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.
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).
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
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…”).
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
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.
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.
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.
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
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/.
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.
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.
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.
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.
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
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.
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.
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.”
- 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.
- 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).
- 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/.
- The petition form is available at http://courts.ky.gov/resources/legalforms/LegalForms/4962.pdf.
- 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.
- 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.
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