I. Restoration of Civil/Firearms Rights
A resident of the District of Columbia who is convicted of a felony may vote if not actually incarcerated. D.C. Mun. Regs. tit. 3, § 500.3. A person incarcerated for a misdemeanor violation of D.C. Code §§ 1-1001.14 (corrupt election practices), 1-1105.07 (lobbying violations), or 1-1107.01 (miscellaneous provisions under election laws chapter) loses the right to vote during the period of incarceration. D.C. Code § 1-1001.02(7) (violations of §§ 1-1001.14, 1-1105.07, and 1-1107.01 included in definition of “felony” for purposes of qualification to vote).
B. Office, Jury
The right to hold office is also restored automatically upon release from prison. D.C. Code § 1-204.02. An individual who is disqualified from jury service by reason of a felony conviction, “may qualify for jury service not less than one year after the completion of the term of incarceration, probation, or parole following appropriate certification under procedures set out in the jury system plan.” § 11-1906(b)(2)(B). Pursuant to D.C. Superior Court policy, a person with a felony conviction is ineligible for jury service for a ten-year period.
A convicted person may not serve as a personal representative in probate of an estate if his sentence has not expired or has expired within 10 years (unless pardoned on the basis of innocence). § 20-303(b)(4). Occupational licenses may be revoked because of a conviction. See, e.g., § 3-1205.03(a)(1) (heath care); § 25-301(a)(3)-(4) (liquor license); § 3-509(a)(2) (veterinarian). See generally Washington Lawyer’s Committee for Civil Rights & Urban Affairs, The Collateral Consequences of Arrests and Convictions under D.C., Maryland, and Virginia Law (Oct. 2014), available at http://www.washlaw.org/pdf/wlc_collateral_consequences_report.pdf.
D.C. Code § 7-2502.03: In order to possess a firearm, a person must be registered. Certain classes of ex-offenders are prohibited from registering. No firearm registration will be issued if the person has, (1) “been convicted of a crime of violence, weapons offense, or of a violation of the registration regulations;” (2) is “under indictment for a crime of violence or a weapons offense;” (3) has “been convicted within 5 years prior to the application of any violation in any jurisdiction of any law restricting the use, possession, or sale of any narcotic or dangerous drug;” or (4) has “been convicted within 5 years prior to the application of a violation of § 22-407, regarding threats to do bodily harm, or § 22-404, regarding assaults and threats, or any similar provision of the law of any other jurisdiction so as to indicate a likelihood to make unlawful use of a firearm.” A person also may not be licensed if, within the 5-year period immediately preceding the application, he was acquitted of any criminal charge by reason of insanity or was adjudicated a chronic alcoholic by any court, unless the person can present “a medical certification indicating that the applicant has recovered from such insanity or alcoholic condition and is capable of safe and responsible possession of a firearm.”
D. Collateral Consequences Report
The Washington Lawyers Committee for Civil Rights and Urban Affairs issued a report in October 2014 titled The Collateral Consequences of Arrests and Convictions under D.C., Maryland and Virginia Law, available at http://www.washlaw.org/pdf/wlc_collateral_consequences_report.pdf. One of its recommendations is that D.C. extend its ban-the-box policy to private employment, and that Maryland and Virginia both enact ban-the-box policies. The report does not address individualized relief in detail, but proposes to do so in a future report. See also the earlier WLC report on arrest rates and their impact in the District, http://www.washlaw.org/pdf/wlc_report_racial_disparities.pdf.
II. Discretionary Restoration Mechanisms:
A. Executive pardon
Only the President has authority to pardon D.C. Code offenses.1
Eligibility, effect and process for presidential pardon are all the same as for federal offenses. See Federal profile.
Frequency of Grants
Pardon grants to D.C. Code offenders are rare, with only one issued since 19902, although more than a dozen individual convicted in federal court in the District have been pardoned during that period. Source: Office of the Pardon Attorney.
B. Judicial sealing or expungement
Misdemeanor Convictions and Nonconviction Records
D.C. Code § 16-803 (part of The Criminal Record Sealing Act of 2006, codified at D.C. Code § 16-801 et seq.), authorizes sealing of records not resulting in conviction, as well as records of conviction for certain non-serious misdemeanors, and of felony failure to appear. Misdemeanors that are defined as “ineligible” for sealing are listed in § 16-801(9), and include DUI and driver’s license offenses, intra-family offenses, sex offenses, a variety of misdemeanor fraud offenses (including credit card, public assistance, and insurance fraud), and building code violations.3
Applicants for sealing under D.C. Code § 16-803 must have no pending charges and satisfy the applicable minimum waiting period — 2 years in case of arrest for an eligible misdemeanor, 4 years in case of arrest for an ineligible misdemeanor or any felony (3 if no charges were brought), and 8 years for conviction of an eligible offense. § 16-803(a)-(c). Waiting periods may be waived by the prosecutor. § 16-803(e).
Conviction records, and non-conviction records where charges were dismissed after completion of a deferred sentencing agreement, may not be sealed if the person has been convicted at any time of an ineligible offense under § 16-801(8), (9) or of any offense after the date of the conviction or arrest to be sealed. § 16-803(a) – (c). For non-conviction records (except those resulting from completion of a deferred sentencing agreement), conviction at any time of an ineligible offense or a subsequent offense does not disqualify from sealing relief under this provision, but it increases the applicable waiting period (5 years must have elapsed since conviction of most recent ineligible/subsequent misdemeanor; 10 years for felony). § 16-803(a), (b).
D.C. Code § 16-803(h): The Superior Court shall grant a motion to seal under § 16-803 “if it is in the interests of justice to do so.”
In making this determination, the Court shall weigh:
(A) The interests of the movant in sealing the publicly available records of his or her arrest, related court proceedings, or conviction;
(B) The community’s interest in retaining access to those records, including the interest of current or prospective employers in making fully informed hiring or job assignment decisions and the interest in promoting public safety; and
(C) The community’s interest in furthering the movant’s rehabilitation and enhancing the movant’s employability.
In making this determination, the Court may consider:
(A) The nature and circumstances of the offense at issue;
(B) The movant’s role in the offense or alleged offense and, in cases terminated without conviction, the weight of the evidence against the person;
(C) The history and characteristics of the movant, including the movant’s:
(ii) Physical and mental condition;
(iii) Employment history;
(iv) Prior and subsequent conduct;
(v) History relating to drug or alcohol abuse or dependence and treatment opportunities;
(vi) Criminal history; and
(vii) Efforts at rehabilitation;
(D) The number of the arrests or convictions that are the subject of the motion;
(E) The time that has elapsed since the arrests or convictions that are the subject of the motion;
(F) Whether the movant has previously obtained sealing or comparable relief under this section or any other provision of law other than by reason of actual innocence; and
(G) Any statement made by the victim of the offense.
D.C. Code § 16-803(h).
Procedure and Burdens of proof
The court may dismiss a petition for sealing without a hearing if “it plainly appears from the face of the motion … that the movant is not eligible for relief or is not entitled to relief;” otherwise prosecutor has 60-90 days to respond, after which the court may grant, deny, or order a hearing within 30 days. D.C. Code § 16-805. Witnesses and other evidence may be presented at hearing. Id.
In a motion filed under § 16-803(a) (eligible misdemeanor not resulting in conviction), the burden shall be on the prosecutor to establish by a preponderance of the evidence that it is not in the interests of justice to grant relief. § 16-803(i). In a motion filed under § 16-803(b) (ineligible misdemeanor or any felony not resulting in conviction), the burden shall be on the movant to establish by a preponderance of the evidence that it is in the interests of justice to grant relief. Id. In a motion filed under § 16-803(c) (eligible conviction), the burden shall be on the movant to establish by clear and convincing evidence that it is in the interests of justice to grant relief. Id.
Records sealed under § 16-803 are placed in a non-public file but remain available to law enforcement, courts, prosecutors, licensing agencies, public employers, and schools and child care facilities, to be used “for any lawful purpose.” §§ 16-806(b), 16-801(11). Sealed records may also be used in civil litigation relating to the arrest or conviction. §§ 16-806(b)(2). Records may be made available to others “upon order of the Court for good cause shown.” § 16-806(b)(3). An individual whose record has been sealed under D.C. Code § 16-803 may deny the arrest or conviction, except in response to an inquiry from one of the entities expressly authorized to access the records. §§ 16-803(m), 16-801(11).
Sealing services and additional information are offered by the Public Defender Service of the District of Columbia. See http://www.pdsdc.org/need-legal-advice/record-sealing-and-expungement.
Other Sealing Authorities — Actual Innocence, Legalized Offenses & Fugitive Arrests
A person may petition for sealing on grounds of actual innocence under D.C. Code § 16-802. Conviction and non-conviction records for decriminalized/legalized offenses may be sealed under § 16-803.02. Non-conviction records of a person arrested as a fugitive for justice may be sealed under § 16-803.01. Different eligibility criteria apply.
Records sealed for actual innocence under § 16-802 may only be opened by a court order “upon a showing of compelling need.” § 16-806(a). Records sealed under §§ 16-803.01 and § 803.02 are available only to courts and law enforcement, and for use in civil litigation related to the arrest or conviction. § 16-806(b)
An individual whose record has been sealed under any of these sealing authorities may deny the arrest or conviction upon an inquiry made “for any purpose.” § 16-802(i), -803.1(c)(5), -803.02(b)(6).
Juvenile Adjudication Records
Sealing of juvenile delinquency proceedings is governed by D.C. Code § 16-2335. Upon motion by the juvenile or on its own motion, the court will order all records sealed if it finds that 1) a neglected child has reached age of majority or two years has elapsed since final discharge from custody/supervision; and 2) there have been no subsequent convictions or adjudications of delinquency. § 16-2335(a). Subsequent convictions or adjudications will nullify the sealing order. § 16-2335(e). Upon sealing, all proceedings are treated “as if they never occurred,” including for law enforcement purposes. § 16-2335(c). Any court or agency that “shall reply, and the person who is the subject matter of the records may reply, to any inquiry that no record exists with respect to such person.” Id.
Per D.C. Code § 16-2335(h), “a juvenile shall not be required to disclose and shall have the right to refuse disclosure of his or her juvenile delinquency history in an application for employment, education, or housing.”
Youth Rehabilitation Act
Under D.C. Code § 24-901 et seq., a person less than 22 years of age who is convicted of a crime other than murder may be given the benefit of sentencing under this act. If discharged unconditionally prior to completion of probation, the conviction is automatically set aside by the court, § 24-906(a). If the sentence expires before unconditional discharge, the conviction may be set aside by the U.S. Parole Commission, in its discretion. § 24-906(b). A conviction set aside under this section may be used as a predicate offense or to enhance a subsequent sentence, for sex offender registration, and for a firearms offense predicate. § 24-906(f). As a non-conviction record, it is eligible for sealing under D.C. Code § 16-803 (see above).
III. Nondiscrimination in Licensing and Employment
Municipal Hiring – Ban-the-Box Policy
“Returning Citizen Public Employment Inclusion Amendment Act of 2010,” Chapter XX-D of D.C. Merit Personnel Act, D.C. Code § 1-601.01 et seq., available at http://www.dcregs.dc.gov/Gateway/NoticeHome.aspx?noticeid=693664. This Act limits pre-employment inquiries for all municipal government positions except those that require a background check. § 1-620.42. In considering whether to disqualify an applicant for employment or terminate an existing employee based on criminal record, the employer shall consider
(1) The specific duties and responsibilities of the position sought or held;
(2) The bearing, if any, that an applicant’s or employee’s criminal background will have on the applicant’s or employee’s fitness or ability to perform one or more of such duties or responsibilities;
(3) The time that has elapsed since the occurrence of the criminal offense;
(4) The age of the person at the time of the occurrence of the criminal offense;
(5) The frequency and seriousness of the criminal offense;
(6) Any information produced regarding the applicant’s rehabilitation and good conduct since the occurrence of the criminal offense; and
(7) The public policy that it is generally beneficial for ex-offenders to obtain employment.
§ 1-620.43. The Fair Criminal Record Screening Act of 2014 expands the “ban the box” policy to private employers with more than 10 employees in D.C., effective October 21, 2014.4 The 2014 law prohibits any inquiry into arrests or charges that are not pending and that did not result in a conviction, and bars employers from considering an applicant’s criminal convictions until after the employer has extended a conditional offer of employment. An employer may withdraw a conditional offer of employment based on an applicant’s conviction history only for a “legitimate business reason” that is “reasonable” in light of the seven factors outlined above. If an offer is withdrawn, the applicant is entitled to request within 30 days and receive a written statement explaining the legitimate business reason for the action in light of the seven factors. The applicant may also file a complaint with the D.C. Office of Human Rights (OHR), which can bring administrative proceedings against an employer that it believes has violated the law and levy fines. A portion of these fines may go to the job applicant. In contrast with other matters brought to OHR, however, the new law specifically states that it does not authorize the filing of lawsuits alleging improper denials to job applicants.
Limitation on Employer Liability
Under the Re-entry Facilitation Amendment Act of 2012, employers will not be held liable for negligent hiring if they have made “a reasonable, good faith determination” that certain factors favored the hiring or retention of an applicant with a criminal record, including nature of the crime, duties of the position, time elapsed since conviction, information relating to rehabilitation and good character, and “the public policy that it is generally beneficial for persons with criminal records to obtain employment.” See D.C. B19-889 (2012).
Licensure of non-health related occupations
A person may be denied a license based upon criminal conviction only if it “bears directly upon the fitness” of the person to be licensed. D.C. Code § 47-2853.17(a). Under this provision, a person may be denied a license only after consideration of the following criteria:
- The specific duties and responsibilities necessarily related to the license sought;
- The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more of the duties or responsibilities specified under paragraph (1) of this subsection;
- The time that has elapsed since the occurrence of the criminal offense or offenses;
- The age of the applicant at the time of occurrence of the criminal offense or offenses;
- The seriousness of the criminal offense or offenses;
- Any information produced by the applicant, or produced on his behalf, in regard to his rehabilitation and good conduct; and
- The legitimate interest in protecting property, and the safety and welfare of specific individuals or the general public.
If the license is denied on grounds of conviction, the denial must be in writing and must specify the reason(s) for the denial. The applicant must be provided a copy of the notice. § 47-2853.17(c-2).
Professions requiring a license are listed at § 47-2853.04. Certain occupations 5 are subject to a higher standard under § 202 of Omnibus Public Safety Ex-Offender Self-Sufficiency Reform Amendment Act of 2004, D.C. Law 15-357 (2005).
Legislation passed in 2006 by D.C. City Council would have included conviction as a basis of prohibited discrimination in D.C. human rights law. This legislation was vetoed by the Mayor.
Licensure of health-related professions
Licensing is also governed by D.C. Code § 3-1205.03, which states that, “[a]n individual applying for a license under this chapter shall establish to the satisfaction of the board regulating the health occupation that the individual has not been convicted of an offense which bears directly on the fitness of the individual to be licensed.” § 3-1205.03(a)(1). See also § 3-1205.14(a)(4) (health occupation board may take disciplinary action against a health professional based upon conviction of a crime of moral turpitude or offense that bears directly on the fitness of the individual to practice).
- The Mayor of the District has a limited power to pardon violations of municipal ordinances, though this authority has not been used. See D.C. Code § 1-301.76 (Mayor may grant “pardons and respites for offenses against the late corporation of Washington, the ordinances of Georgetown and the levy court, the laws enacted by the Legislative Assembly, and the police and building regulations of the District”).
- Albert Mack, convicted in 1982 in D.C. Superior Court of a controlled substance offense, was pardoned by President Obama in 2013. No sentences imposed under the D.C. Code have been commuted.
- An earlier provision authorizing “Treatment Instead of Jail for Certain Non-violent Offenders” was repealed.
Former D.C. Code § 24-751.01 et seq. authorized deferred adjudication for eligible first-and second-offenders charged with drug use and possession. Eligibility requirements were spelled out in § 24-751.05. Upon completion of a treatment program, charges would be dismissed and record expunged. § 24-751.10. The effect of expungement was “to restore such person, in the contemplation of the law, to the status he or she occupied before such arrest or indictment or information.” Upon expungement, a person could deny conviction except in an application to be a law enforcement officer. § 24-751.10.
- See Council of the District of Columbia, B20-0642, Fair Criminal Record Screening Act of 2014, http://lims.dccouncil.us/Legislation/B20-0642.
- Asbestos worker; Barber; Cosmetologist; Commercial bicycle operator; Electrician; Funeral Director; Operating engineer; Plumber/gasfitter; Refrigeration and air conditioning mechanic; and Steam engineer. See Trade Occupations Exemption from Conviction Restriction on Licensure Act of 2004, codified at D.C. Code § 47-2853.17(a)(5).
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