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).
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
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.
“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).
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.
“[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.
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.
Extradition Officer/Agreement Administrator, Arrest and Return, Office of the Governor
B. Judicial sealing or expungement
1. Set-aside and sealing of conviction records
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).
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).
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
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.
- 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/.
- 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=.
- 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).
- § 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.
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