Restoration of Rights/South Carolina

 I.  Restoration of Civil/Firearms Rights

A.  Civil Rights

The right to vote is lost if an individual is “serving a term of imprisonment resulting from a conviction of a crime;” or, if an individual has been “convicted of a felony or offenses against the election laws.”  S.C. Code Ann. §§ 7-5-120(B)(2), (B)(3).  Imprisonment results in disqualification even if the conviction is for a misdemeanor.  Because eligibility for office is contingent on being a qualified voter, S.C. Const. art. XVII, § 1, a person disqualified from voting is also disqualified from office.  Both rights are restored automatically upon completion of sentence, including parole and probation.  S.C. Code Ann. § 7-5-120(B)(3).  “A person who is in jail or pre-trial facility and who has not been convicted of any crime is not disenfranchised and should be allowed to register and vote.”  1993 Op Att’y Gen. No. 93-23.  The right to hold office after embezzlement of public funds is restored by a two-thirds vote of the General Assembly “upon payment in full of principal and interest of the sum embezzled.”  § 16-13-210.

The right to serve on jury is restored only by pardon from the Probation, Parole, and Pardon Board.  S.C. Code Ann. §§ 14-7-810(1), 24-21-920.

Juvenile adjudications do not “operate to impose civil disabilities ordinarily resulting from conviction.”  S.C. Code Ann. § 63-19-1410.

B.  Firearms

Handgun rights are lost upon conviction of a “crime of violence.”  S.C. Code Ann.  § 16-23-30(B), as defined in § 16-23-10(c), see Fernanders v. State, 359 S.C. 130 (2004), 597 S.E.2d 787(S.C. 2004), and restored by pardon.  See Brunson v. Stewart, 547 S.E.2d 504 (S.C. Ct. App. 2001).  There is no provision for restoration other than a pardon (see infra Part IIA, eligibility requirements).

II.  Discretionary Restoration Mechanisms

A.  Executive pardon

Authority

The governor has the authority to grant reprieves and commute death sentences, but all other clemency authority is vested by statute in the Probation, Parole, and Pardon Board.  S.C. Const. art. IV, § 14; S.C. Code Ann. § 24-21-920.  (power transferred by constitutional amendment from the governor to the Board in 1949.  See 26 S.C. Jur., Probation, Parole, and Pardon § 28 (2004)).  The Board has seven members (six of whom are appointed from each of the state’s six congressional districts and one at-large) appointed by the governor to six-year terms.  S.C. Code Ann. § 24-21-10(B) (2011).  The Board chooses its own chair.  Id.

Eligibility

Probationers are eligible upon discharge from supervision and payment of restitution; parolees, after successful completion of five years under supervision, or discharge from supervision, whichever comes first.  S.C. Code Ann. §§ 24-21-950(A)(1) – (A)(3).  No pardon application will be considered until restitution has been paid in full to the victim.   § 17-25-322(E).  See also Applying for a Pardon at https://www.dppps.sc.gov/Parole-Pardon-Hearings/Pardon-Application.  The victim of a crime or a member of a convicted person’s family living within the State may petition for a pardon for a person who has completed supervision or has been discharged from a sentence.  § 24-21-950(A)(5).  After denial, the applicant must wait one year before reapplying.  § 24-21-960(B).  Federal and out-of-state offenders are not eligible.

Effect

Pardon restores all civil rights, gun rights, and the right to be licensed for any occupation requiring a license.  See also S.C. Code Ann. § 24-21-990; § 24-21-940 (“‘Pardon’ means that an individual is fully pardoned from all the legal consequences of his crime and of his conviction, direct and collateral, including the punishment, whether of imprisonment, pecuniary penalty or whatever else the law has provided.”)  This provision is so broad that it precludes using a pardoned conviction as a predicate offense.  State v. Baucom, 531 S.E.2d 922, 924-25 (S.C. 2000).1  See also Brunson v. Stewart, supra (relying on reasoning of Baucom, court found that the denial of a handgun permit is an impermissible collateral consequence,); cf. Effect of Pardon on Admission to Criminal Justice Academy, Op. Att’y Gen., 2002 WL 1340420 (May 16, 2002) (“facts underlying a pardoned conviction can still be considered in determining whether an applicant is suitable for admission to the Criminal Justice Academy”).  Prior to 2005, a pardon was sufficient to remove an individual from the state’s s ex offender registry; however, the registration statute was amended in 2005 so that only a pardon based on innocence now has this effect.  See S.C.Code § 23-3-430(F); Edwards v. SLED, 720 S.E.2d 462 (S.C. 2011).  

A pardon does not expunge the record of conviction, and a pardoned conviction must be reported on job applications. 1984 S.C. Op. Att’y Gen. No. 84-115.

Process

The application process is described at https://www.dppps.sc.gov/Parole-Pardon-Hearings/Pardon-Application.  The process of investigation up to the hearing takes seven to nine months, and longer for out-of-state applicants given the necessity of verifying all references and information.    The Board is required to hold hearings at least four times a year, and in recent years, it has held hearings every two months, at which it is required to allow the applicant to appear.  S.C. Code Ann. §§ 24-21-30(A), 24-21-50.   Hearings are always before the full Board.  § 24-21-30(A).  A non-unanimous vote shall be referred to the full Board to decide by majority.  Id.  An order of pardon must be signed by two-thirds of the Board.  § 24-21-930.  If denied, the applicant must wait one year to reapply.  See § 24-21-960(B).  The pardon application package is available at https://www.dppps.sc.gov/content/download/138528/3154712/file/1118+Pardon+Application+Rvsd+12-19-17+Fillable.pdf.   The statutory application fee of $50, instituted in 1993, recently increased to $100.  § 24-21-960(A).

Frequency of Grants
YearCases heardPardons grantedPercentage granted
2017692481 69.50%
201563641965.88%
201456739363.31%
201383053264.10%
201286955463.75%

Source: Dept. of Probation, Paroles and Pardon Services

Between 2005 and 2013, the Board approved about 50 pardons at each bi-monthly hearing (or about 300 per year), about 60-65% of the cases heard.  These numbers are up from about 200 per year prior to 2005 (same proportion of applications granted.)  Hearing results are posted on the Board’s website at: http://www.dppps.sc.gov/victim_services_hearing_schedules.html.  There are few applications from misdemeanants.

Contact

Pete O’Boyle
Public Information Director
Dept. of Probation, Paroles, and Pardon Services
803-734-9267
Peter.OBoyle@ppp.sc.us.

B.  Judicial sealing or expungement of records

Expungement authorities

The Uniform Expungement of Criminal Records Act of 2009, S.C. Code Ann. §§ 17-22-910 et seq., consolidated provisions for expungement of both conviction and non-conviction records, placed responsibility for processing all eligible conviction records in the county solicitor’s office, and expanded eligibility in a few cases.  See also South Carolina Judicial Department, Frequently Asked Questions About Expungement & Pardons in South Carolina Courtshttps://www.sccourts.org/selfhelp/FAQExpungementPardon.pdf.  The South Carolina Appleseed Legal Justice Center publishes a helpful guide to state expungement law:  https://www.scjustice.org/brochure/sc-expungement-reference-guide/.

In 2018, the South Carolina legislature overrode a governor’s veto to extend eligibility for expungement in several modest but significant ways, including making first-offender drug possession offenses eligible for the first time, eliminating first offender limits on eligibility of summary offenses, and authorizing retroactive relief to first offenders prosecuted prior to passage of the Youthful Offender Act of 2010 who would have been eligible for sentencing under that law.  See H3209 (2018); https://gsabusiness.com/news/government/74723/. In certain circumstances, the new law also allows any number of offenses for which the individual received sentences at a single sentencing proceeding for offenses that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes

                The effective date of the expungement provisions of H3209 is 12/27/18.

First-time drug possession and possession with intent to distribute offenses

First-time drug possession offenses

In 2018, HR 3209 extended eligibility for expungement to first-time drug possession offenses after a 3-year waiting period, see S.C. Code Ann. § 22-5-930(A), and to first-time possession with intent to distribute offenses after a 20-year waiting period. § 22-5-930(B).  These authorities are retroactive, although relief is available only once under these provisions.  

Youthful Offender Act 

The Youthful Offender Act (2010) provides that individuals between the ages of 17 and 25 who are convicted of certain non-violent misdemeanors and Class D, E, or F felonies (felonies which carry a possible term of imprisonment up to 15 years) may be sentenced to probation and/or treatment (certain burglary charges have a mandatory minimum).  S.C. Code Ann. § 24-19-50; § 24-19-10(d) (specifying eligible offenses based on age and offense).  Section 22-5-920 allows for expungement of records of first offenders sentenced pursuant to the YOA following completion of sentence, after five conviction-free years:

If the defendant has had no other conviction during the five-year period following completion of his sentence, including probation and parole,2for a first offense conviction as a youthful offender . . . the circuit court may issue an order expunging the records.  No person may have his records expunged under this section more than once.

Traffic offenses are not eligible for expungement.  § 22-5-920.  In addition, expungement pursuant to this authority is available only once.   The expungement authority applies only to those sentenced pursuant to the 2010 Youthful Offender Act, so that individuals otherwise YOA-eligible for YOA sentencing sentenced prior to 2010 pursuant to that Act is not eligible to have the person’s record expunged.  § 22-5-920(B)(3).

In 2018, the South Carolina legislature extended eligibility for expungement to anyone sentenced prior to 2010 who would have been eligible for YOA treatment, overriding the governor’s veto.   See HR 3209,  http://www.scstatehouse.gov/sess122_2017-2018/bills/3209.htm.   The legislature also authorized graduates of the South Carolina Youth Challenge Academy and the South Carolina Jobs Challenge Program (administered for at-risk youth by the South Carolina Army National Guard), to expunge eligible records immediately upon graduation from both programs, without being subject to the longer waiting periods that would otherwise apply. § 17-22-1010; H 3789.

Summary/misdemeanor offenses (magistrate’s court)

Records of a crime carrying a penalty of not more than thirty days imprisonment or a fine of one thousand dollars, or both, may be expunged upon application to the circuit court if no other conviction after 3 years, or 5 years in the case of domestic violence.  Traffic offenses are not eligible.  S.C. Code Ann. § 22-5-910(A).  In 2018, a provision limiting eligibility to first offenders was repealed by HR 3209.

Miscellaneous criminal records

Expungement is also available for first offender fraudulent check offenses, S.C. Code. Ann. § 34-11-90(e); offenders participating in an alcohol education program, § 17-22-530(A); and first offender failure to stop for law enforcement.   § 56-5-750(F). 

Victims of human trafficking convicted of prostitution or trafficking may move the court to vacate the conviction and expunge the record.  S.C. Code Ann. § 16-3-2020.

Non-conviction records, including diversionary dispositions

If charges are dismissed or the person is found not guilty, all records “must be destroyed and no evidence of the record pertaining to the charge . . . may be retained by any municipal, county or state law enforcement agency.”  S.C. Code Ann. § 17-1-40(B)(1).  There is no fee for expungement of non-conviction records.   As amended in 2016, this section provides that records may be kept by law enforcement and prosecution agencies for three years and 120 days, or indefinitely in case of an on-going investigation, before destruction for administrative purposes.  “The information is not a public document and is exempt from disclosure, except by court order.” Provision is made for disclosure to other parties charged in an on-going investigation.  § 17-1-40(C). 

Deferred adjudication for first-time drug offenders: The court may defer adjudication and place a first-time minor drug offender on probation, and charges will be dismissed if the probation is completed successfully.  S.C. Code Ann. § 44-53-450(A).  Moreover, no conviction results, including for predicate offense purposes.  Id.  Records of arrest may also be expunged.  § 44-53-450(B).3

“The effect of the [expungement] order is to restore the person, in the contemplation of the law, to the status he occupied before the arrest or indictment or information.  No person as to whom the order has been entered may be held pursuant to another provision of law to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge the arrest, or indictment or information, or trial in response to an inquiry made of him for any purpose.”

Pretrial Intervention:  S.C. Code Ann. § 17-22-10 et seq. – Most non-violent first offenders are eligible for pretrial intervention, eventual non-criminal disposition, and expungement.  Standards for admission.  Per section 17-22-60, intervention is only appropriate where

“(1) there is substantial likelihood that justice will be served if the offender is placed in an intervention program; (2) it is determined that the needs of the offender and the State can better be met outside the traditional criminal justice process; (3) it is apparent that the offender poses no threat to the community; (4) it appears that the offender is unlikely to be involved in further criminal activity; (5) the offender, in those cases where it is required, is likely to respond quickly to rehabilitative treatment; (6) the offender has no significant history of prior delinquency or criminal activity; (7) the offender has not previously been accepted in a pretrial intervention program.”

The Court receives recommendations from the prosecutor and the victim.  § 17-22-80.  Section 17-22-150(a) provides for non-criminal disposition upon successful completion of probation and restitution to the victim, and “the offender may apply to the court for an order to destroy all official records relating to his arrest and no evidence of the records pertaining to the charge may be retained by any municipal, county, or state entity.”  Id.  See also § 17-1-40 (A) (“the arrest and booking record, files, mug shots, and fingerprints of the person must be destroyed and no evidence of the record pertaining to the charge may be retained by any municipal, county, or state law enforcement agency”).  “The effect of the order is to restore the person, in the contemplation of the law, to the status he occupied before the arrest.  No person as to whom the order has been entered may be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge the arrest in response to any inquiry made of him for any purpose.”  § 17-22-150(a).

Juvenile records

Expungement is available upon petition to the court for persons older than age 18 who are adjudicated delinquent for a status or nonviolent offense.  S.C. Code Ann. § 63-19-2050(A).  Juveniles are ineligible for expungement if they have a prior adjudication for an offense that would carry a five-year prison sentence for an adult, have not completed their sentence, have subsequently been charged with another offense, or if their offense was a violent crime.  Id. “If the expungement order is granted by the court, the records must be destroyed or retained by any law enforcement agency or municipal, county, state agency, or department pursuant to the provisions of Section 17-1-40.” § 63-19-2050(D). Expungement restores the recipient to same position he was in before the offense, and the person may deny existence of any record.  § 63-19-2050(C).

Procedure for Expungement

Procedure for expungement under all existing authorities is now subject to Uniform Expungement of Criminal Records Act of 2009, S.C. Code Ann. § 17-22-910 et seq..  With two exceptions, all applications for expungement must be made through the Solicitor’s Office in the judicial circuit where the charge originated, which office is responsible for determining eligibility, coordinating with other agencies and with courts, and processing application as necessary.  A fee of $250 applies, except for non-conviction records for which there is no fee.  § 17-22-940.  An applicant may retain counsel to go directly to court to contest the solicitor’s determination of eligibility.  Id.  Typical application instructions (for Office of the Solicitor, Fourteenth Judicial Circuit) can be accessed at http://www.scsolicitor14.org/uploads/Expungement%20APPLICATION.pdf.  

The Solicitor’s Office charges a $250 filing fee for expungement of conviction records, and there may be modest additional fees to obtain copies of record (for a total of $310).  There is no filing fee for expunging dismissed charges (unless dismissed as part of a plea agreement).  HR 3209 modified the fee provisions to authorize private contributions to the Solicitor’s fund to defray costs for those who cannot afford the fee. 

Courts handle expungement of non-conviction records under § 17-1-40, and first offender expungement pursuant to § 22-5-910.

S.C. Code Ann. § 17-22-950(A) allows prosecutors and law enforcement agencies to object to a motion for expungement:

“The prosecuting agency or appropriate law enforcement agency may file an objection to a summary court expungement.  If an objection is filed by the prosecuting agency or law enforcement agency, that expungement then must be heard by the judge of a general sessions court.  Reason for objecting must be that the:

(1)  accused person has other charges pending;

(2)  prosecuting agency or the appropriate law enforcement agency believes that the    evidence in the case needs to be preserved; or

(3)  accused person’s charges were dismissed as a part of a plea agreement.”

Effect of Expungement

Once records have been expunged they are “placed under seal so they are no longer public record . . .  [and] can only be used for limited law enforcement purposes and otherwise can only be disclosed by court order.”  See Appleseed guide, supra.  “The South Carolina Law Enforcement Division is required to keep a nonpublic record of the offense and the date of its expungement to ensure that, [in the case of first offender authorities,] no person takes advantage of the rights” permitted by the various authorities more than once.  See S.C. Code Ann. §§ 22-5-910(C), 22-5-920(C).  “This nonpublic record is not subject to release under . . . the Freedom of Information Act, or [another] provision of law except to those authorized law [enforcement] or court officials who need this information in order to prevent the rights afforded by this section from being taken advantage of more than once.”  Id.  

III.  Nondiscrimination in Licensing and Employment

Most licensed occupations and professions are administered pursuant to a unified scheme under the Department of Labor, Licensing and Regulation, whose director is appointed by the governor and serves as a member of the governor’s cabinet.  S.C. Code Ann. § 40-1-40(D).  Each profession or occupation is administered by a separate board.4  Conviction of a felony, or of a crime or moral turpitude or involving drugs, may be grounds for suspension or revocation of a license.  § 40-1-110(1)(h).  However, a person may not be denied a license “solely because of a prior criminal conviction unless the criminal conviction directly relates to the profession or occupation for which the authorization to practice is sought.”  § 40-1-140.  At the same time, “a board may refuse an authorization to practice if . . . it finds the applicant is unfit or unsuited to engage in the profession or occupation.”  Id.  A person aggrieved by the action of any board may appeal under the state Administrative Procedure Act (“APA”).  § 40-1-160; see Osman v. South Carolina Dep’t of Labor, 676 S.E. 2d 672, 675 (S.C. 2009).

A juvenile disposition “does not disqualify the child in a future civil service application or appointment.”  § 63-19-14-10.

 


  1. See 531 S.E. 2d at 924:The Court of Appeals based its holding on the theory that a pardon involves forgiveness, but not forgetfulness. In other words, a pardon forgives the punishment for a crime, but does not forget or obliterate the act of the commission of the crime. . . . We disagree. The pardon statute relieves the convict of “all the legal consequences of his crime and conviction, direct and collateral, including the punishment, whether of imprisonment, pecuniary penalty or whatever else the law has provided.” S.C. Code Ann. § 24-21-940(A) (1989). Punishment is only one of the consequences absolved by a pardon in South Carolina.  We believe the better way to approach this question is to ask whether enhancement of a subsequent sentence is a collateral legal consequence of the pardoned conviction. The pardon statute states unambiguously that “an individual is fully pardoned from all the legal consequences of his crime and of his conviction, direct and collateral.” § 24-21-940(A). We conclude sentence enhancement is a forbidden collateral legal consequence of a pardoned conviction. The words “any conviction” in the repeat offender statute must be read in light of the plain language of the pardon statute. 
  2. The waiting period was reduced to five years after completion of sentence from 15 years by Section 6 of the Uniform Expungement of Criminal Records Act of 2009. 
  3. The 25-year age limitation was removed by Section 7 of Uniform Expungement of Criminal Records Act of 2009. 
  4. The following boards and the professions and occupations are administered pursuant to this scheme: Board of Accountancy; Board of Architectural Examiners; Athletic  Commission; Auctioneers Commission; Board of Barber Examiners; Accessibility Committee of the Building Codes Council; Building Code Council; Board of Chiropractic Examiners; Contractors’ Licensing Board; Board of Cosmetology; Board of Dentistry; Engineers and Land Surveyors Board; Environmental Certification Board; Board of Registration for Foresters; Board of Funeral Service; Board of Registration for Geologists; Manufactured Housing Board; Board of Medical Examiners; Modular Buildings Board of Appeals; Board of Nursing; Long Term Health Care Administrators Board; Board of Occupational Therapy; Board of Examiners in Opticianry; Board of Examiners in Optometry; Board of Pharmacy; Board of Physical Therapy Examiners; Pilotage Commission; Board of Podiatry Examiners; Board of Examiners for Licensure of Professional Counselors and Marital and Family Therapists; Board of Examiners in Psychology; Board of Pyrotechnic Safety; Real Estate Appraisers Board; Real Estate Commission; Residential Builders Commission; Board of Social Work Examiners; Board of Examiners in Speech-Language Pathology and Audiology; Board of Veterinary Medical Examiners.  § 40-1-40(B). 

Copyright © 2017 – 2019

Restoration of Rights/Rhode Island

I.  Restoration of Civil/Firearms Rights

A.  Voting

Rhode Island Constitution provides that “No person who is incarcerated in a correctional facility upon a felony conviction shall be permitted to vote until such person is discharged from the facility. Upon discharge, such person’s right to vote shall be restored.”  R.I. Const. art. II, § 1.1  The department of corrections acts as a voter registration agency with certain duties as part of the release from prison. See R.I. Gen. Laws § 17-9.2-3.

B.  Jury & public office

A person convicted of a felony “shall not be allowed” to serve as a juror until completion of sentence.  R.I. Gen. Laws § 9-9-1.1(c).  A person is disqualified from public office if convicted of a felony, or a misdemeanor resulting in a jail sentence of six months or more, either suspended or to be served.  R.I. Const. art. III, § 2.  The right is automatically restored three years after completion of sentence or earlier by pardon.  See R.I. Const. art. IX, § 13; R.I. Gen. Laws § 13-10-1.

C.  Juveniles

Juvenile adjudications do not “impose any of the civil disabilities ordinarily resulting from a conviction.”  R.I. Gen. Laws § 14-1-40.

D.  Firearms

A person convicted of a “crime of violence” is prohibited from possessing any firearm. R.I. Gen. Laws § 11-47-5(a).  Prohibition also applies to any person sentenced to community confinement or electronic surveillance. Id. § 11-47-5(c).  “Crime of violence” is defined as specific list of felonies, including felony domestic violence.  Id. § 11-47-2(2).  Restoration of rights may be effected by pardon only, except that persons convicted of felony domestic violence are only prohibited from possessing a firearm for two years following the date of conviction.  Id. § 11-47-5(b).

II.  Discretionary Restoration Mechanisms

A.  Executive pardon

Power vested in governor, “by and with the advice and consent of the senate,” except in cases of impeachment.  R.I. Const. art. IX, § 13.  According to the Office of the Governor, a pardon restores ones right to hold public office and lifts occupational and licensing bars.  There is no express eligibility requirement – the process is unstructured and petitioners must comply with “any rules and regulations respecting [pardon application] filing and hearing that [the governor] may from time to time prescribe.”  See R.I. Gen. Laws § 13-10-1.

Frequency of grants

No pardon to a living person2 has been issued in more than a decade, which may explain the fact that there are only a handful of applicants each year.  (Requirement of going to legislature for consent evidently discourages exercise of power.)  Source: Office of the Governor.

Contact

Andrea Iannazzi
Special Counsel to Governor
401-222-8117
aiannazzi@gov.state.ri.us

B.  Judicial expungement and sealing

Rhode Island law provides for three distinct types of expungement pursuant to R.I. Gen. Laws § 12-1.3-2:  1) “first offenders,” defined as those with a single felony or misdemeanor conviction; 2) those with between two and six misdemeanor convictions; and 3) those who successfully completed deferred sentences.  It also provides additional authority for expunging other deferred dispositions as well as decriminalized offenses, and for sealing non-conviction and juvenile records. Sealing and expungement have been held to be functionally identical.  State v. Faria, 947 A.2d 863, 866, n.3 (R.I. 2008).

1.  First offenders and misdemeanants
Eligibility

First offenders may petition for expungement of the record of conviction after 10 arrest-free years (for felonies) or 5 arrest-free years (for misdemeanors). R.I. Gen. Laws § 12-1.3-3(a), (c), (d).   Waiting periods begin upon completion of sentence.  Id. “First offender” is defined as “a person who has been convicted of a felony offense or a misdemeanor offense, and who has not been previously convicted of or placed on probation for a felony or a misdemeanor and against whom there is no criminal proceeding pending in any court.”  § 12-1.3-1(3).  First offender expungement is unavailable to persons convicted of specified serious violent offenses.  § 12-1.3-2; § 12-1.3-1(1).  In addition, all outstanding court-imposed fees, fines, and any other monetary obligations must have been paid, unless waived by order of the court.

In September of 2017, expungement eligibility was expanded to include individuals with between 2 and 6 misdemeanor convictions, who may petition to expunge those convictions after 10 arrest-free years. §§ 12-1.3-2(b), (f); 12-1.3-3(b)(iii) (added by H-5205 (2017)).  Individuals convicted of a felony at any time are ineligible under this new provision, as are those with pending charges. §§ 12-1.3-2(b); 12-1.3-3(b)(iii). Domestic violence and DUI convictions may not be expunged under this new provision.  § 12-1.3-2(b).  The new provision applies retroactively to convictions that predate its enactment.  H-5205, § 2 (2017).

Procedure

Petitioner must give notice to Attorney General and prosecutor at least 10 days prior to hearing date.  R.I. Gen. Laws § 12-1.3-3(a).  After hearing, court may in its discretion order expungement if it finds that “there are no criminal proceedings pending against the person, and he or she has exhibited good moral character” and that “the petitioner’s rehabilitation has been attained to the court’s satisfaction and the expungement of the records of his or her conviction is consistent with the public interest.” § 12-1.3-3(b).  If the court grants the motion, it shall order all records and records of conviction relating to the conviction expunged and all index and other references to it deleted.  § 12-1.3-3(c).  A copy of the order of the court shall be sent to any law enforcement agency and other agency known by either the petitioner, the department of the attorney general, or the court to have possession of the records.  Compliance with the order shall be according to the terms specified by the court.  Id.

Effect

“Expungement of records” is defined as “the sealing and retention of all records of a conviction and/or probation and the removal from active files of all records and information relating to conviction and/or probation.”  § 12-1.3-1(2).  Expungement releases recipient “from all penalties and disabilities resulting from the crime,” except that it may serve as a predicate offense, for sentencing purposes, in a subsequent prosecution.  § 12-1.3-4(a).  Generally, expungement relieves legal disabilities (including firearms disabilities).  See § 12-1.3-4.  A person whose conviction has been expunged “may state that he or she has never been convicted of the crime” in “any application for employment, license, or other civil right or privilege, or any appearance as a witness,” except that conviction must be disclosed in applications for certain jobs and licenses involving teaching, early childhood education, law enforcement, coaching, and the practice of law.  § 12-1.3-4(b).  Expunged records also remain available to entities charged with hiring and licensing in those specific areas.  § 12-1.3-4(c), (d).  Unauthorized disclosure may lead to civil liability.  § 12-1.3-4(d).

2.  Nolo plea followed by probation

Pursuant to R.I. Gen. Laws § 12-18-3, a person who pleads nolo contendere and is placed on probation without judgment will have no conviction if probation is successfully completed, and sealing is available on same basis as other non-conviction records under § 12-1-12.1(a). Evidence of the nolo plea may not be introduced in any court proceeding, except that it may be provided a court in a subsequent criminal proceeding.  Where the offense constitutes a crime of violence, the plea shall be deemed a conviction for purposes of purchasing a firearm, § 12-18-3(c).

3.  Deferred sentences (deferred adjudication)

Effective in 2016, expungement may be sought immediately upon completion of deferred sentencing under R.I. Gen. Laws §§ 12-19-19(c); 12-1.3-2(d) (enacted by HB-7025, (2016), subsequently renumbered as (e)).  Expungement is discretionary and may be granted only if “the court finds that the person has complied with all of the terms and conditions of the deferral agreement including, but not limited to, the payment in full of any court-ordered fines, fees, costs, assessments, and restitution to victims of crimes; there are no criminal proceedings pending against the person; and he or she has established good moral character.”  § 12-1.3-3(b)(ii).  Specified serious violent offenses are ineligible.  Id.; § 12-1.3-1.  This expungement authority applies to all deferred sentencing agreements, whether completed before or after the enactment of the 2016 law.  HB-7025, § 3 (2016).

4.  Expungement of other deferred dispositions
“Filings”

A post-plea disposition pursuant to R.I. Gen. Laws § 12-10-12 (“Filing of Complaints”) results in the automatic destruction of the complaint after one year of good behavior (no arrests during this year and compliance with all imposed conditions of the “filing”). Conditions of a filing may include restitution totaling less than two hundred dollars, community service, and other conditions determined by the court. There is a three-year waiting period for the destruction of filed domestic violence cases.

Drug Court

Post-plea cases sent to drug court are dismissed and expunged after successful completion of the program. http://www.courts.ri.gov/PublicResources/forms/Superior%20Court%20Forms/Adult%20Drug%20Court%20-%20Contract.pdf.

5.  Expungement of decriminalized offenses

Effective July 2, 2018, a new authority allows a person to file a motion for the expungement of records “related to an offense that has been decriminalized subsequent to the date of their conviction.”   Id. § 12-1.3-2(g); S 2447; H 8355.  The court in which the conviction took place must hold a hearing and may require the person to demonstrate that the prior criminal conviction is decriminalized under current law.  Id. § 12-1.3-3(e).  If the court finds that all conditions of the sentence have been completed, and any related fines, fees, and costs have been paid, the court shall order the expungement without cost to the petitioner.  Id.

6.  Sealing of nonconviction records

R.I. Gen. Laws § 12-1-12.1(a): “Any person who is acquitted or otherwise exonerated of all counts in a criminal case, including, but not limited to, dismissal or filing of a no true bill or no information, may file a motion for the sealing of his or her court records in the case, provided, that no person who has been convicted of a felony shall be entitled to relief under this section except for those records in cases of acquittal after trial.”3 (c) If the court, after a hearing “finds that the person is entitled to the sealing of the records, it shall order the sealing of the court records of the person in that case.” § 12-1-12.1(c).

Wrongful arrests:  Records of arrests determined to be “wrongful” by law enforcement (whether due to mistaken identity, lack of probable cause, or “any other reason”) must be sealed 60 days after the determination if no charges are brought. § 12-1-12.2(b).  See also § 12-1-12.2(f):

The person arrested, detained or otherwise identified as a suspect and who is thereafter exonerated may deny for any purpose that the arrest ever occurred and under no circumstances shall such an arrestee be required to disclose the arrest for any purpose including, but not limited to, any application for employment, professional license, concealed weapons permit or the purchase of a firearm or other weapon.

7.  Juvenile records

Records are automatically sealed, with limited exceptions, upon final disposition of a juvenile case, which includes dismissal, a finding of not guilty, and adjudication and completion of any sentence.  R.I. Gen. Laws §§ 14-1-6.1, 14-1-64(b).  Juvenile adjudication can be used for sentencing purposes in adult court and does constitute a conviction for impeachment purposes.

Frequency of grants

According to statistics compiled by the Rhode Island Judicial Technology Center, as reported in the Providence Journal, in 2014 Rhode Island courts sealed the records of 2,798 felonies and 8,800 misdemeanors, where there was an admission of guilt, a no contest plea, or a conviction. In 2013, the number of expunged cases totaled 13,385, including 2,076 felonies and 10,974 misdemeanors.  http://www.providencejournal.com/article/20150413/NEWS/150419664.  These numbers represent a marked increase from the previous two years:  in 2012, 269 felonies were expunged and 3,929 misdemeanors were expunged, and those numbers represent a 36 percent increase from the 3,091 total expungments granted in 2011.  According to court statistics, in the nine years between 2000 and 2008, Rhode Island courts expunged the records of 42,080 convictions, of which 4,304 were felonies.  The total number of records expunged between 2000 and 2008, including non-conviction dispositions, was 74,941.  The numbers in all categories have been trending upwards each year since 2000.

III.  Nondiscrimination in Licensing and Employment

A.  Generally

Rhode Island has no general law regulating consideration of conviction in employment or licensure.  It applies a direct relationship test in connection with disciplinary action for certain regulated professions, but a higher standard applies for medical and dental licensure.  See R.I. Gen. Laws § 5-37-5.1 (unprofessional conduct includes “Conviction of a crime involving moral turpitude; conviction of a felony; conviction of a crime arising out of the practice of medicine”); id.  § 5- 31.1-10 (same for practice of dentistry and dental hygiene). 

Juvenile court adjudications do not “operate to disqualify the child in any future civil service application, examination, or appointment.”  R.I. Gen. Laws § 14-1-40.

B.  Certificate of recovery & re-entry

Effective July 1, 2014, a person with no more than one non-violent felony conviction may apply to the Parole Board for a “certificate of recovery & re-entry” which may serve to “relieve the petitioner, in appropriate cases, of some of the collateral consequences resulting from his or her criminal record.” R.I. Gen. Laws § 13-8.2-1.  Specifically, the certificate may “serve as one determining factor as to whether the petitioner has been successful in his or her rehabilitation.” See also § 13-8.2-2(5)(a certificate “shall serve as one determining factor, consistent with concerns of public safety, of the person’s ability to obtain employment, professional licenses, housing and other benefits and opportunities. Provided, further, that said instrument shall serve as a determination that the person receiving it has successfully achieved his or her recovery & re-entry goals as provided for in § 13-8.2-4.”)  Eligibility criteria are established in § 13-8.2-2(4)(no more than one felony conviction) and (8) (violent crimes ineligible), and those with convictions from other jurisdictions are eligible to apply.  The “minimum period of recovery & re-entry” is one year where the most serious conviction is a misdemeanor, and three years for a non-violent felony.  The waiting period “shall be measured either from the date of the payment of any fine imposed upon him or her, or from the date of his or her release from the institutional facility, custody by parole or home confinement, whichever is later.”  The certificate does not result in expungement or sealing, or limit the procedure for applying for a pardon. § 13-8.2-6.

C.  Ban-the-Box

R.I. Gen. Laws § 28-5-7(7) prohibits as an unlawful employment practice any inquiry orally or in writing to an applicant for public or private employment about arrests and (effective January 1, 2014) convictions until the first interview.The statute includes an exception for positions related to law enforcement agencies, positions for which federal or state law or regulation creates “a mandatory or presumptive disqualification from employment” based upon conviction, and positions for which the requirement of a standard fidelity bond would require disqualification based upon conviction.


  1. Prior to 2006 constitutional amendment, art. II, § 1 provided that “No felon shall be permitted to vote until completion of such felon’s sentence, served or suspended, and of parole or probation.”  That provision, approved by the voters in 1986, replaced a provision requiring persons convicted of a felony wishing to regain the vote to petition the General Assembly.
  2. In 2011, Governor Chafee issued a pardon to a man who was infamously hanged in 1845 who many believe was wrongfully convicted of murder.  The pardon was ostensibly granted to recognize and uphold the state’s commitment to opposing the death penalty.  See Rhode Island Government Press Releases, Governor Lincoln D. Chafee Pardons John Gordon (June 28, 2011), available at http://www.ri.gov/press/view/14182. 
  3.  Probationary sentences following a nolo contendere plea to a felony are not considered convictions for the purpose of determining sealing eligibility.  § 12-18-3(a); see also State v. Poulin, 66 A.3d 419 (R.I. 2013). 

Copyright © 2017 – 2019

Restoration of Rights/Puerto Rico

I.  Restoration of Civil/Firearms Rights

A.  Civil Rights

Puerto Rico’s constitution provides that “[s]uspension of civil rights including the right to vote shall cease upon service of the term of imprisonment imposed.”  P.R. Const. art. II, § 12.  According to the Puerto Rico Board of Parole, the Governor of Puerto Rico has taken the position since the early 1980’s that the right to vote during imprisonment has not been suspended, so that prisoners may vote.  In any event, all civil rights are automatically reestablished to a convict who has served his sentence, without any intervention on the part of the Governor being necessary; executive clemency remains limited to eliminating the collateral consequences that exist independently of the convict’s civil and political rights, including obtainment of a license to practice certain professions, driver’s license impairment, carrying of weapons, etc..   1960 P.R. Op. Sec’y Justice No. 33.

B.  Firearms

Firearms rights are lost upon conviction of a felony.  P.R. Laws Ann. tit. 25, § 456j.  Firearms rights may be restored through executive pardon, P.R. Const. art. IV, § 4 (local violations only); or judicial expungement (referred to as “elimination”), P.R. Laws Ann. tit. 34, § 1725a-1 et seq. (subject to waiting period and other conditions).

II.  Discretionary Restoration Mechanisms:

A.  Executive pardon

Authority

The governor alone has authority to pardon violations of local law.  P.R. Const. art. IV, § 4.  He is required to keep a record of all pardons and “official signatures and recommendations in favor of each application.”  P.R. Laws Ann. tit. 3, § 10(1).  The Parole Board may make non-binding advisory recommendations to Governor.

Eligibility

There are no formal eligibility restrictions, but informal policy of recent governors has imposed a five-year waiting period following completion of sentence.  The governor’s pardon power does not extend to federal offenses.  P.R. Const. art. IV, § 4.

Effect

A grant of full pardon “erases forever” a conviction.  1960 P.R. Op. Sec’y Justice No. 33.  The pardon document by its terms “eliminates” the conviction from police and court records. 

Process

The pardon process is administered by the Puerto Rico Board of Parole. See http://www.jlbp.gobierno.pr/.  See also http://www2.pr.gov/agencias/jlbp/Documents/Clemencias/PROCEDIMIENTO%20PARA%20SOLICITARCLE.pdf (Spanish-language description of the executive clemency process).  An English-language application form can be found at http://www.cjpf.org/old/clemency/PuertoRicoApp2.pdf.  The Corrections Department makes recommendation to the Parole Board, which in turn makes recommendation to the governor.  See ; see also P.R Laws Ann. tit. 3, § 292n (Secretary of Justice must investigate and report to governor on all applications for pardon and commutation referred to him).  There is no hearing and the process usually takes about one year.

Frequency of Grants

Fewer pardon applications have been filed since the expungement law was expanded in 2005.  See Part IIB. 

Pardon grants by year (Source: Parole Board)

YearPardon applications filedPardons granted
201211514
2011997
20108911
20091180
200811738
2007877
Contact

Ana T. Dávila Laó
Chair, Puerto Rico Board of Parole
P.O. Box 40945
Minillas Station
San Juan, Puerto Rico 00940
PH: 787-754-8115, ext. 4232
Adavila@jlbp.gobierno.pr

Evelyn Lopez-Cuevas
elopez@jlbp.gobierno.pr

B.  Judicial sealing or expungement of adult felony convictions

Expungement authority

Courts have broad expungement authority applicable to all misdemeanors and felonies under P.R. Laws Ann. tit. 34, § 1725a-1 et seq. (Chapter 118 is entitled “Criminal Records Certificates”). 

Eligibility

Puerto Rico Police Department authorized to issue a “Criminal Record Certificate” containing record of convictions and open cases.  P.R. Laws Ann. tit. 34, § 1725.  Any person convicted of any felony (except “those subject to the Register of Persons Convicted for Violent Sexual Crimes and Abuse of Minors [or] to the Register of Persons Convicted for Corruption”) may apply to the “Court of First Instance” (trial court) to issue an order for the “elimination” of the conviction record from the Criminal Record Certificate five years after completion of sentence, as long as no further crimes have been committed, and if “the person has a good reputation within the community” and the person has been subjected to providing a DNA sample, if required to do so.   § 1725a-2.  Misdemeanors are eligible for this relief six months after completion of sentence, without any requirement of providing a DNA sample.  § 1725a-1.  Appeal of the decisions of the trial court is provided for in § 1725a-3.   

Certification of Rehabilitation for Prison Inmates

In addition to § 1725a, the new penal code authorizes the Secretary of Corrections to a file motion with the court in which he may certify that a person who has not completed his prison term has been totally rehabilitated.  P.R. Laws Ann. tit. 4, § 1611 et seq. (“Constitutional Mandate for Rehabilitation”).  The Department of Corrections and Rehabilitation must supply a psychological evaluation and recommendation stating that the convicted person is qualified to live in the community at large.  § 1615.  The Secretary of Justice and victim may respond, and the court may then issue a certificate attesting to rehabilitation, “duly justified by means of an evaluation of the overall adjustment and social behavior of the inmate during his/her confinement in compliance with the rehabilitation plan.”  Id.  If the court rules in favor of the rehabilitation certification, it shall “direct the Police Superintendent not to include the conviction into the Criminal Record Certificate, but to maintain it in the history of the convict solely for recidivism purposes.”  Id.

Contact

Alexis Bird
Department of Corrections Legal Counsel’s Office
787-224-8103
Comments

Comments

In Puerto Rico’s hotly contested elections, the prisoner vote (including prisoner families) is considered very important (represents 50,000 votes). 

III.  Nondiscrimination in Licensing and Employment: N/A

Copyright © 2017 – 2019

Restoration of Rights/Pennsylvania

Last updated:  July 2, 2019 

I.  Restoration of Civil/Firearms Rights  

A.  Civil rights

No person “confined in a penal institution” is eligible to vote.  25 P.S. §§ 2602(w), 3146.1.1  The right to vote is restored automatically upon release from prison.  United States v. Essig, 10 F.3d 968 (3d Cir. 1993).  The disability has been interpreted to apply only to persons convicted of a felony. 1974 Pa. Op. Att’y Gen.  No. 47 (Sept. 11, 1974). 2

A person convicted of a crime punishable by imprisonment for more than one year is ineligible to serve as a juror unless pardoned. 42 Pa. Cons. Stat. § 4502(a)(3).3 

Persons convicted of embezzlement of public moneys, bribery, perjury or “other infamous crime” (any felony under Pennsylvania state law) may not be elected to the General Assembly or hold any “office of trust or profit” in the state, unless pardoned.  Pa. Const. art. II, § 7.  Whether an out-of-state conviction constitutes an “infamous crime” depends upon the facts.4  (This disability has been interpreted to apply only to elected or appointed office, and not to mere public employment.)  Like jury service, this disability is removed only upon a governor’s pardon.  Pa. Const. art. IV, § 9(a).  See also 37 Pa. Code ch. 81.

Juvenile adjudications do not “impose any civil disability ordinarily resulting from a conviction.”  42 Pa. Cons. Stat. § 6354.

B.  Firearms

The following crimes result in the loss of firearm rights:  conviction of specified felony offenses (usually involving violence); drug crimes punishable by a term of imprisonment exceeding two years; three or more DUI offenses within a period of five years; domestic violence offenses; and additional specified criminal conduct.  See 18 Pa. Cons. Stat. §§ 6105(a) through (c).  Section 6105(d) provides that a disqualified person may obtain relief from a court in the person’s county of residence under certain conditions, including where the person has been granted a full pardon or the conviction has been vacated, or where ten years have passed since release from incarceration.5  See also id. § 6105.1 (relief for those convicted of offenses that no longer carry firearms disability).  Applicable procedures are set forth in section 6105(e), which include potential participation of county commissioner, district attorney, and the victim.

II.  Discretionary restoration mechanisms

A.  Executive pardon

Authority

Under the Pennsylvania Constitution, the governor has power to pardon, but he may not act unless he receives a favorable recommendation from a majority of the Board of Pardons (unanimous in the case of life sentences).  Pa. Const. art IV, § 9(a):

[N]o pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, and in the case of a sentence of death or life imprisonment, on the unanimous recommendation in writing of the Board of Pardons, after full hearing in open session, upon due public notice.

Administration

The Board of Pardons is composed of the lieutenant governor, who serves as chairman; the attorney general; and three members appointed by the governor for six year terms with the approval of a majority of the members elected to the Senate.  Pa. Const. art. IV, § 9(b).  The three appointed members must consist of a corrections expert; a crime victim representative; and a doctor of medicine, psychiatrist or psychologist.  Id.

Eligibility

There is no eligibility waiting period; even prisoners may apply. (Consideration currently being given to inaugurating an eligibility waiting period to ease administrative burdens, subject to waiver.)  Convictions obtained in other jurisdictions are not eligible for Pennsylvania pardon.

Effect

Pardon restores all rights lost as a result of a conviction, and entitles the recipient to judicial expungement.  Commonwealth v. C.S., 534 A.2d 1053, 1054 (Pa. 1987) (“There is no way that the state can retain the record of a former criminal who is ‘as innocent as if he had never committed the offense.’ A pardon without expungement is not a pardon.”) (citations omitted)  A pardoned or expunged conviction may not be considered in a licensing decision.  18 Pa. Cons. Stat. § 9124(b).  According to the Board of Pardons, most disabilities in Pennsylvania are “disabilities by choice” as opposed to “disabilities by law.” That is, they are self-imposed as opposed to legislatively imposed.  Accordingly, most pardon applicants seek a pardon for forgiveness, which is accepted by employers and others as sufficient to overcome self-imposed disabilities.  The Board of Pardons has shown itself reluctant to relieve disabilities imposed by the legislature, with the exception of hunting rights, and refers individuals seeking such relief to restoration provisions provided by the legislature, either generally or in connection with a particular collateral consequence (see Part IIIA, below).

Standards

Standards for Granting Pardon are set forth on the Board’s website.  See Factors Considered by the Board, Pennsylvania Board of Pardons, http://www.bop.pa.gov/application-process/Pages/Factors-Considered-by-the-Board.aspx#.Vw0jqaQrKCp (approved Aug. 15, 2012).  Factors considered by the Board include time since conviction (“the more serious, or numerous, the crime(s), the greater the period of successful rehabilitation that the applicant should be able to demonstrate”); successful completion of sentence and rehabilitation (“Successful rehabilitation may also be demonstrated by positive changes since the offense(s) in applicant’s career, education, family or through community or volunteer service, particularly in areas that relate to the offense(s).”); and need for pardon.  In that regard, the “Factors” section of the Board website states:

The applicant should identify a specific need for clemency, e.g., a particular job that applicant cannot get, or some particular activity that he/she cannot participate in without clemency. as opposed to the more general answers of “employment purposes” or “to put this behind me” that applicants frequently use. Except in extraordinary circumstances, the Board does not view a pardon as an appropriate means of restoring any disability that has been imposed pursuant to a state law, e.g., suspension of driver’s license, revocation of professional or business licensure, etc. Rather, the Board generally defers to the General Assembly and the means of restoration provided for in the law in question.

Process

Process as provided in the state constitution and administrative code is spelled out on the Board’s website.  See Rules and Regulations, Pennsylvania Board of Pardons, http://www.bop.pa.gov/application-process/Pages/Rules-and-Regulations.aspx#.Vw0kMqQrKCp. In no case may pardon be recommended without a public hearing, and “due public notice.”  Pa. Const. art. IV, § 9.   

In March 2019, the Board eliminated all fees for applying for pardon, and made its application available on line free-of charge.  (Previously there was an $8 fee to obtain the application form, and further filing fees totaling $65. which were determined to “discourage remorseful people from
pursuing help with cleaning up their records.”)  The Board also eliminated two other burdensome and time-consuming requirements:  a full criminal history from the State Police, and a full driving history from PA’s Department of Transportation.  The Bloard’s new Secretary installed in April 2019 is expected to make additional changes to streamline the process.   

The application includes questions relating to offenses and subsequent rehabilitation.  An individual must submit the application and ten copies, and five passport-type photos.   37 Pa. Code §§ 81.221, 81.222, 81.225.  The application is public and may be inspected.  § 81.227.  Agents from the Pennsylvania Board of Probation and Parole conduct investigations for the Board of Pardons.  § 81.226(a).  Applications are sent to the trial court; to the district attorney of the county from which the applicant was sentenced; and to the correctional institution (if the applicant is confined) for recommendation.  Id.  After all pertinent information has been compiled, the application will be reviewed for listing in a subsequent month’s calendar.

On merit review by the Board on non-capital cases, two votes are required for a public hearing, except that a vote by a majority of the Board is required for prisoners serving life sentences or sentences for crimes of violence.  37 Pa. Code § 81.231.  If a hearing is denied, the application will also be deemed denied at that time and the applicant will be notified of the final adverse decision in writing.  § 81.226(b).  The applicant and the person representing the applicant will be advised whether or not a public hearing is granted, as well as the time and place of the hearing.  The Board generally follows a strict “first in, first out” policy, so that even exigent cases (e.g., deportation cases) must join a large backlog. See Frequently Asked Questions, Pennsylvania Board of Pardons, http://www.bop.pa.gov/application-process/Pages/Frequently-Asked-Questions.aspx#.Vw1dcqQrKCo (last visited April 4, 2016).  The Board’s website states, “At the current rate, it is taking approximately 3 years from receipt of an application until the Board members merit review the application to determine if a hearing will be granted.” Id. 

When a hearing is granted, applicants must appear personally before the Board unless the person is confined.  37 Pa. Code § 81.281.  In every case prior to the public hearing, a legal notice will be published in a newspaper of general circulation in the county or counties where the applicant committed the crime(s) for which he/she is seeking clemency.  § 81.233.  The notice will include the applicant’s name, conviction, and the date and place of the hearing.  Id.  Hearings of the Board are public and a record is kept.  § 81.263.  In non-capital cases 15 minutes is allotted to each side for presentation. § 81.292(a).  The Board conducts its deliberations in executive session after a public hearing, but its decisions are announced publicly.  § 81.301(a).

Under the Constitution, any recommendation of the Board is by majority, except that it must be unanimous in capital and life sentence cases.  Pa. Const. art IV, § 9(a).  The Board provides the governor with a written recommendation in every case, including the reasons (“at length”) for its recommendation.  Id.

The Community Legal Services of Philadelphia website has excellent description of Pennsylvania’s pardon process.  See https://clsphila.org/get-help/pardons.

Frequency of grants 

See year-by-year statistics since 1999 at the Board website, http://www.bop.pa.gov/Statistics/Pages/Statistics-by-Year.aspx#.Vu9I6PkrLcs:  

Applications receivedGranted merit review Granted public hearing Recommended favorably Granted by Governor Denied by Governor
201852857424420100
201756134519716600
2016521502363287780
201550345015211210738
201454839713283813
201332239916011114914
2012 38126915410410713
201152633014096740
20105843581381201640
2009 5904202021821752
20086545102271941400
200765537019513818111
20066683601831459913
200561736018314018512
200457840620015110115
200356435517915412913
20024883141641271093
20013672751381221596
2000332245104876915

Source:  Pennsylvania Board of Pardons (last viewed 12/18/17).
*Note: Applications, reviews and hearings include pardon and commutation.
Recommendations, grants, and denials refer to pardons only.

Comments

The number of applications filed with the Board doubled between 2000 and 2008, but stabilized after passage of an expungement law in 2009 addressed some of the employment issues faced by those convicted of very minor “summary” offenses (typically retail theft), which prevented an individual from working in an educational institution, health care, and other professions.  More recently, a law providing sealing for many misdemeanors should further reduce the burden on the clemency process.

Contact

Steven R. Burk
Executive Secretary Board of Pardons
33 Market Street, 15th
Harrisburg, PA 17126-0333
717-787-8125
mnimoh@pa.gov
www.bop.state.pa.us.

B.  Judicial sealing or expungement

1.  Sealing of conviction records (“order for limited access”)
a.   Low-grade misdemeanors and ungraded offenses

Effective November 14, 2016, eligible persons may petition to seal records of 2nd and 3rd degree misdemeanors and ungraded offenses carrying a penalty of no more than two years under an “order for limited access.” See 18 Pa. Cons. Stat. § 9122.1 (added by 2015 Pa. SB 166).   A 10-year waiting period from completion of the sentence applies, during which time the petitioner may not have been arrested or prosecuted for any other offense.  § 9122.1(a)(1).  Per amendments made in 2018, a petitioner must have “completed each court-ordered financial obligation of the sentence.”  Id.  Petitions must be filed in the court of conviction, and they may be granted without a hearing if the prosecutor does not object.  § 9122.1(c).  A $132 filing fee is required.  42 Pa. Cons. Stat. § 1725.7(a).

Persons with certain prior convictions are ineligible for sealing:  if the person has at any time been convicted of any offense punishable by more than two years’ imprisonment; four or more offenses punishable by imprisonment of one or more years; and a number of additional listed crimes, including simple assault (except in the 3rd degree), witness intimidation, and sexual offenses requiring registration. See § 9122.1(b).

b.  2018 Clean Slate Act amendments to sealing eligibility and procedure

The so-called Clean Slate Act of 2018 made several significant changes in the 2016 sealing law, expanding eligibility for court-ordered sealing relief (now styled “sealing by petition”) to some first degree misdemeanors and further limiting dissemination of sealed conviction records.  See 18 Pa. Cons. Stat. § 9122.1, as amended by 2018 Act 56 (Pa. HR 1419).

Perhaps most unusual, the 2018 law addresses older records, and provides for automated sealing (“clean slate” sealing) without the need for filing a court petition or paying a filing fee, for a range of offenses that is similar (though not identical) to those eligible for court-ordered sealing. See § 9122.2, as added by 2018 Act 56.   The new law specifies a process (described below) whereby the Administrative Office of the Courts and the State Police will identify cases whose records are eligible for “clean slate” sealing, lists of which will then be submitted to the commonwealth courts on a regular monthly basis for a judicial “order of nondisclosure.”

The legislative findings include that “after less violent individuals convicted of crimes have served their sentences and remained crime free long enough to demonstrate rehabilitation, the individuals’ access to employment, housing, education and other necessities of life should be fully restored.”  See Act 56, findings.  Here again, eligibility depends upon individuals having “completed each court-ordered financial obligation of the sentence.”  § 9122.1(a).

The 2018 law also authorizes automated “limited access” to records not resulting in conviction, and makes minor modifications in the law relating to dissemination of non-conviction records by police departments.  See below.

Effective date:  The amendments enlarging eligibility for sealing by petition under § 9122.1 are effective December 26, 2018, while many other provisions of the Act are effective June 28, 2019.  The courts and state police are directed by law to identify all cases eligible for automated sealing between June 28, 2019 and June 27, 2020.  Indications are that implementation will be done in phases during that period.

2018 Expanded eligibility for court-ordered limited access (“sealing by petition”):  In addition to second- and third-degree misdemeanors, 2018 Act 56 provides that, effective December 28, 2018, certain first degree misdemeanors carrying a potential penalty of two years or less, and ungraded offenses carrying a penalty of up to five years, will be eligible for court-ordered sealing by petition after a 10-year period in which the individual has been free of conviction for an offense carrying a prison term of one year or more (as opposed to free of arrest or prosecution for ten years running from completion of sentence, as under the 2016 law).  However, it adds a new condition of eligibility that all court-ordered financial obligations of the sentence must have been satisfied.  See § 9122.1(a), as amended by 2018 Act 56.  The court may not order sealing for certain offenses involving violence, firearms, or sexual misconduct that are punishable by more than two years in prison. See § 9122.1(b)(1), as amended by Act 56.  These amendments make at least some first-degree misdemeanors eligible for sealing for the first time.

The 2018 Act also narrows the types of prior convictions rendering a person ineligible for court-ordered sealing to the following:

  • Conviction of first degree felonies punishable by imprisonment of 20 years;
  • Conviction within 20 years of felonies punishable by seven or more years in prison that involve crimes against the person or against the family, firearms, or sexual offenses requiring registration; 
  • Conviction of four or more offenses punishable by imprisonment of two or more years; or
  • Conviction within 15 years of two or more offenses punishable by more than two years in prison, or a number of specific offenses, including indecent exposure, crime involving weapons or implements for escape, sex with animals, or failure to comply with registration requirements.

See § 9122.1(b)(2).

2018 Eligibility for automated “clean slate” limited access:  Eligibility for automated sealing under the new § 9122.2 is similar to but not exactly the same as eligibility for court-ordered sealing.  In addition to second- and third-degree misdemeanors, any misdemeanor punishable by imprisonment of no more than two years is eligible.  The same 10-year conviction-free waiting period applies as applies to court-ordered sealing.  The new provision does not mention “ungraded offenses,” but specifically authorizes sealing of summary offenses after 10 years (without the proviso that the 10-year period should be conviction-free).  Criminal history information “pertaining to charges that resulted in a final disposition other than a conviction” may be automatically sealed with no waiting period. See § 9122.2(a)(1) through (3).

The same crimes ineligible for sealing by petition are also ineligible for automated sealing.  See § 9122.3(a).

However, the categories of prior offenses that make an individual ineligible for sealing are broader:

  • Conviction of a felony at any time;
  • Conviction of two or more offenses punishable by imprisonment of more than two years;
  • Conviction of four or more offenses punishable by imprisonment of one or more years; or
  • Conviction of any of the offenses in the catchall category in § 9122.1(b)(2). 

See 9122.3(b)(2).

In addition, unlike sealing by petition, automated sealing is not available to an otherwise qualifying conviction if a conviction punishable by five or more years or an ineligible offense arose out of the same case. § 9122.3(b)(3).

Any case ineligible for “clean slate” sealing may proceed by court petition.  § 9122.3(c). 

Procedures for “clean slate” sealing:  Specific procedures governing automated sealing are set forth in § 9122.2(b).   They include monthly transmission by the Administrative Office for the Courts to the State Police central records repository of any record eligible for sealing, and application of a validation process by the State Police to winnow out ineligible records.  Each court of common pleas shall issue monthly orders of limited access covering all cases on the list returned by the State Police.  Section 4 of the 2018 Act 56 provides that cases eligible for “clean slate” limited access shall be identified by the State Police and the courts within 365 days of the law’s enactment.  See effective date discussion above.

Vacatur of sealing order2018 Act 56 also provides authority for a court to vacate an order for “clean slate” limited access upon petition by the prosecuting attorney, if the court determines that the order was issued erroneously, or if the order involved a conviction and its recipient is subsequently convicted of a misdemeanor or felony.  See § 9122.4.

c.  Effect of sealing

Unlike expunged records, records sealed under an “order for limited access” are not destroyed and remain available to criminal justice agencies, to agencies such as the Department of Human Services for child protective services uses, and to state professional and occupational licensing agencies.  18 Pa. Cons. Stat. § 9121(b.1) and (b.2).  Sealed records may not be disseminated to the general public, private employers, or landlords.  Additionally, unless requested by an agency to whom disclosure is already authorized, “no individual shall be required nor requested to disclose information about the person’s criminal history records that are the subject of” an order for limited access. § 9122.1(a)(2).

Limits on access by licensing boards:   The 2018 Act 56 further limits access to sealed records.  Effective June 28, 2019, state licensing agencies will no longer have access, and access will be permitted only under a court order in cases involving child custody or civil liability for negligent hiring.  Limits on access do not apply where federal law requires consideration of an applicant’s criminal history for purposes of employment, or where the Supreme Court requires information relating to judicial administration or the practice of law.  See § 9121(b.2) (as amended by 2018 Act 56).

Voluntary disclosure:  The 2018 Act also provides in a new § 9122.5 that individuals whose records have been expunged or are subject to limited access may not be required or requested to disclose related information, and “may respond as if the offense did not occur.”  That section does not apply if federal law, including rules of a federal regulatory agency, requires disclosure.  However, an expunged record or record subject to limited access may not be considered a conviction prohibiting employment under any state or federal laws that prohibit employment based on state convictions “to the extent permitted by Federal law.”

Employer immunity from liability:  The 2018 Act grants an employer immunity from liability for any misconduct of an employee “if the misconduct relates to the portion of the criminal history that has been expunged or provided limited access.” § 9122.6.

2.  Expungement of minor convictions, non-conviction records & juvenile adjudications
        a.  Eligible convictions  

Summary offenses

Courts may expunge records of “summary offenses” only if the individual who is the subject of the record petitions the court, and has been free of arrest or prosecution for five years following the conviction for that offense. 18 Pa. Cons. Stat. § 9122(b)(3)(i); 234 Pa. Code Chs. 4 and 7.6

        Elderly offenders

The court may also order that conviction records be expunged where a person has reached age 70 and been arrest-free for 10 years following final release from confinement or supervision, or when the person has been dead for three years. 18 Pa. Cons. Stat. § 9122(b)(1) and (b)(2).

       Underage drinking

Under a 2004 law, expungement is mandatory in summary convictions for underage drinking under 18 Pa. Cons. Stat. § 6308, if the applicant is over 21 at the time of asking for expungement. § 9122(a)(3).

        Pardoned offenses

A gubernatorial pardon entitles the recipient to judicial expungement. Commonwealth v. C.S., 534 A.2d 1053 (Pa. 1987).

b.   Sealing and expungement of non-conviction records 

Nondisclosure of arrest records and non-conviction records subject to “order of limited access”:  Arrest records and related records may not be disclosed to the public if three years has elapsed with no disposition indicated and no proceedings pending. 18 Pa. Cons. Stat. § 9121(b)(2)(i).  This provision was amended by 2018 H.R. 1419 (Clean Slate Act), effective June 28, 2019, to provide for nondisclosure of arrest and related records relating to a non-conviction final disposition that is subject to a court order for limited access as provided for in section 9122.2 (relating to clean slate limited access).  § 9121(b)(2)(iii).  Note that H.R. 1419 amended § 9122.2(a)(2) to provide for an automatic “order of limited access” for “Criminal history record information pertaining to charges which resulted in a final disposition other than a conviction.”   An order will issue “within 30 days after entry of the disposition and payment of each court-ordered obligation.” § 9122.2(b)(2)(i).   

Expungement by motion to court:  Expungement is available from the court for non-conviction records where no disposition is indicated after 18 months, or otherwise where the court orders it, including in cases handled pursuant to Accelerated Rehabilitative Disposition (pre-plea diversion) where the defendant successfully completes the terms of ARD probation (except for certain sex offenses).  18 Pa. Cons. Stat. §§ 9122(a), (b) and (b.1).  ARD probation is available for first offenders in summary cases, pursuant to Pa. R. Crim. P. 300 et seq.   See also infra, on constitutional right to expungement of arrest records.  For explanation of expungement procedure in ARD cases, see Foxworth v. Pennsylvania State Police, 402 F. Supp. 2d 523, 527-28 (E.D. Pa. 2005) (Pennsylvania State Police may reject applicant with prior record of ARD disposition, notwithstanding 18 Pa. Cons. Stat. § 9124(b)).

Expungement is also available in cases of probation without verdict for nonviolent drug dependent first time offenders pursuant to the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-117; see also § 780-119.  Records expunged under this authority may be used only for determining eligibility for probation without verdict under that law’s authority.  § 780-117(3).  See Commonwealth v. Benn, 675 A.2d 261 (Pa. 1996) (district attorney abused his discretion in denying individual admission to ARD program based on records expunged pursuant to 35 P.S. § 780-117).  

c.  Juvenile records

Expungement with complete destruction of records is available.  18 Pa. Cons. Stat.  § 9123.  Eligibility begins when one of the following criteria are met:  the charges were dropped; six months have elapsed since a discharge from a consent decree or supervision; five years have elapsed since a delinquency adjudication; or a juvenile reaches age 18.    Once eligible, a person may petition the court; the petition is granted in 30 days unless the DA shows good cause as to why it should not be.  Id.  Prosecutors retain adjudication information following expungement, and the information will be disclosed to law enforcement agencies upon request. § 9122(c).  

In 2018, Section 3 of HR 1419 modified provisions relating to public disclosure of law enforcement records of juvenile adjudications, establishing new standards depending on whether the conduct occurred before or after the age of 14.  See §§ 6307(b) and 6308(b) of Title 42, as amended by 2018 HR 1419.

d.  Effect of expungement

“Expunge” is defined in 18 Pa. Cons. Stat. § 9102 as:

(1) To remove information so that there is no trace or indication that such information existed;

(2) to eliminate all identifiers which may be used to trace the identity of an individual, allowing remaining data to be used for statistical purposes; or

(3) maintenance of certain information required or authorized under the provisions of section 9122(c) (relating to expungement), when an individual has successfully completed the conditions of any pretrial or posttrial diversion or probation program.

Once a conviction has been expunged, an offender may deny that he was ever convicted.  Commonwealth v. C.S., 534 A.2d 1053 (Pa. 1987).  Expunged records are destroyed, except that the prosecuting attorney and the central repository shall, and the court may, maintain a list of the names and other criminal history record information of persons whose records are expunged after the individual has successfully completed the conditions of any pretrial or post-trial diversion or probation program.  See Hunt v. Pa State Police, 983 A.2d 627, 633 (Pa. 2009) (“[i]n general terms, expungement is simply the removal of information so that there is no trace or indication that such information existed”).  Such information shall be made available to any court or law enforcement agency upon request, but may be used solely for the purpose of determining subsequent eligibility for diversion programs, probation, and expungement, and for identifying persons in criminal investigations.  18 Pa. Cons. Stat. § 9122(c).

Pardoned or expunged convictions may not be considered by a licensing board, 18 Pa. Cons. Stat. § 9124(b), nor may summary offenses.  Id.  See Part III, infra.

e.  Constitutional right to expungement of non-conviction records

The Pennsylvania courts recognize an individual’s constitutional right, in certain circumstances, to have his or her arrest records expunged.  See, e.g., Commonwealth v. Armstrong, 434 A.2d 1205, 1206 (Pa. 1981); Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa. 1981); Commonwealth v. Malone, 366 A.2d 584, 587-88 (Pa. Super. Ct. 1976) (noting serious losses that can be caused by an arrest record, including reputational and economic injury).  This right is an adjunct of due process and is not dependent upon express statutory authority.  Armstrong, 434 A.2d at 1206.  “In determining whether justice requires expungement, the Court, in each particular case, must balance the individual’s right to be free from the harm attendant to the maintenance of the arrest record against the Commonwealth’s interest in preserving such records.”  Wexler, 431 A.2d at 879.  The factors that must be considered in making such a determination include, but are not limited to:

[T]he strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.

Id. (quoting Commonwealth v. Iacino, 411 A.2d 754, 759 (1979) (Spaeth, J., concurring)).  The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth.  See Commonwealth v. Waughtel, 999 A.2d 623, 624-25 (Pa. Super. 2010).

f.  Partial sealing, partial expungement

Pa. Cons. Stat. § 9122.2(a)(2) authorizes an order of limited access for  “[c]riminal history record information pertaining to charges which resulted in a final disposition other than a conviction”).

In addition, courts have inherent authority to redact conviction records to expunge charges not resulting in conviction under certain circumstances.  See Commonwealth v. Hanna, 964 A.2d 923 (Pa. Super. 2009), summarizing Pennsylvania caselaw holding that a defendant has a right to a hearing as to whether charges nol prossed may be expunged where the defendant has been convicted of one or more of the charges in an indictment, whereas changes dismissed pursuant to a plea agreement may not.  See Commonwealth v. Lutz, 788 A.2d 993 (Pa.Super.2001).  The theory is that dismissal of charges in a plea agreement is a contractual undertaking that binds the defendant, whereas the prosecutor’s decision not to prosecute particular charges is presumed to be because of an absence of proof.

3.  Restoration of firearms rights

Firearms rights may be restored by county court if a conviction has been vacated or pardoned, or if 10 years passed since most recent conviction (excluding time spent in prison).  18 Pa. Cons. Stat. § 6105(d)(3).  See Part I, supra.  The court “shall grant” relief, after a hearing, to any applicant that has not been convicted of certain enumerated offenses or any other crime punishable by imprisonment exceeding one year unless it determines that “the applicant’s character and reputation is such that the applicant would be likely to act in a manner dangerous to public safety.”  § 6105.1(a).  This restoration also restores right to vote, serve on jury and hold public office.  § 6105.1(e).

III.  Nondiscrimination in licensing and employment

Like New York, Wisconsin and Hawaii, Pennsylvania has a comprehensive nondiscrimination law covering licensure and both public and private employment.  See Pennsylvania Criminal History Record Information Act, 18 Pa. Cons. Stat. §§ 9101 et seq.  However, unlike the other three states, Pennsylvania’s law has no mechanism for administrative enforcement, so it can only be enforced through the courts.  The Attorney General or any other individual or agency may obtain injunctive relief and, in addition, any “aggrieved person” may bring an action for “actual and real damages,” punitive damages in an amount between $1,000 and $10,000 and “reasonable costs of litigation and attorney’s fees.  § 9183See also Elizabeth Gerlach, The Background Check Balancing Act: Protecting Applicants with Criminal Convictions While Encouraging Criminal Background Checks in Hiring, 8 U. Pa. J. Lab. & Emp. L. 981 (2006).

A.  Licensing

Under 18 Pa. Cons. Stat. § 9124(a), licensing agencies “may consider convictions of the applicant of crimes but the convictions shall not preclude the issuance of a license, certificate, registration or permit.”  In initial licensing decisions, licensing agencies may not consider records of arrest if there is no conviction of a crime based on the arrest; convictions which have been annulled or expunged; convictions of a summary offense; convictions for which the individual has received a pardon from the Governor; or “convictions which do not relate to the applicant’s suitability for the license, certificate, registration or permit.”  § 9124(b).  Additionally, licensing agencies may suspend or revoke a license where the applicant has been convicted of a felony, or where the applicant has been convicted of “a misdemeanor which relates to the trade, occupation or profession for which the license, certificate, registration or permit is sought.”  § 9124(c).  The “relation to suitability” limitation on felony convictions in initial licensing under § 9124(b) does not apply to disciplinary actions under § 9124(c). See Gangewere v. Commonwealth, 512 A.2d 1301 (Pa. Commw. Ct. 1986).  In either context, the licensing agency “shall notify the individual in writing of the reasons for a decision which prohibits the applicant from practicing the trade, occupation or profession if such decision is based in whole or part on conviction of any crime.”  18 Pa. Cons. Stat. § 9124(d).

B.  Employment

18 Pa. Cons. Stat. § 9125 provides employment protection only during the hiring stage and is not applicable to ongoing or post-employment adverse employment actions.  It provides, for both public and private employment, “[f]elony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.”  § 9125(b).  (Certain job categories are exempted by statute elsewhere in code, like health care).  Employers are required to notify applicants in writing if the decision to deny employment is based in whole or in part on criminal history.  § 9125(c).

The courts have tended to interpret the direct relationship requirement in favor of employers.  See Reynolds v. Murphy Ford, Inc., 2007 Phila. Ct. Com. Pl. LEXIS 146 (2007) (automobile salesman’s prior convictions for theft and burglary an appropriate basis for termination since sales representatives occasionally had access to customers’ confidential financial information and deposited monies); El v. Se. Pa. Transp. Auth., 418 F. Supp. 2d 659, 663-64 (E.D. Pa. 2005), aff’d, 479 F.3d 232 (3d Cir. 2007) (paratransit driver-trainee properly terminated under state law, as well as Title VII of the Civil Rights Act, solely on the basis of a forty-year-old conviction for his role in a gang-related homicide).

Section 9125 has been held to permit adverse action based on the fact of arrest alone.  See Cisco v. United Parcel Servs., Inc., 476 A.2d 1340 (Pa. 1984) (mere arrest of a delivery person could jeopardize the reputation and business activities of UPS, so that UPS had a “plausible and legitimate reason” for discharging him, even though he was ultimately acquitted).  See also Mallette v. U.S. Sec. Associates, Inc., Civil Action No. 07-3642, 2008 WL 4889025 (E.D. Pa. Nov. 12, 2008) (security guard properly dismissed from position as security guard at children’s hospital where serious criminal charges pending against him, notwithstanding his later acquittal).

In a suit for wrongful discharge, sovereign immunity has been held a defense to a suit against a public employer.  See McNichols v. Dep’t of Transp., 804 A.2d 1264, 1267 (Pa. Commw. Ct. 2002) (“Wrongful discharge … is not one of the enumerated exceptions [to sovereign immunity].”); Poliskiewicz v. E. Stroudsburg Univ., 536 A.2d 472, 475 (Pa. Commw. Ct. 1988) (holding that sovereign immunity remains in effect unless it has been specifically waived).

These cases are discussed in Christine Neylon O’Brien and Jonathan J. Darrow, Adverse Employment Consequences Triggered by Criminal Convictions: Recent Cases Interpret State Statutes Prohibiting Discrimination, 42 Wake Forest L. Rev. 991, 1005-1009 (2007).

Juvenile court adjudications do not “operate to disqualify the child in any civil service application or appointment.”  42 Pa.Cons.Stat. § 6354.

Per se employment barriers

Pennsylvania has one of the broadest laws in the country disqualifying people with any sort of criminal record from working with the elderly, mentally ill, or retarded, whether in nursing homes or personal care facilities.  35 P.S. §§ 10225.101 et seq.  Although the scope of this law is unclear, the statute specifically identifies social service workers, hospital personnel, mental health professionals, clergy, counselors, librarians, and doctors.  Penalties for violations of these laws involve both fines for the health care facility and potentially prison for facility administrators and owners.  § 10225.505.  This law was limited by the Pennsylvania Supreme Court in Nixon v. Commonwealth, 839 A.2d 277, 288-89 (Pa. 2003) (state could not refuse to re-employ convicted persons while continuing to employ similarly situated persons with no break in service).

The lifetime ban on employment of people with aggravated assault convictions in the Child Protective Services Law was held unconstitutional in 2004.  See Warren Cnty. Human Servs. v. State Civil Service Comm’n, 844 A.2d 70, 74 (Pa. Commw. Ct. 2004), petition for appeal denied, 863 A.2d 1152 (Pa. 2004).  Notwithstanding this decision, in 2006, the Pennsylvania legislature extended the law to a range of occupations in which workers have “significant likelihood of regular contact with children.”  23 Pa. Cons. Stat. § 6344.2(A).  In 2015 a unanimous appellate decision from the Commonwealth Court struck down the lifetime ban for all crimes, finding that it violated due process rights under the state constitution.  Peake v. Commonwealth, No. 216 M.D. 2015 (Pa. Commw. Ct. Dec. 30, 2015); see also Margaret Love, Employment bars in long-term health care facilities declared unconstitutional, Collateral Consequences Resource Center, http://ccresourcecenter.org/2016/01/05/employment-bars-long-term-health-care-facilities-declared-unconstitutional/ (Jan. 5, 2016).

State law also prohibits people with certain convictions from working in child care, long-term and elder care, police forces, and schools.  23 Pa. Cons. Stat §§ 6301 et seq.; 35 P.S. §§ 10225.101 et seq.  A study by Community Legal Services of Philadelphia found over 40 professions in Pennsylvania in which an occupational license may be denied because of a criminal record, from accountant to veterinarian.  See Community Legal Services of Philadelphia, Legal Remedies and Limitations on the Employment of Ex-Offenders in Pennsylvania (Aug. 2015), available at https://clsphila.org/learn-about-issues/legal-remedies-and-limitations-employment-people-criminal-records-pennsylvania

Ban-the-box & non-discrimination in public employment

Effective July 1, 2017, a new commonwealth hiring policy will generally prohibit inquiries into criminal history on applications for commonwealth employment and limit consideration of criminal history in the hiring process.  See http://www.oa.pa.gov/Policies/hr/Documents/TM001.pdf. The policy was was announced by Governor Tom Wolf in May of 2017.  Regarding specific non-discrimination provisions, the policy provides as follows:

a. Consideration of arrests not leading to a conviction; annulled, expunged, or pardoned convictions; convictions for summary offenses; and convictions that do not relate to an applicant’s suitability for Commonwealth employment is prohibited.

b. In making hiring decisions, the hiring entity shall consider the public interest of ensuring access to employment for individuals with criminal records.

c. This HR Policy shall not affect positions in which a criminal conviction makes an applicant ineligible under law.

d. This HR Policy also shall not apply to employment positions responsible for the safeguarding or security of people or property, law enforcement, or those involving contact with vulnerable populations.

e. All departments, agencies, boards, commissions, and councils shall utilize the online job application system as required by ITPBUS008. No department, agency, board, commission, or council shall utilize its own job application form or questionnaire, unless such form or questionnaire is approved by the Secretary of the Office of Administration.


  1. There have been periodic unsuccessful efforts by the Pennsylvania General Assembly in recent years to extend the period of disenfranchisement to felony offenders on parole and probation, in addition to those actually incarcerated.  See, e.g., H.R. 1318, Session of 2005, vetoed by Governor Rendell in March of 2006. 
  2. 25 Pa. Cons. Stat § 1301(a) provides that a person may not be permitted to register to vote if they have been confined in a prison “for a conviction of a felony” during the past five years.  However, in Mixon v. Commonwealth, 759 A.2d 442, 451 (Pa. Commw. Ct. 2000), aff’d, 783 A.2d 442 (Pa. 2001), the court held that there was no rational basis for precluding the registration of those who were incarcerated within last five years and who were not registered previously, when those who were legally registered prior to incarceration could vote upon their release. 
  3. “Crime punishable by imprisonment of more than one year” is defined to exclude violations of “[t]he Vehicle Code” or “substantially similar offenses.”  42 Pa. Cons. Stat. § 4502(b). 
  4. See Commonwealth v. Rambler, 32 A.3d 658, 666-67 (Pa. 2011) (no bright-line rule in determining whether “extra-jurisdictional” [i.e., non-Pennsylvania] felony constitutes infamous crime; “when analyzing the state constitutional implications of a federal felony conviction, it is appropriate to consider the character of the underlying conduct, rather than simply looking at the federal label, or the categorization associated with a similar state offense”). 
  5. § 6105(d) provides in full as follows:Exemption. – A person who has been convicted of a crime specified in subsection (a) or (b) or a person whose conduct meets the criteria in subsection (c)(1), (2), (5), (7) or (9) may make application to the court of common pleas of the county where the principal residence of the applicant is situated for relief from the disability imposed by this section upon the possession, transfer or control of a firearm. The court shall grant such relief if it determines that any of the following apply:(1) The conviction has been vacated under circumstances where all appeals have been exhausted or where the right to appeal has expired.
    (2) The conviction has been the subject of a full pardon by the Governor.
    (3) Each of the following conditions is met:(i) The Secretary of the Treasury of the United States has relieved the applicant of an applicable disability imposed by Federal law upon the possession, ownership or control of a firearm as a result of the applicant’s prior conviction, except that the court may waive this condition if the court determines that the Congress of the United States has not appropriated sufficient funds to enable the Secretary of the Treasury to grant relief to applicants eligible for the relief.
    (ii) A period of ten years, not including any time spent in incarceration, has elapsed since the most recent conviction of the applicant of a crime enumerated in subsection (b), a felony violation of The Controlled Substance, Drug, Device and Cosmetic Act or the offense which resulted in the prohibition under 18 U.S.C. § 922(g)(9).” 
  6. According to anecdotal evidence adduced before the Board in specific pardon cases, conviction of a summary offense, including shoplifting, has been regarded as disqualifying for any position in Pennsylvania schools, however dated.  The expungement authority was enacted in part to ease administrative burdens on the Board of Pardons in these kinds of extremely minor offenses. 

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