” Ark Code Ann. § 17-1-103(a).  Licensing boards “may take into consideration conviction of certain crimes which have not been annulled, expunged, or pardoned. However, such convictions shall not operate as an automatic bar to registration, certification, or licensing for any trade, profession, or occupation.” § 17-1-103(b).  Arrest records not leading to conviction, convictions that have been pardoned or expunged, and misdemeanor convictions (except misdemeanor sex offenses) may not be “used, distributed, or disseminated” in connection with an application for a license. § 17-1-103(b)(2).   Completion of parole or probation supervision plus five years after release from prison will be “prima facie evidence of rehabilitation.” § 17-1-103(e).

Boards and agencies shall “state explicitly in writing the reasons for a decision which prohibits the applicant from practicing the trade, occupation, or profession if the decision is based in whole or in part on conviction of a felony.”  § 17-1-103(c).  Complaints are adjudicated under Arkansas APA. § 17-1-103(e).  Does not apply to teacher licensure or certification, or nursing licensure and certification, which are governed by §§ 6-17-410 and 17-87- 312 respectively.  § 17-1-103(g).  Secretary of State must make section known to any affected agency.  § 17-1-103(f)(2).  See also Bolden v. Watt, 719 S.W.2d 428 (Ark. 1986) (criminal offender act benefits DWI offender seeking licensure as taxi driver, in spite of specific prohibition in taxi licensing law, since individual could be prevented from obtaining particular job because of direct connection between nature of conviction and job).

B.  Teachers License

Ark. Code Ann. § 6-17-410 provides for revocation or denial of teaches license for conviction of a wide variety of crimes.  However, under § 410(f)(2) the revocation provisions of subsection (c) of this section may be waived taking into account:

(A) The age at which the crime or incident was committed;

(B) The circumstances surrounding the crime or incident;

(C) The length of time since the crime or incident;

(D) Subsequent work history;

(E) Employment references;

(F) Character references; and

(G) Other evidence demonstrating that the applicant does not pose a threat to the health or safety of school children or school personnel.

C.  Nursing license

Ark. Code Ann. § 17-87-312(g)(2) provides substantially the same scheme as for teachers.

D.  Elder Care License

Ark Code  Ann. § 20-33-213 imposes mandatory record checks, and § 20-38-105(b) bars licensure for wide variety of offenses for limited periods of time (five years for misdemeanors, ten years for felonies) as long as applicant has not been convicted in the meantime.  § 20-38-105(d).   Permanent disqualification for smaller group of violent offenses, including expunged convictions.  § 20-38-105(c).

E.  Scholarships

Ark. Code Ann. § 6-82-107:  “A criminal conviction shall not be used as a basis to disqualify a person from eligibility for a scholarship, grant, loan forgiveness program, or other benefit subsidized by state funds under this chapter unless there is a specific statutory reason for denial that relates to the basis of assistance.”


  1. When Merrit was decided, Arkansas law defined a felony as a crime punishable by imprisonment in a penitentiary or death.  Today, § 5-1-106 defines a felony as any crime so designated by statute.
  2. The Arkansas legislature reconstituted the Post Prison Transfer Board as the Parole Board in 2005, and made other modifications in parole and pardon policy.  See Acts 1033,  85th Gen. Sess., 2005.
  3. The Board recommended that Governor Beebe pardon his son, who had been convicted of a minor marijuana offense in 2003, reasoning that the case was similar to others it had recommended favorably.  See Lucy McCalmont, “Arkansas governor to pardon own son,” Politico (Nov. 13, 2014), http://www.politico.com/story/2014/11/arkansas-gov-mike-beebe-pardon-son-112857.html.
  4. See § 16-90-1401 (“The General Assembly recognizes that historically the laws of this state involving the procedure a person must follow to have his or her prior criminal history information sealed have been confusing, from the standpoint of both practicality and terminology. . . . It is the intent of the General Assembly to provide in clear terms in what instances and, if applicable, how a person may attempt to have his or her criminal history information sealed.”)
  5. See also the Community Punishment Act of 1993 (“Act 531”), Ark. Code Ann. § 16-93-1201 et seq.; First Offenders Act of 1975 (“Act 346”), Ark. Code Ann. § 16-93-314 (authorizing dismissal of charges after completion of probationary sentences); Ark. Code Ann. § 5-4-312 (authorizing the court to suspend any sentence to community corrections).

Copyright © 2017

Restoration of Rights Series/ Arizona

ArizonaI.  Restoration of Civil/Firearms Rights
A.  Civil Rights

Conviction of a felony suspends the right to vote, to hold office, and to sit on a jury. Ariz. Const. art. VII, § 2(C); Ariz. Rev. Stat. §§ 13-904(A)(1)-(3); 16-101(A)(5); 21-201(3). See also Ariz. Rev. Stat. § 14-5651(C)(3) (fiduciary, including court-appointed guardians and personal representatives unrelated to a decedent,).  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. § 13-912.1 Repeat offenders, including federal offenders, must apply for judicial restoration or pardon (see II A and B, below). Out-of-state recidivists apparently must seek restoration in the jurisdiction of their conviction. See Flynn Patrick Carey, Extending the Home Court Advantage: A Call to Update the Arizona Civil Rights Restoration Scheme, 48 Az. L. Rev. 1129 (2006); see also State v. Prince, 226 Ariz. 516, 530, 250 P.3d 1145, 1159 (2011) (“a juror convicted of an out-of-state felony whose civil rights have not been restored is disqualified from jury service by § 21-201(3)”).

B.  Firearms

Conviction of a felony suspends “[t]he right to possess a gun or firearm.” Ariz. Rev. Stat. § 13-904(A)(5).2  Firearms rights may be regained by application to court, on a timetable that depends on the nature of the offense, or by pardon. See Ariz. Rev. Stat. § 13-904(C); Ariz. Admin. Code § R5-4-101(6) (2008).3 Persons convicted of a “dangerous offense” may regain firearms rights only through a pardon. See id.; see also Part II B infra. Out-of-state and federal offenders must seek relief from firearms disabilities in the jurisdiction of their conviction. See Carey, Extending the Home Court Advantage: A Call to Update the Arizona Civil Rights Restoration Scheme, supra, 48 Az. L. Rev. at 1148-49.

C.  Other Collateral Consequences

Many of the collateral consequences of conviction applicable under Arizona law have been collected by the Law, Criminal Justice and Security Program of the University of Arizona Law School.  See Kate Adamson et al., Collateral Consequences of Criminal Conviction in Arizona, The Law, Criminal Justice and Security Program, University of Arizona (2007), available at http://www.reentry.net/public2/library/attachment.139610. See also Part III, infra.

II.  Discretionary Restoration Mechanisms
A.  Pardon
Authority

The governor has the authority to grant pardons “after conviction,” except in cases of treason or impeachment, “upon such conditions and with such restrictions and limitations as may be provided by law.” See Ariz. Const. art. V, § 5. The governor may not act except upon a favorable recommendation from the Board of Executive Clemency. See Ariz. Rev. Stat. § 31-402(A) (“no reprieve, commutation or pardon may be granted by the governor unless it has first been recommended by the [Board of Executive Clemency]”). The governor is required to publish reasons for each grant, and must report to legislature at the beginning of every regular session.  Ariz. Rev. Stat. §§ 31-445, -446.

Administration

Board of Executive Clemency consists of five persons appointed by the Governor to five-year terms. Ariz. Rev. Stat. § 31-401 (effective September 28, 2012, governor will not be required to appoint a selection committee to develop candidate lists for vacancies on the Board).  Chairperson selected by Governor. Id. § 31-401(F). Board members serve on a full-time basis, and must meet at least once a month. Id. § 31-401(B), (H). Three members constitute a quorum, except that the chairperson may designate two as a quorum. Id. § 31-401(I). The powers and duties of the Board are set forth in § 31-402. The Board’s website is at https://boec.az.gov/.

Eligibility

“Unless prohibited by law, an individual who was convicted of an Arizona felony offense may apply for a pardon.” Ariz. Admin. Code § R5-4-201(A). Persons convicted under federal law or convicted under the law of another state are ineligible for a Governor’s pardon. See id.

Effect

A state pardon “absolves an individual of the legal consequences of a crime for which the individual was convicted.” Ariz. Admin. Code § R5-4-101(6); 68 Ariz. Op. Att’y Gen. 17 (Aug. 19, 1968). In addition, a pardon is “an honor and a privilege that is reserved for those that have demonstrated crime free behavior for a period following a criminal conviction.” A pardon relieves most remaining legal disabilities and “sends a very powerful message to society that you have led a useful, productive, and law-abiding life following your conviction.”  68 Ariz. Op. Att’y Gen. 17.  Pardon restores firearms rights only if specified in the pardon document (but firearms rights may be restored by the court, see Part I).

Process

Board is required to meet at least once a month. Ariz. Rev. Stat § 31-401(H). An eligible individual “shall submit to the Board a completed application form obtained from the Board.” Ariz. Admin. Code § R5-4-201(B). The application form can be downloaded at https://boec.az.gov/sites/default/files/documents/files/Completed%20Pardon%20Application%20fillable%20rev.%20Jan.%209%202015.pdf. The Board, at its discretion, may require the applicant to submit additional information and documents. Id. § R5-4- 201(C). Prisoners may also apply for a pardon, and for such applications the Board will request that Arizona’s Department of Corrections review the application and verify whether the prisoner is eligible to apply. Id. § R5-4-201(D). Ariz. Rev. Stat. § 31-442 requires applicant to give notice of intention to apply for pardon to county attorney ten days before Board is to act, and (“unless dispensed with by the governor”) publication of that notice in a paper for a 30-day period in county of conviction.  An earlier version of the Board’s website set forth the standards considered by the Board (including reasons for applying, efforts toward rehabilitation, and whether a person has been granted a set-aside by the court). It also stated that the pardon process “can be a lengthy process that takes effort on your part.”

Hearing

“After receiving a complete application from an eligible applicant, the Board shall schedule a hearing and provide advanced written notice to the applicant of the date and location of the hearing.” Ariz. Admin. Code § R5-4-201(E). Board may require court of conviction and county attorney to provide facts proved at trial and any other facts that bear on propriety of granting or refusing pardon. Ariz. Rev. Stat § 31-441.

Under its regulations, Board is required to notify applicant within 10 work days of decision to deny or affirm recommendation for pardon to Governor.  Ariz. Admin. Code § R5-4-201(E).  “If the Board votes to recommend a pardon, the Presiding Officer shall designate a Board member to prepare and send to the governor a letter of recommendation.  The letter of recommendation may include a statement of individual Board members’ reasons for voting to recommend a pardon. Board members who voted not to recommend a pardon may prepare and send letters of dissent to the governor.” Id. § R5-4-201(G). If denied by Board or governor, applicant may not reapply for three years. Id. § R5-4-201(I).

Frequency of Grants

There were very few pardon applications through mid-1980s, but those recommended by Board were generally granted. From 1988 through 2009, Arizona governors issued 55 pardons. Governor Jan Brewer (2009-2014) granted 12 pardons during her six year tenure, all during her final month in office. Source: Arizona Board of Executive Clemency; see also Bob Ortega, Arizona Prisoners Rarely Granted Clemency, The Republic, May 12, 2012, available at http://www.azcentral.com/news/articles/2012/04/12/20120412arizona-prison-clemency.html.4 Current Governor Doug Ducey has granted no pardons since taking office in 2015.  During that year, the Board recommended just 3 pardons on 21 hearings.  Annual Report 2015, Arizona Board of Executive Clemency, https://boec.az.gov/sites/default/files/documents/files/Annual%20Report%20PDF%202015.pdf.

Contact

Executive Director
Arizona Board of Executive Clemency
1645 West Jefferson, Suite 101
Phoenix, AZ 85007
Tel: (602) 542-5656
Fax: (602) 542-5680
http://www.azboec.gov/

B.  Judicial restoration and set-aside
Judicial restoration of civil rights to repeat offenders

A person convicted under Arizona law of two or more felonies 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. §§ 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, but those sentenced to a term of imprisonment must first wait two years. Id. §§ 13-909(A), 13-910(A)-(B). There are no explicit 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. See id. §§ 13-904 et seq.; see also Carey, Extending the Home Court Advantage:  A Call to Update the Arizona Civil Rights Restoration Scheme, supra, 48 Az. L. Rev. at 1148-49

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. § 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.” See Ariz. Rev. Stat. § 13-907(C). However, it does not eliminate the conviction, and thus does not relieve the offender from having to report the conviction if asked. Id. § 13-907; see also Russell v. Royal Maccabees Life Ins. Co., 974 P.2d 443, 449 (Ariz. Ct. App. 1999) (finding expungement does not obliterate the fact of conviction and offender must report conviction in application for insurance). 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. Ariz. Rev. Stat. § 13-907(C). Set-aside is 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, certain traffic laws, or a violation of the state’s laws defining sexual offenses. Id. § 13-907(D). Set-aside does not relieve duty to register as sex-offender. See Ariz. Rev. Stat. § 13-3821; Ariz. Op. Atty. Gen. No. I00- 0300, 2000 WL 33156113 (Ariz. A.G. Dec. 18, 2000).

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 Ariz. Rev. Stat. § 13-3101,” Ariz. Rev. Stat. § 13-912(B); instead, the first offender must make an application to the court pursuant to Ariz. Rev. Stat. §§ 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(C).  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) are ineligible for judicial restoration, id., and may regain firearm rights only by pardon.  See also Ariz. Const. art. V, § 5; Ariz. Rev. Stat. § 31-443; Ariz. Op. Atty. Gen. No. I79-305 (R79-155), 1979 WL 23372, *1 n.4 (Ariz. Atty Gen. Dec. 31,1979) (noting that governor’s pardon power is “in addition” to a restoration of rights under § 13-905). See also Ariz. Rev. Stat. § 13-912.01 (restoration for persons adjudicated delinquent upon completion of probation). For juveniles adjudicated delinquent, if the person’s adjudication was for a dangerous or serious offense, the person may not file for the restoration of the right to possess or carry a gun or firearm until the person attains thirty years of age. Id. § 13-912.01(C). If the person’s adjudication was for any other felony offense, the person may not file for the restoration of the right to possess or carry a gun or firearm for two years from the date of discharge. Id.

Non-conviction records

Non-conviction records may not be sealed or expunged, but may 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; State v. Mohajerin, 226 Ariz. 103, 108, 244 P.3d 107, 112 (Ariz. Ct. App. 2010) (noting § 13-4051 does “not authorize a person’s criminal records to be expunged or hidden from law enforcement officials”). To obtain relief, “a petitioner must demonstrate both that his arrest or charge was ‘wrongful’ and that justice requires the entry of a notation of clearance . . . .” Mohajerin, 226 Ariz. At One of the ways to meet this standard is to show the allegations against petitioner are false. Id.

Juvenile adjudications

Individuals 18 years of age and older may apply to have many juvenile delinquency or incorrigibility adjudications set aside upon discharge from probation or absolute discharge unless the individual has a subsequent criminal conviction, criminal proceedings pending, has not successfully completed terms of probation, has not been discharged from department of juvenile corrections upon completion of individual treatment plan, or has not paid all restitution or assessments. Ariz. Rev. Stat. § 8-348 (A), (C). This does not apply if the adjudication involved any of the following:

(1) infliction of serious injury; (2) the use or exhibition of a deadly weapon or dangerous instrument; (3) sexual offenses; (4) driving under the influence or with a suspended license; or (5) a civil traffic violation. Id. § 8-348 (D). May be used as a predicate in subsequent criminal proceeding.  Id. §§ 8-207, 13-501.

Set-aside “relieves all penalties and disabilities from the adjudication,” with exceptions for those imposed by the Department of Transportation.

C.  Administrative certificate: N/A
III.  Nondiscrimination in 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 “whose civil rights have been restored” be disqualified from an occupation for which a license is required “solely because of” a prior conviction. Ariz. Rev. Stat. § 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.5 Subsection (E) does not apply to positions in law enforcement. Id. § 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. Id. § 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.

Licensing schemes have been interpreted to incorporate the standards of Ariz. Rev. Stat. § 13-904(E). See, e.g., Curtis v. Richardson, 212 Ariz. 308, 131 P. 3d 480 (Ariz. Ct. App. 2006) (felony conviction for possession of illegal drugs was “reasonably related” to the functions of a real estate salesperson, since the real estate industry places heavy reliance not only on an agent’s competence, honesty, and financial integrity, but also on how the person represents the industry).

Statutes governing the operation of licensing boards are variously worded. See, e.g., Cosmetology, Ariz. Rev. Stat. § 32-572(B) (“conviction of a crime or act shall not be a cause of refusal to issue or renew a license unless the crime or act is substantially related to the qualifications, functions or duties of the license for which application is made”); Nursing, id. § 32-1632(2) (“absolute discharge from the sentences for all felony convictions five or more years before the date of filing an application”); Physician’s Assistant, id. § 32- 2507(A)(1), (2) (requiring public profile describing conviction of a felony or a misdemeanor, or charges to which licensee pled no contest, involving moral turpitude within the last five years); Real Estate, id. § 32-2153(B) (denial of license for “a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense”); Pest Control, id. § 32-2312(D) (“felony conviction may demonstrate a lack of good moral character”); Funeral Services, id. § 32-1301(27)(a), (b) (“Good moral character” means that a person has not been convicted of a class 1 or 2 felony, or “has not, within five years of application for licensure or registration, been convicted of a felony or misdemeanor if the offense has a reasonable relationship to the person’s proposed area of licensure or registration”). See also Pharmacists, Ariz. Rev. Stat. § 32-1927(A)(1) (under 2005 amendment, specific reference to conviction was replaced by “unprofessional conduct” as basis for discipline; however, § 32-1901.01(B)(8) defines “unprofessional conduct” to include “[c]omitting a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude or any drug related offense”).


  1. The ACLU challenged the obligation to satisfy financial obligations before re-enfranchisement under the 14th and 24th Amendments in Coronado v. Napolitano, No. 08-17567 (9th Cir.). Coronado was consolidated with Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010). In Harvey, the Ninth Circuit upheld the statute finding it neither violated the U.S. Constitution’s Equal Protection Clause, the bar against poll taxes in the 24th Amendment, or the Privileges or Immunities Clause nor the Arizona Constitution’s Privileges or Immunities and Free and Equal Elections Clauses.  Id. at 1078-80. For an analysis of the impact of fees, fines, and restitution on felony disenfranchisement see Erika Wood & Neema Trevedi, The Modern Day Poll Tax: How Economic Sanctions Block Access to the Polls, 41 Clearinghouse Rev., 30 (May-June 2007), available at http://brennan.3cdn.net/c82128f55efee5440d_g8m6btpex.pdf.
  2. Prior to 1994, Arizona law suspended firearms rights only for persons “convicted . . . of a felony involving violence or possession and use of a deadly weapon or dangerous instrument and whose civil rights have not been restored.” See Ariz. Rev. Stat. §§ 13-904, 13-3101 (1991). In 1994, Section 13-904 was amended to add “the right to possess a gun or firearm” to the list of civil rights automatically suspended by a felony conviction. The stricter 1994 law, which did not specifically address the issue of retroactivity, has been held by Arizona state courts to apply to persons who were convicted before its passage but whose right to restoration vested after its passage.  See State v. Olvera, 191 Ariz. 75, 952 P.2d 313 (Ariz. Ct.App. 1997) (finding amendment to Ariz. Rev. Stat. § 13-904 merely changed defendant’s status to a “prohibited possessor felon” under Ariz. Rev. Stat. § 13-3101 and did not amount to punishment for earlier convictions, therefore defendant’s right to be free from ex post facto laws was not violated); State v. Gallegos, No. 1 CA-CR 07-0633, 2008 WL 3892039 (Ariz. Ct. App. May 13, 2008) (finding that amendments to Ariz. Rev. Stat. §§ 13-904, 13-3101 applied to defendant because his right to apply for restoration did not vest until he completed his probation, which occurred after the 1994 amendments). Federal courts in Arizona do not necessarily disagree, although when a defendant’s rights have vested and been restored (i.e., pre- or post-1994) appears to be a key factor. In both United States v. Simpson, 442 F.3d 737, 740-41 (9th Cir. 2006) and U.S. v. Meza-Corrales, 183 F.3d 1116, 1129-30 (9th Cir. 1999), the Ninth Circuit found that where a felon’s right to restoration had vested and rights had already been restored prior to the 1994 amendments, Ariz. Rev. Stat. §§ 13-904 and 13-3101 did not restrict a past felon’s right to possess firearms and, therefore, the defendant could not be convicted as a felon in possession under 18 U.S.C. § 922(g). Indeed, the Meza-Corrales court, relying on Olvera, opined that Arizona courts had not interpreted Ariz. Rev. Stat. § 13-904 to restrict a past felon’s right to possess firearms where his civil rights had otherwise been fully restored.  See Meza-Corrales, 183 F.3d at 1129-30, n.6.
  3. Defining “pardon” as “an action by the governor that absolves an individual of the legal consequences of a crime for which the individual was convicted.”
  4. The governor approves even fewer commutation applications. Under Board requirements, prison inmates can apply for commutation once they have served two years of their sentence and are not within one year of their parole eligibility/mandatory release date for sentences more than three years. Exceptions are special orders of the court under § 13- 603L requesting the Board entertain an inmate petition within 90 days of admission, sentences of three years or less, and imminent danger of death petitions. See https://boec.az.gov/sites/default/files/documents/files/Revised%20Commutation%20App%20May%2025%202016_1.pdf. 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 generally 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. Since 1988, no Arizona governor has commuted a death sentence. In the 31 executions since 1992, the Board has never recommended a commutation. Bob Ortega, Arizona Prisoners Rarely Granted Clemency, supra, at http://www.azcentral.com/news/articles/2012/04/12/20120412arizona-prison-clemency.html. Up until 1993, fewer than 60 inmates a year, on average, applied for commutation. See id.  In 1993, Arizona adopted so-called “truth in sentencing” laws, which more or less abolished parole. Under these laws, offenders must serve at least 85% of their sentence before becoming eligible for community supervision. Some felonies require 100% of the sentence be served. Along with mandatory sentencing minimums, these laws have made commutation the only avenue for most offenders to seek a reduced sentence. See id. As a result, in recent years commutation applications have skyrocketed—applications soared to more than 1,200 in 2005.  Id.  From April 1988 to May 2012, only 104 commutations were granted by Arizona governors.  Id.  Of the 24 commutations granted by Governor Brewer, 19 were “imminent danger or death” cases. Id. 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).
  5. Section 13-904(E) provides:

    A person shall not be disqualified from employment by this state or any of its agencies or political subdivisions, nor shall a person whose civil rights have been restored be disqualified to engage in any occupation for which a license, permit or certificate is required to be issued by this state solely because of a prior conviction for a felony or misdemeanor within or without this state. A person may be denied employment by this state or any of its agencies or political subdivisions or a person who has had his civil rights restored may be denied a license, permit or certificate to engage in an occupation by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.

Copyright © 2017

Restoration of Rights Series/Alaska

Alaska flagI.  Restoration of Civil/Firearms Rights
A.  Civil Rights
Vote/Jury

The rights to vote and to serve on a jury are lost upon conviction of a felony and automatically restored upon completion of sentence (“unconditional discharge”).  Alaska Stat. §§ 09.20.020; 15.05.030(a); 33.30.241.  See also 12.55.185.18 (defining unconditional discharge as release “from all disability arising under a sentence, including probation and parole”). The commissioner of corrections must establish procedures for notifying those unconditionally discharged about the voter registration requirements and procedures.  § 15.05.030(b).

Office

Restoration of vote also restores right to hold office.  Alaska law contains several general prohibitions against holding public office by a person who is not a qualified voter:  Alaska Stat. §§ 15.25.030(10) (candidacy for public office); § 39.05.100 (appointment to a board or commission of state government must be “registered voter”).  See the more specific provisions relating to service on school board (§ 14.08.045(a)(4) (conviction of felony involving moral turpitude or offense involving violation of oath of office) and as judge (§ 22.30.070(b) (on recommendation of commission, supreme court may reprimand, censure, or suspend judge convicted of crime punishable as a felony under state or federal law, or of crime involving moral turpitude).

B.  Firearms

A felony offender may not possess a concealable weapon for 10 years following discharge (privilege is lost permanently if offense is one against the person), unless conviction set aside or pardoned. Alaska Stat. §11.61.200(a)(1),(b)(1).  During the period of disability a convicted person may not live in a building where concealable firearms are kept without permission of court or law enforcement. § 11.61.200(a)(10). Once 10-year period has expired, state offender is relieved of federal firearms bar since all civil rights restored. See 18 U.S.C. § 921(a)(20).

C.  Licensing

A professional license may be denied or revoked upon conviction.  See, e.g., § 21.27.410(a)(7)(insurance agent); § 08.04.450(5), (6)(accountant); § 08.68.270(2)(nurse); § 08.88.171(a)(real estate broker). See also Deborah Periman, The Hidden Impact of a Criminal Conviction: A Brief Overview of Collateral Consequences in Alaska 6 – 27 (Dec 2007), http://justice.uaa.alaska.edu/occasionalpapers/op01.collateral.pdf.

D. Other collateral consequences

For a review of collateral consequences in Alaska, see Alaska Prisoner Reentry Task Force, “Alaska’s 5-Year Prisoner Reentry Strategic Plan, 2011–2016,” http://www.correct.state.ak.us/TskForce/documents/Five-Year%20Prisoner%20Reentry%20Plan.pdf, discussed in Part III,  See also Periman, The Hidden Impact of a Criminal Conviction: A Brief Overview of Collateral Consequences in Alaska 6 (Dec 2007), http://justice.uaa.alaska.edu/occasionalpapers/op01.collateral.pdf.

E.  State Policy on Rehabilitation

Rehabilitation and reintegration of the convicted have been components of public policy in Alaska since statehood; the principle of reformation is one of the five considerations on which the Alaska Constitution requires that administration of the criminal justice system be based. (The others are public safety, community condemnation of the offender, rights of victims, and restitution from the offender. See Alaska Constitution art. I, § 12.)

II.  Discretionary Restoration Mechanisms
A.  Pardon
Authority

The pardon power, except in cases of impeachment, is vested in the Governor alone, “subject to procedure prescribed by law.”  Alaska Const. art. III, § 21; Alaska Stat. § 33.20.070.  By statute, the governor “may not grant executive clemency to a person” unless the case has first been referred for investigation to the Board of Parole and at least 120 days have passed.  § 33.20.080(a).  The Board is required to investigate each case so referred and report to governor within 120 days.   Id.  It must also, within five days of receipt of notice from governor, notify the Department of Law, the office of victim’s rights, and the victim if a crime of violence or arson. § 33.20.080(b).1  Non-statutory Governor’s Executive Clemency Advisory Committee (“ECAC”) (composed of a member of the governor’s staff, a representative from the Department of Law, and a public member) reviews investigative reports and advises the governor.  The governor is not bound by the Committee’s advice.

For a thorough review of the history and practice of pardoning in Alaska, see Ronald S. Everett & Deborah Periman, “The Governor’s Court of Last Resort:” An Introduction to Executive Clemency in Alaska, 28 Alaska L. Rev. 58 (2011). The records of the Parole Board indicate that there have been only 188 grants of clemency since statehood in 1959, of which more than half (96) were granted between 1959 and 1966 by Alaska’s first governor.  There have been no grants at all since 2006.  See id. at 83.

Eligibility

A person may not apply for pardon unless and until he or she has been found eligible to apply by Parole Board staff.  The application process begins with filing an Eligibility Determination form.  See http://www.correct.state.ak.us/Parole/documents/Clemency%20Eligibility%20Determination%20Form.pdf.  The Parole Board website states that the clemency process is presently undergoing review, so that the previously applicable handbook describing standards for pardon has been withdrawn.   Persons convicted under federal law or convicted under the law of another state are ineligible for a Governor’s pardon.

Effect

Pardon is the only way to regain lost rights and remove disabilities under Alaska law.  Pardon has the effect of “setting aside” the conviction, so that individual is deemed not to have been convicted (though conviction remains on the record).  A pardoned conviction may not be taken into account in subsequent sentencing, or by licensing board, though conduct underlying the conviction may be.  Conviction is no longer a bar, but offense conduct may be considered in context of determining good moral character.  A pardon will restore gun rights. Alaska Stat. § 11.61.200(b) & (g).

Process

Aside from the notice requirements described above, no formal regulations govern process.  Alaska Stat. § 33.20.080(b).   Applicants are warned on Parole Board website that “The clemency policies of the State of Alaska are very strict, the process is lengthy, and clemency is rarely granted.” See Alaska Board of Parole, Executive Clemency Eligibility Determination, http://www.correct.state.ak.us/corrections/Parole/documents/Clemency%20Eligibility%20Determination%20Form.doc.  Initial determination of eligibility takes 30 days. Applicants for clemency are informed that “virtually their entire history is considered,” and they are required to sign waivers permitting an investigation of their employment and personal history.  Applications are investigated by staff of the Board of Parole, including comments from DA and sentencing court and victim if relevant, and a summary of the case with recommendation is prepared and submitted to the Governor’s Executive Clemency Advisory Committee (“ECAC”), which meets as often as necessary to review pending applications.

Restructuring of the Clemency Process

In 2009, concerned about the paucity and irregularity of grants in 2005 and 2006, a process was put in place by the then-Lieutenant Governor to completely restructure the Alaska clemency process, and to make formal the criteria for clemency. All applications for clemency were put on hold at that time.  In June 2011, the Executive Secretary of the ECAC sent specific recommendations to the Governor.   Six years later, in May 2017, there had been no movement on the restructuring of the program, although Parole Board website indicated that it was still accepting applications.  http://www.correct.state.ak.us/parole-board/clemency-update.

Frequency of Grants

In recent years, Executive Clemency Advisory Committee has met on the average two or three times a year.  There are few pardon applications, and there have been only three pardon grants since 1995.  Source: Alaska Parole Board.2

Contact

Carrie Belden
Alaska Parole Board
907-269-4642
carrie.belden@alaska.gov

B.  Judicial sealing or expungement
Set-aside after deferred imposition of sentence

Court may suspend imposition of sentence and, after successful completion of a period of probation, “set aside the conviction and issue to the person a certificate to that effect.”  Alaska Stat. § 12.55.085(e).  Serious violent offenses, stalking, removing a child from the state, human trafficking, sex offenses, and offenses involving use of firearm do not qualify. Id. at (f).   No affirmative showing or finding of rehabilitation need be made before a set-aside is granted; rather, a set-aside should be granted as a matter of right unless some specific reason for denial is established. Wickham v. State, 770 P.2d 757 (Alaska Ct. App. 1989).  Before a sentencing court may refuse to set aside a conviction under subsection (e), the defendant must be given notice that there is reason to believe a set-aside should not be granted, with a precise statement of the reason or reasons, and must be afforded an opportunity for a hearing on the set-aside issue. Mekiana v. State, 707 P.2d 918, 921-22 (Alaska Ct. App. 1985), rev’d on other grounds, 726 P.2d 189 (Alaska 1986):

By enacting the set-aside language of subsection (e), the legislature clearly intended to provide probationers who received a suspended imposition of sentence with the prospect of a clean slate and the promise of a new beginning upon successful completion of probation; a sentencing court cannot thwart this legislative goal — or, for that matter, hinder appellate review — by denying such relief without explanation.

See also Wickham, supra at 1143:

[Statute] does not abandon the requirement of showing rehabilitation as a prerequisite to a set-aside; rather, the statute merely shifts the burden of proof on the issue. In practical effect, the statute deems successful completion of probation to be the equivalent of a prima facie showing of rehabilitation. This implicit showing of rehabilitation imposes on the state the duty of rebuttal, that is, the burden of presenting the court with evidence showing “good cause” to deny set-aside, despite the offender’s apparent rehabilitation.

A conviction that has been set aside may not be relied on for impeachment purposes, and does not qualify as “a ‘conviction’ in situations in which a sentence is increased or a crime is defined by a prior conviction.”  See Doe v. State, Dep’t of Pub. Safety, 92 P. 3d 398, 406 (Alaska 2004).  See also Larson v. State, 688 P.2d 592, 597 (Alaska 1984) (set-aside conviction not counted in determining status as repeat offender).  “In other words, the act of setting a conviction aside creates ‘a settled expectation that the state [will] not subsequently use the conviction … as a basis for imposing brand-new affirmative burdens on [the defendant].’”   Alaska Board of Nursing v. Platt, 169 P.3d 595, 599 (Alaska 2007) (citing Doe, supra, at 408).   For example, it is an affirmative defense to a felon-in possession prosecution under § 11.61.200 that the person has had her conviction set aside pursuant to § 12.55.085.  See Alaska Stat. § 11.61.200(b)(1)(B), (b)(2)(B), (g)(1)(B).  On the other hand, set-aside does not eradicate the fact of conviction, and a defendant’s prior criminal history of repeated instances of assaultive behavior or cruelty to animals may be considered as an aggravating sentencing factor, see Alaska Stat. § 12.55.155(c)(8).  Larson, supra, at 597-98; Krasovich v. State, 731 P.2d 598 (Alaska 1987), or used to deny licensure where convicted conduct is substantially related to opportunity.  See Platt, supra at 599.

Suspended entry of judgment

Under legislation enacted in 2016, courts may, for certain offenses, place a defendant on probation without an entering a judgement of guilt. Alaska Stat. § 12.55.078. Upon successful completion of probation, the defendant is discharged, charges are dismissed, and no conviction results.  The courts may not publish records of dismissal under this authority on a public website.  See also “Nonconviction records,” infra.

Sealing and expungement

Courts have no authority to order the criminal record expunged after set-aside, Journey v. State, 895 P.2d 955, 962 (Alaska 1995).  Moreover, a conviction that has been set aside remains a conviction for purposes of denying a license.  See Board of Nursing v. Platt, supraSee also Spenard Action Comm. v. Lot 3, Block 1, Evergreen Subdiv., 902 P.2d 766, 779 (1995) (explaining that a conviction that has been set aside is nevertheless evidence that a crime occurred;“[T]he dismissal of a charge following the period of stayed imposition of sentence is in the nature of a pardon, not a declaration of innocence.”) (quoting City of St. Paul v. Froysland, 310 Minn. 268, 246 N.W.2d 435, 438 (1976)).

Alaska courts can limit access to otherwise public court records on request if a “legitimate interest in confidentiality” outweighs other interests, see Rules Gov. Administration of All Courts 37.6.  Court may grant access to these records upon petition.  Rule 37.7.  In general, in Alaska there exists “a clear preference for public records to remain accessible.” Johnson v. State, 50 P.3d 404, 406 (Alaska App. 2002).  Alaska court system provides court records online. See http://orca.courts.state.ak.us/names/.

Nonconviction records

Nonconviction records are generally unavailable to the public without the consent of the subject of the record.  Alaska Stat. § 12.62.160(b)(8); 13 AAC 68.310.  Additional sealing further restricting access to nonconviction records is authorized only in cases of mistaken identity or false accusation, if proved beyond a reasonable doubt to the head of the criminal justice agency responsible for maintaining the records. Alaska Stat. § 12.62.180(b).3  On appeal, the defendant must show that the decision below was “clearly mistaken.”  § 12.62.180(c).  After sealing, the person may deny the existence of the information and of an arrest, charge, conviction, or sentence shown in the information.  Alaska Stat. § 12.62.180(d).  Under this authority, access is permitted by government agencies and employers who work with minor or dependent adults. § 12.62.160(b)(9).

Online publication of cases resulting in acquittal or dismissal, including following suspended entry of judgment:

The Alaska Court System may not publish a court record of a criminal case on a publicly available website if 60 days have elapsed from the date of acquittal or dismissal and

(1) the defendant was acquitted of all charges filed in the case;

(2) all criminal charges against the defendant in the case have been dismissed and were not dismissed as part of a plea agreement in another criminal case
under Rule 11, Alaska Rules of Criminal Procedure;

(3) the defendant was acquitted of some of the criminal charges in the case and the remaining charges were dismissed; or

(4) all criminal charges against the defendant in the case have been dismissed after a suspended entry of judgment under AS 12.55.078.

Alaska Stat. § 22.35.030.

Juvenile records

Records of juvenile adjudications are generally confidential and unavailable to the public. Alaska Stat. § 47.12.300 (c), (e).  Additionally, the court shall seal most juvenile records (except for traffic offenses, class A & B felonies against the person or first degree arson, Alaska Stat. § 47.12.030) within 30 days of a minor’s 18th birthday or within 30 days of the court’s release of jurisdiction, whichever is later. If a juvenile was charged as an adult, most juvenile records (except for traffic offenses and certain serious felonies) may be sealed five years after completion of the sentence or five years after the records are made public. §§ 47.12.300(d) and (f).  “A person may not use these sealed records for any purpose except that the court may order their use for good cause shown or may order their use by an officer of the court in making a presentencing report for the court.” Id.4

III.  Nondiscrimination in occupational licensing and employment

Alaska has no general law regulating consideration of conviction in employment or licensure.  It does apply a direct relationship test in connection with disciplinary action for medical and nursing licensees.  See Alaska Stat. § 08.68.270 (“The board [of nursing] may [discipline] a person who . . . (2) has been convicted of a felony or other crime if the felony or other crime is substantially related to the qualifications, functions or duties of the licensee”); § 08.64.326 (board of medical licensing may impose a disciplinary sanction on a licensee who has been convicted of a Class A felony, or a class B or C felony “that is substantially related to the qualifications, functions, or duties of the licensee,” or of a crime involving the unlawful procurement, sale, prescription, or dispensing of drugs).

Alaska Prisoner Reentry Task Force

In 2007, then-Chief Justice Fabe of the Alaska Supreme Court established the Criminal Justice Working Group, an organization comprising representatives from justice agencies across the state as well as representatives of the legislature.  See http://justice.uaa.alaska.edu/a-z/c/criminal_justice_working_group.html.  One of the group’s key objectives is reducing recidivism.  One of its subcommittees is the Alaska Prisoner Reentry Task Force.   The subcommittee on employment restrictions is working to “identify laws that are barriers to housing, employment, and other needs of persons with felony convictions,” and to “consider what changes might be possible, in the context of public safety, and rehabilitation of the offender.”  See http://justice.uaa.alaska.edu/forum/27/1spring2010/d_reentry.html.   In February 2011 the Task Force released “Alaska’s 5-Year Prisoner Reentry Strategic Plan, 2011–2016,” which includes a lengthy chapter on collateral consequences and recommendations to address this issue.  See http://www.correct.state.ak.us/TskForce/documents/Five-Year%20Prisoner%20Reentry%20Plan.pdf.  See also Alaska Prisoner Reentry Task Force Update, http://justice.uaa.alaska.edu/forum/29/3-4fall2012winter2013/e_reentry.html.


  1. The Governor’s clemency authority was made subject to these limits by a statute passed in February 2007, in response to public outcry over a pardon granted by outgoing Governor Frank Murkowski to a construction company held criminally liable for the death of one of its employees in a landslide.  See Pat Forgey, “Governor Signs Bill Restricting Executive Clemency,” Juneau Empire, February 21, 2007, http://www.juneauempire.com/stories/022107/loc_20070221002.shtml.
  2. See note 1 for a controversial grant in 2007 at the end of Governor Murkowski’s term.
  3. In August 2014 Governor Parnell vetoed SB 108, which would have permitted the sealing of records of criminal cases in which a person was acquitted or had charges dismissed.
  4. Certain records (petitions for declaration of delinquency, to revoke or modify probation, to find a child not amenable to treatment, and court orders disposing of these petitions) are available to those with a “legitimate interest,” defined to include (but not limited) to foster parents and victims of a crime seeking to support a civil action against the minor or his/her guardians.  Alaska Stat. §§ 47.12.300(e).