Restoration of Rights Series/Idaho

idaho flagI.  Restoration of Civil/Firearms Rights
A.  Civil Rights

A “sentence of custody to the Idaho state board of correction” following a felony conviction “suspends all the civil rights of the person so sentenced, including the right to refuse treatment authorized by the sentencing court, and forfeits all public offices and all private trusts, authority or power during such imprisonment.”  Idaho Code Ann. § 18-310(1).  A suspended sentence also results in loss of right to vote.  Id. (any such person “may lawfully exercise all civil rights that are not political during any period of parole or probation”).  Civil rights are restored upon final discharge of sentence.  § 18-310(2) (“final discharge” means satisfactory completion of imprisonment, probation and parole as the case may be).  The civil rights of those convicted in other jurisdictions may be restored on the same terms.  § 18-310(4).  The Administrative Office for U.S. Courts has taken the position that federal offenders on supervised release are entitled to register and vote.1

B.  Firearms

A felony conviction results in the loss of firearms rights only during the period of sentence, with the exception of specified serious violent crimes.  Idaho Code Ann. §§ 18-310(1), (2).  For those crimes, firearms rights may be restored by application to the Idaho Commission for Pardons and Parole five years after the date of final discharge.  § 18-310(3). See also § 18-3316(4) (firearms rights restored if a person’s “conviction has been nullified by expungement, pardon, setting aside the conviction or other comparable procedure by the jurisdiction where the felony conviction occurred; or whose civil right to bear arms either specifically or in combination with other civil rights has been restored by any other provision of Idaho law.”).

II.  Discretionary Restoration Mechanisms:
A.  Executive Pardon
Authority

The Idaho Constitution empowers legislature to create a board to grant pardons.  Idaho Const. art. IV, § 7.  This board (Idaho Commission for Pardons and Parole) has authority to grant pardons, except in cases of treason and impeachment, subject to legislative limitations on its power and manner of proceeding.  Idaho Const. art. IV, § 7; Idaho Code Ann. §§ 20-210, 20-240.2  The governor has constitutional power to grant reprieves or respites, except in the case of treason or imprisonment on impeachment.  In addition, by law the governor must approve the Commission’s recommendation in cases of murder, voluntary manslaughter, rape, kidnapping, lewd and lascivious conduct with a minor child, or manufacture or delivery of a controlled substance, before the pardon becomes effective. In such cases, the Commission’s decision constitutes a recommendation to the governor.  Idaho Code Ann. § 20-240.

Administration

Idaho Commission for Pardons and Parole is composed of five members appointed by the governor, with advice and consent of Senate, for three-year terms; no more than three may be from the same party.  Commission members may be removed by the governor for any reason.  The governor also appoints the Executive Director of the Commission, who is a full-time employee of the Commission.  Idaho Code Ann. § 20-210.

Eligibility

For non-violent offenses (both felony and misdemeanor), individuals are eligible for pardon three years after completion of the sentence.  For violent and sex offenders, individuals are eligible for pardon five years after completion of the sentence.  See Rules of the Commission of Pardons & Paroles, Idaho Admin. Code 50.01.01 § 550.01 (hereafter Board Rules), available at http://adminrules.idaho.gov/rules/current/50/0101.pdf.  Only persons convicted under Idaho law are eligible for a state pardon.  See Idaho Const. art. IV, § 7.

Effect

A pardon relieves welfare and employment disabilities imposed by state law or administrative regulation, e.g., health care provider, school bus driver.  Standlee v. State, 538 P.2d 778, 781 (Idaho 1975) (a pardon “does away with both the punishment and the effects of a finding of guilt”).  However, an Idaho pardon does not “expunge” the conviction, as that term has been defined by federal courts for purposes of the U.S. sentencing guidelines.  See United States v. Bays, 589 F.3d 1035, 1037-40 (9th Cir. 2009).

Process

Article IV, Section 7 of the Idaho Constitution provides that no pardon shall be granted

“. . . except by the decision of a majority of said board, after a full hearing in open session, and until previous notice of the time and place of such hearing and the release applied for shall have been given by publication in some newspaper of general circulation at least once a week for four weeks.  The proceedings and decision of the board shall be reduced to writing and with their reasons for their action in each case, and the dissent of any member who may disagree, signed by him, and filed, with all papers used upon the hearing, in the office of the secretary of state.”

Idaho Const. art. IV, § 7. All written material (except pre-sentence report and victim info) relating to the application becomes a matter of public record, including dissents, and are available from Secretary of State.  See Board Rules, supra, § 550.04(e)(i)-(ii).

The pardon application form is available at https://parole.idaho.gov/pardonsinfoandapppage.html.  Completed applications submitted to the Commission of Pardons and Parole are assigned for investigation to a parole officer in area where the applicant resides, who inquires into criminal history, reputation in the neighborhood, employment, and makes a recommendation to Commission.  Id.; see also Board Rules, supra, § 550.02(b).  The Commission decides in executive session whether to convene as a Pardon Board for a hearing.  See Rules of the Commission of Pardons & Paroles, § 550.03. If a hearing is granted, notice must be published pursuant to constitutional requirement, supra, and prosecutor and victims also notified so they may participate.  See Board Rules, supra, § 550.04.  Information on hearing schedules can be found at https://parole.idaho.gov/hearingschedules.html.

In cases where the governor retains final authority to pardon, the Commission conducts the same full hearing and makes written recommendation to the governor; if no action is taken within 30 days, the application is deemed denied.  See Board Rules, supra, § 550.05.

Firearms

Idaho Code Ann. §§ 18-310(3), (2). A person whose gun rights are not restored automatically (see Part I) may apply to the Commission five years after final discharge. Persons convicted of murder or whose sentence was enhanced for the use of a firearm during the commission of a felony are ineligible.

Frequency of Grants

Since 2009, the number of applications for pardon annually has more than doubled, to 30-40 per year.  Between 25% and 50% of these are granted by the Board.

Year
Eligible petitions received
Hearings granted/held
Pardon granted

2010
41
15/10
9

2011
35
16 /14
14

2012
28
21/13
13

2013
31
–/26
21

2014
38
–/15
15

2015
65
–/21
21

2016
70
–/30
28

Source: https://parole.idaho.gov/statistics.html

Contact

Idaho Commission of Pardons and Parole
3056 Elder St.
Boise, Idaho  83705
(208) 334-2520 ext. 229

B.  Judicial sealing or expungement
Knockdown of felony to misdemeanor

Between 2006 and 2014 Idaho gradually expanded its statute authorizing downgrading of offenses after successful completion of probation.  What began as a drug court program is now a comprehensive program applicable to any misdemeanor or felony offender qualifying for deferred sentencing or who has not been sentenced to a prison or jail term.  See Idaho Code § 19-2604.  A 2013 provision permits a defendant who has been convicted of a felony and who has been discharged from probation to apply to the sentencing court for a reduction of the conviction from a felony to a misdemeanor, if less than five (5) years have elapsed since the defendant’s discharge from probation, and the prosecuting attorney stipulates to the reduction; or if at least five (5) years have elapsed since the defendant’s discharge from probation.  If the defendant was convicted of a list of serious violent offenses, the application may be granted only if the prosecuting attorney stipulates to the reduction. § 2604(3).  The application may be granted only if the court finds that the applicant has been convicted of no further felony, is not currently charged with any crime, and “there is good cause for granting the reduction in sentence.”  This authority does not apply to anyone required to register as a sex offender. A violation of the terms of an agreement of supervision with the board of correction “shall not preclude the granting of relief to that person under this section.”

Deferred Adjudication/Suspended Sentences

Idaho Code Ann. § 19-2601(3) authorizes any Idaho state district court, in any case except treason and murder, to withhold judgment “on such terms and for such time as it may prescribe,” and place the individual on probation.  See also 19-2601(4) (suspension of sentence).  Upon successful completion of probation, the court may allow the defendant to change his or her plea to not guilty, “set aside” the conviction, and dismiss the charges.  § 19-2604(1).  The dismissal “shall have the effect of restoring the defendant to his civil rights,” including firearms rights.  Id.  “Where a judgment has been vacated under this statute [Section 19-2604], ‘it is a nullity, and the effect is as if it had never been rendered at all,’ and there are no limits or conditions on the rights defendant regains.” State v. Parkinson, 172 P.3d 1100, 1103 (Idaho 2007) (quoting Manners v. Bd. of Veterinary Med., 694 P.2d 1298, 1300 (Idaho 1985) (quoting State v. Barwick, 483 P.2d 670, 674 (Idaho 1971))), overruled on other grounds, Verska v. St. Alphonsus Reg’l Med. Ctr., 265 P.3d 502 (Idaho 2011).

However, the statute does not authorize the complete expungement of all records and references to the charge.  See Idaho Code Ann. § 19-2604(1); Parkinson, 172 P.3d at 1103 (finding that Section 19-2604 “does not require or authorize the complete expungement of all records and references to the charge”).  This statute does not apply to any offense requiring sex offender registration.  § 2604(3).

A person whose DUI charge was dismissed pursuant to this section, but whose conviction was not set aside, is considered a person previously found guilty of DUI for purposes of the penalty-enhancing statute (Idaho Code Ann. § 18-8005(4)) applicable to repeat DUI offenders.  State v. Deitz, 819 P.2d 1155, 1157-58 (Idaho Ct. App. 1991); see also State v. Reed, 243 P.3d 1089, 1090-92 (Idaho Ct. App. 2010) (DUI charge dismissed under Section 19-2604(1) can be considered for purposes of penalty-enhancing statute even when the court order dismissing the first conviction stated that the plea was “unconditionally withdrawn” and “deemed as though it had never been tendered to or accepted by” the court).

Juvenile adjudications

Expungement of juvenile adjudications is governed by Idaho Code Ann. § 20-525A, which provides that juveniles may petition the court for expungement after a waiting period, with certain serious violent offenses excepted.  For felonies, eligibility begins the latest of reaching age 18, five years after release, or five years after the end of the juvenile court’s jurisdiction.  § 525A(1).  For misdemeanors, eligibility is the later of one year after the end of the juvenile court’s jurisdiction or reaching age 18.  §§ 525A(2), (A)(3).  Following a hearing, the court shall grant the juvenile’s expungement petition if it finds that the juvenile has been held accountable, is a contributing member of society, and expungement will not risk public safety.  § 525A(5).  If the expungement request is granted, all records are sealed and removed from public access, and the juvenile may deny the existence of any record.  Id.3

Non-conviction records

Idaho law makes no provision for limiting access to non-conviction records except for unreturned arrest records.  See C.A.R. Rule 32.

Sex Offenders

Idaho Code Ann. § 18-8310:  Sex offenders (other than recidivists, offenders convicted of an aggravated offense, or offenders designated as violent sexual predators) may petition court after ten years of law-abiding conduct for “expungement” from sex offender registry.  See also § 2604(3) (sex offenders ineligible for deferred adjudication and set-aside).

III.  Nondiscrimination in Licensing and Employment

Idaho has no general law regulating consideration of conviction in employment or licensure.  It does apply a direct relationship test in connection with licensure as a veterinarian.  See Idaho Code Ann. § 54-2103(23) (“In good standing” means that an applicant:  (e) Has not been convicted of a felony . . .; and (f) Has no criminal conviction record or pending criminal charge relating to an offense the circumstances of which substantially relate to the practice of veterinary medicine”).  See also § 54-923 (dental professional’s certificate or qualification to practice may be revoked if convicted of felony or certain misdemeanors, even if conviction occurred before certified/qualified); § 54-2012 (past convictions of felonies or certain misdemeanors considered in connection with licensure of real estate salesperson or broker); § 19-5109(9) (certification/training of peace officers); id. § 23-910(1)(selling liquor); § 26-31-207(1)(d) (mortgage brokers); § 33-1202(4) & 1204 & 1208 (teachers); §54-1510(3)(optometrists); §69-504(6) (commodity dealers).


  1. 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.  (On file with author.)
  2. The state constitution originally provided for a Board of Pardons composed of the Governor, the Attorney General, and the Secretary of State.  In 1945 the Constitution was amended to give the legislature power to create a pardoning board.  See Idaho Const. art. IV, § 7.
  3. §525A(5) provides in part:

    “If the court finds after hearing that the petitioner has not been adjudicated as a juvenile offender for any [ineligible offence] . . .  and that no proceeding involving such felony or misdemeanor is pending or being instituted against him, and if the court further finds to its satisfaction that the petitioner has been held accountable, is developing life skills necessary to become a contributing member of the community and that the expungement of the petitioner’s record will not compromise public safety, it shall order all records in the petitioner’s case in the custody of the court and all such records, including law enforcement investigatory reports and fingerprint records, in the custody of any other agency or official sealed; and shall further order all references to said adjudication, diversion or informal adjustment removed from all indices and from all other records available to the public. However, a special index of the expungement proceedings and records shall be kept by the court ordering expungement, which index shall not be available to the public and shall be revealed only upon order of a court of competent jurisdiction. Copies of the order shall be sent to each agency or official named in the order. Upon the entry of the order the proceedings in the petitioner’s case shall be deemed never to have occurred and the petitioner may properly reply accordingly upon any inquiry in the matter. Inspection of the records may thereafter be permitted only by the court upon petition by the person who is the subject of the records or by any other court of competent jurisdiction, and only to persons named in the petition.”

Copyright © 2017

Restoration of Rights Series/Hawaii

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

Uniform Act on Status of Convicted Persons:  The right of felony offenders to vote is suspended while actually incarcerated.  “[I]f the defendant is placed on probation or the defendant is paroled after commitment to imprisonment, the defendant may vote during the period of the probation or parole.”  Haw. Rev. Stat. § 831-2(a)(1).

B.  Office

The right to seek and hold public office is restored upon final discharge of sentence.  § 831-5.

C.  Jury

Only a pardon restores the right to serve on a jury.  Haw. Rev. Stat. § 612-4(b)(2).  Other provisions of the UASCP govern the effect of prior conviction and expungement.  §§ 831-3.1, 3.2 (see infra).

D.  Firearms

No one may own possess, or control a firearm if he has been prohibited from owning firearms under federal law; or convicted of committing a felony, crime of violence, or an illegal drug sale; or is under age 25 and has been adjudicated by the family court of committing a felony, two or more crimes of violence, or an illegal drug sale.  See Haw. Rev. Stat. §§ 134-7(a), (b), (d).  A pardon does not relieve firearms disabilities unless expressly provided.  Cf. Haw. Op. Att’y. Gen. No. 81-12, 1981 WL 37235 (1981).

II.  Discretionary Restoration Mechanisms:
A.  Executive Pardon
Authority

The power to grant pardons of state convictions is vested in the Governor. Haw. Const., art. V, § 5.  The Governor may seek the recommendation of the director of public safety and the Hawaii State Paroling Authority, but the governor’s pardon power is independent.  See Haw. Const., art. V, § 5; Haw. Rev. Stat. § 353-72 (directory of public safety and Paroling Authority “shall consider every application for pardon which may be referred to them by the governor”).  While the Hawaii Constitution specifically permits the legislature to “authorize the governor … to restore civil rights denied by reason of conviction of offenses by tribunals other than those of this State,” Haw. Const., art. V, § 5, no such statute has been enacted.

Eligibility

There are no restrictions for state offenders. Federal and out-of-state offenders are ineligible.  See Haw. Const., art. V, § 5; U.S. Const., art. II, §2.

Effect

A pardon will state that the person has been rehabilitated, and a pardon relieves legal disabilities and prohibitions.1  A pardon does not expunge records, and a pardoned offense may be used in a subsequent criminal proceeding.

Process

No statutory process is specified for considering pardon applications, but the Governor, as a matter of policy, always asks the Paroling Authority (HPA) and Attorney General for advice and recommendation.  See Haw. Rev. Stat. § 353-72:

“The director of public safety and the Hawaii paroling authority shall consider every application for pardon which may be referred to them by the governor and shall furnish the governor, as soon as may be after such reference, all information possible concerning the prisoner, together with a recommendation as to the granting or refusing of the pardon.”

The application form is posted on the Paroling Authority website, http://hawaii.gov/psd/attached-agencies/hpa/Pardon-application2.pdf.

According to the Pardons Administrator of the Hawaii Paroling Authority, pardon applicants undergo a formal investigation process conducted under the direction of HPA, including a face-to-face interview by a parole officer with the petitioner (if practicable, by phone if not).  Two affidavits attesting to character must be filed in support by persons in the community.  The administrative staff develops recommendations to the Parole Board, which are considered in monthly administrative sessions.  The Director of Public Safety reviews recommendations, and endorses or recommends disapproval, and then sends them to the Attorney General’s office where a second investigation and confidential summary is completed.  The entire investigative process takes about eight months from filing to the Governor’s desk.

Frequency of Grants

Governor Abercrombie granted 83 pardons during his tenure from 2011 to 2014, 50 of which were during his final year in office. See Honolulu Star Adviser Pardon Database, http://data.staradvertiser.com/pardons/pardons. During the 2011 through 2014 fiscal years, the Paroling Authority conducted 467 pardon investigations and recommended 230 cases favorably.  See Hawaii Paroling Authority Annual Statistical Reports, available at http://dps.hawaii.gov/hpa.  The Paroling Authority reviews applications on a regular basis, sending its recommendations through the Attorney General to the Governor.

Governor Lingle granted 132 pardons in her eight years in office, 55 of which were in her last year (2010).  See Derrick DePledge, Lingle’s 55 pardons are most in 8 years, Star Advertiser, Dec. 4, 2010, available at http://www.staradvertiser.com/news/hawaiinews/20101204_lingles_55_pardons_are_most_in_8_years.html.  The two governors immediately preceding Governor Lingle had similar records, granting 204 (Cayetano) and 115 (Waiheee) pardons respectively in their eight years in office.

Contact

Tommy Johnson
Paroles & Pardons Administrator
Hawaii Paroling Authority
808-587-1295

B.  Judicial Expungement and Sealing
Deferred adjudication

Procedure for deferred acceptance of guilty plea (DAGP) or deferred acceptance of no contest (DANC) is available for persons with no prior felony convictions charged with certain offenses that are otherwise eligible for probation.  See Haw. Rev. Stat. §§ 853-1, 853-4.  Enumerated serious offenses are ineligible.  § 853-4.  Deferred treatment is available when “[i]t appears to the court that the defendant is not likely again to engage in a criminal course of conduct,” and “the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law.”  §§ 853-1(a)(2), (3).  In such cases “the court, without accepting the plea of nolo contendere or entering a judgment of guilt and with the consent of the defendant and after considering the recommendations, if any, of the prosecutor, may defer further proceedings” and place the defendant on probation for a term not exceeding the maximum potential sentence, but in the event of a petty misdemeanor no more than a year.  §§ 853-1(a), (b).  If the defendant successfully completes probation, the court discharges him and dismisses the charges without an adjudication of guilt. “Discharge of the defendant and dismissal of the charge [following successful completion of the deferral period] . . . is not a conviction.”  § 853-1(d).  One year after the discharge and dismissal, the defendant may apply to the Attorney General for expungement.  Haw. Rev. Stat. § 853-1(e); see also Haw. Rev. Stat. § 831-3.2(a)(5).  Info:  Office of the Attorney General:  808-586-1500.

The DAGP procedure was enacted

“because [the legislature] determined that certain offenders should be provided the opportunity to be conviction free consistent with the government’s penal goals. The legislature explained that ‘in certain criminal cases, particularly those involving first time, accidental, or situational offenders, it is in the best interest of the [prosecution] and the defendant that the defendant be given the opportunity to keep his [or her] record free of a criminal conviction, if he [or she] can comply with certain terms and conditions during a period designated by court order.’”

State v. Shannon, 185 P.3d 200, 205 (Haw. 2008)(quoting State v. Putnam, 3 P. 3d 1239, 1244-45 (Haw. 2000), quoting 1976 Haw. Sess. L. Act 154, § 2 at 279); see also id. at 221 (Nakayama, dissenting), quoting Sen. Stand. Comm. Rep. No. 616.76, in 1976 Senate Journal, at 1152 (internal quotations omitted):

“[For certain offenders], the humiliation and inconvenience of arrest and prosecution satisfy the need for punishment; and a trial and conviction would serve no purpose other than to impair the offenders’ educational, employment, and professional opportunities and ability to function as a responsible and productive member of the community.  Additionally, the [DAG plea] procedure . . . has the . . . benefit of saving time and money for the criminal justice system without adversely affecting the public interest.  Also, [i]t will further relieve the congestion in the courts and enable the criminal justice system to direct its limited resources where they can be most beneficial to the community.”

Deferred adjudication and expungement are also authorized for minor first time drug offenders under Haw. Rev. Stat. § 712-1255.  Discharge and dismissal upon completion of probation under this section “shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.”  § 712-1255(3).  A defendant may apply to the court for expungement if under age of 20.  § 712-1256.2

Juvenile Records

Expungement is governed by Haw. Rev. Stat. §§ 571-88(a), (e).  A juvenile may motion the court for an expungement, which annuls the arrest record and prevents circulation of court records. § 571-88(a).  Sealing is governed by Haw. Rev. Stat. § 571-84(e).  Juvenile records are considered confidential, rendering them per se sealed.  Id.  A court order is required for any agency to access sealed juvenile court records.  Id.  Pursuant to informal court policy, a juvenile’s attorney may motion for a dismissal in the interest of justice following the disposition, which, if granted, would destroy court records.

Non-conviction records

Only criminal justice agencies and agencies authorized by Hawaii’s laws, such as the Department of Human Services for their child care program, can access non-conviction information.  In addition, upon application by the affected individual, the Attorney General “shall issue an expungement order annulling, canceling, and rescinding the record of arrest” not leading to conviction, except in cases where arrested person absconded. Haw. Rev. Stat. § 831-3.2.  Expungement available in deferred adjudication cases after a one-year waiting period.  § 831-3.2(a)(5).

Effect of Expungement

Persons whose records have been expunged shall be treated “as not having been arrested.”   Haw. Rev. Stat. § 831-3.2(b).  Records shall not be divulged except upon inquiry by a court or agency thereof (including for preparation of presentence report), a government agency considering the subject person for a position immediately and directly affecting the national or state security, or a law enforcement agency acting within the scope of its duties.  § 831-3.2(d).  “Response to any other inquiry shall not be different from responses made about persons who have no arrest records.”  Id.  The Attorney General shall issue to the person for whom an expungement order has been entered, a certificate stating that the order has been issued and that its effect is “to annul the record of a specific arrest.”  § 831-3.2(e).  The certificate “shall authorize the person to state, in response to any question or inquiry, whether or not under oath, that the person has no record regarding the specific arrest.  Such a statement shall not make the person subject to any action for perjury, civil suit, discharge from employment, or any other adverse action.”  Id.

Info

AG’s office, criminal records section
808-587-3106

C.  Administrative certificate

Uniform Act on Status of Convicted Persons (see below)

III.  Nondiscrimination in Licensing and Employment:
A.  Fair Employment Practices

Hawaii includes discrimination based on conviction record in its more general fair employment practices law.  Haw. Rev. Stat. §§ 378-2 to 378-6.  Under § 378-2.5(b), it is an unlawful employment practice to inquire into arrest and conviction records before the employee receives a conditional offer of employment, which may be withdrawn if a conviction within the previous 10 years “bears a rational relationship to the duties and responsibilities of the position.”  § 378-2.5(b), (c).  The Hawaii Supreme Court held in August 2006 that this law also prohibits termination of existing employment because of a previous conviction, absent a showing that the conviction bears a rational relationship to the employment.  Wright v. Home Depot, 142 P. 3d 265, 275 (Haw. 2006).3  The law includes a long list of exceptions for various public and private employments where an employer is expressly permitted to ask about a conviction record, such as health, education, law enforcement and security services, public employment, transportation, public libraries, insurance and banks, coop or condominium housing, etc.  Haw. Rev. Stat. § 378-2.5(d).

The law is enforced by the Hawaii Civil Rights Commission.  The 1998 amendments were evidently precipitated when the HCRC promulgated regulations that addressed what constitutes a “bona fide occupational qualification” and what is an “inquiry.”  See Sheri-Ann S.L. Lau, Recent Development: Employment Discrimination Because of One’s Arrest and Court Record in Hawaii, 22 U. Haw. L. Rev. 709, 714-15 (2000).  “Significantly, an application form cannot ask the prospective employee whether he or she has an arrest record, court record, or conviction record unless ‘the inquiry is pursuant to a statutory exemption and seeks information about a conviction for a specific offense within the exemption.’”  Id.  The HCRC makes it clear that the employer has the burden of proving a BFOQ based on the employer’s business requirements and the totality of the circumstances.  See id. at 715-16 (footnote omitted) (“it appears that the legislature’s main emphasis is to provide employment opportunities for individuals with conviction records and reduce the likelihood that they will return to public assistance or a life of crime.  The Legislature’s secondary concern is protecting employers from litigation when trying to provide a safe environment for customers and employees.”).  As to arrests alone, it is an unlawful discriminatory practice to refuse to hire, to fire or to otherwise discriminate against an individual based on their arrest and court record.  Haw. Rev. Stat. § 378-2(a)(1).

B.  The Uniform Act on Status of Convicted Persons

Provides that a person may not be disqualified from public office or government employment, or be disqualified from licensure, solely because of a prior conviction, except that a crime committed within the past 10 years (excluding any period of incarceration) may be considered “if it bears a rational relationship to the duties and responsibilities of a job, occupation, trade, vocation, profession, or business.”  Haw. Rev. Stat. § 831-3.1(a).  A crime committed more than 10 years ago may only be considered if it directly relates to the possible performance in the occupation sought and after a determination supported by investigation that the person has not been sufficiently rehabilitated. Id. § 831-3.1(c). In addition, a person convicted of a felony may be denied a liquor license.   § 831(a)(1).  The statute does not apply to employment in regulated health care facilities, a youth correctional facility, detention or shelter facility, or correctional facility, or to government positions with contact with children or dependent adults where the applicant poses a risk to their health, safety or well-being, or positions with contact with persons committed to a correctional facility for certain crimes and where the applicant poses a risk to the inmates, staff or public.  § 831-3.1(f).

Refusal to hire or denial of license may occur only when the agency determines after appropriate investigation, notification of results and planned action, and opportunity to meet and rebut the finding, “that the person so convicted has not been sufficiently rehabilitated to warrant the public trust.”  Haw. Rev. Stat. § 831-3.1(c).  A person who is denied a position in the civil service on the basis of a criminal conviction “may appeal the adverse decision to the civil service commission or merit appeals board, as appropriate, within twenty days after the notice of action has been sent to the person.”  § 831-3.1(e).

C.  Ban-the-Box

In 1998, Hawaii became the first state to ban the box as applied to both public and private employment.  Haw. Rev. Stat. § 378-2.5 prohibits employers from inquiring into an applicant’s criminal history until after a conditional offer of employment has been made. The offer may be withdrawn if the applicant’s conviction bears a “rational relationship” to the duties and responsibilities of the position sought. Under the law, employers may only consider an employee’s conviction record within the most recent ten years, excluding periods of incarceration. Prior to 1998, the definition of unlawful discriminatory practices (§ 378-2) included “arrest and court record” as an impermissible reason for an employer to “refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual.”


  1. In a press release accompanying 11 grants in 2010 grants, Governor Lingle stated: “The individuals broke the law, but they have served their sentences, kept their records clean and have proven that they are now leading law-abiding lives in the community.”  Star-Advertiser staff, 11 given pardons this year, Star Advertiser, Jul. 3, 2010, available at http://www.staradvertiser.com/news/20100703_11_given_pardons_this_year.html
  2. 2006 law extending this expungement authority to all deferred adjudication situations was vetoed by the Governor based on objections to the amount and kinds of violations that could be expunged, referring specifically to trespass, disorderly conduct and loitering for prostitution.  Permitting expungement would make records of those crimes unavailable to criminal justice agencies and officials who are not entitled to “law enforcement” access.
  3. Wright is discussed in Christine Neylon O’Brien and Jonathan J. Darrow, Adverse Employment Consequences Triggered by Criminal Convictions: Recent Cases Interpret State Statutes Prohibiting Discrimination, Wake Forest L. Rev. 991, 996-1002 (2007).

Copyright © 2017

Restoration of Rights Series/Georgia

Georgia FlagI.  Restoration of Civil/Firearms Rights
A.  Civil rights

“No person who has been convicted of a felony involving moral turpitude may register, remain registered, or vote except upon completion of the sentence.”  Ga. Const. art. II, § 1, para. III(a).  The right to vote is restored automatically “upon completion of the sentence.”  Id.  “No person . . . who has been convicted of a felony involving moral turpitude” may hold public office “unless that person’s civil rights have been restored and at least ten years have elapsed from the date of the completion of the sentence without a subsequent conviction of another felony involving moral turpitude . . . .”  Ga. Const. art. II, § 2, para. III. The right to sit on a jury is regained by pardon or restoration of civil rights.  1983 Ga. Op. Att’y Gen. 69 (No. 83-33), 1983 WL 41667 (May 27, 1983).  The legislature may supersede the effect of a pardon in some cases.  See Ga. Peace Officer Standards & Training Council v. Mullis, 281 S.E.2d 569, 571 (Ga. 1981) (constitutional prohibition against felony offenders holding an appointment of honor or trust, such as position of deputy sheriff, unless pardoned, did not prevent General Assembly from making conviction absolute bar to qualification as peace officer, since General Assembly was authorized by law to provide for higher qualifications for the officers) (citing Ga. Code Ann. § 92A-2108(d)). Juvenile delinquency adjudications do “not impose any civil disability ordinarily resulting from a conviction nor operate to disqualify the child in any civil service application or appointment.”  Ga. Code Ann., § 15-11-72.

B.  Firearms

A person convicted of a felony in any jurisdiction cannot receive, possess or transport a firearm, unless pardoned.  See Ga. Code Ann. § 16-11-131(b)-(c).  A “firearm” is defined as “any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge.”  Id.  Such a person is also prohibited from receiving a license to carry a “weapon” (defined to include both a knife and a handgun), unless pardoned.  § 16-11-129(b)(2)(B).1  In 2010, the legislature amended the license to carry weapons law contained in § 16-11-129, creating a new subsection applicable to first offenders:

If first offender treatment without adjudication of guilt for a conviction [related to certain drug offenses] was entered and such sentence was successfully completed and such person has not had any other conviction since the completion of such sentence and for at least five years immediately preceding the date of the application, he or she shall be eligible for a weapons carry license . . . .

§ 16-11-129(b)(3).

II.  Discretionary Restoration Mechanisms
A. Executive pardon
Authority

The power to pardon and to remove disabilities is vested in the state Board of Pardons and Paroles, although it may be prohibited from issuing a pardon or superseded by the legislature in cases involving recidivists and persons serving life sentences.  Ga. Const. art. IV, § 2, para. II; see generally Ga. Peace Officer Standards & Training Council v. Mullis, supra.  The Governor is expressly precluded from exercising power or authority over pardons.  Ga. Code Ann. § 42-9-56.  In addition to pardons and sentence commutations, the Board may issue “Restoration of Civil and Political Rights” to felony offenders (including out-of-state and federal convictions).  Board instructions and pardon application form, available at http://pap.georgia.gov/pardons-restoration-rights

Board of Pardons and Paroles

The Board is composed of five full-time members appointed by the Governor and confirmed by the senate. Ga. Code Ann. §§ 42-9-2, 42-9-5.  The Board chooses its own chairman, and also makes parole determinations.  Id. § 42-9-6; Ga. Const. art. IV, § 2, para. II.  The Board must report annually to legislature, the Attorney General and the Governor.  Ga. Code Ann. § 42-9-19.  The Board decides cases by majority vote, and in a written opinion.  Id. §§ 42-9-42(a) and (b).

Eligibility

For restoration of rights, the applicant must have completed sentence (including fine), have no pending charges, and completed two years without any criminal involvement.  For a full pardon, the applicant must have completed a five-year waiting period after completion of sentence (including probated sentence) with no criminal involvement.  For sex offenders the waiting period is 10 years.  Waiver of the waiting period is available “if the waiting period is shown to be detrimental to the applicant’s livelihood by delaying his or her qualifying for employment in his or her chosen profession.” Ga. Comp. R. & Regs. 475-3-.10(3) (pardon) and (6) (restoration of rights).  See also Board instructions, supra.  Restoration of rights is available to federal and out-of-state offenders as long as the applicant is residing in the state.  Ga. Comp. R. & Regs. 475-3-.10(6).  Under Board policy, misdemeanants may apply for a pardon only if they are subject to deportation because of their conviction.  Source:  Georgia Board of Pardons and Paroles.

Effect

Pardon is “a declaration of record that a person is relieved from the legal consequences of a particular conviction.”   Ga. Comp. R. & Regs. 475-3-.10(3).  “It restores civil and political rights and removes all legal disabilities resulting from the conviction.”  Id.  A full pardon relieves “those pardoned from civil and political disabilities imposed because of their convictions,”  Ga. Code Ann. § 42-9-54), and also relieves licensing and employment restrictions.   A pardon, however, does not restore a convicted felony offender to a public office he was forced to relinquish as a result of the conviction.  Morris v. Hartsfield, 197 S.E. 251, 253 (Ga. 1938).  If the applicant requests restoration of firearms rights, this must be explicitly stated in the pardon.  See “Firearms,” infra.  Restoration of rights affects only basic civil rights (jury, public office).  A pardon does not expunge, remove, or erase the crime from the person’s record.  See http://pap.georgia.gov/pardons-restoration-rights.

Process

The Board generally considers cases on a paper record without an in-person hearing, though it has the power to conduct public hearings.  An investigator for the Board conducts an in person interview.  It also acts by majority vote by written decision, and gives no reasons.  Ga. Code Ann. § 42-9-42.  To request a full pardon, information and an application form can be obtained at http://pap.georgia.gov/pardons-restoration-rights.  The form itself is at http://pap.georgia.gov/sites/pap.georgia.gov/files/ParoleConsideration/PardonApplicationRevisedJanuary2015%20_1_%20working%20link%20to%20voter%20seal%20added%20Owens.pdf.    Clemency requests are screened by Board staff. And requests deemed meritorious are forwarded to Board members for individual review and decision.  Effective January 1, 2015 a new longer form for pardon is required, which requests extensive information about an applicant’s personal life, financial and employment history, civil involvement, and reasons for seeking a pardon.  The Board website advises that a waiver of the eligibility waiting period may be granted if necessary to secure employment, and that it is not necessary to have a lawyer to apply.  http://pap.georgia.gov/pardons-restoration-rights.  The Board indicates that processing a pardon application takes 6 to 9 months, on average, and may take longer based on the Board’s workload.  See id.

Firearms

Firearm privileges are restored only if a pardon expressly authorizes the receipt, possession, or transportation of a firearm.  Ga. Code Ann. § 16-11-131(c).  Federal and out-of-state pardons are specifically recognized.  Id.  A pardon applicant may request that the pardon be specially worded to restore this firearm right, but he must provide in detail his reason for the request, and provide letters from three “citizens of unquestioned integrity.”  See Applications for Restoration of Rights at 2, http://pap.georgia.gov/pardons-restoration-rights.  Applicants must be interviewed by a Board staff member.  Id.  Restoration “cannot be granted for any offense in which a firearm was used or possessed.”  Id.  Alternative procedure involving the Board of Public Safety are available where relief is granted under federal law, including the exception in federal law for antitrust and trade violations.  § 16-11-131(d).  Persons sentenced under First Offender Act without an adjudication of guilt regain rights automatically upon completion of sentence, and misdemeanants do not lose rights.  § 16-11-131(f).

Sex offender registration

A separate form is provided for those required to register as a sex offender. https://pap.georgia.gov/sites/pap.georgia.gov/files/ParoleConsideration/PardonApplicationforRegisteredSexOffendersRevisedJanuary2015%20_1_%20voter%20link%20seal%20Owens.pdf.

The Board’s work is described in Steve Visser, Convicted Look to the State for Forgiveness, Atlanta Journal-Constitution (Dec. 20, 2010), available at http://www.ajc.com/news/convicted-look-to-the-782143.html.

Frequency of grants

Applications received
Pardon w/o firearms
Pardon w/ firearms
Immigration pardons
Restoration of rights

2015
Data pending
374 (total)
Data pending
107

2014
1564
297
684
No data
170

2013
3231
720
397
No data
232

2012
1307
552
176
No data
136

2011
No data
817 (total)
No data
117

2010
1677
682
162
21
136

2009
1774
350
105
6
138

2008
2059
372
73
11
118

2007
1486
385
109
24
206

2006
1292
310
165
15
204

2005
1360
244
143
18
269

2004
1321
223
157
36
238

2003
1093
204
165
21
261

Source: Georgia Board of Pardons and Paroles.

Contact

State Board of Pardons and Paroles
2 Martin Luther King, Jr. Drive
S.E. Balcony Level, East Tower
Atlanta, GA 30334-4909
Tel: (404) 651-5198 (direct), (404) 657-9350 (general)

B.  Judicial sealing or expungement
“Exoneration” under the “First Offender Act”

First felony offenders prosecuted under Georgia law may be placed on probation or sentenced to confinement without an adjudication of guilt.  Ga. Code Ann. § 42-8-60(a).  Certain serious violent offenses and sex offenses are not eligible. Upon successful completion of probation or sentence, the offender is discharged without adjudication, which “completely exonerate[s] the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties.”  § 42-8-62(a).  While those sentenced to confinement are considered “convicted” during the period of incarceration, § 42-8-65(c), after discharge the offender is “not [] considered to have a criminal conviction,” § 42-8-62(a), and “is to suffer no adverse [effect] upon his civil rights or liberties.”  1990 Ga. Op. Att’y Gen. No. U90-6, 1990 WL 600184 (Feb. 27, 1990).  In addition, an offender sentenced to probation under this scheme is not disqualified from jury service during the probation period, id., or from voting, 1974 Ga. Op. Att’y Gen. 48 (1974).  A discharge without adjudication restores firearms privileges, § 16-11-131(f), and the conviction cannot generally be used to disqualify the offender from employment or from public or private office.  § 42-8-63.  However, discharge may be used to disqualify an individual from employment if the discharge took place on or after July 1, 2004 and the job is a) with a school, child welfare agency, or other childcare provider, and the underlying prosecution was for child molestation, sexual battery, enticing a child for indecent purposes, sexual exploitation of a child, pimping, pandering, or incest; b) with a nursing home, assisted living community, personal care home, or otherwise involves care for the elderly, and the underlying prosecution was for sexual battery, incest, pimping, pandering, or other offenses involving the abuse or neglect of the elderly or disabled; or c) with a facility that serves the mentally ill or developmentally disabled, and the underlying prosecution was for sexual battery, incest, pimping, or pandering.  § 42-8-63.1.

Access to records restricted: The state records repository “may not provide records of arrests, charges, or sentences for crimes relating to first offenders . . . where offenders have been exonerated and discharged without court adjudications of guilt, except as specifically authorized by Code Section 35-3-34.1 or other law.”  Ga. Code Ann. § 35-3-34.   The exceptions relate to employment with a public school, child care center, nursing home, and other facilities for vulnerable populations. § 35-3-34.1(a).  Note that this authority does not apply to court records.

Predicate effect:  For any future prosecutions, a finding of guilt for a discharged offense “may be pleaded and proven as if an adjudication of guilt had been entered and relief had not been granted” to discharge the offender pursuant to this procedure.  § 42-8-65(a).

Record restriction and sealing

A new scheme of limiting public access to criminal records enacted in May 2012 became effective in July 2013.  See 2012 Ga. Laws Act 709, 6-2 (H.B. 1176), codified at Ga. Code Ann. § 35-3-37.  The new law provides for “record restriction” instead of “expungement” of non-conviction records, including cases where charges dismissed court records of deferred adjudication cases (see below), and of certain misdemeanor records. See also Bill Rankin, Ga. bill would hide arrest information, Atlanta Journal-Constitution, March 26, 2012, available at http://www.policeone.com/legal/articles/5325010-Ga-bill-would-hide-arrest-information/ (noting the new law would no longer give prosecutors sole discretion to approve or deny expungement applications).2 “Restrict” means that the criminal history record information held by the Criminal Information Center shall be available only to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment, and shall not be disclosed or otherwise made available to any private persons or businesses, or to licensing boards.  See Ga. Code Ann. § 35-3-37(a)(6); see also §§ 35-3-34, 35-3-35. 

Sealing of court records after restriction:  While record restriction does not affect court records, individuals whose records are restricted may petition for sealing of court records. See § 35-3-37(m).  Sealing may be granted if the court finds that “the harm otherwise resulting to the privacy of the individual clearly outweighs the public interest in the criminal history record information being publicly available.” Id.

Record restriction is available in the following cases:

First offender drug possession

Record restriction is available to a person who pleaded guilty to or was found guilty of drug possession, who has not previously been convicted of a drug offense, who successfully completed the terms and conditions of his probation. Ga. Code Ann. §§ 35-3-37(h)(2)(B), 16-13-2.

Youthful offender misdemeanors

Record restriction is available to persons convicted of a misdemeanor or series of misdemeanors arising out of the same incident while less than 21 years of age, after five years of law-abiding conduct. See Ga. Code Ann. § 35-3-37(j)(4)(A).  Record restriction will not be appropriate in case of conviction for certain sexual offenses, theft, and serious traffic offenses.  § 35-3-37(j)(4)(B).

Accountability courts

Effective July 1, 2016, record restriction authority was extended to Georgia’s system of “Accountability Courts,” authorizing diversion in drug, veterans, mental health and other specialized treatment courts, after five years of law-abiding conduct.  See Ga. Code Ann. §§ 35-3-37(h)(2)(C), 15-1-20(b). 

Non-conviction records

Records of the Crime Information Center of charges dismissed before a charging instrument is filed are automatically restricted once the Center is notified that the case has been closed. Ga. Code Ann. § 35-3-37(h)(1) Restriction is available absent notification of closure after varying time frames depending on the seriousness of the charges (2 years for misdemeanors, four years for most felonies, 7 years for serious felonies). Id.  Records dismissed after a charging instrument is filed may be automatically restricted if all charges are dismissed .  § 35-3-37(h)(2)(A).  Exceptions apply for certain dispositions.  § 35-3-37(i).  Records of felony charges dismissed pursuant to a plea to a misdemeanor may be restricted after four years.  § 35-3-37(j)(1).  Acquittals will be restricted, unless, within ten days of the verdict, the prosecuting attorney demonstrates to the trial court through clear and convincing evidence that the harm otherwise resulting to the individual is clearly outweighed by the public interest in the criminal history record information being publicly available .  § 35-3-37(h)(2)(E).

Correction of records

Persons may request that their criminal history record be modified, corrected, supplemented, or amended if the information is inaccurate, incomplete, or misleading. See Ga. Code Ann. §§ 35-3-37(b)-(g)).  Additionally, the law provides that under certain circumstances before or after indictment, access to a person’s criminal history record information (including any fingerprints or photographs of the person taken in conjunction with the arrest) shall be restricted.  See §§ 35-3-37(h)-(j)). For example, record restriction will be available to a person whose case was never referred for further prosecution or was dismissed.  See § 35-3-37(h)(1).

Sealing for juvenile adjudications

Sealing of juvenile records is governed by Ga. Code Ann. § 15-11-701.  Juveniles have the right to seal their records, and the court must order automatic sealing of a file after a case is dismissed or handled through informal adjudication. § 15-11-701(a).  A juvenile adjudicated delinquent or unruly must petition to have the record sealed.  § 15-11-701(b).  Such juveniles are eligible for expungement upon a court’s finding that two years have passed since final discharge, there has been no subsequent adjudication or conviction involving moral turpitude, no proceeding or charges are pending, and the juvenile has been rehabilitated.  Id.  Once sealed, the proceeding is treated as if it never occurred, and the juvenile may indicate that no record exists.  § 15-11-701(d).

C.  Administrative certificate

2014 legislation created a Program and Treatment Completion Certificate issued by the Board of Corrections. “Such certificate shall symbolize an offender’s achievements toward successful reentry into society.” Ga. Code Ann. § 42-2-5.2(c). The certificate is intended to encourage hiring, licensing, and admission to schools and other programs by offering protections for those engaging certificate holders against liability for the actions of those with certificates. See Ga. Code Ann § 51-1-54(b).  Certificates are issued according rules promulgated by the board. “The board’s rules and regulations relating to the issuance of such certificate shall take into account an offender’s disciplinary record and any other factor the board deems relevant to an individual’s qualification for such certificate.” Id. Eligibility considerations and requirements are specified by the board. Id. By statute, persons convicted of a serious violent offense are ineligible.  Id. Certificates were created under a section of the Code that also requires the Board of Corrections to implement reentry programs for “adult offenders.”  It is unclear whether certification is tied explicitly to completion of such programs or whether persons not under the jurisdiction of the Board of Corrections are eligible for such certificates.  The Board has yet to promulgate rules governing eligibility.

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

On February 23, 2015, Governor Nathan Deal signed an executive order eliminating a question about criminal record from applications for state employment. See  https://gov.georgia.gov/sites/gov.georgia.gov/files/related_files/document/02.23.15.03.pdf.  The order states that the new policy should

establish practices that

  • prohibit the use of a criminal record as an automatic bar to employment;
  • prevent the use of an application form that inappropriately excludes and discriminates against qualified job applicants;
  • promote the accurate use and interpretation of a criminal record; and
  • Provide qualified applicants with the opportunity to discuss any inaccuracies, contest the content and relevance of a criminal record, and provide information that demonstrates

The new policy “[s]hall not affect applications for sensitive governmental positions in which a criminal history would be an immediate disqualification and initial disclosure on such applications shall still be required.”

B.  Professional licensure

Professional licensing boards may deny or revoke a license of a person convicted of a felony or a crime involving moral turpitude, or of a person arrested, charged and sentenced for such offenses pursuant to the first offender statute or where adjudication of guilt was otherwise withheld. Ga. Code Ann § 43-1-19(3), (4).  However, effective July 1, 2016:

No professional licensing board shall refuse to grant a license to an applicant therfor or shall revoke the license of a person licensed by that board due solely or in part to a conviction of any felony or due to any arrest, charge, and sentence for the commission of any felony unless such felony directly relates to the occupation for which the license is sought or held.

§ 43-1-19(p) (as amended by SB-367, §10-1 (2016)).  A board shall consider the following factors when determining whether a felony “directly relates” to the occupation:

(A) The nature and seriousness of the felony and the relationship of the felony to the occupation for which the license is sought or held;

(B) The age of the person at the time the felony was committed;

(C) The length of time elapsed since the felony was committed;

(D) All circumstances relative to the felony, including, but not limited to, mitigating circumstances or social conditions surrounding the commission of the felony; and

(E) Evidence of rehabilitation and present fitness to perform the duties of the occupation for which the license is sought or held.

Id. No similar limitation applies to consideration of crimes involving moral turpitude.

Juvenile delinquency adjudications do “not impose any civil disability ordinarily resulting from a conviction nor operate to disqualify the child in any civil service application or appointment.”   § 15-11-606.

C.  Negligence liability

Employers, schools, licensing boards and others that engage persons that have received a pardon or “Program and Treatment Completion Certificate” receive protection from liability in civil suits based on the actions of the pardoned person or certificate holder.  Per Ga. Code Ann. § 51-1-54(b):

Issuance of a Program and Treatment Completion Certificate by the Department of Corrections or the granting of a pardon from the State Board of Pardons and Paroles as provided in the Constitution and Code Section 42-9-42 shall create a presumption of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise engaging in activity with the individual to whom the Program and Treatment Completion Certificate was issued or the pardon was granted. Such presumption may be rebutted by relevant evidence which extends beyond the scope of the Program and Treatment Completion Certificate or pardon and which was known or should have been known by the person against whom negligence is asserted.


  1. Ga. Code Ann. § 16-11-131(d) provides an administrative procedure for restoration of firearms rights by the Board of Public Safety, for persons who have had their federal firearms rights restored by ATF, or who have been convicted of certain white-collar crimes that do not give rise to federal firearms disability (“antitrust violations, unfair trade practices, or restraint of trade”).  This section is rarely used as a practical matter and all applications for firearms relief are handled through the Board of Pardons and Paroles.
  2. Prior to July 2013 expungement was available for non-conviction records where an individual was not prosecuted or where charges were dismissed only if no other criminal charges were pending against the individual and the individual had not been previously convicted of the same or similar offense in Georgia or elsewhere in the United States within the past five years, excluding any period of incarceration.  Ga. Code Ann. § 35-3-37(d)(3).  Upon receipt of a written request for expungement, the agency was required to provide a copy of the request to the prosecuting attorney, who was required to review the request to determine if it met the statutory criteria for expungement.  § 35-3-37(d).

Copyright © 2017

Restoration of Rights Series/Florida

florida flagI.  Restoration of Civil/Firearms Rights
A.  Civil Rights

All civil rights of felony offenders are suspended upon conviction until restored by pardon or restoration of civil rights.  Fla. Const. art. VI, § 4; Fla. Stat. § 944.292(1).  The Governor controls both pardon and restoration of rights, subject to the recommendations of the Clemency Board.1 Under the Rules of Executive Clemency, as revised in March 2011, persons convicted of certain minor felony offenses may apply for restoration of civil rights five years after completion of sentence.  See Rule 9A of the Rules,    https://www.fcor.state.fl.us/docs/clemency/clemency_rules.pdf.  More serious offenders must wait seven years and have a hearing.  See Rule 10A.  The voting rights of individuals convicted of federal offenses or in other states must also apply to the Board under the same terms as persons with Florida convictions.  See Rules 9C and 10B.2  However, restoration of rights by another state will be given effect under the Full Faith and Credit Clause.  See Schlenther v. Depart. of State, Div. Of Licensing, 743 So.2d 536, 537 (Fla. 2d DCA 1998) (“Once another state restores the civil rights of one of its citizens whose rights had been lost because of a conviction in that state, they are restored and the State of Florida has no authority to suspend or restore them at that point. The matter is simply at an end.”).  Restoration does not include firearms rights and, as of 2011, does not affect licensing eligibility.3

B.  Firearms

Any felony conviction within Florida, a federal felony conviction, or a conviction in another state punishable by a term exceeding one year results in a state bar against owning or possessing a firearm.  Fla. Stat. §§ 790.001(6), 790.23(1).  The governor, upon recommendation of the Clemency Board, must specifically grant relief from this disability, and there is an eight-year eligibility waiting period.  See Rule 5D of the Rules of Executive Clemency of Florida, supra.  Firearms relief granted by another jurisdiction will be given effect by Florida.  See Schlenter, 743 So.2d 536In addition, Florida may not deny a concealed weapons permit to an individual with an out-of-state conviction whose firearms rights were never lost.  See Doyle v. Depart. of State, Div. of Licensing, 748 So. 2d 353, 356 (Fla. 1st DCA 2000).

C.  Inventory of Licensing Restrictions

See Fla. Stat. § 112.0111, discussed in Part III.

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

The power to grant a pardon and/or to restore civil rights (except in cases of treason or impeachment) is vested in the governor, who may, “by executive order filed with the Secretary of State, suspend collection of fines and forfeitures, grant reprieves not exceeding 60 days, and, with the approval of two members of the Cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.”  Fla. Const. art. IV, §8 (a); Fla. Stat. §§ 940.01, 940.05.  The governor and three members of his Cabinet are constituted as a Clemency Board4 As of April 2016, the Attorney General, the Chief Financial Officer, and the Agriculture Commissioner join the Governor on the Board.  See Office of Executive Clemency, https://www.fcor.state.fl.us/clemency.shtml. The Governor may deny, for any reason, any request for clemency.  The Governor must report to the legislature each restoration and pardon granted at the beginning of each legislative session.  Fla. Stat. § 940.01.

Administration

The Office of Executive Clemency (OEC), established in 1975, administers the day-to-day business of the Clemency Board, and interprets the Rules of Executive Clemency of Florida.  The rules are available at https://www.fcor.state.fl.us/docs/clemency/clemency_rules.pdf.   The OEC is a constituent part of the state Parole Commission, which provides investigative support.  Fla. Stat. § 947.01 – 947.27See also Office of Executive Clemency Overview, https://www.fcor.state.fl.us/clemencyOverview.shtml; and Frequently Asked Questions,  https://www.fcor.state.fl.us/faq-clemency.shtml.

Eligibility
Restoration of rights (RCR)

Rules 9 and 10 of the Clemency Rules provide two levels of eligibility, depending upon the seriousness of an offense. Sentence must be completed, including fines and court costs (latter may be waived), supervision (e.g., probation or community control), and restitution to victims, and no new charges can be pending.  See Rule 5E (all restitution must be paid before rights will be restored, though waiver of this and other eligibility requirements may be sought under Rule 8).   Persons convicted of specified serious offenses must wait seven years after completion of sentence to apply, and have a hearing before the board.  Others may apply after five years and a hearing may be waived with the approval of governor and two Board members.5 Persons residing in Florida with federal and out-of-state convictions are eligible for restoration of rights but not for pardon.  Rule 9D.

Pardon

Ten years following completion of sentence, plus no outstanding financial obligations resulting from convictions, including traffic fines. See Rule 5E.  Persons whose guilty pleas are set aside pursuant to Fla. Stat. § 948.01(2) (see infra), may also apply.  Eight years for firearms restoration (see infra).

Effect
Restoration of rights (RCR)

Restores “the basic civil rights” (the right to vote, the right to serve on a jury, and the right to hold public office).  In addition, restoration of rights “may allow you to be considered for certain types of employment licenses.” Rule 4F. By statute, a person who has had rights restored may not be denied a license based solely on conviction, requiring a case-by-case inquiry in each case into whether the crime is “directly related to the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought.” Fla. Stat. § 112.011(1)(b).  Florida law independently prohibits disqualification from most public employment, even without a restoration, solely because of a prior conviction for a crime.  A convicted person may be denied such public employment “if the crime was a felony or first degree misdemeanor and directly related to the position of employment sought.” § 112.011(1)(a).  The law does not apply to law enforcement, firefighting, and county “positions deemed to be critical to security or public safety.” § 112.011(2).

Pardon

Full Pardon “unconditionally releases the person from punishment and forgives guilt. It entitles an applicant to all of the rights of citizenship enjoyed by the person before his or her conviction, including the right to own, possess, or use firearms.”  Rule 4A.  Pardon may also be made conditional, and breach of conditions results in revocation of pardon.

Process

A different process applies for each of two different categories of offenses, identified in Clemency Rules 9A (without a hearing) and 10A (with a hearing).  Application forms and instructions can be downloaded at https://www.fcor.state.fl.us/restoration.shtml.  Separate procedures and eligibility periods apply for restoration of firearms (see infra).

To be eligible for restoration without a hearing, a person cannot have been convicted of a long list of serious crimes, must have been crime- and arrest-free for a period of five years from the end of supervision, and must have paid restitution and costs.  If an application for restoration without a hearing is denied, a person may apply for restoration with a hearing.  To be eligible for restoration with a hearing, a person must have been off supervision for seven years, and have paid all restitution and costs.

In cases where a hearing is required, provisions of Rule 6 apply.  Notification to the prosecutor and victims is required, and the Parole Commission conducts an extensive investigation to determine whether the person is crime-free and rehabilitated (e.g., must have no outstanding traffic fines).  When the investigation is complete, examiners put their recommendations into confidential files given to the Clemency Board before the hearing.  Applicants may wait years for a hearing.

Hearings are held on a quarterly basis, and the agenda is posted on the Board’s website.  Applicants are not required to attend the hearing, but they have a right to make an oral presentation if they do.  Rule 11. At the hearing in person, each applicant may be questioned directly by members of the Board on matters relating to his character, rehabilitation, etc..  Strict time limits in Rule 11C apply for presentations (5 minutes, 10 minutes for all witnesses).  Applicants who are denied must wait two years to reapply.  Rule 14.

Comments

Between 1975 and 1991, restoration of rights in Florida was automatic upon completion of sentence, though it was still necessary to apply and demonstrate eligibility. See Gallie v. Wainwright, 362 So.2d 936, 938 (Fla. 1978).  The practice of requiring a hearing before restoration began in 1991, and the list of qualifying offenses was lengthened in 1999 to include about 200 crimes.  The list of qualifying offenses was shortened by Governor Bush in 2004 after a series of investigative reports in the Miami Herald revealed lengthy delays and other shortcomings in the clemency process.6  In April 2007, in accordance with a campaign promise, Governor Charlie Crist persuaded the Board to approve new rules making restoration automatic in many cases.  In 2011, Governor Crist’s reforms were rolled back by Governor Scott, and eligibility periods lengthened and standards toughened.  See notes 1 and 2, supra.

Frequency of Restoration of Rights Grants

Year
RCR Grants

2013-2014
1,131

2012-2013
911

2011-2012
420

2010-2011
5,771

2009-2010
30,672

See Clemency Action Reports, https://www.fcor.state.fl.us/reports.shtml.7 In December of 2014, 11,638 RCR applications were pending.  Source: Commission on Offender Review. Pardons and firearms restorations have been fewer since Governor Scott took office. 8

Firearms

Any felony conviction within Florida, a federal felony conviction, or a conviction in another state punishable by a term exceeding one year results in a state bar against owning or possessing a firearm.  Fla. Stat. §§ 790.001(6), 790.23(1).  The Governor, upon recommendation of the Clemency Board, must specifically grant relief from this disability, and there is an eight-year eligibility waiting period.  Rule 5D.

Pardons to Restore Firearms Authority: 2006 – 2014


Applications received – firearms
Firearms restored
Applications received – pardon
Pardon granted 

2014

19

30

2013

30

25

2012

15

24

2011

14

9

2010
76
21
53
23

2009
121
57
41
23

2008
99
60
39
22

2007
98
61
55
40

2006
144
97
49
38

Contact

Julia McCall
Coordinator, Office of Exec. Clemency
(850) 488-2952 / FAX (850) 488-0695

B. Judicial sealing or expungement
Withholding adjudication of guilt

Under Fla. Stat. § 948.01(2), trial courts may withhold adjudication of guilt after a plea has been accepted or after a verdict of guilty has been rendered and place the defendant on probation if it appears “that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law . . . .”  See also Fla. R. Crim. P. Rule 3.670 (“where allowed by law, the judge may withhold an adjudication of guilt if the judge places the defendant on probation”).  Upon successful completion of probation, charges may be dismissed.  Id.  Where adjudication has been withheld, there is no conviction for purposes of impeachment.  See State v. McFadden, 772 So.2d 1209, 1213 (Fla. 2000).  Records may be expunged if they have been sealed for at least ten years.  Fla. Stat. § 943.0585 (2)(h). Expunction is defined as the physical destruction of records. See § 943.045(13).

Under legislation adopted in 2004, trial courts no longer have authority to withhold adjudication in first degree felony cases.  They may withhold adjudication in second and third degree felony cases upon request of the prosecutor, or if “the court makes written findings that the withholding of adjudication is reasonably justified based on circumstances or factors in accordance with those set forth in [Fla. Stat. § 921.0026, ‘mitigating circumstances’].”  In second degree felony cases no authority exists if adjudication has been previously withheld.  Fla. Stat. § 775.08435.

Expungement and sealing of non-conviction records

Sealing and “expunction” are available for non-conviction records that do not involve specified sexual, violent and/or otherwise serious misdemeanors.  Expunction is defined as the physical destruction of records, while sealing is defined as limiting access to anyone who has no specific legal right of access.9  Eligibility criteria and applicable procedures are set forth in § 943.0585 (expunction) and § 943.059 (sealing).  In general, sealing is available in cases where there’s been no adjudication of guilt, including withheld adjudication, while expunction is available only in cases where no charges are filed or charges are dismissed prior to trial.  In both cases relief is available only if a person has no prior record. Records that have been expunged are destroyed except for one copy retained by the Department of Law Enforcement.  Records that have been sealed are available only to the subject of the record or the subject’s attorney; to criminal justice agencies for their respective criminal justice purposes, which include conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law; or to certain entities for their respective licensing and employment purposes. § 943.059(4).

Juvenile Records

In general, records of juvenile adjudications are confidential,  Fla. Stat. § 985.04(1), subject to substantial exceptions.  Under  Fla. Stat. § 985.04(2),  juvenile records are available if the child has been taken into custody by a law enforcement officer for a violation of law which, if committed by an adult, would be a felony; found by a court to have committed three or more violations of law which, if committed by an adult, would be misdemeanors; or transferred to the adult system.  See also § 985.04(1) (juvenile records may be disclosed to authorized personnel of the court, law enforcement and corrections, school superintendents and their designees, and any licensed treatment professional).  Expungement is available for any non-judicial record of a minor’s arrest (non-violent misdemeanor, first offense) after successful completion of a pre-arrest or post-arrest diversion program.  § 943.0582.

Victims of Human Trafficking

Expungement available pursuant to Fla. Stat. § 943.0583.

III.  Nondiscrimination in Licensing and Employment
A.  Employment

Public employment may not be denied “solely because of” a conviction record, but only if the crime of conviction is “directly related” to the job.  Fla. Stat. § 112.011(1)(a).  These restrictions do not apply to law enforcement, firefighting, and “positions deemed to be critical to security or public safety.”  § 112.011(2).  Drug offenders must comply with certain additional treatment and rehabilitation requirements before they may qualify for public employment or licensing.  § 775.16.  Successful completion of Correctional Education Program by drug offenders may satisfy eligibility requirements for occupational licensure.  Id.  See also Op. Att’y. Gen. Fl., 1973-355 (1973) (licensing authorities may not deny licenses to individuals whose civil rights have been restored, nor may they revoke such persons’ licenses which have been granted, unless the licensing authority determines and finds, after due investigation, that the offense directly relates to the license sought or held and the crime was a felony or first degree misdemeanor).

Health care employment and licensing: 

Conviction may be the basis for disqualification from employment or contracting with state agencies in connection with various health care and related professions, including care for children, and developmentally disabled or vulnerable adults.  See e.g., Fla. Stat. § 110.1127 (state employee positions for which screening required); § 409.175 (foster care); § 400.953. (home medical equipment providers); § 400.215 (nursing homes); § 393.0655 (developmental disability direct service providers); § 397.451 (substance abuse services); § 489.129(1)(b) (construction contractor).

Case-by-case exemptions may be granted by licensing agencies, state-regulated facilities, and state agencies in cases where an individual would otherwise be disqualified as a result of a criminal record, pursuant to Fla. Stat. § 435.07(1).  This exemption procedure applies to some but not all types of conviction, and is available three years after completion of sentence.  In order to qualify for exemption an applicant must demonstrate “by clear and convincing evidence” that he or she “should not be disqualified from employment.”  § 435.07(3).  Applicants for an exemption

have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed.

Id.  The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in Fla. Stat. chapter 120.  See Fla. Stat. § 120.51 et seq. (Administrative Procedure Act).  No exemption may be granted to persons who have been convicted of any offense enumerated in § 435.03, even if they have been pardoned.  § 435.07(4).  These offenses include specified sex offenses; abuse of a child or vulnerable adult; assault or any other violence, including domestic violence; sale of controlled substances; felony theft or robbery.

B.  Licensing

A convicted person may not be denied a license based on criminal record unless convicted of a felony or first-degree misdemeanor that is “directly related to the standards determined by the regulatory authority to be necessary and reasonably related to the protection of the public health, safety, and welfare for the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought.”  Fla. Stat. § 112.011(1)(b).10 In June 2011 a law was enacted requiring each state agency responsible for professional and occupational regulatory boards to report to the governor and legislature all laws and rules governing the ability of professional licensing boards to deny employment or licensure based upon an individual’s criminal history, and to identify alternatives to any disqualifying statutes or rules.  See Fla. Stat. § 112.0111.11


  1. In 1976, the Florida Supreme Court overturned a legislative enactment purporting to automatically restore civil rights to convicted persons, opining that the Governor’s power to grant clemency and restoration of civil rights cannot be exercised or regulated by the legislature.   See In re Advisory Opinion of the Governor, 334 So.2d 561 (Fla. 1976).
  2. In 2011, the Clemency Board modified the clemency rules to roll back changes dating from 2007 that had been intended to make certain less serious offenders eligible for “automatic” restoration of all civil rights by the Board upon determination of eligibility by the Parole Commission.  See Erika Wood,Turning Back the Clock in Florida, March 10, 2011, http://www.huffingtonpost.com/erika-wood/turning-back-the-clock-in_b_834239.html. See also Voting Rights Restoration Efforts in Florida, Brennan Center for Justice, http://www.brennancenter.org/content/pages/voting_rights_restoration_efforts_in_florida (March 2014).   The 2011 changes stiffened eligibility requirements for all offenders beyond those in effect prior to 2007.  See Part II, infra.
  3. In 2011, the Florida legislature passed the “decoupling bill,” which prohibits licensing boards from denying any license based solely on the fact that the applicant has not had civil rights restored.  See Fla. Stat. § 112.011(1)(c).  There are exceptions for law enforcement agencies, and agencies are not precluded from taking into account the fact that civil rights have not been restored.  See § 112.011(2) (listing exceptions). See also § 112.0111, also enacted in 2011, which requires agencies to inventory and analyze laws allowing agencies to restrict licenses based upon criminal history.  The full text of this law is reprinted at note 11, infra.
  4. Prior to 2003 approval of all three Cabinet members required; 2/3 requirement introduced by Revision No. 8 (1998), effective January 7, 2003).
  5. A provision restoring rights automatically without a hearing 15 years after completion of sentence was deleted in the March 2011 amendments to the rules.  See note 2, supra.
  6. See Debbie Cenziper & Jason Grotto, Clemency Proving Elusive for Florida’s Ex-Cons, Miami Herald, October 31, 2004; The Long Road to Clemency, Miami Herald, November 7, 2004.
  7. The statistics on the number of RCR grants issued from 2004 onward are contained in Proviso Report to the Legislature, A Report on the Status of the Processing of Civil Rights Clemency Cases for FY 2008-2009, https://www.fcor.state.fl.us/docs/reports/FCORprovisoreport0809.pdf.  In the 18 months after April 5, 2007, the Commission processed 271,000 applications for restoration of rights, and granted 146,549 of them, with about 60,000 cases still pending.  Proviso Report at pp. 6, 9.  According to an investigative series by the Miami Herald the fall of 2004, see note 4 supra, 48,000 requests for restoration of rights were granted between 1999 and 2004, compared with 200,000 rejected during that period.  No specific information available on the number of pardons granted during this period.
  8. See Michael Bender, Citrus County Electrician Gets Gov. Rick Scott’s First Pardon, Tampa Times/Herald, June 2, 2011, available at http://www.tampabay.com/news/politics/gubernatorial/citrus-county-electrician-gets-gov-rick-scotts-first-full-pardon/1173320.
  9. See Fla. Stat. § 943.045(13) and (14):

    (13) “Expunction of a criminal history record” means the court-ordered physical destruction or obliteration of a record or portion of a record by any criminal justice agency having custody thereof, or as prescribed by the court issuing the order, except that criminal history records in the custody of the department [of law enforcement] must be retained in all cases for purposes of evaluating subsequent requests by the subject of the record for sealing or expunction, or for purposes of recreating the record in the event an order to expunge is vacated by a court of competent jurisdiction.

    (14) “Sealing of a criminal history record” means the preservation of a record under such circumstances that it is secure and inaccessible to any person not having a legal right of access to the record or the information contained and preserved therein.

  10. A provision making eligibility for licenses dependent on a person’s having had their rights restored was repealed in 2011.  See note 3, supra.
  11. § 112.0111.  Restrictions on the employment of ex-offenders; legislative intent; state agency reporting requirements

    (1) The Legislature declares that a goal of this state is to clearly identify the occupations from which ex-offenders are disqualified based on the nature of their offenses. The Legislature seeks to make employment opportunities available to ex-offenders in a manner that serves to preserve and protect the health, safety, and welfare of the general public, yet encourages them to become productive members of society. To this end, state agencies that exercise regulatory authority are in the best position to identify all restrictions on employment imposed by the agencies or by boards that regulate professions and occupations and are obligated to protect the health, safety, and welfare of the general public by clearly setting forth those restrictions in keeping with standards and protections determined by the agencies to be in the least restrictive manner.

    (2) Each state agency, including, but not limited to, those state agencies responsible for professional and occupational regulatory boards, shall ensure the appropriate restrictions necessary to protect the overall health, safety, and welfare of the general public are in place, and by December 31, 2011, and every 4 years thereafter, submit to the Governor, the President of the Senate, and the Speaker of the House of Representatives a report that includes:

    (a) A list of all agency or board statutes or rules that disqualify from employment or licensure persons who have been convicted of a crime and have completed any incarceration and restitution to which they have been sentenced for such crime.

    (b) A determination of whether the disqualifying statutes or rules are readily available to prospective employers and licensees.

    (c) The identification and evaluation of alternatives to the disqualifying statutes or rules which protect the health, safety, and welfare of the general public without impeding the gainful employment of ex-offenders.

    In January 2012, the Florida Department of Business and Professional Regulation submitted a report to the Governor pursuant to this law, which included a list of laws and regulations that govern the ability of the DBPR and various licensing boards to deny licensure based upon criminal record and a “list of crimes for each profession that do not relate to an applicant’s ability to practice that profession,” and that are considered not “substantially related” to an individual’s ability to practice that profession.  See Letter from Ken Lawson, DBPR, to Governor Rick Scott, January 4, 2012 (on file with author). 

    This letter reported that “very few of our statutes and rules automatically disqualify applicants,” but that in most cases statutes and rules authorize denial of professional license for lack of good moral character when there is a “substantial connection between the prior criminal conviction and the practice of the profession.”  In addition, the DBPR also applies a “substantial connection” standard to deny business licensure. Executive Order No. 06-89:  On April 25, 2006, Governor Jeb Bush issued Executive Order No. 06-89, directing each state agency 1) to conduct a comprehensive inventory of their employment disqualifications affecting people with convictions; 2) report to him the reasons for any automatic disqualifications and any available procedures for waiver; and 3) to eliminate or modify such disqualifications that are not tailored to protect the public safety; and  4) to create case-by-case review mechanisms to provide individuals the opportunity to make a showing of their rehabilitation and their qualifications for employment.  The Governor asked his executive agencies to “assume a leadership role in providing employment opportunities to ex-offenders by reviewing their employment policies and practices and identifying barriers to employment that can safely be removed to enable ex-offenders to demonstrate their rehabilitation.”  The Governor also encouraged other public entities and private employers, “to the extent they are able, to take similar actions to review their own employment policies and provide employment opportunities to individuals with criminal records.”  The text of the order is at http://edocs.dlis.state.fl.us/fldocs/governor/orders/2006/06-89-exoftf.pdf.  The order emerged from the work of the Governor’s Ex-Offender Task Force, which found “many state laws and policies that impose restrictions on the employment of people who have been to prison,” affecting “more than one-third of Florida’s 7.9 million non-farm jobs, including state and local government jobs, jobs in state-licensed, regulated and funded entities, and jobs requiring state certification.”  See Final Report of the Florida Ex-Offender Task Force (2006),  available at http://www.pdmiami.com/governors_ex-offender_task_force.pdf

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