Restoration of Right Series/ Louisiana

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

The right to vote “may be suspended” while a person is “under an order of imprisonment for conviction of a felony.” La. Const. art. I, § 10.   This does not require actual imprisonment; disenfranchisement applies to people on parole, and also to probationers whose prison sentence was suspended.  See Rosamond v. Alexander, 846 So. 2d 829 (La. App. 3d Cir. 2003).  The Administrative Office for the U.S. Courts has taken the position that federal offenders on supervised release are entitled to register and vote.1

B.  Office and Jury

As of January 2016, those with felony convictions are now eligible to run for elective office.2 Public officers are automatically removed following a felony conviction while holding office.  La. R.S. § 42:1411. Under La. Code Crim. Proc. Ann. art. 401(A)(5), those convicted of or “under indictment” for a felony may not serve on a jury.  See also State v. Baxter, 357 So. 2d 271 (La. 1978) (includes federal convictions).

C.  Automatic Restoration of Rights

La. Const. art. I, § 20 provides that “[f]ull rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.”  This provision restores the “basic rights” of citizenship (voting, holding office).  See State v. Adams, 355 So. 2d 917, 921-22 (La. 1978) (“the ultimate language, ‘rights of citizenship,’ was adopted to make it clear that the drafters’ intent was to restore the customary rights a citizen may exercise (the rights to vote, work, hold public office, etc.) and not to erase automatically the fact of the conviction”).  However, it does not restore firearms rights or other privileges.  See, e.g., State v. Williams, 358 So. 2d 943 (La. 1978) (firearms rights not restored automatically upon completion of sentence); Williams v. Louisiana Bd. (Comm’n) of Alcoholic Beverages, 317 So. 2d 247 (La. App. 3d Cir. 1975) (same for liquor license).  There is also caselaw holding that the general restoration authority in § 20 does not extend to jury service, e.g., State v. Haynes, 514 So. 2d 1206 (La. App. 2d Cir. 1987), but the reasoning of these cases does not account for § 20. See generally Helen Ginger Berrigan, Executive Clemency, First-Offender Pardons, Automatic Restoration of Rights, 62 La. L. Rev. 49 (2001).

D.  First offender pardon

A first offender (defined in La. Rev. Stat. Ann. § 15:572(C) as a person “convicted within this state of a felony but never previously convicted of a felony” under federal law or the law of any state or country) “shall be pardoned automatically upon completion of his sentence without a recommendation of the Board of Pardons and without action by the governor.”  La. Const. art. IV, § 5(E)(1); La. Rev. Stat. Ann. § 15:572(B)(1).  Entitlement to first offender pardon for those eligible is guaranteed by the constitution and may not be infringed by statute.  Op. La. Att’y Gen. No. 04-0080 (2005).  Payment of court costs is not required. Id.

Eligibility

Applies to state convictions on or after January 1, 1975.  Since a 1999 amendment to the Louisiana Constitution, first offender pardon is available only to persons convicted of “non-violent crime, or convicted of aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities.” La. Const. art. IV, § 5(E)(1) as amended by Acts 1999, No. 1398, § 1, approved Oct. 23, 1999, eff. Nov. 25, 1999.  All others must apply for full pardon.

Effect

First offender pardon restores “all rights of citizenship and franchise,” La. Rev. Stat. Ann. § 15:572(D), but not the right to run for office, Touchet v. Broussard, 31 So.3d 986 (La. 2010), or privileges such as liquor license.  See State v. Adams, 355 So. 2d 917 (La. 1978).  Unlike a gubernatorial pardon, a first offender pardon does not preclude use of a conviction in subsequent prosecution or sentencing, see Touchet v. Broussard, 31 So. 3d at 993–94, or to disqualify for occupational licensing.   Rev. Stat. Ann. § 15:572(E).  It does not restore firearms rights.  State v. Wiggins, 432 So. 2d 234 (La. 1983).  Nor does it relieve of obligation to register as sex offender.  La. Rev. Stat. Ann. § 15:572(B)(2). 

A first offender pardon is not regarded as “full and unconditional” under federal immigration law for purposes of avoiding deportation, or demonstrating good moral character for naturalization.  See Hang Thuy Nguyen v. USCIS, No. 16-30904 (5th Cir. Feb. 9, 2017) (in contrast to unconditional gubernatorial pardon, Louisiana’s automatic first offender pardon does not qualify as “full and unconditional” so as to enable petitioner to demonstrate good moral character for naturalization), http://www.ca5.uscourts.gov/opinions/pub/16/16-30904-CV0.pdf).) 

E.  Firearms

Restriction on possessing firearms or carrying concealed weapons applies to any person convicted of a crime of violence, felony weapons or drug offense, or sex offense, and terminates ten years after completion of sentence so long as no other felony conviction occurs during that period.  La. Rev. Stat. Ann. § 14:95.1(C).  A governor’s pardon will restore firearms rights prior to the ten years, but a first offender pardon will not.  Wiggins, supra, 432 So. 2d 234.  The federal government takes the position, based on the holding in Caron v. United States, 524 U.S. 308 (1998), that a person who is ineligible for a concealed carry permit, as described in the paragraph below, is prohibited from possessing firearms under 18 U.S.C. § 922(g)(1).  See Complaint filed in Lynch v. Lee, No. 3:16-cv-00089-BAJ-EWJ (M.D. La.)    

Concealed carry permits:  In addition, persons who have been convicted of, or pled guilty or nolo contendere to, a crime of violence or any crime punishable by a term of one year or more may not obtain a concealed carry permit.  La. Rev. Stat. Ann. § 40:1379.3(C)(10).  “A conviction, plea of guilty, or plea of nolo contendere under this Paragraph shall include an expungement of such conviction or a dismissal and conviction set-aside under the provisions of Code of Criminal Procedure Article 893.”  Conviction of or plea to a misdemeanor crime of violence (as defined in R.S. 14:2) will result in loss of concealed carry privileges for five years after completion of sentence, unless the conviction was set aside and the prosecution dismissed.  Persons convicted of federal counterfeiting or forgery charges under may obtain such a permit 15 years after completion of sentence.  Id.   However, a person who has been convicted of a violation of 18 U.S.C. § 491(a) shall be permitted to qualify for a concealed handgun permit if fifteen or more years has elapsed between the date of application and the successful completion or service of any sentence, deferred adjudication, or period of probation or parole. Id.     

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

“Upon favorable recommendation of the Board of Pardons,” the Governor may pardon “those convicted of offenses against the state.” La. Const. art. IV, § 5(E)(1); La. Rev. Stat. Ann. § 15:572(A).  In 2012, Act 714 merged the functions and duties of the Board of Pardons and the Parole Board.

The Board consists of five appointees of the governor confirmed by the Senate, whose terms run concurrent with Governor’s, and one of which shall be chosen from a victims group. See http://doc.la.gov/quicklinks/pardon-board/ (providing general information on the Board of Pardons). The governor chooses the chair.  Const. art. IV, § 5(E)(2);  La. Rev. Stat. Ann. § 15:572.1.  Any board action requires four favorable votes.  La. Rev. Stat. Ann. § 15:572.1(e).

Eligibility

An applicant for pardon must have completed their sentence, including court costs.  La. Rev. Stat. Ann. § 15:572(A); see Op. La. Att’y Gen. No. 04-0080 (2005).  The Rules of the Louisiana Board are posted at http://doc.la.gov/quicklinks/pardon-board/rules.  The Louisiana Supreme Court held in 2006 that a pardon issued by the governor of the state of Louisiana was sufficient to restore the right to hold a municipal or state office to one convicted of a federal felony offense. Malone v. Shyne, 937 So. 2d 343 (La. 2006). 3 See also 1978-79 Op. Att’y Gen. 103 (No. 79-787)(1980).

Effect

Where a convicted person receives a full executive pardon by the governor upon recommendation of the Board of Pardons (“Gold Seal” Pardon), he is restored to “status of innocence.”  State v. Riser, 704 So. 2d 946  (La. App. 2 Cir. 1997).  After a pardon, the conviction cannot be used to enhance punishment for a subsequent crime, though it may be used at trial to impeach.   (By contrast, an automatic first offender pardon does not preclude use of the conviction in subsequent prosecution, or to disqualify for occupational licensing.  See cases cited in Part I D.)  A full pardon also is effective under federal immigration law to avoid deportation and to lift the bar to establishing good moral character for purposes of naturalization.  See Hang Thuy Nguyen v. USCIS, supra.

Process

See La. Rev. Stat. Ann. § 15:572.4.   The Board meets at regularly scheduled dates, see Rule 1(A) of Board Rules at http://www.doc.la.gov/rules/.   All applications must be made on the official form, posted at http://www.doc.la.gov/wp-content/uploads/2013/02/Clemency-Application-Feb-2013.pdf.  “Before considering the application for pardon of any person, the board shall give written notice of the date and time at which the application will be heard and considered, at least thirty days prior to the hearing,” to the district attorney, the victim (if any), and any other person who has indicted an interest and has a legal right to present testimony.  La. Rev. Stat. Ann. § 15:572.4(B)(1).  In addition, the applicant must notify the district attorney and victims of his application, and place public notice in a newspaper on three separate days in a 30-day period.  La. Rev. Stat. Ann. § 15:572.4(C).  Information relating to a pardon request must be made available to the public.  The district attorney, injured victim, spouse or next of kin, and any other persons who desire to do so shall be given a reasonable opportunity to attend the hearing, and both the district attorney and victim must be given an opportunity to respond to the application, either telephonically or in person.  La. Rev. Stat. Ann. § 15:572.4(B)(2) and (3).  See also Rule 6(C) of the Board Rules.  No more than three persons may speak in favor of an application, and no more than three against.  All actions of the Board require the favorable vote of at least four members of the Board.  See Rule 1(C).

In recent years the legislature has erected more and more procedural barriers to pardon, generally permitting greater public scrutiny of the process, and making formal provisions for input by officials and victims.  Because a favorable Board recommendation is necessary for the governor to act, recent amendments create obstacles to pardon.  See generally Berrigan, supra.

Frequency of Grants

In addition to First Offender Pardons, the Board hears 20-25 cases of full pardon every two months, or about 120 cases annually, and historically has recommended favorably in about 40% of these.  Dockets and decisions can be viewed at http://www.doc.la.gov/dockets-and-decisions/l. Governor Jindal issued 83 pardons during his 8 years in office, acting favorably on only 11% of the Board’s recommendations. Kevin Litten, Bobby Jindal grants pardon to 21 offenders, Times-Picayune, http://www.nola.com/politics/index.ssf/2016/01/bobby_jindal_grants_clemency_t.html (Jan. 6, 2016). Previous governors Blanco and Foster issued few pardons early in their terms, but ended by pardoning over 331 individuals (in four years) and 476 individuals (in eight years), respectively.  Governor Edwin Edwards approved more than 3000 clemency recommendations in 16 years in office.  See Michelle Milhollon, Governor Spurns Most Pardon Bids, The Advocate, Sept. 11, 2011, http://theadvocate.com/home/666536-79/governor-spurns-most-pardon-bids.html.  If past is prologue in Louisiana, Governor Jindal should pick up the pace of his pardoning in his second term.

Contact

Board of Pardons
504 Mayflower St.
Baton Rouge, LA 70802
Phone: (225)342-5421
Fax: (225)342-2289
paroleboard@corrections.state.la.us

B.  Judicial expungement or sealing
1.  Expungement

Until 2014, there was no provision for expungement or sealing of adult felony convictions in Louisiana.  In May 2014, a comprehensive set of provisions for expunging criminal records was enacted as Chapter 34 of the Code of Criminal Procedure, and previous provisions for expunging nonconviction records (La. Rev. Stat. Ann. § 44:9) were repealed.   See La. Code Crim. Proc. Ann. Ch. 34. Art. 971. The purpose of the new chapter is “to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.”  Id.

    a. Eligibility
Felony conviction records:

Article 978 La. C. Cr. Proc. provides for expungement of felony conviction records 10 years from completion of sentence so long as no convictions (either misdemeanor or felony) in intervening years and no pending charges. 978(A). Non-eligible offenses: violent offenses, crimes against minors, drug trafficking offenses (though mere possession with intent to distribute is eligible), and sex offenses (though expungement is available for conviction under pre-2001 statutory rape law if the offense would be a misdemeanor today). Certain controlled substance offenses are also ineligible. 978(B).  May be granted only once every 15 years. 978(D).

Misdemeanor conviction records:

Article 977 provides that misdemeanors may be expunged at any time if set aside pursuant to deferred sentencing options provided under La. C. Cr. Proc. Arts. 893 and 894. They may also be expunged 5 years from the completion of sentence so long as the person has no felony convictions in the intervening years and no pending felony charges.  Domestic abuse offenses (if not dismissed following set-aside) and sex offenses are not eligible for expungement. 977(C).  Expungement of misdemeanor conviction records may be granted only once every five years, and only once every ten years in the case of a DUI conviction. 977(D).

Non-conviction records:

Article 976 La. C. Cr. Proc. provides that a person may at any time file a motion to expunge records if the person was not prosecuted and prosecution is barred, if the DA declined to prosecute, or if the proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.

     b. Effect

Article 973 provides that persons with expunged records are not required to disclose the expunged arrest or conviction, or the fact that a record has been expunged. 973(C).  Expunged records are not available to the public, but are available to law enforcement/prosecutors and to a number of licensing boards (mostly medical-related, but also the bar, social work, insurance, and other boards).  973(A), (B).  Expunged records may be used as a predicate offense in recidivist schemes. 973(E).  Expungement of a record does not relieve sex offender registration/reporting obligations. 973(H). Nor does expungement relieve handgun permit restrictions, though it does relieve firearm disabilities imposed as a result of a domestic battery abuse conviction. La. R.S. § 40:1379.3, 14:95.10.

c. Procedure

Article 980 calls for “contradictory hearing” if the district attorney, Bureau of Criminal Identification and Information, or arresting agency object to a motion to expunge within 60 days after receiving notice from the clerk (though court may grant another 60 day extension).  980(A)(B).  If there is an objection, a contradictory hearing is held at which the entity must show cause for denial by a preponderance standard. 980(E).  Otherwise the court will grant if requirements are met.

Fees

Article 983 – Fees are capped at $550.  983(A)(B).4

No cost for expungement following acquittal, wrongful conviction, dismissal/non-charge (so long as district attorney consents), or in cases where juvenile has completed drug court.

Third party dissemination

Article 974 provides that a private entity “that compiles and disseminates criminal history information for compensation,” excluding news-gathering organizations, may not disseminate information on expunged records once they have received notice of the expungement from the affected person.  974(A).  An action for damages is available against entities that violate this provision.  974(C). The provisions of this paragraph do not apply to private third-party credit reporting companies regulated by the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) or financial institutions regulated by Graham-Leach-Bliley Act (15 U.S.C. §6801 et seq.).  La. Code Crim. Proc. Ann. Art. 974.

Expungement by redaction

Art 985 – If a record includes the name of more than one individual and one or more of the individuals is entitled to an expungement of an arrest or conviction, any individual entitled to an expungement may petition the court to have records related to the arrest or conviction of the individual expunged by redaction.

Interim expungement of felony arrest records resulting in misdemeanor conviction: Article 985.1 – Apart from the other expungement provisions, a felony arrest record can be expunged at any time if the arrest resulted in a misdemeanor conviction.  Only the felony arrest record is expunged; the misdemeanor conviction record remains.  There is no limit on the number of times this may be done.

2.  Deferred Adjudication

Under Art. 893(A):  “When it appears that the best interest of the public and of the defendant will be served,” the court may place certain offenders on probation, at the successful conclusion of which charges are dismissed.  Expungement may then be sought under Section 44:9(A) or (B).  See Art. 893(E)(3)(c) (“Dismissal under this Paragraph shall have the same effect as an acquittal for purposes of expungement under the provisions of [Art. 976] and may occur only once with respect to any person.”).  Eligibility criteria are complex, but in general no more than one prior felony unless the prosecutor consents.  The offense may still be used as a predicate offense.  See also State v. Jones, 539 So. 2d 866 (La. App. 1989) (conviction expunged after completion of deferred adjudication probation could be considered for the purposes of the felon in possession charge).  Sex offenses involving children, violent offenses, and serious drug trafficking offenses are not eligible for deferred sentencing.  No expungement is available in the case of a suspended sentence.  See State v. Oliver, 874 So.2d 365, 367-68 (La. App. 2004).

3.  Juvenile Records

Immediately upon turning age 17, a person may apply to expunge non-adjudication records. Child Code Ann. art. 918(A).  Upon a person’s motion to the court, misdemeanor adjudication records may be expunged only if two or more years have passed since satisfaction of the most recent judgment.  Id. at (B).  Felony adjudication records may only be expunged if the offense was not murder, a sex crime, kidnapping, or armed robbery; five or more years have elapsed since the satisfaction of the most recent judgment against the person; there are no subsequent convictions for a felony or misdemeanor involving a weapon; and there are no pending charges against the person.  Id. at (C).  If the court finds that grounds for expungement exist, it may order expungement.  Id. at (F).  Expungement results in destruction of records and prohibition against release of non-destroyable items; the person may deny any existence of the record, with certain exceptions.  La. Child Code Ann. arts. 920–22.

C.  Administrative Restoration

The Louisiana Bureau of Criminal Identification may purge records of individuals over 60 who have not been arrested for 15 years.  La. Rev. Stat. Ann. § 15:586.

III.  Nondiscrimination in Licensing and Employment
A. Licensing

The Licensing for Ex-Offenders Act of 2017, La. Rev. Stat. § 37:31 through 36, is intended to facilitate licensing for convicted individuals. Originally enacted in 2014 to regulate only “provisional” licenses, it was amended in 2017 to remove the term “provisional” and apply to permanent licenses.  It provides that a covered licensing entity “shall issue” a license to an “otherwise qualified” convicted individual. § 37:325, and specifies that a license issued to a covered individual may be revoked if the individual commits “a new felony” or violates the rules of the profession for which the license was issued.  § 37:34.  It does not require issuance of a license to any person convicted of a crime of violence or sex offense, or fraud if the licensed field of work is one in which the licensee owes a fiduciary duty to a client.   § 37:36(A), (B).  In addition, a licensing entity shall not be required to issue a license to an applicant whose conviction “directly relates” to the specific field or profession.  § 37:36(C).  “A license holder who supervises children or individuals who lack mental capacity shall not do so without another licensee in the room at all times.”   § 37:36(D).  A number of regulatory and employing agencies are exempted, including law enforcement, medical and nursing licensing boards, state bar association, financial regulation, education, state racing and athletic commissions, pharmacists, architects, embalmers and funeral directors, and state board of elementary and secondary education.  § 37:36(E)(1).  However, exempt licensing entities are required to record and report on the number of licenses issued or denied to an otherwise qualified convicted applicant, including all reasons for any such issuance or denial.  “The entity shall provide the report annually to the House Committee on Commerce no later than February first of each year.”  § 37:36(E)(3).

A more specific older provision dealing with “Criminal record effect on trade, occupational, and professional licensing,” provides that “a person may not be disqualified, or held ineligible to practice or engage in any licensed trade, occupation, or profession “solely because of” a prior criminal record unless it involves a conviction that “directly relates to the position of employment sought, or to the specific occupation, trade or profession for which the license, permit or certificate is sought.”  La. Rev. Stat. Ann. § 37:2950(A).6  “Any decision which prohibits an applicant from engaging in the occupation, trade or profession for which the license, permit or certificate is sought, which is based in whole or in part on conviction of any crime . . . shall explicitly state in writing the reasons for the decision.”  § 37:2950(B).  Any complaints concerning violations of this section “shall be adjudicated in accordance with generally applicable procedures for administrative and judicial review.”  § 37:2950(C).  It exempts the same professions as the Licensing for Ex-Offenders Act, supra. See § 37:2950(D).  Section 37:2950 does not overrule specific restrictions on certificates of employment such as those applicable to employees in the gaming industry under La. Rev. Stat. Ann. § 27:28.  Eicher v. Louisiana State Police, Riverboat Gaming Enforcement Division, 710 So. 2d 799 (La. App. 1 Cir. 1998).

B. Negligent hiring protection

In 2014, La. Rev. Stat. Ann. § 23:291(E) was enacted, protecting employers from negligent hiring and supervision liability in many claims based solely on an employee’s past criminal convictions.  However, that protection does not extend to acts that are “substantially related to the nature of the crime for which the employee was convicted and the employer, general contractor, premises owner, or other third party knew or should have known of the conviction.”  § 23:291(E)(2)(a).  It also does not extend to a past conviction for enumerated crimes of violence or sex offenses of which the employer “knew or should have known.”  § 23:291(E)(2)(b).    

C. Ban-the-box in public employment and college admission

Ban-the-box in public employment:  Effective August 1, 2016, state employers may not inquire into the criminal history of applicants for “unclassified” state service positions until after the applicant has been interviewed for the position, or, if no interview is conducted, until the applicant is extended a conditional offer of employment.  See La. Rev. Stat. Ann. § 42:1701 (added by Act No. 398 (2016)). The law does not apply to law enforcement or corrections positions or to positions “for which a criminal background check is required by law.” § 42:1701(D). 

The law permits the consideration of an applicant’s criminal history once it is disclosed and provides that:

In considering the criminal history of the prospective employee, the state employer may consider the following:

1) The nature and gravity of the criminal conduct.

2) The time that has passed since the occurrence of the criminal conduct.

3) The specific duties and essential functions of the position and the bearing, if any, that the criminal conduct will have on the ability of the prospective employee to perform one or more of those duties or functions.

§ 42:1701(B).  Effective July 2017, “classified” state service positions will also be covered by ban-the-box provisions adopted by the the State Civil Service Commission.  See Civil Service Rule 22.4.1, available at http://www.civilservice.louisiana.gov/files/general_circulars/2017/GC2017-009.pdf; see also http://www.civilservice.louisiana.gov/files/commission_actions/2017/commact17-05.pdf (adopting proposed rule).  Rule 22.4.1 provides as follows:

No state employer, when filling a position in the classified service, may inquire on an initial application form about a prospective employee’s felony criminal history unless it is for a position that has a legal restriction that prohibits employment due to a criminal conviction. However, during the candidate’s interview or after the candidate has been given a conditional offer of employment, the appointing authority or his or her designee may inquire about the candidate’s criminal history.

Ban-the-box in public college admissions:  Effective July 2017, admission forms to public colleges in Louisiana will no longer require information about an applicant’s criminal history, with the exception of certain violent sexual offenses.  See La. Rev. Stat. Ann. § 17:3152.  Inquiries may be made after admission for specified educational purposes, but students may not be excluded from programs designed to prepare for occupational license or certification as teacher.  Applications to Health Sciences Center and School of Veterinary Medicine excepted.


  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.   See Memorandum from Joe Gergits, Assistant General Counsel, AOUSC, October 31, 2008 (on file with authors).
  2. On January 27, 2016, the Louisiana Supreme Court overturned a 1997 amendment to the state constitution, La. Const. art. I § 10 (B) that barred those with felony convictions from holding elective office until 15 years after completion of sentence.  The court held that the amendment had not been constitutionally adopted because, due to an error, the version of the amendment that was voted on by the public omitted provisions that had been approved by the legislature.  See Shepherd v. Schedler, 209 So. 3d 752 (La. 2016), available at http://www.lasc.org/opinions/2016/15CA1750.opn.pdf; see also Janet McConnaughey, Associated Press, State high court overturns bar to felons running for office, The Advertiser, http://www.theadvertiser.com/story/news/local/louisiana/2016/01/28/state-high-court-overturns-bar-felons-running-office/79451184/ (Jan. 28, 2016).
  3. In holding that the phrase “offenses against the state” in art. IV, § 5 includes federal offenses, the court referred to “the historical practice of Louisiana governors to issue pardons to federal offenders. See La. Atty. Gen. Op. 103, 97-878 (3/13/80), which recites the fact that Louisiana governors issued 87 pardons to persons convicted of federal felonies in the 15 years preceding 1980.”  937 So. 2d at 351.  Prior to the Shyne decision, the Board of Pardons had announced in 1996 and again in 2005 that it would no longer accept applications from federal offenders.  See http://www.insurancejournal.com/magazines/editorsnote/2005/08/22/59579.htm.
  4. Art. 983.  Costs of expungement of a record; fees; collection; exemptions; disbursements

    A.  Except as provided for in Articles 894 and 984 of this Code, the total cost to obtain a court order expunging a record shall not exceed five hundred fifty dollars.

    B.  The nonrefundable processing fees for a court order expunging a record shall be as follows:

    (1)  The Louisiana Bureau of Criminal Identification and Information may charge a processing fee of two hundred fifty dollars for the expungement of any record of arrest when ordered to do so by the court in compliance with the provisions of this Title.

    (2)  The sheriff may charge a processing fee of fifty dollars for the expungement of any record of arrest when ordered to do so by the court in compliance with the provisions of this Title.

    (3)  The district attorney may charge a processing fee of fifty dollars for the expungement of any record of arrest when ordered to do so by the court in compliance with the provisions of this Title.

    (4)  The clerk of court may charge a processing fee not to exceed two hundred dollars to cover the clerk’s costs of the expungement.

    C.  The clerk of court shall collect all processing fees at the time the motion for expungement is filed.

  5. The law also specifies that the law should not be interpreted to limit the licensing entity’s discretion vis a vis individuals “not covered” by the law. § 37:33.
  6. Prior to 2012 amendment, only a felony could be disqualifying.

Copyright © 2017

Restoration of Rights/Kentucky

Kentucky flagI.  Restoration of Civil/Firearms Rights
A.  Vote/office

Persons convicted of a felony lose the right to vote and it is restored only by expungement (available only for certain low-level felonies, see Part II-B, below) or personal action of the governor.  See Ky. Const. § 145(1) (“Persons convicted in any court of competent jurisdiction of treason, or felony, or bribery in an election, or of such high misdemeanor as the General Assembly may declare shall operate as an exclusion from the right of suffrage, but persons hereby excluded may be restored to their civil rights by executive pardon.”); see also Ky. Rev. Stat. Ann. § 27A.070 (court shall send notice of a felony conviction to the state board of elections when conviction is final).  In addition, people who are “in confinement under the judgment of a court for some penal offense” at the time of the election, whether convicted of felony or misdemeanor, are not allowed to vote.  Ky. Const. § 145(2).  The legislature has chosen not to extend disenfranchisement to those convicted of “high misdemeanors,” except those “in confinement under the judgment of a court” at the time of an election.  Id.  Federal offenders and out-of-state offenders may have voting rights restored by the governor, Arnett v. Stumbo, 153 S.W.2d 889 (Ky. 1941), except that those with out-of-state convictions may vote in Kentucky if their rights were restored in the jurisdiction of conviction.  Source: Office of the Governor.1 As of April 2016, set-aside and expungement of Class D felonies also restores the right to vote.  See Ky. Rev. Stat. Ann. § 431.078. 

Except as provided below, a person convicted of a felony “or of such high misdemeanor as may be prescribed by law” loses the right to hold office, unless pardoned.  Ky. Const. § 150.

B.  Jury

A person who has “been previously convicted of a felony and has not been pardoned or received a restoration of civil rights by the Governor or other authorized person of the jurisdiction in which the person was convicted” is disqualified from jury service.  See Ky. Rev. Stat. Ann. § 29A.080(2)(e).

C.  Firearms

A person convicted after January 1, 1975 is prohibited from possessing a handgun, and a person convicted after July 15, 1994 is prohibited from possessing any firearm, unless pardoned.  Ky. Rev. Stat. Ann. § 527.040(1).  See Posey v. Commonwealth, 185 S.W.3d 170, 181 (Ky. 2006) (state constitutional right to bear arms did not limit legislature’s authority to prohibit possession of firearms by convicted felon).

D.  Collateral consequences

Kentucky’s collateral consequences have been compiled and analyzed in two law review articles:  Troy B. Daniels, Dawn L. Danley-Nichols, Kate R. Morgan and Bryce C. Roades, Kentucky’s Statutory Collateral Consequences from Felony Convictions: A Practitioner’s Guide, 35 N. Ky. L. Rev. 413 (2008), available at http://chaselaw.nku.edu/content/dam/chaselaw/docs/academics/lawreview/v35/nklr_v35n4.pdf;   Sara M. Caudill and Ashley England-Huff, Collateral Consequences of Felony Convictions Established in the Kentucky Administrative Regulations, 35 N. Ky. L. Rev. 453 (2008).

II.  Discretionary Restoration Mechanisms
A. Executive pardon
Authority

The power to pardon is vested in the governor.  Ky. Const. § 77.  The governor may also act to restore certain rights of citizenship to a person, including the right to vote or to hold office.  §§ 145 (right to vote), 150 (eligibility to hold office).  For pardons, the governor must file with the legislature a statement of reasons with each pardon grant, which must be available to the public.  § 77.  The governor may ask the Kentucky Parole Board to investigate and make recommendations on pardon cases, but he is not bound by its advice.  Ky. Rev. Stat. Ann. § 439.450 (“On request of the Governor the board shall investigate and report to him with respect to any case of pardon…”).

Administration

The Kentucky Parole Board is composed of nine full-time members appointed by the governor to four-year terms. Ky. Rev. Stat. Ann. § 439.320.  The governor must make each appointment from a list of three names provided by the Kentucky State Corrections Commission.  §439.320(1).  No more than six Board members may be of the same political party.  Id.  Full-time members are salaried employees.  The governor designates one Board member to serve as chair.  § 439.320(2).2

Eligibility

For restoration of rights, expiration of sentence or discharge, with no pending charges.  For pardon, governor requires seven-year waiting period.  Federal and out-of-state offenders are eligible only for a partial pardon (restoration of citizenship).  See Stumbo, 153 S.W.2d at 891-92.

Effect

Restoration of citizenship restores a person’s right to vote and eligibility for jury service.  A full pardon relieves additional legal disabilities.  See Leonard v. Corrections Cabinet, 828 S.W.2d 668, 672-73 (Ky. Ct. App. 1992) (Governor’s pardon would at least open the door for convicted person’s consideration as peace officer, but restoration of rights does not).  The governor’s pardon document may limit rights being restored.  See Anderson v. Commonwealth, 107 S.W.3d 193 (Ky. 2003) (Governor’s order restoring a convicted person’s civil rights did not restore felon’s “right” or eligibility to serve as a juror, where order specifically limited the restoration to felon’s rights to vote and to hold office).  With the enactment of HB40 in 2016, a full pardon is now grounds for vacatur and expungement.  See Ky. Rev. Stat. Ann. § 431.078; Part II-B-1, infra.

Process
Restoration of rights

Simplified process for restoration of rights: In 2001, legislature directed Department of Corrections to implement “simplified” process for restoration of civil rights, including informing all eligible offenders of their right to apply, generating a monthly list of all eligible offenders who have asked for their rights back, conducting investigations, giving notice to prosecutor in county of conviction and county of residence, and forwarding to Governor’s office on a monthly basis a list of all eligible offenders for consideration for partial pardon.  See Ky. Rev. Stat. Ann. § 196.045.  Application form on DOC website is available at http://corrections.ky.gov/depts/Probation%20and%20Parole/Documents/Restoration%20of%20Civil%20Rights.pdf.

Full pardon

Pardon applications are sent directly to the Governor’s Office, along with a statement of the reasons for seeking relief and three letters of recommendation.  An application form may be obtained by inquiring with the office of the governor (Phone:  502-564-2611).  Each completed application is sent to prosecutor for recommendation (if no response within 30 days, assumes no objection).

Frequency of grants
Restoration of rights

Shortly after taking office in December 2015, Governor Matt Bevin suspended an executive order of predecessor Governor Steve Beshear that automatically restored civil rights to all those who have completed their sentences.  See David Weigel, Kentucky’s new governor reverses executive order that restored voting rights for felons, Washington Post, https://www.washingtonpost.com/news/post-politics/wp/2015/12/23/kentuckys-new-governor-reverses-executive-order-that-restored-voting-rights-for-felons (Dec. 23, 2015); see also Part I-A, supra.  According to the Office of the Secretary of State, Beshear had restored rights to more than 4200 individuals in his first 21/2 years alone.  (Phone:  502-564-3490).  Governor Fletcher, Beshear’s predecessor, imposed strict limits on restoration, including payment of an application fee and requirement of a written essay from applicants.3

Full pardon

On July 3, 2017, Governor Matt Bevin issued the first ten pardons of his term.   The most controversial of these grants went to a woman convicted in 2016 of child abuse in connection with the death of her 5-year old child.  See http://www.courier-journal.com/story/news/crime/2017/07/04/gov-bevin-pardons-10-including-3-louisville-men/448989001/.  In his statement accompanying the grants, Governor Bevin stated that “There will be additional pardons granted, as warranted, in the months and years ahead,” id., which suggests that he intends to depart from the custom of Kentucky governors in recent years of reserving pardons until the end of their terms.  For example, Governor Steve Beshear (2007-2015) issued all 201 of his pardons and commuted six prison sentences on December 8, 2015, his last day in office.  Ten of the grants went to women convicted of violent acts stemming from domestic violence.  The grants are listed at http://www.kentucky.com/news/politics-government/article48539005.html.   Beshear received approximately 3400 applications during his eight years in office.  Governor Fletcher issued about 100 pardons on his last day in office.  He also caused a sensation in August of 2005 by issuing blanket pardons to nine of his aides who were being investigated by a grand jury for merit system personnel violations, but had not been convicted.  See Associated Press, “Kentucky Governor Issues Pardons in Hiring Probe,” August 29, 2005, available at http://www.msnbc.msn.com/id/9121273/ns/politics/t/ky-governor-issues-pardons-hiring-probe/.

Contact

Office of the Governor, State Capitol, 700 Capitol Avenue, Frankfurt, Kentucky, 40601.  502-564-2611.

B.  Judicial expungement or sealing
1. Set-aside and expungement of minor felonies, pardoned convictions

On April 1, 2016 the Kentucky legislature passed HB40, adding new sections to KRS Chapter 431 that authorize courts upon petition to vacate specified Class D felony convictions and pardoned convictions, dismiss the charges, and expunge the record.  See Ky. Rev. Stat. Ann. § 431.073 (added by HB40 (2016)).  Until the passage of HR 40 in 2016, the only felony cases eligible for expungement were Class D felonies in which adjudication was deferred.  See §§ 533.250-533.262, discussed infra.

Eligibility

Eligible Class D felonies include third-degree burglary, drug possession, prescription forgery, theft by unlawful taking, theft by deception, stealing credit card information, stealing computer data, filing falsified financial records, conspiracy to promote gambling, bigamy and selling real estate without a license, among several others.  A person can only apply for vacatur under this authority once in their lifetime, but multiple eligible Class D felonies stemming from a single incident may be vacated in a single application.  A 5-year waiting period from completion of sentence (including any period of probation and parole) applies, during which time a person must remain conviction-free.  A person with pending criminal charges may not apply.

Procedure

The vacatur application shall be filed as a motion in the original criminal case, and defendants “shall be informed of the right at the time of adjudication.”  The court must hold a hearing within 120 days of filing.  Prosecutors have 60 days to respond, and no hearing is required if the prosecutor either indicates no objection or does not respond within the 120 days.  There is a filing fee of $500 (a floor amendment to reduce this to $250 was defeated).

If all eligibility requirements are met, the court may order the conviction vacated, upon which

the court shall dismiss with prejudice any charges which are eligible for expungement . . . and order expunged all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records ….

HB 40 (2016), § 1(4). The law does not provide any standards guiding the court’s exercise of discretion in deciding whether to issue a vacatur order.

Effect 

Upon entry of an  order  vacating  and  expunging  a  conviction,  the  original conviction  shall  be  vacated  and  the  record  shall  be  expunged.  The court  and other agencies shall cause records to be deleted or removed from their computer systems  so  that  the  matter  shall  not  appear  on  official  state-performed background checks. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to  disclose  the  fact  of  the  record  or  any  matter  relating  thereto  on an application for employment, credit, or other type of application. If the person is not prohibited from voting for any other reason, the person’s ability to vote shall be restored and the person may register to vote.

Ky. Rev. Stat. Ann. § 431.078(6).

Index of expungement orders

The Administrative Office of the Courts shall retain an index of expungement orders entered under Section 1 of this Act. The index shall only be accessible to persons preparing a certification of eligibility for expungement pursuant to Section 4 of this Act. If the index indicates that the person applying for expungement has had a prior felony expunged under Section 1 of this Act, the person preparing the report may, notwithstanding the provisions of Section 1 of this Act, access the expunged record and include information from the expunged record in the certification.

§ 431.078(5).

Additional information

A guide to felony expungement created by the The Kentucky Courts is available at http://courts.ky.gov/Expungement/Pages/felonyexpungement.aspx.

2. Expungement of misdemeanors

Most misdemeanors and violations are eligible for expungement, upon petition to the court of conviction, five years after completion of sentence or probation, whichever is later.4  Ky. Rev. Stat. Ann. § 431.078(2). Expungement is mandatory if the individual has no other convictions for a misdemeanor or violation (a series of misdemeanors or violations arising out of the same incident counts as single offense), § 431.078(1)(a), and discretionary if the individual has been convicted of multiple misdemeanors or violations not arising from the same incident, § 431.078(1)(b). In either case, the individual must not have been convicted of a felony or misdemeanor within the preceding five years and must have no pending charges. § 431.078(4) – (5). Sex offenses or offenses against a child are ineligible. Id.

Upon receiving the petition, the court must notify the prosecutor, identified victims, and “any other person whom the person filing the petition has reason to believe may have relevant information related to the expungement of the record.” § 431.078(3). A hearing is required for both mandatory and discretionary expungement. No standards for consideration of discretionary expungement are set forth in the law. Individual must be informed of right to expunge conviction at time of conviction. § 431.078(1). The section is retroactive to offenses committed prior to July 14, 1992. § 431.078(8).

All petitions for expungement must include a certificate of eligibility for expungement, in which the Kentucky State Police certify an individual’s eligibility. Ky. Rev. Stat. Ann. § 431.079.5

Effect

Upon the entry of an order to expunge the records the proceedings in the case shall be deemed never to have occurred; the court and other agencies shall cause records to be deleted or removed from their computer systems so that the matter shall not appear on official state-performed background checks; the persons and the court may properly reply that no record exists with respect to the persons upon any inquiry in the matter; and the person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.

Ky. Rev. Stat. § 431.078(6).

3.  Pretrial diversion/deferred adjudication

Ky. Rev. Stat. Ann. §§ 533.250-533.262.  Pretrial diversion is available to a person charged with a Class D felony offense who has had no prior felony convictions within a ten-year period, who has not been under felony sentence within the ten year period immediately preceding the commission of the offense, and whose offense is not one for which probation or parole is prohibited.  § 533.250(1)(a).  Persons must demonstrate treatment compliance as a precondition of participation in the pretrial diversion program, if indicated, though this requirement may be waived.  §§ 533.251(1)-(2).  The court may permit Class C felony offenders to participate.  § 533.251(4).  Prosecutor must make a recommendation on each request for admission to diversion, and the court cannot grant diversion without the prosecutor’s approval.  § 533.250(6).  See also Flynt v. Commonwealth, 105 S.W.3d 415 (Ky. 2003).6 A guilty plea is a precondition for participation, but upon successful completion of the probationary period the charges are listed as “dismissed-diverted” and “shall not constitute a criminal conviction.”  § 533.258(1).  Expungement is available under Ky. Rev. Stat. Ann. § 431.076 (see supra).  The defendant shall not be required to list this disposition on any application for employment, licensure, or otherwise unless required to do so by federal law.  § 533.258(2).

4.  Juvenile expungement

Kentucky significantly revised its juvenile expungement authority in 2017.  See SB-195 (2017) amending Ky. Rev. Stat. Ann. § 610.330.  Under the amended law, expungement is now available for all juvenile offenses, excluding sex crimes and those that would result in “violent offender” classification.   § 610.330(1)(a), (c). Previously, those that would have been felonies if committed by an adult were ineligible.  Only a single felony (or “a serious of felonies arising from a single incident”) may be expunged, while there is no limitation of the number of misdemeanors, violations, or status offenses that may be expunged.   § 610.330(2).  Individuals with proceedings pending are ineligible.  § 610.330(1(c). Expungement proceedings may be initiated by motion from “any interested person,” a probation officer, a representative of the Department of Juvenile Justice, or upon the court’s own motion.   § 610.330(1)(b). The petition must be filed no sooner than two years after the ending of the court’s jurisdiction over the juvenile or two years after the juvenile’s unconditional release from commitment, with waiver of the waiting period available in extraordinary circumstances.  § 610.330(2). Under the new amendments, expungement is discretionary, and a juvenile’s record may be vacated and expunged so long as the eligibility requirements described above are met.  § 610.330(5). Upon expungement, “the case shall be deemed never to have occurred and all index references shall be deleted and the person and court may properly reply that no record exists with respect to such person.” § 610.330(6). Only the person or those named in the sealing order may inspect the records, and the juvenile may deny the existence of any record, and may not be required to disclose the record on “an application for employment, credit, or other type of application.”  § 610.330(6), (9). The court must inform the juvenile of the right to expungement at the time of adjudication.  § 610.330(1)(a).

Under the new amendment, expungement is now automatic if a juvenile petition is dismissed, or results in a finding of not-delinquent. § 610.330(7).

5.  Expungement of non-conviction records

Courts are authorized to expunge records of misdemeanor or felony cases that result in dismissals or acquittals.  Ky. Rev. Stat. Ann. § 431.076(1).  In spousal abuse cases judges “shall” expunge if the charges are dismissed or end in acquittal.  Id. § 510.300.  If the court finds after a hearing that there are no current charges or proceedings pending relating to the matter for which the expungement is sought, the court “may” grant the motion and order the expunging of all records in the custody of the court and any records in the custody of any other agency, including law enforcement records. § 431.076(1).  See also § 17.142 (segregation of records).

In 2016 expungement authority under § 431.076 was extended to cases in which filed charges have not resulted in indictment after 12 months. 

Comment

In 2005, an investigative article from the Louisville Courier-Journal reports that 12,000 expungements were granted in Kentucky in the two-year period prior to May 2005.  Jason Riley & Kay Stewart, Confusing laws allow abuse and inequality: Filing errors also leave some sealed cases open, Courier-Journal, May 15, 2005.  The Courier-Journal article also documents confusion among judges as to whether they have discretion to deny expungement under these statutes.  Uncertainty expressed about court authority to expunge records in diversion cases.  When a case is expunged, several agencies—including Metro Corrections, the commonwealth’s attorney’s office, metro police and sometimes the state police and the FBI—are ordered to seal their records.  They are supposed to certify to the court within 60 days that they have done so.  The FBI, which runs the National Crime Information Center, is not bound by the state order but routinely erases the requested records. 

III.  Nondiscrimination in Licensing and Employment:
A.  Public employment and licensing, generally

Ky. Rev. Stat. Ann. §§ 335B.020-.070.  Under § 335B.020(1),

No person shall be disqualified from public employment, [or from] . . . any occupation for which a license is required, solely because of a prior conviction of a crime, unless the crime for which convicted is directly relates to the position of employment sought or the occupation for which the license is sought.

§ 335B.020(1) (as amended by SB-120 (2017)).

In determining if a conviction directly relates to the position of public employment sought or the occupation for which the license is sought, the hiring or licensing authority shall consider:

(a) The nature and seriousness of the crime for which the individual was convicted and the passage of time since its commission.

(b) The relationship of the crime to the purposes of regulating the position of public employment sought or the occupation for which the license is sought;

(c) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position of employment or occupation.

§ 335B.020(2) (as amended by SB-120 (2017)).

See also 1980 Ky. Op. Atty Gen. 80-388 (1980), 1980 WL 102528 (Ky.A.G) (explaining that a felony conviction is not an absolute bar to an occupational license, Ky. Rev. Stat. Ann. Ch. 335B supersedes all other statutes and regulations as to licensing convicted persons, and the licensing board should consider if an applicant has been rehabilitated).

In 2017, SB-120, § 31 made significant amendments to § 335B.030, further defining the scope of discretion granted to public employers and licensing boards. The amendments prohibit disqualification based solely on conviction unless the employer or board provides the individual with written notice that it “has determined that the prior conviction may disqualify the person, demonstrates the connection between the prior conviction and the license being sought, and affords the individual an opportunity to be personally heard before the board prior to the board making a decision on whether to disqualify the individual.” § 335B.030(2)(a). The amendment also provides,

If an individual’s prior conviction was for a Class A felony, a Class B felony, or any felony offense that would qualify the individual as a registrant pursuant to KRS 17.500, there shall be a rebuttable presumption that a connection exists between the prior conviction and the license being sought.

§ 335B.030(2)(b).

B.  Ban-the-box in public hiring

On February 1, 2017, Governor Matt Bevin signed Executive Order 2017-064, removing questions about criminal history and convictions from state job applications.  The Order also prohibits agencies from inquiring “into an applicant’s criminal history until the applicant has been contacted to interview for a position, unless required by law to do so.”


  1. Efforts have been made in the Kentucky legislature to restore the vote automatically upon completion of sentence; The Democratic-led House repeatedly has approved a proposed constitutional amendment to that effect, but it has been blocked in the Republican-led Senate.  On November 24, 2015, just prior to leaving office, Governor Steve Beshear issued an executive order restoring the right to vote and hold office to persons convicted of non-violent felonies upon completion of their sentence, as long as they had paid restitution and have no charges pending.  The order did not restore rights to those convicted of specified violent crimes, sex offenses, bribery or treason, who will still have to apply for discretionary restoration. Upon assuming office, his successor Governor Bevin suspended this order.  See David Weigel, Kentucky’s new governor reverses executive order that restored voting rights for felons, Washington Post, https://www.washingtonpost.com/news/post-politics/wp/2015/12/23/kentuckys-new-governor-reverses-executive-order-that-restored-voting-rights-for-felons (Dec. 23, 2015).  This action did not affect those whose voting rights had been recognized in the intervening two weeks.
  2. Note that prior to 2010, the Parole Board consisted of 9 full-time and 2 part-time members, and each of the part-time members had to be from a different political party.  In 2010, legislation was passed that deleted reference to part-time Board members.  See 2010 Ky. Laws Ch. 107 (H.B. 564).
  3. See Elizabeth A. Wahler, Losing the Right to Vote: Perceptions of Permanent Disenfranchisement and the Civil Rights Restoration Application Process in the State of Kentucky, The Sentencing Project (Apr. 2006), available at http://www.sentencingproject.org/publications/losing-the-right-to-vote-perceptions-of-permanent-disenfranchisement-and-the-civil-rights-restoration-application-process-in-the-state-of-kentucky/; Marc Mauer & Tushar Kansal, Barred For Life: Voting Rights Restoration in Permanent Disenfranchisement States, Sentencing Project (Feb. 2005) at 14, available at http://www.sentencingproject.org/publications/barred-for-life-voting-rights-restoration-in-permanent-disenfranchisement-states/.
  4. The petition form is available at http://courts.ky.gov/resources/legalforms/LegalForms/4962.pdf.
  5. The website of the Kentucky courts describes certification procedures and allows petitioners to begin the certification process of line.  See http://courts.ky.gov/expungement/Pages/default.aspx. As of February 2016, a $40 fee is required for certification — this is in addition to the $100 fee required to file the petition itself.
  6. In Gibson v. Commonwealth, 291 S.W.3d 686, 690 (Ky. 2009), the Kentucky Supreme Court explained its reasoning in Flynt as follows:

    The issue presented in Flynt, was whether a trial court could place a criminal defendant on a pretrial diversion program without the consent of the prosecuting attorney. Id. at 426. A criminal defendant who successfully completes a Pretrial Diversion Program is entitled to dismissal of his charges under circumstances that  ‘shall not constitute a criminal conviction.’ KRS 533.258(1). Upon completion of the program, RCr 8.04(5) provides for the charges to be ’dismissed with prejudice.’ In holding that the prosecuting attorney’s consent was required, we said:

    ‘[t]o interpret KRS 533.250(2) as permitting a trial court to approve pretrial diversion applications over the Commonwealth’s objection – and thus conferring upon circuit courts the discretionary authority that we have previously held to be within the exclusive province of the executive branch – would construe it in a manner inconsistent with Kentucky’s constitutional separation of powers provisions …. (W)here the Commonwealth objects to pretrial diversion, circuit courts cannot unilaterally approve a defendant’s diversion application.’

    Id. at 426. Critical to our holding in the Flynt case is the fact that, unlike other ‘pretrial diversion’ schemes, the program established by the General Assembly enables a criminal defendant to avoid a felony conviction entirely, and potentially, if the Program is satisfactorily completed, results in a dismissal of the case  ‘with prejudice,’ barring future prosecution for that offense. Thus, we held that our Constitution’s provision for separation of powers requires the agreement of the executive branch (‘the Commonwealth’) before entry into the Program may be ordered by the court.

Copyright © 2017