Restoration of Rights/Oregon

I.  Restoration of Civil/Firearms Rights

A.  Civil Rights

“In any felony case, when the defendant is sentenced to a term of incarceration, the defendant is deprived of all rights and privileges described in subsection (3) of this section from the date of sentencing until: (a) The defendant is released from incarceration; or (b) The defendant’s conviction is set aside.”  Or. Rev. Stat. §§ 137.281(1), (3) (2010).  The rights enumerated include the right to vote, serve on a jury, hold office, and hold “a position of private trust.”  Id.  Persons sentenced to jail do not lose civil rights (though persons serving a portion of their prison sentence in jail do).  

Eligibility for legislative office is lost upon conviction until the sentence is completed, including any period of probation, post-prison supervision and payment of fine. Or. Const. art. IV, § 8(4). 

B.  Firearms

Firearms rights are automatically restored 15 years after discharge from sentence to persons convicted of no more than one felony, unless the offense involved criminal homicide or use of a gun or knife.  Or. Rev. Stat. § 166.270(4)(a).  Otherwise firearms rights are restored by pardon or expungement.  Id.  In 2009, the legislature enacted a new procedure whereby certain non-violent felony offenders may regain firearms privileges one year after discharge by petitioning a circuit court in the county of residence.  See § 166.274.1  “Relief shall be granted when the petitioner demonstrates, by clear and convincing evidence, that the petitioner does not pose a threat to the safety of the public or the petitioner.”  § 166.274(6).  Juveniles who lost gun privileges by committing an offense involving violence may petition for restoration four years after discharge.  § 166.274(7). The court may not grant relief under this section to a person convicted of a person felony involving the use of a firearm or a deadly weapon, or a list of violent offenses, or who is either currently serving a felony sentence of has served one in the year preceding application.  § 166.274(10). 
     

II.  Discretionary Restoration Mechanisms:             

A.  Executive pardon

Authority

Pardon power rests exclusively in the governor, except for cases of treason for which the legislature has the pardon power.  Or. Const. art. V, § 14; Or. Rev. Stat. § 144.649.  No provision for administration.  The governor must report to the legislature each grant of clemency, including the reasons for the grant.  Or. Const. art. V, § 14.

Eligibility

Generally, the Governor will not exercise his clemency power to pardon applicants for crimes which the law allows a court to set aside; therefore, you should not file an application if you qualify for judicial expungement under [Or. Rev Stat.] § 137.225 and have not sought such expungement.”  Oregon Executive Clemency and Pardon Application, posted at http://recordgone.com/pardons/Oregon-Pardon-Application.pdf (citations omitted). 

Effect

Pardon restores legal rights lost as a result of conviction.  Effective in 2019, a pardon seals the record of conviction.  SB388 requires governor to inform courts when a pardon is granted so the court may seal the record;  governor must informed courts of pardons granted in previous five years to enable them to seal, and authorizes individuals convicted before that time to apply to the court for sealing of the record. 

Standards

“[C]lemency will be granted only in exceptional cases when rehabilitation has been demonstrated by conduct as well as words.”  Oregon Executive Clemency and Pardon Application.  

Process

Applications must be filed with governor’s office, with a copy served upon the DA of the county where convicted or confined (if applicable), the State Board of Parole and Post-Prison Supervision, and the director of the Department of Corrections.   Or. Rev. Stat. § 144.650(1) (2011).  No fee is required to file an application.  The governor may not act for 30 days after receipt.  § 144.650(4).  The governor’s legal staff obtains information about the case from law enforcement agencies.  If the governor has not acted within 180 days, the application will be deemed denied.  Id.  

Frequency of grants

Pardons in Oregon have been rare in recent years.  As of July 1, 2018, Governor Kate Brown had issued only four pardons and one sentence commutation since taking office in February 2015, though her office has reportedly considered several hundred applications.  See https://www.oregonlive.com/pacific-northwest-news/index.ssf/2018/02/kate_brown_pardons_former_port.html.  Governor Kitzhaber granted one reprieve and no pardons during his third (1995-2003) and fourth (2011 – Feb. 2015) terms.  Between 2005 and January 2011, Governor Ted Kulongoski granted a total of 20 pardons out of several hundred applications.  (Another 290 applications for commutation, of which 53 were granted, 44 to facilitate deportation.)  Several of Governor Kulongoski’s final grants went to non-citizens threatened with deportation.2  Source: Office of the Governor.

Contact

Fran Lushenko
Extradition Officer/Agreement Administrator, Arrest and Return, Office of the Governor
503-378-3111
Frances.Lushenko@state.or.us

B.  Judicial sealing or expungement

1.  Set-aside and sealing of conviction records
Eligibility

Or. Rev. Stat. § 137.225 authorizes the sentencing court to “set aside” misdemeanors, class C felonies, many class B felonies,3 Class A racketeering felonies, schedule I drug possession offenses, and “violations” under state law and local ordinance.4   Traffic offenses, most sex offenses, most violent offenses, and most offenses against vulnerable populations are ineligible.  A set-aside seals the record of conviction. 

Following the decriminalization of recreational marijuana use in 2015, Oregon greatly expanded the availability of set-asides for those convicted of marijuana offenses. For set-aside purposes, marijuana offenses committed before June 30, 2015, are classified as if the conduct occurred after June 30, 2015, and all decriminalized marijuana offenses are treated as class C misdemeanors.  Or. Rev. Stat. § 137.226.  

Waiting period & criminal history: Three years from the date judgment was pronounced for misdemeanors and felonies other than class B felonies; one year for non-conviction records, subject in either case to there having been no other conviction in the past 10 years, or arrest within three years. Or. Rev. Stat. § 137.225(1)(a), (1)(b), (6), (8).  For class B felonies, set aside is available 20 years after the date of conviction or release from imprisonment, whichever is later, so long as there is no arrest or conviction (other than traffic violations) in the intervening period (including those which have been set-aside).  § 137.225(8)(a).  Registered sex offenders are ineligible for set-aside until their registration obligation is discharged.  § 137.225(8)(b). 

Set-aside for human trafficking victims

Courts authorized in 2017 to vacate state convictions for prostitution if the court finds after a hearing that the person has proven by clear and convincing evidence that “at or around the time of the conduct giving rise to the prostitution conviction, the person was the victim of sex trafficking.”  Or. Rev. Stat. Ann. § 137.221.  Vacatur authority expanded in 2018 to include convictions for violating municipal prostitution ordinances.  Id.  

Procedure & criteria

Prosecutor must be served with a copy of the motion, and be given opportunity to oppose. Or. Rev. Stat. § 137.225(2)(a).  The victim shall be notified by the prosecutor, § 137.225(2)(b), and shall be given an opportunity to be heard by the court.  See § 137.225(3). 

Upon a hearing, the court shall grant a set-aside to eligible persons “ if the court determines that the circumstances and behavior of the applicant from the date of conviction . . . warrant setting aside the conviction.”   § 137.225(3).  See also State v. Langan, 718 P.2d 719, 724 (1986) (“the statutory reference to the applicant’s “behavior” means that the court is to examine whether the applicant has behaved in conformity with or contrary to public law. Disqualifying behavior must be some form of legal, not merely social, impropriety, and an act incurring ordinary, nonpunitive civil liability (for instance, a contract dispute) is not disqualifying if it does not also contravene some other law.”)  However, for certain enumerated offenses, the court may deny a set-aside if it makes written findings by clear and convincing evidence that granting the motion would not be in the best interests of justice.  See § 137.225(13).

Effect

Set-aside restores all rights, relieves all disabilities, and seals the record of the conviction:

Upon the entry of the order, the applicant for purposes of the law shall be deemed not to have been previously convicted, or arrested as the case may be, and the court shall issue an order sealing the record of conviction and other official records in the case, including the records of arrest whether or not the arrest resulted in a further criminal proceeding.

Or. Rev. Stat. § 137.225(3).  A person whose conviction has been set aside is “able to represent to prospective employers that [they] have not been convicted of that crime.”  Oregon Executive Clemency and Pardon Application, available at http://www.recordgone.com/templates/default/pdf/Oregon-Pardon-Application.pdf.   However, Oregon courts have held that a set-aside is not a true expungement.  See State v. Langan, 718 P. 2d 719, 722 n. 3 (1986) (noting that “expungement” is a “misnomer” because a set-aside order “is not designed to ‘rewrite history’ and deny the occurrence of an event but to limit the purposes for which official records may be used to exhume that past event”).  The purpose of the statute is “to enhance employment and other opportunities for such formerly convicted persons . . . . The statute does not, however, impose any duty on members of [the] public who are aware of conviction to pretend that it does not exist.”  Bahr v. Statesman Journal Co., 624 P.2d 664 (Or. Ct. App.), rev. den.,  631 P.2d 341 (Or. 1981).

Frequency

For the seven months between July 2005 and January 2006, the Oregon courts granted over 500 adult felony set-asides.

2. Set-aside and sealing of marijuana possession convictions

Pursuant to 2019 law, individuals with qualifying marijuana convictions (possession legal since 2015) may apply for set-aside, as long as sentence has been fully served.  A person filing a motion under this section is “not required to pay the filing fee established under ORS 21.135 or any other fee, or file a set of fingerprints,” and no background check or identification by the Department of State is required.

3. Sealing of pardoned offenses

Effective in 2019, a pardon seals the record of conviction.  SB388 requires governor to inform courts when a pardon is granted so the court may seal the record;  governor must informed courts of pardons granted in previous five years to enable them to seal, and authorizes individuals convicted before that time to apply to the court for sealing of the record. 

4.  Set-aside and sealing of non-conviction records

At any time after the lapse of one year from the date of any arrest, if no accusatory instrument was filed, or at any time after an acquittal or a dismissal of the charge, the arrested person may apply to the court for entry of an order setting aside the record of such arrest. Or. Rev. Stat. § 137.225(1)(b).  Same procedures and effect as those applicable to conviction records (see above).   

Deferred adjudication and set-aside for drug charges:  Or. Rev. Stat. § 475.245 provides for deferred adjudication in drug cases.   As amended in 2019, this section provides for a “probation agreement” that omits the requirement of a guilty plea or finding of guilt, but requires waiver of certain rights, including right to appeal.   In addition the agreement “must include a requirement that the defendant pay any restitution owed to the victim as determined by the court, and any fees for court-appointed counsel ordered by the court under ORS 135.050.”  § 475.245(1)(d).  The agreement “may not contain a requirement that the defendant enter a plea of guilty or no contest on any charge in the accusatory instrument,” and “does not constitute an admission of guilt and is not sufficient to warrant a finding or adjudication of guilt by a court.”  In the event of a violation of the agreement,  the proceedings resume, and the defendant “may not contest the sufficiency of the evidence establishing the defendant’s guilt of the offenses in the accusatory instrument.” § 475.245(2).  

4.  Expungement of juvenile records

Expungement of juvenile records is available after turning 18.  Or. Rev. Stat. §§ 419A.260; 419A.262(2).  Expungement is available after a five-year waiting period if the person has no subsequent convictions of a felony or Class A misdemeanor and no charges or criminal investigations are pending.  §§ 419A.262(2)(a)-(e).  Certain classes of felonies, sex crimes, and crimes involving children are ineligible for expungement.  § 137.225(5).  Certain offenses requiring sex offender registration may not be expunged until the obligation to has been relieved.  § 419A.262(9).  Offenses ineligible for expungement may be eligible for set-aside and sealing.  § 419C.610.  The DA must notify the victim of a pending expungement application.  § 419A.262(10)(b).  If the DA objects to expungement, the court must hold a hearing.  § 419A.262(12)(a). 

Expunged records may not be disclosed to or by any agency, though the Oregon Youth Authority maintains expunged records in a secure area.  § 419A.262(19); Or. Admin. R. 416-140-0040(4).  The event that is the subject of the expunged record shall not be disclosed by any agency. An agency that is subject to an expunction judgment shall respond to any inquiry about the contact by indicating that no record or reference concerning the contact exists.  § 419A.262(21).   “A person who is the subject of a record that has been expunged under this section may assert that the record never existed and that the contact, which was the subject of the record, never occurred without incurring a penalty for perjury or false swearing under the laws of this state.  § 419A.262(22). 

III.  Nondiscrimination in Licensing and Employment

A.  Licensing

Except for teachers’ licenses, a commission or agency may not deny, suspend or revoke an occupational or professional license “solely for the reason that the applicant or licensee has been convicted of a crime, but it may consider the relationship of the facts which support the conviction and all intervening circumstances to the specific occupational or professional standards in determining the fitness of the person to receive or hold the license.” Or. Rev. Stat. § 670.280(2). 

[The state] may deny an occupational or professional license or impose discipline on a licensee based on conduct that is not undertaken directly in the course of the licensed activity, but that is substantially related to the fitness and ability of the applicant or licensee to engage in the activity for which the license is required.  In determining whether the conduct is substantially related to the fitness and ability of the applicant or licensee to engage in the activity for which the license is required, the licensing board, commission or agency shall consider the relationship of the facts with respect to the conduct and all intervening circumstances to the specific occupational or professional standards.  

§ 670.280(3) (emphasis added). See Dearborn v. Real Estate Agency, 997 P.2d 239, 242 (Or. Ct. App. 2000) (finding that a drug conviction was unrelated to the licensee’s past or future conduct in professional real estate activity and, therefore, a professional license cannot be suspended or denied), aff’d in relevant part, 53 P.3d 436, 440-42 (Or. 2002). There is no provision governing public or private employment.

B.  Ban the Box

In 2015, Oregon enacted HB 3025 (codified at Or. Rev. Stat. § 659A.360), which prohibits any employer, public or private, from requiring an applicant to disclose criminal convictions on an application, before an initial interview, or, if no initial interview is conducted, before making a conditional offer of employment.  The law does not otherwise prevent an employer from considering conviction history in the hiring process, and does not apply to law enforcement, volunteer positions, and employers required by federal, state, or local laws or regulations to consider criminal history.


  1. The judicial restoration procedure as originally enacted in 2010 applied to all offenders, and eligibility was immediate.  The eligibility criteria were amended in August 2011 to exclude those convicted of violent offenses or any person felony involving use of a firearm or deadly weapon, and a waiting period was added. See http://gov.oregonlive.com/bill/2011/SB762/
  2. Governor Kulongoski’s final pardons are described in his report to the legislature at http://www.scribd.com/mobile/documents/46776123/download?commit=Download+Now&secret_password=. 
  3. This authority was extended to Class B felonies in 2012.  See http://gov.oregonlive.com/bill/2011/HB3376/.  Some prosecutors opposed this extension of the law.  See Aimee Green, Oregon Felons Who Have Gone Straight Ask for Clean Slate; Some DAs Think Proposed Law Goes Too Far, The Oregonian, (May 9, 2011), http://www.oregonlive.com/tigard/index.ssf/2011/05/oregon_felons_who_have_gone_straight_plead_for_clean_slate_but_district_attorneys_fear_proposed_expu.html.  The statute as originally enacted in 1971 covered almost all offenses. 1971 Or. Laws chap. 434, § 2.  Prior to the 1993 amendments, more serious offenses were eligible subject to a 10-year eligibility waiting period.  Courts had no discretion to reject set-aside except on eligibility grounds.  Or. Rev. Stat. § 137.225 (1991); 1993 Or. Laws chap. 664, § 2; see also State v. Langan, 718 P.2d 719, 723 (Or. 1986) (concluding that statutory criteria, not discretion of trial court, control whether set-aside should be granted). 
  4. § 137.225(5)(b) states that “Any crime punishable as a misdemeanor, including judgment of conviction for a misdemeanor pursuant to ORS 161.705.” is eligible. Class C felonies, Class A racketeering felonies, and many marijuana offenses are made eligible through this provision since they may all be punishable as misdemeanors under § 161.705.

Copyright © 2017 – 2019

Restoration of Rights/ Oklahoma

I.  Restoration of Civil/Firearms Rights

A.  Vote

Persons “convicted of a felony” may register to vote “when they have fully served their
sentence of court-mandated calendar days, including any term of incarceration, parole or supervision, or completed a period of probation ordered by any court for a period of time equal to the time prescribed in the judgment and sentence.” 26 Okla. Stat. Ann. § 4-101(1).  This appears to mean that a person does not lose the vote unless sentenced to a prison term, and to vote after completion of a court-imposed prison sentence, without regard to other conditions imposed by the court (e.g., fines and fees). 

HB 2253—effective November 1, 2019—amends § 4-101 and clarifies when voting rights are restored.  Persons convicted of a felony become eligible to vote when they have completed their sentence.  § 4-101(1).  Sentences are complete when individuals “have fully served their sentence of court-mandated calendar days” including any term of incarceration, parole, or probation.  Id.  Individuals do not have to pay all court fees or fines to regain voting rights.  It appears that restoration is automatic upon completion of sentence; no petition to the court is required.  Individuals need only to re-register to vote.  Id.

B.  Office

Felony offenders and persons convicted of a misdemeanor involving embezzlement are disqualified from office for 15 years after completion of sentence or until pardoned.  26 Okla. Stat. Ann. §§ 5-105a(A), (B).  A person convicted of a felony is permanently disqualified from election to the state legislature.  Okla Const. art. V, § 18.  In addition, a sitting member of the legislature who commits any of the offenses specified in 21 Okla. Stat. Ann. §§ 301 et seq. (“Crimes Against the Legislative Power”) is permanently disqualified from holding legislative office.  21 Okla. Stat. Ann. § 312.

C.  Jury

Persons who have been convicted of any felony or who have served a term of imprisonment in any penitentiary, state or federal, for the commission of a felony may not sit on a jury, unless they have been “fully restored to his or her civil rights” by pardon.  38 Okla. Stat. Ann.§ 28(C)(5).

D.  Firearms

A person convicted of any felony in any court may not possess a concealable firearm (“any pistol, imitation or homemade pistol, altered air or toy pistol, machine gun, sawed-off shotgun or rifle, or any other dangerous or deadly firearm”), and may not ride as a passenger in a vehicle containing such a weapon.  21 Okla. Stat. Ann. § 1283(A).  A person convicted of a “nonviolent felony” and who has received a “full and complete pardon” and has not been convicted of any other felony offense which has not been pardoned, “shall have restored the right to possess any firearm or other [prohibited] weapon . . . the right to apply for and carry a handgun, concealed or unconcealed, pursuant to the Oklahoma Self-Defense Act and the right to perform the duties of a peace officer, gunsmith, or for firearms repair.”  § 1283(B).  A pardoned conviction from another state may trigger firearms dispossession in Oklahoma absent proof that the foreign pardon restored firearms rights.  Kellogg v. State, 504 P.2d 440, 442 (Okla. Crim. App. 1972).

II.  Discretionary Restoration Mechanisms

A.  Executive pardon

Authority

The governor’s pardon power cannot be exercised except pursuant to a favorable recommendation from a majority of the Board of Pardon and Parole.  Okla. Const. art. VI, § 10.  The governor must report to the legislature on each clemency grant at each regular session, though he is not required to state the reasons for his decisions.  Okla. Const. art. VI, § 10.  (The governor must also approve all parole decisions, and commutation recommendations are interspersed with parole recommendation on monthly report to the governor.  See http://www.ppb.state.ok.us (Docket Results, Hearing Schedule).)

Administration

The Board has five members, three of whom are appointed by the governor, the other two, respectively, by the chief justice of the Supreme Court and the presiding judge of the Oklahoma Criminal Court of Appeals.  Their terms expire with the governor’s.  The Board chooses its own chairman.  57 Okla. Stat. Ann. § 332.4(A).  Okla. Const. art. VI, § 10 provides:

“It shall be the duty of the Board to make an impartial investigation and study of applicants for commutations, pardons or paroles, and by a majority vote make its recommendations to the Governor of all deemed worthy of clemency. Provided, the Pardon and Parole Board shall have no authority to make recommendations regarding parole for convicts sentenced to death or sentenced to life imprisonment without parole.”

Eligibility

Eligibility for executive pardon is triggered after service of sentence – or after five years of supervised parole, whichever is shorter.  If supervision is terminated early, the period of supervision must run.  An individual is not eligible for pardon if there are pending charges against him.  Persons convicted in other states and federal offenders are ineligible to apply for an Oklahoma pardon.  Misdemeanants may apply if they are not eligible for expungement, and if the applicant can demonstrate that the misdemeanor is prohibiting them from something like holding a state license.  See Pardon and Parole Board, Policies and Procedures Manual (2000), Policy 004 (Eligibility Criteria) (available from Pardon and Parole Board).  See also Board of Pardon and Parole, Frequently Asked Questions, https://www.ok.gov/ppb/documents/FAQs%20Pardons.pdf (“BPP, FAQs”).

Effect

Pardon restores the right to hold office and restores firearms privileges for non-violent offenders.  See 21 Okla. Stat. Ann. § 1283(B) (person convicted of a nonviolent felony who has received a “full and complete pardon” regains gun rights, including right to serve as peace officer, and to carry a weapon); BPP, FAQs (“A pardon is executive recognition that someone has turned their life around and has become a productive citizen.”).  A person convicted of a violent felony may not possess a firearm even with a pardon.  See 1283(A).  All offenses, including federal and out-off-state, must be pardoned in order to hold a liquor license, and the spouse and business partners of a convicted person also cannot legally obtain a liquor license.  Pardon Application at p. 3,  https://www.ok.gov/ppb/documents/Pardon%20Application%202016.pdf.  According to the pardon instructions, a pardon may or may not help with a licensing decision, since some boards give effect to a pardon and some do not.  “A pardon has little direct effect under Oklahoma law.  However, it can be useful in helping you to present yourself as a responsible citizen.  A pardon serves as recognition that you have adjusted well to society since completing your sentence.”  Id. at 4.  See also Frequently Asked Questions,  https://www.ok.gov/ppb/documents/FAQs%20Pardons.pdf

Expungement after pardon

The statute authorizing expungement after a pardon has been amended on several occasions since 2012. Most recently, in 2019 the law was amended to allow anyone pardoned to seek expungement, eliminating requirements that the crime be non-violent, that the governor make a finding of innocence, and a 10-year waiting period.  22 Okla. Stat. Ann. § 18(4), amended by SB815 (May 2019).   A person who was under 18 at the time of conviction who is pardoned may also have his conviction expunged. § 18(6), as amended by 2012 Okla. Sess. Law Serv. Ch. 183, § 2 (H.B. 3091). 

Process

Pardon requires a public hearing, a majority vote by the Board, and a published recommendation.  The applicant must submit a completed application form and documents relating to his conviction, including proof that fines and restitution have been paid (credit report, proof of employment and residence, etc.).  The application must state specific reasons for applying.  The instructions warn that pardon is not a sign of vindication of innocence.  The Board takes into account acceptance of responsibility, remorse and atonement.  Pardon Application, supra, at 4 (application form copied from federal pardon application form).

The investigation of a pardon application is conducted by a Department of Corrections parole officer – the applicant is advised to be candid, and to present himself as a “responsible and productive citizen.”  (“Information you might consider negative will not necessarily hurt your application.  It may serve to show how you were able to overcome a problem and actually improve your chances of receiving a Pardon.”)  When an applicant lives in a different state, information is requested from authorities there about employment and living arrangements.  The application with a report from the D.O.C. is then submitted to the Board for consideration.  Pardon and Parole Board, Policies and Procedures Manual, supra, Policy 004-10 (Pardon Consideration).

The Board holds a public hearing in every case and may take official action only in an open public meeting, pursuant to the Oklahoma Open Meeting Act.  57 Okla. Stat. Ann. § 332.2(G).  Unlike hearings in commutation cases, however, where the applicant, official witnesses, and victim are all entitled to appear and give testimony, hearings on Pardon Applications are held by “Jacket Review,” with the applicant not ordinarily present.  Okla. Admin. Code § 515:1-7-1(d)(1).  The Board may grant the applicant the opportunity to appear, but this happens rarely.  According to Board staff, the process generally takes about six months to complete.  Pardon Application, supra, at p. 1.

The Board meets once a month or at the call of the chairman.  The Board must provide prosecutors a list of persons to be considered for pardon 20 days before hearing, and must also notify victims.  57 Okla. Stat. Ann. §§ 332.2(B), (C); Okla. Admin. Code § 515:1-5-2(d).  Victims, members of public, and law enforcement officials may also speak at the hearing, subject to strict time limitations.  Okla. Admin. Code §§ 515:1-7-1, 515:1-7-2.

Recommendations must be posted on the Board’s website.  Okla. Admin. Code § 515:1-5-2(b).  The Board forwards favorable recommendations to the governor within 30 days, and the governor has 90 days to act.  If the governor does not approve the recommendation, it is deemed denied.  57 Okla. Stat. Ann. § 332.19.

Frequency of Grants

For at least the past fifteen years, the Oklahoma governor has approved about 100 pardons every year (about 80% of those that apply).  The Board recommends pardons in 7-8 cases each month, and the governor generally approves those recommended by the Board.  The Board also considers a number of commutation applications each month.1  Source: Oklahoma Pardon and Parole Board, https://www.ok.gov/ppb/Dockets_and_Results/index.html.

Contact

Melissa Blanton
Oklahoma Pardon and Parole Board
405-521-6600
Melissa.Blanton@ppb.state.ok.us

B.  Judicial sealing or expungement

Beginning in 2014, and continuing each year since, Oklahoma has made it progressively easier for individuals to have their criminal records “expunged” (sealed).    The 2014 amendments to 22 Okla. Stat. Ann. § 18 reduced the waiting time for expungement in cases of deferred adjudication of misdemeanor charges from two years to one, without regard to prior misdemeanor convictions.  In the years since, eligibility categories have expanded, waiting periods of been reduced, and bars in prior convictions have been eliminated.  Eligibility as of the date of this profile (except as noted) is as follows. 

1.  Expungement
A.  Eligibility 
Adult convictions 

Felony convictions:  In 2018 Oklahoma for the first time made felony offenders eligible for expungement (sealing) without requiring that they first be pardoned, and it further tinkered with the eligibility criteria the following year in 2019 . 

Effective November 1, 2018, a person may apply to the court for expungement of a single nonviolent felony conviction 5 years after completion of sentence, if the person has not been convicted of any other felony, or a separate misdemeanor in the past seven (7) years, and if no felony or misdemeanor charges are pending. Okla. Stat. Ann. § 18(A)(12) (as amended by SB 650 (2018) and SB 815 (2019).  In addition to omitting the requirement that the conviction first be pardoned, the 2018 law reduced the applicable waiting period from 10 years to five; and deleted a requirement that the person have no prior felonies, or any separate misdemeanor in the past 15 years.  (As originally enacted in 2018, the 7-year look-back applied to both felonies and misdemeanors.)  

Effective November 1, 2019, a person convicted of not more than two felony offenses, neither of which is of serious violence or requires registration as a sex offender,  may petition to have the record expunged 10 years after completion of sentence.   22 Okla. Stat. Ann. § 18(A)(13) (as amended by SB 815 (2019).  Requirements that the convictions be pardoned and that the individual wait 20 years were amended. 

Misdemeanor convictions:  A person convicted of a misdemeanor who was sentenced to a fine less than $501 and no prison sentence (suspended or otherwise) may petition for expungement immediately upon satisfaction of the fine so long as the person has never been convicted of a felony and no charges are pending.  Okla. Stat. Ann. § 18(A)(10) (as amended by HB 2397 (2016)). Otherwise, misdemeanor convictions may be expunged 5 years after conviction (reduced from 10 years in 2016 by HB 2397) if no charges are pending against the person, and if the person has no prior felony offenses.  § 18(A)(11).

Pardoned felony convictions: The statute authorizing expungement after a pardon has been amended on several occasions since 2012. Most recently, in 2019 the law was amended to allow anyone pardoned to seek expungement, eliminating requirements that the crime be non-violent, that the governor make a finding of innocence, and a 10-year waiting period.  22 Okla. Stat. Ann. § 18(A)(4), amended by SB815 (May 2019).   A person who was under 18 at the time of conviction who is pardoned may also have his conviction expunged. § 18(A)(6), as amended by 2012 Okla. Sess. Law Serv. Ch. 183, § 2 (H.B. 3091).   

Deferred sentence 

In cases where a person is charged with a misdemeanor or minor felony, the court may defer judgment for a period not to exceed ten years, and may require a defendant to make restitution and meet a variety of community-based conditions, including up to 90 days in jail.  22 Okla. Stat. Ann. § 991c(A).  Only misdemeanants and first felony offenders and people who have not received deferred judgment in the previous 10 years are eligible, unless the district attorney grants a waiver.  § 991c(F).  Defendants found guilty or who plead guilty or nolo contendere to a sex offense required by law to register pursuant to the Sex Offenders Registration Act are not eligible.  § 991c(G).  Upon successful completion of probation, the court “shall order the verdict or plea of guilty or plea of nolo contendere to be expunged from the record and the charge shall be dismissed with prejudice to any further action.”  § 991c(C).  The defendant may petition the court to have the filing of the indictment and the dismissal expunged from the public index and docket sheet. § 991c(C)(5).  The effect of expungement under this provision is to delete from the court docket, except that the clerk of the court keeps a record for criminal history purposes.  § 991c(C).  See also Oklahoma Community Sentencing Act, 22 Okla. Stat. Ann. §§ 988.1 et seq.2  “This section shall not be mutually exclusive of Section 18 of this title.” § 991c(C)(5).

Deferred adjudication for first offenders:  A person who pleads guilty to a misdemeanor but the judgment or sentence is deferred, may apply to have his record expunged after one year (reduced in 2014 from two years) if the charge was dismissed following the successful completion of probation, provided that no misdemeanor or felony charges are pending against the person and that the person has never been convicted of a felony.  22 Okla. Stat. Ann. § 18(A)(8). A person who is charged with a non-violent felony who successfully completes probation is also eligible to have his record expunged after 10 years.  § 18(A)(9).  In 2014 the requirement that a defendant have no prior misdemeanors to qualify for expungement was deleted from §§ 18(A)(8) and (A)(9).

Non-conviction records 

Expungement is available to those charged with a felony or misdemeanor where the charge was dismissed, there are no other pending charges, the person has never been convicted of a felony, and the statute of limitations has expired on the charges or the prosecuting authority has confirmed that it does not intend to re-file charges.  22 Okla. Stat. Ann. § 18(A)(7).   Arrest records may be expunged if no charges are filed, if the person is acquitted or the conviction reversed, if factual innocence is established by DNA evidence, or if pardon is based on governor’s finding of actual innocence.   §§ 18(A)(1)-(5).   

B.  Effect

Expungement means “the sealing of criminal records, as well as any public civil record, involving actions brought by and against the State of Oklahoma arising from the same arrest, transaction or occurrence.” 22 Okla. Stat Ann. § 18(B).  Expunged conviction records (including those for pardoned offenses) and records expunged following successful completion of probation remain available to law enforcement and may be used in subsequent prosecutions.  § 18(D).  

Any record that has been sealed may be ordered “obliterated or destroyed” after an additional 10 years.  § 19(K).

Employment:  No public or private employer may ask about or consider a sealed conviction.  An applicant for employment need not, in answer to any question concerning arrest and criminal records, provide information that has been sealed, “and may state that no such action has ever occurred.”  22 Okla. Stat. Ann. § 19(F).  Such an application “may not be denied solely because of the applicant’s refusal to disclose arrest and criminal records information that has been sealed.”  Id.

C.  Procedures

The procedures for sealing are set forth in 22 Okla. Stat. Ann. § 19.  A person must petition the district court in the jurisdiction where records are located, which must schedule a hearing with 30 days’ notice to the district attorney.  § 19(A), (B).  Court must weigh harm to individual against public interest in retaining the records: 

Upon a finding that the harm to privacy of the person in interest or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records, the court may order such records, or any part thereof except basic identification information, to be sealed.  If the court finds that neither sealing of the records nor maintaining of the records unsealed by the agency would serve the ends of justice, the court may enter an appropriate order limiting access to such records.

§ 19(C). Any order may be appealed to the Oklahoma Supreme Court by the applicant, district attorney, arresting agency, or Oklahoma Bureau of Investigation. Id.

Upon the entry of an order to seal the records, or any part thereof, the subject official actions shall be deemed never to have occurred, and the person in interest and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such action ever occurred and that no such record exists with respect to such person.

§ 19(D). Inspection of sealed records will then be permitted by the court only upon petition by the person in interest who is the subject of such records, the Attorney General, the district attorney, and only to those persons and for such purposes named in such petition. § 19(E).

Employers, educational institutions, state and local government agencies, officials, and employees shall not, in any application or interview or otherwise, require an applicant to disclose any information contained in sealed records.  An applicant need not, in answer to any question concerning arrest and criminal records provide information that has been sealed, including any reference to or information concerning such sealed information and may state that no such action has ever occurred.  Such an application may not be denied solely because of the applicant’s refusal to disclose arrest and criminal records information that has been sealed.

§ 19(F).

A petitioner denied expungement may have the matter reconsidered at a later time upon a showing of changed circumstances.  Id.

D. Intent

Oklahoma’s expungement statute is “clearly intended to aid those who are acquitted, exonerated, or who otherwise deserve a second chance at a ‘clean record.’ ” Buechler v. State, 175 P.3d 966, 969 (Okla. Civ. App. 2007), quoting McMahon, 959 P.2d 607, 609 (Okla. Civ. App. 1998).

Once the presumption of harm is established [by petitioner seeking expungement of criminal records], the burden then shifts to the agencies opposing expungement to show that keeping such records public does not harm privacy interests and would serve the ends of justice.  In determining whether the State has met this burden, the trial court should balance the personal harm to privacy and other adverse consequences of open records against the public interest in keeping those records open.

Buechler, 175 P.3d at 971 (internal citation and quotations omitted).

2.  Deferred sentencing and probation for first-time drug offenders

Under a separate statutory authority, persons not previously convicted of drug offenses under state or federal law are eligible for deferred sentencing leading to automatic expungement.  63 Okla. Stat. Ann. § 2-410(A).  Conditions of probation may include participation in a treatment program.  Id.  Following expungement, the arrest or conviction “shall not thereafter be regarded as an arrest or conviction for purposes of employment, civil rights, or any statute, regulation, license, questionnaire or any other public or private purpose.”  § 2-410(B).  However, an expunged conviction may be treated as a predicate offense in any subsequent recidivist drug prosecution for a period of ten years, provided there has been no conviction for misdemeanor involving moral turpitude or felony in the interim.  Id.

3.  Juvenile Records

Expungement of juvenile records is governed by Okla. Stat. tit. 10A, § 2-6-109.  To be eligible, a person must be at least age 21; have completed all requirements of the past juvenile proceeding; and have no subsequent arrests, convictions, or pending charges.  2-6-109(A).  The court may order expungement upon a finding that the harm to the individual’s privacy or the risk of unwarranted consequences outweighs the interest in maintaining the records.  § 2-6-109(C).  An expunged record is sealed and can be destroyed after 10 years if not unsealed.  Id. at (J).  The person may deny the existence of an expunged juvenile record.  § 2-6-109(D).  Individuals who are not adjudicated delinquent may have records sealed upon court order in certain situations.   § 2-6-108(B).  The person may deny the existence of a sealed record.  § 2-6-108(D).  Sealed records can only be accessed by court order in certain situations.  § 2-6-108(G).

In 2014, 10A Okla. Sta. Ann. § 2-2-402(F) was enacted, providing that juvenile adjudications “shall not be considered an arrest, detention or conviction for purposes of employment, civil rights, or any statute, regulation, license, questionnaire, application, or any other public or private purposes, unless otherwise provided by law.” 

III.  Nondiscrimination in Licensing and Employment

A.  Employment

No public or private employer may ask about or consider a sealed conviction. See Part II B, supra.  An applicant for employment need not, in answer to any question concerning arrest and criminal records, provide information that has been sealed, “and may state that no such action has ever occurred.”  22 Okla. Stat. Ann. § 19(F).  Such an application “may not be denied solely because of the applicant’s refusal to disclose arrest and criminal records information that has been sealed.”     See also 63 Okla.Stat. Ann. § 2-410(B)(following expungement of the record in cases of first time drug offenders, the arrest or conviction “shall not thereafter be regarded as an arrest or conviction for purposes of employment, civil rights, or any statute, regulation, license, questionnaire or any other public or private purpose”).

Ban-the-box in state hiring

On February 24, 2016, Governor Mary Fallin signed Executive Order 2016-03, ordering all state agencies to remove from their employment applications all questions about criminal history “unless a felony conviction would  automatically render an applicant not qualified.”  See https://www.sos.ok.gov/documents/executive/1023.pdf.  Agencies may still inquire about criminal history during the interview process.  The Order does not apply to “sensitive governmental positions in which a criminal history would be an immediate disqualification.”

B.  Licensing

In 2019 Oklahoma enacted a comprehensive revision of its licensing scheme, with certain generally applicable provisions contained in a new Section 4000.1 of Title 59, and conforming provisions added into specific licensing schemes.  See HB1373.  Section 4000.1(b) provides that a person with a criminal history record may request an initial determination from the licensing agency of whether his or her criminal history record would potentially disqualify him or her from obtaining the desired license, including before obtaining any required education or training for such occupation.  Section 4000.1(C) requires each state entity with oversight authority over a particular licensed occupation or profession must “list with specificity any criminal offense that is a disqualifying offense for such occupation.”  Any disqualifying offense must “substantially relate” to the duties and responsibilities of the occupation and “pose a reasonable threat to public safety.” “Substantially relate” is defined to mean the nature of the criminal conduct for which the person was convicted has a direct bearing on the fitness or ability to perform one or more of the duties or responsibilities necessarily related to the occupation” and “Pose a reasonable threat” means “the nature of the criminal conduct for which the person was convicted involved an act or threat of harm against another and has a bearing on the fitness or ability to serve the public or work with others in the occupation.”3  Each entity must respond within 60 days and may charge no more than $95. 

The specific regulatory schemes of dozens of professions and occupations were amended by HB1373 to strike references to “good moral character” and “moral turpitude,” and to include the two requirements of disqualification (“substantial relationship” and “reasonable threat”) in the conjunctive.  


  1. Oklahoma is the only state in the country that still requires its governor to approve all prison releases by parole or commutation.  As a result, until quite recently, the Oklahoma governor granted hundreds of commutations annually.  Both forms of discretionary release have dropped dramatically since 2004, and the Oklahoma legislature recently authorized the Parole Board to release certain less serious offenders without the requirement of the governor’s signature. 
  2. Section 988.8 gives the sentencing court a wide menu of community sentencing options for eligible offenders (eligibility is determined pursuant to a risk-based index).  “When ordering a community sentence or community punishment, the court shall first impose a deferred or suspended sentence for the offense as prescribed by law, and shall then order the appropriate community punishment as a condition of that deferred or suspended sentence.”  22 Okla. Stat. Ann. § 988.19(A). 
  3. Legislation enacted in 2015, HB 2168, imposed similar limits on a few specialized licensing boards, but the disqualifying standards were frequently stated in the disjunctive, and language referring to good moral character remained in the statute.  See, e.g., 59 Okl. St. §§ 199.11 (Board of Cosmetology and Barbering), 46.14 (Board of Governors of the Licensed Architects, Landscape Architects and Registered Interior Designers).

Copyright © 2017 – 2019

Restoration of Rights/Ohio

I.  Restoration of Civil/Firearms Rights 

A.  Civil rights

Upon conviction of a felony, a person loses the right to vote, serve on a jury, or hold an office of “honor, trust, or profit.”  However, a felony offender may vote during a period of probation (“non-jail community control sanction”) or parole.  Ohio Rev. Code § 2961.01(A).  Other civil rights are restored upon a “final release” from parole or post-release control, or upon completion of the prison sentence if the person is not placed under post-release control.  § 2967.16(C).  A final release is not available earlier than one year after release on parole or post-release control, and in the case of a person serving a minimum sentence of life, not earlier than five years after release on parole or post-release control.  § 2967.16(A).  A person sentenced to a “community control sanction” (including probation or a fine) regains the right to hold office and sit on a jury upon completion of the sanction.  §§ 2961.01, 2967.16(C)(1)(c).

A public servant convicted of soliciting or receiving improper compensation is disqualified from public office or employment for a period of seven years after the date of conviction.  § 2921.43(E).  A public servant or party official who is convicted of bribery or a theft offense is “forever disqualified” from holding any public office, employment, or position of trust in the state.  See §§ 2921.02(H) (bribery), 2921.41(C)(1) (theft).

The general restoration of rights includes only civil rights and not firearms privileges, which may be restored either by a pardon or by a court (see below).

B.  Firearms

A person may not carry or use any firearm if convicted of a felony offense of violence or any felony drug offense.  See Ohio Rev. Code § 2923.13(A)(2)-(3).  A license to carry a concealed handgun will not be issued to a person who has been convicted of a felony drug offense or of assault when the victim is a peace officer.  See § 2923.125(D)(1)(e).  A person subject to a firearms disability may apply to the court of common pleas in the county of his residence for relief from state firearms disabilities if he is fully discharged from the sentence, has led a law-abiding life since, and is not “otherwise prohibited by law” from having a firearm.  See § 2923.14(D).  This restoration provision appears to be available to Ohio residents with out-of-state convictions, but is unavailable to anyone who does not reside in the state.  See State v. Cantwell, 2013-Ohio-1685 ¶ 10 (Ct. App., 5th Dist. 2013).  In 2011, subsections (B) and (F) of § 2923.14 were amended to make clear that the “otherwise prohibited” language in subsection (D) does not include any prohibition based solely upon a criminal conviction. Relief granted pursuant to this section is intended to lift any firearms restriction under federal law for Ohio offenders.1

C.  Collateral consequences

Ohio has an on-line compilation of collateral consequences, prepared under the auspices of the Ohio Justice and Policy Center and the State Office of the Public Defender.  See Civil Impacts of Criminal Convictions under Ohio Law, available at http://civiccohio.org/.  In addition, a narrative survey of the collateral consequences in Ohio can be found in Kimberly R. Mossoney and Cara A. Roecker, Ohio Collateral Sanctions Project, 36 U. Toledo L. Rev. 611 (2005).  The Ex-Offender Reentry Coalition established by Ohio Rev. Code Ann. § 5120.07 was directed to identify and examine “social service barriers and other obstacles to the reentry of ex-offenders into the community.”  § 5120.07 (C).  See Part III, infra.  The website of the Ohio Justice and Policy Center contains a variety of resources that will be useful to people seeking restoration of rights in Ohio. See http://www.ohiojpc.org/what-we-do/community-education/resources/.

II.  Discretionary restoration mechanisms

A.  Executive pardon

Authority

Ohio Const. art. III, § 11:  The pardon power, except for treason and cases of impeachment, is vested in the governor, “subject . . . to such regulations, as to the manner of applying for commutations and pardons, as may be prescribed by law.”  Ohio Rev. Code Ann. § 2967.07 requires that all applications for pardon or other clemency be made in writing to the Adult Parole Authority (part of the Parole and Community Services Division of the Department of Rehabilitation and Correction), which is required by law to investigate and make a recommendation to the governor on every application, but whose recommendation is advisory only.  The Ohio constitution provides that “[t]he Governor shall communicate to the general assembly, at every regular session, each case of reprieve, commutation, or pardon granted, stating the name and crime of the convict, the sentence, its date, and the date of the commutation, pardon, or reprieve, with the Governor’s reasons therefor.” Ohio Const. art. III, § 11.

Administration

“The Ohio Parole Board is the bureau of the Adult Parole Authority assigned to process clemency applications.  The governor may also direct the Parole Board to investigate and examine any case for the propriety of clemency. Upon completion of its examination, the Parole Board sends a report to the governor providing a summary of the facts in the case, a recommendation for or against the granting of clemency, and the reasoning behind the recommendation.”  http://www.drc.ohio.gov/clemency

Eligibility

A person may apply for a pardon at any time, though ordinarily clemency is granted after a person has shown an ability to live a crime-free lifestyle.  See Ohio Parole Board Application for Executive Clemency Instructions and Guidelines, available at http://drc.ohio.gov/clemency.  A person who is denied clemency must wait two years to re-apply unless s/he presents significant new information that was not and could not have been presented in the earlier application.  See Ohio Admin. Code 5120:1-1-15(H). Only Ohio state convictions are eligible for a pardon.

Effect

An unconditional pardon “relieves the person to whom it is granted of all disabilities arising out of the conviction or convictions from which it is granted.”  Ohio Rev. Code Ann. § 2967.04(B).  A “full and absolute pardon releases the offender from the entire punishment prescribed for his offense, and from all the disabilities consequent on his conviction.” State v. Boykin, 138 Ohio St.3d 97, 102 (2013), quoting from State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 650, 4 N.E. 81 (1885). In State v. Radcliff, Slip Opinion No. 2015-Ohio-235, the Ohio Supreme Court held that Ohio courts have no authority to expunge or seal the record of a pardoned conviction that is not otherwise eligible for sealing under Ohio Rev. Code Ann. §§ 2953.31 (see Part II, infra.).  The Radcliff decision settled an issue that had divided the state courts of appeal, and left open in its Boykin decision, which is that judicial power to seal a conviction record, including the record of a conviction that has been pardoned, is limited by law.  The Radcliff court pointed out that the legislature had made certain provisions for retaining pardon documents, and noted that “[t]he fact that the General Assembly has required that a record of a defendant’s pardon be filed in the same court where the pardoned offense was originally adjudicated expresses the General Assembly’s intent that courts must preserve the record of a pardon, not conceal it.”  Radcliff, slip op. at *11-12.  The Radcliffe court took the opportunity to express its frustration with the legislature’s failure to provide a broader sealing authority:

Despite any frustrations judges may have with their inability to do justice in any given case of a pardoned offender, judges must respect that it is the role of the legislature to address the statutory scheme on sealing records, even in cases in which gubernatorial pardons are granted. Until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness. State v. Skinner, 632 A.2d 82, 84 (Del.1993), citing Stone v. Oklahoma Real Estate Comm., 369 P.2d 642 (Okla.1962). The pardon does not wipe the slate clean. Id. If the slate is to be wiped clean for those pardoned of crimes, including Radcliff, the General Assembly must act.

Id. at *14.

Process

Application is made to the Parole Board, which conducts an investigation.  Ohio Rev. Code Ann. §§ 2967.03, 2967.07; Parole Board Instructions and Guidelines, supra.  At least three weeks prior to making a recommendation, the Board must give notice to the court, prosecutor, victim and/or victim’s family.  § 2967.12.  The victim is invited to submit written comments, and make a recommendation.  Id.  Meritorious cases may or may not be granted a hearing, and a recommendation is then sent to the governor.  See Ohio Admin. Code 5120:1-1-15.  The governor reviews all clemency applications – even the Parole Board denials.  The governor considers all factors (individuals are free to submit whatever information they believe is relevant).  Obviously, factors like the nature of the crime, time served, institutional adjustment/programming, recommendations of judge/prosecutor, letters of support, and community service all factor into the decision, but everything is considered.  The governor may grant a full pardon, or include reservations.  According to an older version of the clemency application instructions, the entire process can take between 6-8 months. 2

Standards

Little is known about Governor Kasich’s philosophy of pardoning, and he has to date pardoned sparingly, see infra, though he has commuted a number of death sentences. His predecessor Ted Strickland was comparatively generous in pardoning, and had this to say about the role of pardons in the justice system:

Executive clemency power is an important part of our justice system – it provides a second chance to those who have earned one and ensures that unusually long sentences are in line with similar cases. . . .  This process also provides an opportunity to show mercy and forgiveness to those who have recognized what is expected of them in our society and who remain committed to being productive and responsible citizens.3

Frequency of grants

Governor Kasich has used his executive clemency power sparing in post sentence pardon cases.  As of January 2017, in his six years in office he had approved 86 of 2,291 pardon requests, or about 1 in 26.  See Alan Johnson, Kasich stays conservative with pardons, Columbus Dispatch, Feb. 12, 2017http://www.dispatch.com/news/20170211/kasich-stays-conservative-with-pardons;  see also Johnson, Kasich rarely uses clemency to pardon, commute sentences, Columbus Dispatch, http://www.dispatch.com/content/stories/local/2015/03/16/kasich-rarely-uses-clemency.html (March 16, 2015).  In 2015, the Board reviewed 176 applications and recommended favorable action for 19.  The number of reviews/recommendations was 290/41 in 2014, 288/31 in 2013, and 281/71 in 2012. See Parole Board Reports, http://www.drc.ohio.gov/web/Reports/reports7.asp. In his first three and a half years in office, Governor Kasich was more liberal in commuting capital sentences, granting six of 17 petitions. See Jeremy Pelzer, How often does Gov. John Kasich grant clemency to criminals? We break down the numbers, Clevland.com,  http://www.cleveland.com/open/index.ssf/2014/06/kasich_rarely_grants_pardons_b.html (June 20, 2014). 

Kasich’s predecessor Governor Ted Strickland granted a total of 290 pardons and 29 commutations.   Most of those pardoned by Strickland were convicted of minor non-violent offenses, and his clemency counsel is reported to have said that “the overwhelming majority of pardons granted by the governor were to ameliorate the collateral consequences suffered by the pardon applicants.”4  Governor Strickland denied about 75% of the cases sent him by the Parole Board, including both pardons and commutations, generally (though not always) following the Board’s recommendation.  Governor Taft (1998-2006) considered 1153 clemency applications, 225 for pardon, and granted 48 pardons, slightly over 21% of those considered.  (He also granted eight commutations and six “imminent danger of death” compassionate releases.)  Governor Voinovich (1991-1998) considered 4621 clemency applications, granted 69 pardons and 50 commutations.

B.  Judicial sealing or expungement

Sealing of conviction records

Courts have statutory authority to seal the record of an “eligible offender” under Ohio Rev. Code Ann. §§ 2953.31(A)(1) (defining “eligible offender”) and 2953.32(A)(1) (permitting eligible offenders to petition for the sealing of a conviction record)).5 Ohio courts have no inherent authority to seal a conviction record.  See State v. Radcliff, Slip Opinion No. 2015-Ohio-235, **8-10, explaining that the doctrine of Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303 (1981) did not survive the enactment of a statutory sealing authority.6

Eligible offenses

An eligible offender is anyone with a single felony conviction, two misdemeanor convictions,7 and one felony conviction and one misdemeanor conviction from Ohio or from any other jurisdiction, including federal convictions.  (See below.)  When two or more convictions result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction.8

Application may be made at the expiration of three years after the offender’s final discharge if convicted of a felony, or at the expiration of one year after the offender’s final discharge if convicted of a misdemeanor.  Ohio Rev. Code Ann. § 2953.32(A)(1)(a), (c).  Misdemeanor arrest records in cases involving bail forfeiture may also be sealed.  § 2953.32(A)(2).  Certain minor misdemeanor and ordinance violations, including some traffic offenses, do not count against eligibility status.  § 2953.31(A).  Crimes ineligible for sealing include those carrying a mandatory prison term; first and second degree felonies; crimes of violence (including robbery and domestic violence); sex offenses; offenses against minors; and certain traffic offenses.  § 2953.36.

In 2018, a new section was added to § 2953.31 by SB 66 to allow sealing of up to five less serious offenses (4th and 5th degree nonviolent felonies, misdemeanors) if the person has never previously been convicted of a serious offense.  In other words, a person with a number of minor theft and drug offenses in their past, but nothing more serious, may be able to get a fresh start.  See § 2953.31(A)(1)(a):

Anyone who has been convicted of one or more offenses, but not more than five felonies, in this state or any other jurisdiction, if all of the offenses in this state are felonies of the fourth or fifth degree or misdemeanors and none of those offenses are an offense of violence or a felony sex offense and all of the offenses in another jurisdiction, if committed in this state, would be felonies of the fourth or fifth degree or misdemeanors and none of those offenses would be an offense of violence or a felony sex offense.

Eligibility periods range from four to five years after discharge, depending on the number of convictions. § 2953.32(A)(1)(b).

Multiple convictions

When two or more convictions “result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction.” § 2953.31(A).  Also:

When two or three convictions result from the same indictment, information, or complaint, from the same plea of guilty, or from the same official proceeding, and result from related criminal acts that were committed within a three-month period but do not result from the same act or from offenses committed at the same time, they shall be counted as one conviction, provided that a court may decide . . . that it is not in the public interest for the two or three convictions to be counted as one conviction.

 Id.  Multiple offenses need not occur simultaneously to be considered “connected with the same act.”  State v. Taylor, No. 97CA006850, 1998 WL 281352, at *1 (Ohio Ct. App. May 27, 1998) (quoting State v. McGinnis, 629 N.E.2d 1084 (Ohio Ct. App. 1993)).  However, offenses “separated by a significant lapse of time” will generally be considered separate.  Id.  Further, “in order to be ‘connected with the same act,’ the two offenses must be ‘linked together coherently or logically’ in such a way that they can properly be considered ‘the same act’ for purposes of expungement.”  Id. (quoting McGinnis, 629 N.E.2d at 1085).  See also Silver Lake v. Osman, No. 26023, 2012 WL 1026765, at *3 (Ohio Ct. App. Mar. 28, 2012) (shoplifting was not related to possession of drug paraphernalia that occurred several months later, notwithstanding defendant’s claim that both crimes stemmed from his addiction to drugs: “The two convictions at issue here involved separate offenses that occurred at separate times, and proceeded through the judicial system independently of each other.”).  Upon filing, “the court initially shall determine whether it is not in the public interest for the two or three convictions to be counted as one conviction.”  Ohio Rev. Code Ann. § 2953.32(C)(1)(a).  Where two convictions are not related, no finding is required.  See Osman, 2012 WL 1026765, at *3.

Federal and out-of-state offenses  

The court’s sealing authority extends, somewhat anomalously, to convictions from other states and from the federal system.  See e.g., § 2953.32(A)(1)(“ an eligible offender may apply to the sentencing court if convicted in this state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of the record of the case that pertains to the conviction”).  The effect of such sealing is limited, however, since the courts only have jurisdiction over records held by Ohio state officials and agencies that are not maintained pursuant to federal law.  See In re Pacifico, 717 N.E.2d 393 (Ohio Ct. App., Montgomery County 1998).

Procedure and standards

The application and hearing procedures are spelled out in Ohio Rev. Code Ann. § 2953.32(A)-(C), and include a $50 filing fee.  The court must notify the prosecutor, who is permitted to object to the granting of the application, of the hearing on the application.  § 2953.32(B).  The court must also direct probation officials to “make inquiries and written reports” concerning the applicant, and determine whether the applicant has been satisfactorily rehabilitated.  § 2953.32(B), (C). 

In performing the balancing test set out in § 2353.32(C), the court “must weigh the interest of the public’s need to know as against the individual’s interest in having the record sealed, and must liberally construe the statute so as to promote the legislative purpose of allowing expungements.”  State v. Hilbert, 764 N.E.2d 1064, 1066 (Ohio Ct. App. 2001).  See Pierre H. Bergeron and Kimberley A. Eberwine, One Step in the Right Direction: Ohio’s Framework for Sealing Criminal Records, 36 U. Tol. L. Rev. 595, 600 (2005) (citing cases).  See also Ohio Ex-Offender Reentry Coalition, Instructions for Sealing a Criminal Record (Expungement), available at  http://www.reentrycoalition.ohio.gov/docs/expunge.pdf.

Effect

In the event that a record is sealed, the court

shall order all official records pertaining to the case sealed and . . . all index references to the case deleted . . . . The proceedings in the case shall be considered not to have occurred and the conviction . . . of the person who is the subject of the proceedings shall be sealed, except that upon conviction of a subsequent offense, the sealed record of prior conviction or bail forfeiture may be considered by the court in determining the sentence or other appropriate disposition . . . .

Ohio Rev. Code Ann. § 2953.32(C)(2).

Sealing “restores the person . . . to all rights and privileges not otherwise restored by termination of the sentence or community control sanction or by final release on parole or post-release control.”  § 2953.33(A).  Private and public employers, as well as occupational licensing authorities, may not question a person about a sealed adult conviction, unless the question “bears a direct and substantial relationship to the position for which the person is being considered.”  § 2953.33(B).  In addition, any public employee who discloses a sealed conviction in connection with an application for employment or license is guilty of a misdemeanor.  §§ 2953.35; 2953.54.

However, there are a number of exceptions to the limitations on access that are set forth in § 2953.32 itself.  Sealed records may be used in sentencing for another offense, in determining whether to seal records of a subsequent conviction, and in charging a person with a new offense when the nature and character of that offense would be affected by the sealed information.  §§ 2953.32(D), 2953.32(E).  Sealed records may also be accessed by law enforcement agencies, by other state agencies in connection with applications for certain state employment, and for purposes of a variety of other employments set forth in the statute governing the Bureau of Criminal Identification (state repository of criminal records), including licensed facilities working with vulnerable populations, schools, home health agencies and financial institutions.  See §§ 2953.32(D); 109.57 et seq.  In addition, sealing does not restore the right to hold public office to a public servant convicted of bribery in office.  State v. Bissantz, 532 N.E.2d 126 (Ohio 1988).

S.B. 337, enacted into law in June 2012 and codified in various sections of the Ohio Revised Code, contains a number of additional limitations on the use of sealed records.  See 2012 Ohio Laws File 131 (Am. Sub. S.B. 337); see also Ohio Legislative Service Commission, Sub. S.B. 337 Bill Analysis (2012), available at http://bit.ly/SB337_summary.

Disclosure

It appears that the sealing statute does not give the person whose record has been sealed the option of denying the existence of the record, even if questioned improperly about it. Ohio Rev. Code Ann. § 2953.55(A) (sealing upon finding of not guilty specifically permits a person to deny the occurrence of the criminal case of which the records have been sealed).

Comments

Courts have expressed concern over sealing provisions in suits brought by media to gain access to sealed records. See State ex rel. Cincinnati Enquirer v. Winkler, 782 N.E.2d 1247 (Ohio Ct. App. 2002) (Enquirer II); State ex rel. Cincinnati Enquirer v. Winkler, 777 N.E.2d 320 (Ohio Ct. App. 2002) (Enquirer I).  Legislative efforts to expand the scope of the statute to help returning offenders with employment opportunities have met with resistance in the past.  See also Lisa Rab, “Forgive and Forget?  The Push to Keep Criminal Records from Employers,” CleveScene, Sept. 21, 2005, available at http://www.clevescene.com/cleveland/forgive-and-forget/Content?oid=1492146But see section regarding 2012 Expansion of Expungement Authority, infra.

Frequency of grants

The record of sealing and expungement filings from Hamilton County several years ago suggests that felony offenders are aware of the availability of this remedy and do file applications to seal their records:

YearNumber of Filings
2004635
2003513
2002583

However, it is not clear whether the number of filings reflects only applications for relief from convicted persons or whether it also includes applications from people seeking to seal arrest records that did not result in conviction.9

Other judicial sealing authorities
Sealing of non-conviction records

The court may seal records pertaining to charges that were dismissed or as to which the defendant was found not guilty. Ohio Rev. Code Ann. § 2953.52.  Petition may be filed at any time after disposition, and after 2 years where based on grand jury no bill.   Sealing is available in cases where a prior arrest has been sealed (including prior out-of-state arrests).  Prosecutor may object and court may in its discretion deny, applying a balancing test:  court must “[w]eigh the interests of the person in having the official records pertaining to the case sealed against the legitimate needs, if any, of the government to maintain those records.” § 2953.52(B)(2)(d). 

In any application for employment, license, or any other right or privilege, any appearance as a witness, or any other inquiry, a person may not be questioned with respect to any record that has been sealed pursuant to section 2953.52 of the Revised Code. If an inquiry is made in violation of this section, the person whose official record was sealed may respond as if the arrest underlying the case to which the sealed official records pertain and all other proceedings in that case did not occur, and the person whose official record was sealed shall not be subject to any adverse action because of the arrest, the proceedings, or the person’s response.

§ 2953.55(A).  

Sealing & expungement of juvenile records

Ohio law sets forth a procedure for the sealing of the records of a case in which a person was adjudicated a delinquent child, but it prohibits the sealing of the records if the adjudication is for committing aggravated murder, murder, or rape. Ohio Rev. Code. § 2151.356 (A).10   A motion or application to seal records may be made six months after termination of a court order or unconditional discharge or a court order containing a determination that the child is no longer a juvenile offender registrant. § 2151.356(C)(1). (Prior to the passage of S.B. 337, the juvenile was required to wait two years after termination of any court order or unconditional discharge.)   The court may require the applicant to submit any relevant documentation, and may investigate if the applicant has been rehabilitated to a satisfactory degree.  The court must notify the prosecuting attorney of any proceedings to seal records, and is entitled to file a response.   § 2151.356(C)(2).  In determining whether the applicant has been satisfactorily rehabilitated, S.B. 337 also permits the court to consider the granting of a new tier classification or declassification from the juvenile offender registry.  § 2151.356(C)(2)(e)(v) (as amended by S.B. 337).11

If the court orders records sealed pursuant to § 2151.356, “the person who is subject of the order properly may, and the court shall, reply that no record exists with respect to the person upon any inquiry in the matter.” §§ 2151.356, 2151.357(A).  The court also shall (a) order that the proceedings in a case be deemed never to have occurred, (b) delete all index references to the case so they are permanently irretrievable, and (c) order that records including DNA specimens maintained by any public office or agency be expunged.  Id.  S.B. 337 prohibits the court from charging a fee for the filing of an application for the sealing of juvenile records.

Sealed records are automatically expunged “five years after the court issues a sealing order or upon the twenty-third birthday of the person who is the subject of the sealing order, whichever date is earlier.” § 2151.358(A). Expungement of sealed records may be sought earlier by petition if the court “finds that the person has been rehabilitated to a satisfactory degree.” § 2151.358(B).  In evaluating rehabilitation, the court “may consider:”

(a) The age of the person;

(b) The nature of the case;

(c) The cessation or continuation of delinquent, unruly, or criminal behavior;

(d) The education and employment history of the person;

(e) Any other circumstances that may relate to the rehabilitation of the person who is the subject of the records under consideration.

§ 2151.358(B)(5). Expunged records are destroyed, § 2151.355, and “ the person who is the subject of the expunged records properly may, and the court shall, reply that no record exists with respect to the person upon any inquiry in the matter.” § 2151.355(F).

No sealing of pardoned convictions

The Ohio Supreme Court has resolved what had been a split of authority among the Ohio appellate courts, holding that a court has no inherent authority to seal or expunge a pardoned conviction. See State v. Radcliff, Slip Opinion No. 2015-Ohio-235, **8-10, explaining that the doctrine of Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303 (1981) did not survive the enactment of a statutory sealing authority.12

Intervention in lieu of conviction (ILC)

Ohio Rev. Code Ann. § 2951.041. Pre-plea diversion is available at the direction of the court for individuals charged with certain non-serious offenses who have not previously been convicted of a felony involving violence:

If an offender is charged with a criminal offense and the court has reason to believe that drug or alcohol usage by the offender was a factor leading to the criminal offense . . . , the court may accept, prior to the entry of a guilty plea, the offender’s request for intervention in lieu of conviction.

§ 2951.041(A)(1). The Court must find that “intervention in lieu of conviction would not demean the seriousness of the offense, and intervention would substantially reduce the likelihood of any future criminal activity.” § 2951.041(B)(6).

Successful completion of the intervention plan and period of abstinence under this section shall be without adjudication of guilt and is not a criminal conviction for purposes of any disqualification or disability imposed by law and upon conviction of a crime, and the court may order the sealing of records related to the offense[.]

§ 2951.041(E). If the court determines that the offender has failed to comply with any of those terms and conditions, “it shall enter a finding of guilty and shall impose an appropriate sanction[.]” § 2951.041(F). 

The statute was amended in 2011 to provide similar relief to offenders with mental illness or intellectual disability.  §§ 2951.041(A), (B).  It was amended again in 2018 to extend to victims of human trafficking.  Id.   

In 2018, eligibility for intervention was again expanded to delete provisions allowing the prosecuting attorney to control access to this disposition, and conditioning eligibility upon the person not having previously been granted intervention.  See § 2951.041(B)(1), as added by SB 66.       

Expungement for victims of human trafficking

Ohio Rev. Code § 2953.38 provides a mechanism for victims of human trafficking to expunge records of three offenses (loitering, solicitation, prostitution) where “the applicant’s participation in the offense was a result of having been a victim of human trafficking.”  “Expunge” means to destroy, delete, or erase a record as appropriate for the record’s physical or electronic form or characteristic so that the record is permanently irretrievable. § 2953.38(A)(1).

The proceedings in the case that is the subject of an order issued under . . . this section shall be considered not to have occurred and the conviction of the person who is the subject of the proceedings shall be expunged. The record of the conviction shall not be used for any purpose, including, but not limited to, a criminal records check under section 109.572 of the Revised Code. The applicant may, and the court shall, reply that no record exists with respect to the applicant upon any inquiry into the matter. 

Id. § 2953.38(G)(2).   Eligible offenses range in seriousness from misdemeanor to felony depending on the circumstances (e.g., solicitation after HIV diagnosis).  In 2018 

A new § 2953.521 was added in 2018 authorizing expungement of non-conviction records in any case where the applicant shows that he or she was the victim of human trafficking.  SB 4   Also in 2018, for persons convicted of one or more of the eligible offenses, SB 4 authorized courts to also expunge the record of conviction for any other offense—except aggravated murder, murder, or rape—which resulted from a person having been a victim of human trafficking.  § 2953.38(B). The court’s authority to expunge more serious felony-level offenses was made subject to a balancing test, where the court must consider the degree of duress, seriousness of the offense, likelihood of recidivism, and other aggravating and mitigating factors.   § 2953.38(E)(2). 

Expungement for conduct that is no longer a crime

Ohio Rev. Code Ann. § 2953.37 provides a mechanism for expunging a conviction of improperly handling firearms in a motor vehicle that is no longer a crime

Judicial restoration of firearms privileges

Firearms disabilities, imposed for a conviction of a crime of violence or certain drug offenses, see Ohio Rev. Code. Ann. § 2923.13(A), may be removed by petitioning a state court for restoration of firearm privileges.  The applicant must be “fully discharged from” imprisonment, probation, or parole; have “led a law abiding life since discharge or release” and “appear[] likely to continue to do so[;]” and not be “otherwise prohibited by law from acquiring, having, or using firearms.” § 2923.14(D).

C.  Administrative/judicial certificates

1. Certificate of qualification for employment

S.B. 337,13 signed into law on June 26, 2012, creates a mechanism by which an individual who has been convicted of or pleaded guilty to a state offense, who is subject to a “collateral sanction” barring him from a particular occupation or license,14 and who has fully discharged his sentence, may after a short eligibility waiting period (one year after completion of sentence for felonies, six months for misdemeanors) apply to the court of common pleas in the county of his residence (if a state resident), or in the court where he was convicted (if not a resident), for a “certificate of qualification for employment” (CEQ) that will provide relief from the sanction and allow him to be considered on the merits.  See Ohio Rev. Code Ann. § 2953.25.15  The process of obtaining a CQE and it effect are explained at this website. http://drc.ohio.gov/cqe.  

Eligibility

Individuals with out-of-state or federal convictions are ineligible for a CQE, even if they reside and/or do business in the state.  See Ohio Rev. Code Ann. § 2953.25(A)(6) (defining “offense” as “any felony or misdemeanor under the laws of this state”). Under § 2953.25(B)(5), as amended in 2017, a petition shall be filed by state residents “with the court of common pleas of the county in which the person resides or with the designee of the deputy director of the division of parole and community services” and by nonresidents “with the court of common pleas of any county in which any conviction or plea of guilty from which the individual seeks relief was entered or with the designee of the deputy director of the division of parole and community services.” The court must notify “the prosecuting attorney of the county in which the individual resides that the individual has filed the petition.”  Under 2017 amendments to the law, people convicted of sex offenses are not eligible for a CQE. 

Effect

A CQE may lift the “automatic bar” of most collateral sanctions imposed under Ohio law.  Ohio Rev. Code Ann. §§ 2953.25(B)(1)-(2). See also §2953.25(D)(1) (“[A CEQ] lifts the automatic bar of a collateral sanction, and a decision-maker may consider on a case-by-case basis whether to grant or deny the issuance or restoration of an occupational license or an employment opportunity, notwithstanding the individual’s possession of the certificate.”).  As originally enacted, the sole effect of a CQE was to convert mandatory collateral consequences into discretionary consequences, but a CQE was not given any explicit effect when it came to consideration of discretionary consequences.   Under 2017 amendments to §2953.25(D), a CQE is given presumptive effect and extended to the licensing context.  Thus, while a licensing agency “may deny the license or certification for the person if it determines that the person is unfit for issuance of the license,” a CQE “constitutes a rebuttable presumption that the person’s criminal convictions are insufficient evidence that the person is unfit for the license, employment opportunity, or certification in question.” See §§ 2953.25 (D)(2) and (D)(3).   The amendment also eliminated the requirement that CQE applicants identify a particular collateral consequence from which relief was sought. At the same time, the amendment made individuals convicted of sex offenses ineligible for a CQE.

Exceptions: Certain collateral consequences are not affected, such as restrictions on employment as a prosecutor or law enforcement officer, restrictions on driver’s licenses and on licensing in the health care field, and loss of licenses resulting from failure to pay child support.  Ohio Rev. Code Ann. § 2953.25(C)(5).  Nor does a CEQ relieve restrictions contained in § 2961.01(A)(1)  regarding service on a jury,  and § 2961.02(B) regarding public office or employment, including as a volunteer, if the volunteer activity involves substantial management or control over the property of a state agency, political subdivision, or private entity. § 2953.25(E).

Standard

The standard for issuing a certificate is whether the individual has established by a preponderance of the evidence that (a) granting the petition will materially assist in obtaining employment or occupational licensing; (b) the individual has a substantial need for the relief in order to live a law-abiding life; and (c) granting the petition would not pose an unreasonable risk to the safety of the public or any individual.   Ohio Rev. Code Ann. § 2953.25(C)(3).  Under a 2017 amendment to the law, applicants are no longer required to specify a particular collateral sanction from which they are seeking relief, but need only include “a general statement as to why the individual has filed the petition and how the certificate of qualification for employment would assist the individual.”  § 2953.25 (F)(5).  The certificate is “presumptively revoked” if the individual is convicted of or pleads guilty to a felony offense committed after issuance of the certificate. § 2953.25(H).

Limitation on employer liability

In a judicial or administrative proceeding alleging negligence or other fault, a certificate of qualification for employment issued under the mechanism may be introduced as evidence of a person’s due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the individual to whom the certificate was issued if the person knew of the certificate at the time of the alleged negligence or other fault. In any proceeding on a claim against an employer for negligent hiring, a certificate of qualification for employment issued under the mechanism provides immunity for the employer as to the claim if the employer knew of the certificate at the time of the alleged negligence.  Ohio Rev. Code Ann. § 2953.25(G).

Application and procedure

The application can be accessed at http://www.drccqe.com/Login2.aspx?APPTHEME=OHCQE, and the application process is explained at http://www.drccqe.com/documentation/OHCQE/Online_CQE_petition_Instructions.pdf.  Additional helpful information about theCQE process can be accessed at the website of the Ohio Justice and Policy Center.  See http://www.ohiojpc.org/what-we-do/community-education/resources/.

If the offense was a felony, the petition may be filed one year after completion of sentence; if a misdemeanor, the waiting period is six months.  Ohio Rev. Code Ann. § 2953.25(B)(4).  Petitions for a CQE shall be filed with a court, unless the person has served a term in a state correctional institution or spent time in a department-funded program for any offense, in which case the petition is initially filed with the designee of the deputy director of the division of parole and community services, who then forwards it to court.  § 2953.25(B)(1)-(2), (5).  The required contents of a petition are specified, and include a statement of the reasons the certificate is sought and references.

Upon receiving a petition, the court shall review the petition, the individual’s criminal history, all filings submitted by the prosecutor or the victim, and all other relevant evidence.  § 2953.25(C).  The court in which a petition is filed or forwarded is required to determine all other Ohio courts in which the individual was found guilty of an offense other than the offense from which relief is sought and notify those courts of the filing, notify the prosecuting attorney of the county in which the individual resides that the individual has filed the petition, and review the petition, the individual’s criminal history, all filings submitted by the prosecutor or the victim, and all other relevant evidence.  § 2953.25(B)(5)(b).  The court that receives or is forwarded a petition under the bill must decide whether to issue the certificate within 60 days after the court receives or is forwarded the completed petition and all information requested by the court.  This time limit may be extended upon request of the individual who filed the application. § 2953.25(C)(1), (2).  As noted, under a 2017 amendment to the law, applicants are no longer required to specify a particular collateral sanction from which they are seeking relief.  

A court that denies a petition may place conditions on the individual regarding the filing of any subsequent petition for a certificate.  An individual may to appeal a denial decision of a court of common pleas to the court of appeals only if the individual alleges that the denial was an abuse of discretion by the court of common pleas. § 2953.25(C)(1), (2).  The certificate is “presumptively revoked” if the individual is convicted of or pleads guilty to a felony offense committed after issuance of the certificate.  § 2953.25(H).   

Pursuant to a 2017 amendment to the CQE law, the Department of Rehabilitation and Correction is responsible for maintaining an accessible electronic database of certificates, and for making an annual report to the legislature. § 2953.25(K).  

2.  Certificate of employability

A 2011 law provided provides for the issuance by the Department of Rehabilitation and Corrections (DRC) or the Adult Parole Authority of “certificates of achievement and employability” for certain DRC prisoners and parolees to be used by the recipient to generally obtain relief from “mandatory civil impacts” that would affect a potential job for which the prisoner trained.  See Ohio Rev. Code Ann. §§ 2961.21 through 2961.24.  A “mandatory civil impact” is defined as any law that “precludes the person with the criminal record from maintaining or obtaining licensure or employment, precludes the agency from issuing a license or certification to the person with the criminal record or business, or precludes a business from being certified or from employing the person with the criminal record.” § 2961.21(D)(1).  This law lifts mandatory bars and requires the licensing agency to give the person individualized consideration, in effect converting a mandatory civil impact into a discretionary one.  § 2961.23(A).  It also affords an employer a degree of protection from liability.  § 2961.23(B).  Relief from “mandatory civil impacts” does not extend to barriers to jury service and holding office.  See § 2961.22(C)(3).

D.  Additional resources

The Ohio Justice and Policy Center publishes a comprehensive guide to obtaining administrative and judicial employability certificates and sealing of adult and juvenile convictions.  See Ohio Justice & Policy Center, Understanding and Clearing up Criminal Records in Ohio (2014), available at http://ohiojpc.org/wp-content/uploads/2015/07/OJPCs-Criminal-Record-Manual.pdf.

III.  Nondiscrimination in licensing and employment

A. Ban-the-box in public hiring

Per Ohio Rev. Code Ann. § 9.73, enacted in 2015, “No public employer shall include on any form for application for employment with the public employer any question concerning the criminal background of the applicant.”  “Public employers” include all state agencies and political subdivisions of the state.

B.  Nondiscrimination in licensing – in general

Licensing boards are generally authorized to deny licensure based on criminal record only for specified offenses.  Effective April 7, 2009, each agency, commission or board “authorized to deny licensure or certification without offering an opportunity for a hearing” to anyone convicted of or pled or found guilty of “any specified criminal offense[,]” and which “intends to add specified criminal offenses to the list of criminal offenses for which licensure or certification can be so denied[,]” must promulgate rules listing each additional criminal offense for which licensure or certification can be denied and “state the basis for which each of those specified criminal offenses is substantially related to a person’s fitness and ability to perform the duties and responsibilities of the occupation, profession, or trade.”  Ohio Rev. Code Ann. § 4743.06.  

Effective April 5, 2019, a licensing authority must make available on the internet a list of all criminal offenses for which a conviction would disqualify a person from obtaining a license.  SB 225 (2019); § 9.78(C).  Also effective April 5, 2019, anyone with a conviction may request at any time that a licensing authority determine whether the conviction disqualifies the person from obtaining an occupational or professional license.  SB 225 (2019); § 9.78(B).  A fee of no more than $25 may be charged.  Within thirty days of receiving a request, the licensing authority must inform the person of its decision.  The decision is not binding if the licensing authority determines that the person’s convictions differ from what was included in the request.  Id.  (“Licensing authority” as used in these new provisions means both “(a) A board, commission, or other entity that issues licenses under Title XLVII or any other provision of the Revised Code to practice an occupation or profession; [and] (b) A political subdivision that issues a license or that charges a fee for an individual to practice an occupation or profession in that political subdivision.”  § 9.78(A)(2)). 

C.  Sealed convictions

However, as noted above, if a conviction has been sealed pursuant to the first offender sealing statute, Ohio Rev. Code Ann. §§ 2953.31 et seq., a person may not be questioned by an employer or licensing board about it “unless the question bears a direct and substantial relationship to the position for which the person is being considered.”  § 2953.33(B).  If an arrest record not leading to conviction has been sealed pursuant to § 2953.52, an employer or licensing agency may not question the person about it at all, § 2953.55(A), and anyone who discloses the information is guilty of a misdemeanor in the fourth degree.  § 2953.55(B).

D.  Ex-offender reentry coalition — Identification of barriers to reentry

In 2009, the Ohio Legislature established the Ex-Offender Reentry Coalition, composed of senior state officials involved in corrections and agencies serving returning prisoners.  See Ohio Rev. Code Ann. § 5120.07; see also http://drc.ohio.gov/reentry-coalition  (Ex-Offender Reentry Coalition website).  S.B. 337 added an “ex-offender” appointed by the director of corrections to the Coalition.16  The Coalition was directed to “identify and examine social service barriers and other obstacles to the reentry of ex-offenders into the community,” and report to the legislature with an analysis of

the effects of those barriers on ex-offenders and on their children and other family members in various areas, including but not limited to, the following:  (1) Admission to public and other housing; (2) Child support obligations and procedures; (3) Parental incarceration and family reunification; (4) Social security benefits, veterans’ benefits, food stamps, and other forms of public assistance; (5) Employment; (6) Education programs and financial assistance; (7) Substance abuse, mental health, and sex offender treatment programs and financial assistance; (8) Civic and political participation; (9) Other collateral consequences under the Revised Code or the Ohio administrative code law that may result from a criminal conviction.

§ 5120.07(C).

E.  Additional limitations on licensing exclusions in S.B. 337

S.B. 33717 prohibits the Ohio Optical Dispensers Board, the Registrar of Motor Vehicles (with regard to motor vehicle salvage dealers, motor vehicle auctions, and salvage motor vehicle pools), the Construction Industry Licensing Board, the Hearing Aid Dealers and Fitters Licensing Board, and the Director of Public Safety (with regard to private investigators and security guards) from precluding individuals from obtaining or renewing licenses, certifications, or permits the entity issues due to any past criminal history of the individual unless the individual has committed a crime of moral turpitude or a disqualifying offense.18  S.B. 337 further provides a new definition of “crime of moral turpitude” to include only a number of specified serious crimes of violence.  Ohio Rev. Code § 4776.10(A).

S.B. 337 specifies that (1) if an individual applying for a license, certification, or permit has been convicted of or pleaded guilty to a misdemeanor that is not a crime of moral turpitude or a “disqualifying offense” (defined below) less than one year prior to making the application, any licensing entity listed in the preceding paragraph may use its discretion in granting or denying the individual a license, certification, or permit, (2) if an individual applying for a license, certification, or permit has been convicted of or pleaded guilty to a felony that is not a crime of moral turpitude or a disqualifying offense less than three years prior to making the application, any licensing entity listed in the preceding dot point may use its discretion in granting or denying the individual a license or registration, or renewing the license.  See e.g., Ohio Rev. Code Ann. § 4725.48(D) (as amended by S.B. 337) (concerning optical dispensing licenses).19

A “disqualifying offense” is defined to mean an offense that is a felony and that has a “direct nexus” to an individual’s proposed or current field of licensure, certification, or employment.  § 4776.10 (C).  “Direct nexus” means that the nature of the offense for which the individual was convicted or to which the individual pleaded guilty has a direct bearing on the fitness or ability of the individual to perform one or more of the duties or responsibilities necessarily related to a particular occupation, profession, or trade.  § 4776.10(B).  The provisions described in clauses (1) and (2) do not apply with respect to any offense unless the licensing entity, prior to the bill’s effective date, was required or authorized to deny the application based on that offense.

F.  Casino control commission

The Commission must provide a written statement to each applicant denied a license under this chapter describing the reason or reasons for which the applicant was denied the license. The Commission must submit an annual report to the legislature specifying the number of applications denied in the preceding calendar year for each type of such license, and the reasons for those denials.

G.  Background checks for trainees for certain professions or occupations

S.B. 337 requires the following licensing agencies to obtain criminal records checks for applicants for trainee positions: the Accountancy Board, the Board of Embalmers and Funeral Directors; the State Board of Optometry; the Ohio Optical Dispensers Board; the State Board of Pharmacy; the State Medical Board; the State Board of Psychology; the State Chiropractic Board; the Ohio Construction Industry Licensing Board; the State Veterinary Medical Licensing Board; the Occupational Therapy Section, Physical Therapy Section, and Athletic Trainers Section of the Ohio Occupational Therapy, Physical Therapy, and Athletic Trainers Board; the Counselor, Social Worker, and Marriage and Family Therapist Board; the Ohio Board of Dietetics; the Ohio Respiratory Care Board; the State Board of Orthotics, Prosthetics, and Pedorthics; the Casino Control Commission; the Registrar of Motor Vehicles regarding certain motor vehicle salvage licenses; Hearing Aid Dealers and Fitters Licensing Board; or Director of Public Safety regarding private investigators and security guard providers. See Ohio Rev. Code. Ann. § 4776.021 (as amended by S.B. 337).

These provisions requiring a criminal records check of applicants for trainee licenses do not apply with respect to any person who is participating in an apprenticeship or training program operated by or under contract with the Department of Rehabilitation and Correction.  Ohio Rev. Code. Ann. § 4776.021(E).

None of the agencies may issue a trainee license to an applicant if the agency determines that the applicant would not be eligible for issuance of a license, certificate, or other authority to engage in the profession or occupation, or operate certain equipment or machinery, or enter certain premises.  Ohio Rev. Code. Ann. § 4776.021(D).

An agency that uses criminal records in determining whether an applicant should be granted a trainee license under Ohio Rev. Code. Ann. § 4776.021 must make the results available to the applicant.  § 47764.04(C)(2).


  1. Acts 2011, HB 0054, § 3 amended subsection B of § 2923.14 to “clarify that relief from a weapons disability granted under [this section] restores a person’s civil firearm rights to such an extent that the uniform federal ban on possessing any firearms at all, 18 U.S.C. § 922(g)(1), does not apply to that person, in correlation with the U.S. Supreme Court’s interpretation of 18 U.S.C. 921(a)(20) in Caron v. U.S. (1998), 524 U.S. 308.” This provision must be understood to apply only to persons convicted in Ohio, since by its terms § 921(a)(20) requires relief to be granted in the jurisdiction of conviction. 
  2. Under Governor Strickland, clemency recommendations from the Board were further reviewed by his staff:The governor’s legal staff review of each parole board recommendation includes, but is not limited to: communication with the court and the prosecutor’s office involved in the conviction; input and assistance from law enforcement officials, defense counsel, witnesses, victims and others who may have information relevant to the governor’s decisions; consultation of  official records from the offender’s prosecution and appeals, the parole board’s report and exhibits, petitions, letters, media reports and other documents or materials concerning the case.  The legal counsel prepares these findings for the governor’s review, initially shielding their clemency recommendations at the governor’s request.  After a thorough and detailed discussion of the specifics of a given case, the legal staff presents their recommendation for or against clemency.  The governor considers the totality of information presented for each application and decides whether to approve or deny clemency.Press Release, Governor’s Office, Governor Announces 2009 Clemency Decisions , available at https://votesmart.org/public-statement/575300/governor-announces-2009-clemency-decisions#.VxpKKDArLIU. Governor Strickland agreed with the Board in most but not all cases, both favorable and denial recommendations.  See id. 
  3. See Alan Johnson, Strickland shows mercy in 39 cases, The Columbus Dispatch, Nov. 24, 2010, available at http://www.dispatch.com/content/stories/local/2010/11/24/strickland-shows-mercy-in-39-cases.html.  Announcing his first pardons, Governor Strickland stated:“In every case, these pardons have been granted to individuals who have completed their entire sentence, usually many years ago. Virtually every case involves an individual who has not re-offended with the exception of traffic violations. The individuals granted pardons today have demonstrated that they have been rehabilitated and have assumed the responsibilities of citizenship.  People have become nurses, successful business people, they have obtained master’s degrees and bachelor’s degrees.”Alan Johnson, Strickland grants clemency to 78: Commutes life sentence of Lucas County man, The Columbus Dispatch, Nov. 23, 2009, available athttp://www.dispatch.com/content/stories/local/2009/11/23/strickland-clemency.html
  4. Joann Sahl, Battling Collateral Consequences: The Long Road to Redemption, University of Akron Law School, University of Akron Legal Studies Research Paper No. 12-01 (February 20, 2012), available at http://ssrn.com/abstract=2008463.  The Sahl article reports that Strickland pardoned a total of 280 people during his term, a number that is not exactly the same as numbers reported by the press contemporaneously with each set of grants.  See also Alan Johnson, Strickland clears desk of requests, grants 152 pardons, The Columbus Dispatch, Jan. 7, 2011, available at http://www.dispatch.com/content/stories/local/2011/01/07/strickland-clears-desk-of-requests-by-granting-152-pardons.html; Mark Naymik, Gov. Ted Strickland gives 39 people pardons or commuted sentences, The Plain Dealer, Nov. 23, 2010, available at http://www.cleveland.com/open/index.ssf/2010/11/gov_ted_strickland_gives_39_pe.html. 
  5. Until July 2012 the only conviction records eligible for sealing under Ohio law were certain minor non-violent convictions where the court determined that the applicant had no other criminal record and no charges pending.  This “first offender” requirement was jurisdictional, and included both felonies and misdemeanors. State v. Coleman, 691 N.E.2d 369 (Ohio Ct. App. 1997). A new law passed by the legislature and signed by Governor Kasich on June 26, 2012, replaced the term “first offender” with “eligible offender” throughout the chapter. 
  6. See Radcliffe, slip op. at 10: “Although the judicial power to seal criminal records still exists, “it is limited to cases where the accused has been acquitted or exonerated in some way and protection of the accused’s privacy interest is paramount to prevent injustice.” Even in the case of an acquittal, “judicial expungement is an exceptional remedy to be employed where the equities of the situation demand it.”  Id
  7. 2014 amendments deleted the phrase “if the convictions are not of the same offense” qualifying two misdemeanors. 
  8. If an applicant for sealing was convicted of failure to pay child support, the probation department must contact the child support enforcement agency enforcing the applicant’s obligations under the child support order to inquire about the offender’s compliance with the child support order. 
  9. According to an e-mail from Judge Robert Gorman dated October 29, 2004,the original reason for creating this remedy was to seal the records of people convicted of possession of marijuana and certain traffic offenses in the 1960’s and 1970’s.  The intent was that those convictions, often the product of the culture of the day, would not interfere with current or future employment opportunities of young people.  Gradually, as they became more comfortable with the concept, judges expanded expungement to all situations based on potential hardship.  Judicial applications prompted the General Assembly to start tweaking the procedure by a series of amendments.  For example, because of the Ohio Supreme Court’s decision in Pepper Pike v. Doe [421 N.E.2d 1303 (Ohio 1981)], the General Assembly added a new section covering the sealing of arrest records where the charge was dismissed or the defendant was acquitted.  The General Assembly later precluded the sealing of records for mandatory prison terms and certain specific felonies (R.C. 2953.36). 
  10. Prior to June 26, 2012, sexual battery and gross sexual imposition were also excluded from offenses for which juvenile records could be sealed.  § 2151.356(A) (as amended by S.B. 337). 
  11. See also Ohio Rev. Code Ann. §§ 109.57, 109.572, 109.578 (as amended by S.B. 337) (regarding limited disclosure by Attorney General or Superintendent of the Bureau of Criminal Identification and Investigation of information relating to the adjudication of a child as delinquent in certain circumstances). 
  12. See Radcliffe, slip op. at 10: “Although the judicial power to seal criminal records still exists, “it is limited to cases where the accused has been acquitted or exonerated in some way and protection of the accused’s privacy interest is paramount to prevent injustice.” Even in the case of an acquittal, “judicial expungement is an exceptional remedy to be employed where the equities of the situation demand it.”  Id
  13. 2012 Ohio Laws File 131 (Am. Sub. S.B. 337). 
  14. A collateral sanction is defined as “a penalty, disability, or disadvantage that is related to employment or occupational licensing, however denominated, as a result of the individual’s conviction of or plea of guilty to an offense and that applies by operation of law in this state whether or not the penalty, disability, or disadvantage is included in the sentence or judgment imposed.”  Ohio Rev. Code Ann. § 2953.25(A)(1). 
  15. The new bill has no effect on the mechanism, enacted in 2011, authorizing “certificates of achievement and employability,” described below. 
  16. 2012 Ohio Laws File 131 (Am. Sub. S.B. 337) (codified at various sections of the Ohio Revised Code). 
  17. 2012 Ohio Laws File 131 (Am. Sub. S.B. 337) (codified at various sections of the Ohio Revised Code). 
  18. See Ohio Rev. Code §§ 3772.07, 4501.02, 4725.44, 4725.48, 4725.52, 4725.53, 4738.04, 4738.07, 4740.06, 4740.10, 4747.05, 4747.10, 4747.12, 4749.03, 4749.04, 4749.06, and 5502.011
  19. See also statutes listed at note 17, supra. 

Copyright © 2017 – 2019

Restoration of Rights/North Dakota

I.  Restoration of Civil/Firearms RightsNorth Dakota

A.  Civil Rights

The rights to vote and to hold public office are lost upon conviction of a felony and sentencing to imprisonment “during the term of actual incarceration.”  N.D. Cent. Code § 12.1-33-01.  Both rights are restored upon release from prison.  § 12.1-33-03(1).  Release from incarceration also restores the right to sit on a jury, except for certain offenses.  See § 27-09.1-08(2)(e).

B.  Firearms

Firearm rights are lost for a ten-year period upon conviction of a felony involving violence or intimidation (dating from release from incarceration or probation), and five years after conviction for a non-violent felony or violent Class A misdemeanor.  N.D. Cent. Code §§ 62.1-02-01(1)(a), (b).  Under a law passed in 2011, a felony offender subject to the five-year bar may petition the court in his county of residence for restoration of firearms rights.  § 62.1-02-01.1.  The court must determine by clear and convincing evidence that the individual has successfully completed all terms of his sentence and paid all fines, and that “[t]he individual’s record and reputation are such that the individual is not likely to act in a manner dangerous to the safety of others.”  Id.  A pardon will also restore firearms rights but only if the pardon document so states.  North Dakota Pardon Information, Pardon411.com, http://www.pardon411.com/wiki/North_Dakota_Pardon_Information (last visited July 20, 2013).  Whether a particular offense is a felony is determined under the law of the jurisdiction of conviction.  State ex rel. Olson v. Langer, 256 N.W. 377, 388-89 (N.D. 1934).

II.  Discretionary Restoration Mechanisms        

A.  Executive pardon

Authority

The state constitution vests the pardon power (except in cases of treason or impeachment) in the governor.  N.D. Const. art. 5, § 7.  The governor may (but is not required to) appoint a “pardon advisory board,” consisting of the state attorney general, two members of the Parole Board, and two citizens.  N.D. Cent. Code § 12-55.1-02.1  The Board is staffed by a “pardon clerk” at the Parole Board, which is part of the state Department of Corrections.  See § 12-55.1-05.

Eligibility

There are no eligibility requirements for North Dakota offenders.  Persons convicted under federal law or the laws of another state are ineligible for a state pardon.

Standards

Under Pardon Advisory Board rules, an applicant “must have encountered a significant problem with the consequences of the conviction or sentence (e.g. inability to obtain or maintain licensures or certifications necessary for employment)” or demonstrate some other “compelling need for relief as a result of unusual circumstances.” Pardon Advisory Board, N.D. Dep’t of Corr. & Rehab., http://www.nd.gov/docr/adult/tps/advisory.html.2  The pardon clerk emphasizes the central importance of this “need” requirement:  A generalized need for forgiveness will not suffice; the applicant must have a specific employment-related or other disability that would be relieved by a pardon.

Effect

Ordinarily a pardon relieves collateral legal penalties, but it does not expunge conviction.  N.D. Cent. Code § 12-55.1-01(4).  See also Attorney General’s Opinion, No. 85-44, 1985 WL 257704 (Dec. 03, 1985) (“[A] pardon acts to remove the punishment resulting from a criminal conviction, but does not act to remove the fact of guilt and other circumstances surrounding the commission of the crime.”).  A pardoned conviction may be used as a predicate offense or to enhance a sentence for a subsequent crime.  See State v. Webb, 162 N.W. 358, 361 (N.D. 1917) (“The courts have uniformly held that the fact that the accused was pardoned [for a prior conviction] does not exempt him from increased punishment on a subsequent conviction.”).  A pardon will also restore firearms rights but only if the pardon document so states.  North Dakota Pardon Information, Pardon411.com, http://www.pardon411.com/wiki/North_Dakota_Pardon_Information (last visited July 20, 2013).

Process

The Pardon Advisory Board meets twice a year to consider cases, and applications must be filed at least 90 days in advance.3 Pardon Advisory Board, N.D. Dep’t of Corr. & Rehab., http://www.nd.gov/docr/adult/tps/advisory.html.  After the application is filed, the pardon clerk must notify the sentencing judge and the state’s attorneys in the county where the applicant was convicted, and they in turn may file their recommendations with the Board.  N.D. Cent. Code §§ 12-55.1-07, -09.  The pardon clerk also directs field investigations and prepares a packet of cases for the Board’s semi-annual meeting.  § 12-55.1-05; Pardon Advisory Board Policies and Procedures, N.D. Dep’t of Corr. & Rehab., 5 (Nov. 9, 2010), http://ww.nd.gov/docr/adult/tps/policy2010.pdf.  There is no provision for a personal appearance.  Pardon Advisory Board Policies and Procedures, supra, at 5.  Applicants are immediately notified of the Board’s recommendation to the governor.  The governor’s office follows up by sending a letter notifying the applicant of the governor’s decision.  State law provides for reconsideration and revocation of the pardon within 30 days of the decision.  § 12-55.1-08.

The Pardon Advisory Board is not an administrative agency as defined under N.D. Cent. Code § 28-32-01(2)(a) and is not subject to the Administrative Agencies Practice Act.  N.D. Cent. Code § 28-32-01(2)(n); Pardon Advisory Board Policies and Procedures, N.D. Dep’t of Corr. & Rehab., 5 (Nov. 9, 2010), http://ww.nd.gov/docr/adult/tps/policy2010.pdf.  Any rules the Board may adopt need not be published in the North Dakota Administrative Code.  Pardon Advisory Board Policies and Procedures, supra, at 2.

Frequency of Grants

The Board reviews about 50 pardon applications each year.  Only two pardons were granted in 2015, and one in both 2014 and 2013.  Between January 2008 and December 2012, The Board reviewed 259 pardon applications, and only eight pardons were granted.  Source: North Dakota Pardon Advisory Board

Contact

Janice Young
Pardon Clerk, North Dakota Pardon Advisory Board
P.O. Box 5521
Bismarck, ND 58506-5521
701-328-6193 (phone)
jyoung@state.nd.us

Ken Sorenson
Legal Counsel
ksorenso@state.nd.us

B.  Judicial sealing or expungement

I.  General sealing under 2019 law

Until 2019, North Dakota had no general authority to seal conviction records, and very limited authority to limit public access even to non-conviction records.  With the enactment of HB1246 in April 2019, that changed dramatically.  The law created a new Chapter 12-60.1 which authorizes both misdemeanor and felony offenders to apply for sealing, after a waiting period of three and five years, respectively.  Anyone convicted of a felony involving violence or intimidation must wait 10 years (the period in which the person may not possess a firearm under N.D. Cent. Code §§ 62.1-02-01(1)(a) (see above).  It does not apply to anyone required by the court to register as a sexually violent offender.

Procedure:  A petition to seal must be filed in the original criminal court, and the procedure is described in N. D. Cent. Code §§ 12-60.1-03 and 04.   The court may grant the petition if it finds that the petitioner has made a showing a good cause and that “The benefit to the petitioner outweighs the presumption of openness of the criminal record.”  Also, it may grant if it finds that the “petitioner has completed all terms of imprisonment and probation for the offense,” and “has paid all restitution ordered by the court for commission of the offense,” which appears to mean that fines and fees need not be paid.  § 12-60.1-04(6).

A series of criteria to be applied by the court are set forth in the statute, including such standard aggravating and mitigating factors as the seriousness of the crime, the age of the petitioner when it was committed, rehabilitation, etc.  The court must notify the prosecutor and any victims, and the prosecutor may “stipulat[e] to seal a criminal record without a hearing or more expeditiously than provided in this section.”  § 12-60.1-04(5).  There is no appeal from a denial of relief from a district court (denial by a municipal court may be appealed to the district court) and if denied a person must wait three years to reapply.

Effect:  “Seal” is defined this new sealing law as “to prohibit the disclosure of the existence or contents of court or prosecution records unless authorized by court order.”  >The effect of sealing is described in  § 12.1-32-07.2(2):  The clerk of the court must seal the records, with access only available to the clerk; a judge; the juvenile commissioner; probation officers; the defendant and their counsel; and the state’s attorney.  See also § 12-60.1-04(9):

If a court grants a petition to seal a criminal record, the court shall state in the court order that the petitioner is sufficiently rehabilitated but is subject to the provisions of section 12.1-33-02.1 [on consideration of conviction in licensing], and shall release the information when an entity has a statutory obligation to conduct a criminal history background check. 

II.  Other judicial relief authorities

A.  Reduction of minor felony offenses to misdemeanors

North Dakota law provides procedures by which a minor state felony conviction may be reduced to a misdemeanor after service of sentence.  See N.D. Cent. Code § 12.1-32-02(9) (person convicted of a felony and sentenced to imprisonment for not more than one year “is deemed to have been convicted of a misdemeanor” upon successful completion of the term of probation imposed as part of the sentence).  Reduction of a felony conviction to a misdemeanor has the effect of releasing the defendant from all penalties and disabilities resulting from the offense, except for sex offender registration and firearms disabilities.

B.  Record-closing authorities

1.    Sealing for deferred imposition of sentence (deferred adjudication) 

After a guilty plea, “[a] court, upon application or its own motion, may defer imposition of sentence” and place an offender on probation.  N.D. Cent. Code § 12.1-32-02(4).  “An order deferring imposition of sentence is reviewable upon appeal from a verdict or judgment.”  Id.  Upon successful completion, the defendant is discharged, and the court in its discretion may set aside the guilty plea or verdict, and dismiss the charges.  § 12.1-32-07.1.  If the plea is withdrawn or the verdict set aside, the clerk of the court must seal the records, with access only available to the clerk; a judge; the juvenile commissioner; probation officers; the defendant and their counsel; and the state’s attorney.  § 12.1-32-07.2(2).   See State v. Siegel, 404 N.W.2d 469, 470-73 (N.D. 1987); cf. N.D. R. Crim. P. 32.1 (a file is sealed “61 days after expiration or termination of probation” for infractions and misdemeanors).  “In any subsequent prosecution . . . , the prior conviction for which imposition of sentence is deferred may be pleaded and proved, and has the same effect as if probation had not been granted or the information or indictment dismissed under § 12.1-32-07.1.”

2.   Sealing for first offender marijuana possession (misdemeanor)

N.D. Cent. Code § 19-03.1-23(9):

When a person pleads guilty or is found guilty of a first offense regarding possession of one ounce 1 or less of marijuana and a judgment of guilt is entered, a court, upon motion, shall seal the court record of that conviction if the person is not subsequently convicted within two years of a further violation of this chapter and has not been convicted of any other criminal offense.  Once sealed, the court record may not be opened even by order of the court.

3.  Sealing for victims of human trafficking

N.D. Cent. Code § 12.1-41-14:

An individual convicted of prostitution . . . which was committed as a direct result of being a victim may apply by motion to the court to vacate the conviction and seal the record of conviction. The court may grant the motion on a finding that the individual’s participation in the offense was a direct result of being a victim. 
Juvenile adjudications for prostitution, theft and forgery, and drug possession linked to being victim of human trafficking may be vacated and expunged. N.D. Cent. Code § 12.1-41-12, § 12.1-41-14.

4.  Destruction of  juvenile records

Records of juvenile adjudications are treated as confidential and generally unavailable to the public. N.D. Cent. Code, § 27-20-51(1); N.D.R. Juv. P. Rule 19(a).  Adjudication records are destroyed automatically 10 years after satisfaction of the final order in the case, or upon the individual’s 18th birthday (whichever is later).  See N.D. Sup. Ct. Admin. R., Record Records Retention Schedule (https://www.ndcourts.gov/court/rules/Administrative/Ar19sch.htm).  An individual may petition for destruction of juvenile records at any time so long as no charges are pending.  N.D.R. Juv. P. Rule 19(d). A showing of good cause is required. Id.  Once destroyed, a record is treated as if it never existed.  N.D. Cent. Code § 27-20-54(2).  

5.  Sealing and expungement for non-conviction records

Inherent judicial authority to expunge unlawful arrests, dismissals, and acquittals:   Under the North Dakota Supreme Court’s administrative rules, the public may not access the records of “deferred impositions of sentences or pretrial diversions resulting in dismissal.”  In addition, the court may limit public internet access to a defendant’s electronic court record if the charges are dismissed or the defendant is acquitted.  N.D. Sup. Ct. Admin. R. 41(r)(b)(9); (6)(a).

A request to prohibit access may be made by any party to a case, or on the court’s own motion with notice to all parties. R. 41(6)(a). The court must decide whether there is an “overriding interest” to “overcome the presumption of openness of court records,” and the court must articulate this interest along with specific findings that allow a reviewing court to determine whether the order was proper.  Id.  The closure must be “no broader than necessary to protect the articulated interest” with the “least restrictive means” to achieve the purposes of the rule and the needs of the requestor.  Id.  If the court concludes, after conducting the balancing analysis and making findings, that “the interest of justice will be served,” it may prohibit public internet access to an individual defendant’s electronic court record in a criminal case, and the search result for the records must display the words “Internet Access Prohibited under N.D.Sup.Ct. Admin.R 41.”  Id.  There is also a process by which anyone may request access to records where access is prohibited, and the court weighs the same factors as above.  R. 41(6)(b)-(c).

The North Dakota Supreme Court has held that state courts have inherent authority to expunge arrest records for unlawful arrests; and, upon motion, to seal online court records for criminal cases in which the charges are dismissed or in which the defendant has been acquitted.  State v. Howe, 308 N.W.2d 743, 749 (N.D. 1981) (“We hold that the courts of this state have the authority to order, and an arrestee who is not subsequently convicted is entitled to, expunction of arrest records when the arrest is unlawful in violation of the arrestee’s constitutional rights.”).

General executive branch restrictions on access to non-conviction records:  The Bureau of Criminal History Information may not disclose to the public non-conviction records that are more than three years old.  § 12-60-16.6. This authority presumably covers records of arrests that are not charged.

III.  Nondiscrimination in Licensing and Employment

N.D. Cent. Code § 12.1-33-02.1 (“Prior conviction of a crime not bar to state licensures”) provides:

A person may not be disqualified to practice, pursue, or engage in any occupation, trade, or profession for which a license, permit, certificate, or registration is required from any state agency, board, commission, or department solely because of prior conviction of an offense. However, a person may be denied a license, permit, certificate, or registration because of prior conviction of an offense if it is determined that such person has not been sufficiently rehabilitated, or that the offense has a direct bearing upon a person’s ability to serve the public in the specific occupation, trade, or profession.

A state agency, board, commission, or department shall consider the following in determining sufficient rehabilitation:

a. The nature of the offense and whether it has a direct bearing upon the qualifications, functions, or duties of the specific occupation, trade, or profession.

b. Information pertaining to the degree of rehabilitation of the convicted person.

c. The time elapsed since the conviction or release. Completion of a period of five years after final discharge or release from any term of probation, parole or other form of community corrections, or imprisonment, without subsequent conviction shall be deemed prima facie evidence of sufficient rehabilitation.

d. If conviction of an offense is used in whole or in part as a basis for disqualification of a person, such disqualification shall be in writing and shall specifically state the evidence presented and the reasons for disqualification. A copy of such disqualification shall be sent to the applicant by certified mail.

e. A person desiring to appeal from a final decision by any state agency, board, commission, or department shall follow the procedure provided by the chapter of this code regulating the specific occupation, trade, or profession. If no appeal or review procedure is provided by such chapter, an appeal may be taken in accordance with chapter 28-32, except for attorneys disbarred or suspended under chapter 27-14.

The “direct bearing” standard and “rehabilitation” tests of this statute are incorporated into dozens of licensing statutes in the North Dakota Century Code, including:  liquor licenses (§ 5-03-01.1), teachers (§§ 15.1-13-25(1)(d), (e)), residential treatment centers for children (§ 25-03.2-04), architects and landscape architects (§ 43-03-13(2)(a)), lawyers (§ 27-14-02(1)), barbers (§ 43-04-31.1), electricians (§ 43-09-09.1), funeral service directors (§ 43-10-11.1), and pharmacists (§ 43-15-18.1).

 


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  1. Until a 1996 constitutional amendment, the pardon power in North Dakota was exercised by the Board of Pardons, composed of the governor, the Attorney General, the Chief Justice, and two appointees of the governor.  See  N.D. Const.  art. 5, § 6 (1995).  The Board’s procedures and administrative processes were detailed in N.D. Cent. Code § 12-55-01 et seq. (1995).  See Nat’l Governors’ Ass’n, Guide to Executive Clemency Among the American States 122-24 (1988).
  2. The Board rules and an application form are available from the Pardon Clerk.  An online version of the  application form is available at http://www.nd.gov/docr/adult/tps/pboard_APPLICATION.pdf.
  3. The application form is available at http://www.nd.gov/docr/adult/tps/pboard_APPLICATION.pdf.