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. 

Copyright © 2017 – 2019

Restoration of Rights/Oregon

I.  Restoration of Civil/Firearms Rights

A.  Civil Rights

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

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

B.  Firearms

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

II.  Discretionary Restoration Mechanisms:             

A.  Executive pardon

Authority

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

Eligibility

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

Effect

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

Standards

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

Process

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

Frequency of grants

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

Contact

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

B.  Judicial sealing or expungement

1.  Set-aside and sealing of conviction records
Eligibility

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

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

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

Set-aside for human trafficking victims

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

Procedure & criteria

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

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

Effect

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

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

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

Frequency

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

2. Set-aside and sealing of marijuana possession convictions

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

3. Sealing of pardoned offenses

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

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

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

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

4.  Expungement of juvenile records

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

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

III.  Nondiscrimination in Licensing and Employment

A.  Licensing

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

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

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

B.  Ban the Box

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


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

Copyright © 2017 – 2019

Restoration of Rights/ Oklahoma

I.  Restoration of Civil/Firearms Rights

A.  Vote

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

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

B.  Office

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

C.  Jury

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

D.  Firearms

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

II.  Discretionary Restoration Mechanisms

A.  Executive pardon

Authority

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

Administration

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

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

Eligibility

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

Effect

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

Expungement after pardon

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

Process

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

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

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

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

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

Frequency of Grants

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

Contact

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

B.  Judicial sealing or expungement

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

1.  Expungement
A.  Eligibility 
Adult convictions 

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

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

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

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

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

Deferred sentence 

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

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

Non-conviction records 

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

B.  Effect

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

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

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

C.  Procedures

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

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

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

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

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

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

§ 19(F).

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

D. Intent

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

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

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

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

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

3.  Juvenile Records

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

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

III.  Nondiscrimination in Licensing and Employment

A.  Employment

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

Ban-the-box in state hiring

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

B.  Licensing

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

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


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

Copyright © 2017 – 2019

Restoration of Rights/Ohio

I.  Restoration of Civil/Firearms Rights 

A.  Civil rights

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

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

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

B.  Firearms

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

C.  Collateral consequences

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

II.  Discretionary restoration mechanisms

A.  Executive pardon

Authority

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

Administration

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

Eligibility

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

Effect

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

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

Id. at *14.

Process

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

Standards

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

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

Frequency of grants

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

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

B.  Judicial sealing or expungement

Sealing of conviction records

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

Eligible offenses

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

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

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

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

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

Multiple convictions

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

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

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

Federal and out-of-state offenses  

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

Procedure and standards

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

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

Effect

In the event that a record is sealed, the court

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

Ohio Rev. Code Ann. § 2953.32(C)(2).

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

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

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

Disclosure

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

Comments

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

Frequency of grants

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

YearNumber of Filings
2004635
2003513
2002583

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

Other judicial sealing authorities
Sealing of non-conviction records

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

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

§ 2953.55(A).  

Sealing & expungement of juvenile records

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

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

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

(a) The age of the person;

(b) The nature of the case;

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

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

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

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

No sealing of pardoned convictions

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

Intervention in lieu of conviction (ILC)

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

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

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

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

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

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

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

Expungement for victims of human trafficking

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

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

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

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

Expungement for conduct that is no longer a crime

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

Judicial restoration of firearms privileges

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

C.  Administrative/judicial certificates

1. Certificate of qualification for employment

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

Eligibility

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

Effect

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

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

Standard

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

Limitation on employer liability

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

Application and procedure

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

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

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

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

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

2.  Certificate of employability

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

D.  Additional resources

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

III.  Nondiscrimination in licensing and employment

A. Ban-the-box in public hiring

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

B.  Nondiscrimination in licensing – in general

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

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

C.  Sealed convictions

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

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

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

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

§ 5120.07(C).

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

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

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

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

F.  Casino control commission

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

G.  Background checks for trainees for certain professions or occupations

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

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

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

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


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

Copyright © 2017 – 2019

Restoration of Rights/North Dakota

I.  Restoration of Civil/Firearms RightsNorth Dakota

A.  Civil Rights

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

B.  Firearms

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

II.  Discretionary Restoration Mechanisms        

A.  Executive pardon

Authority

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

Eligibility

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

Standards

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

Effect

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

Process

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

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

Frequency of Grants

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

Contact

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

Ken Sorenson
Legal Counsel
ksorenso@state.nd.us

B.  Judicial sealing or expungement

I.  General sealing under 2019 law

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

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

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

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

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

II.  Other judicial relief authorities

A.  Reduction of minor felony offenses to misdemeanors

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

B.  Record-closing authorities

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

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

2.   Sealing for first offender marijuana possession (misdemeanor)

N.D. Cent. Code § 19-03.1-23(9):

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

3.  Sealing for victims of human trafficking

N.D. Cent. Code § 12.1-41-14:

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

4.  Destruction of  juvenile records

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

5.  Sealing and expungement for non-conviction records

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

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

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

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

III.  Nondiscrimination in Licensing and Employment

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

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

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

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

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

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

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

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

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

 


  1. 35 grams
  1. Until a 1996 constitutional amendment, the pardon power in North Dakota was exercised by the Board of Pardons, composed of the governor, the Attorney General, the Chief Justice, and two appointees of the governor.  See  N.D. Const.  art. 5, § 6 (1995).  The Board’s procedures and administrative processes were detailed in N.D. Cent. Code § 12-55-01 et seq. (1995).  See Nat’l Governors’ Ass’n, Guide to Executive Clemency Among the American States 122-24 (1988).
  2. The Board rules and an application form are available from the Pardon Clerk.  An online version of the  application form is available at http://www.nd.gov/docr/adult/tps/pboard_APPLICATION.pdf.
  3. The application form is available at http://www.nd.gov/docr/adult/tps/pboard_APPLICATION.pdf.

 

Restoration of Rights/North Carolina

I.  Restoration of Civil/Firearms Rights

A.  Civil rights

Civil rights are lost upon conviction of a felony. N.C. Const. art. VI, § 2(3) (vote); id. § 8 (office); N.C. Gen. Stat. § 9-3 (jury).  All rights are automatically restored upon unconditional discharge of sentence or unconditional pardon.  N.C. Gen. Stat. § 13-1.  The agency releasing the prisoner (or probationer) must file a certificate evidencing unconditional discharge and restoration of the rights of citizenship with the court in the county of conviction (North Carolina state offenses) or the county of residence (for offenses under federal law or the law of another state).  § 13-2.

B.  Firearms

People convicted of a felony may not possess firearms.  N.C. Gen. Stat. § 14-415.1(a).  Those convicted of antitrust violations, unfair trade practices, or restraints of trade exempted from this prohibition.  § 14-415.1(e).  Firearms rights may be restored by a pardon.  § 14-415.1(d).  In addition, individuals who have lived in North Carolina for at least one year, who have a single non-violent felony conviction and no violent misdemeanors, may petition the court in their county of residence twenty years after their civil rights were restored for restoration of firearms rights under North Carolina state law.  § 14-415.4.1  Persons with qualifying out-of-state or federal convictions may petition the court in the district where they reside “only if the person’s civil rights, including the right to possess a firearm, have been restored, pursuant to the law of the jurisdiction where the conviction occurred, for a period of at least 20 years.” Id.

C.  Guides to State Relief and Collateral consequences

Professor John Rubin of the School of Government at the University of North Carolina has compiled a comprehensive guide to judicial and other relief mechanisms under state law.  It includes specialized relief provisions applicable to sex offender registration and firearms, as well as drug and juvenile offenses.  See Relief from a Criminal Conviction:  A Digital Guide to Expunctions, Certificates of Relief, and Other Procedures in North Carolina (2017 edition), https://nccriminallaw.sog.unc.edu/relief-guide-2017/.   Professor Rubin is also principally responsible for North Carolina’s on-line compilation of collateral consequences, which like his Relief guide is available at no cost to the public.  See Collateral Consequences Assessment Tool (C-CAT), http://ccat.sog.unc.edu/.

II.  Discretionary Restoration Mechanisms

A.  Executive pardon

Authority

The governor’s power is unlimited, subject only to regulations in the manner of applying.  N.C. Const. art. III, § 5(6).  The Post Release Supervision and Parole Commission has authority to assist the governor in exercising his pardon power and in his responsibility to perform such services as he requires in connection therewith.  N.C. Gen. Stat. § 143B-720(a).

Eligibility

There is a five-year waiting period from the date of release from supervision, which may be reduced if a specific need is shown.  Persons convicted under federal law or another state’s laws are not eligible to apply for a gubernatorial pardon.  There is a three-year wait to reapply after denial.

Effect

According to the website of the Governor’s Clemency Office (Office of Executive Clemency or “OEC”), there are three types of pardon in North Carolina: pardon of forgiveness (“granted with certain conditions,” but useful in seeking employment); pardon of innocence (“granted when an individual has been convicted and the criminal charges are subsequently dismissed”); and unconditional pardon (“granted primarily to restore an individual’s right to own or possess a firearm”).  See http://www.doc.state.nc.us/clemency/glossary.htm.  A pardon does not expunge or erase a criminal record; however, a person who receives a pardon of innocence may petition the court in which he was convicted for an expunction of records pursuant to N.C. Gen. Stat. § 15A-149.

Process

N.C. Gen. Stat. § 147-21 provides that all applications must be submitted to the governor in writing, and accompanied by a statement of reasons and a copy of the indictment, verdict, and judgment.  The OEC processes the requests, oversees and coordinates investigations by the Parole Commission, and prepares reports.  All applicants for clemency, with details of their offense, are listed on OEC’s website: http://www.doc.state.nc.us/clemency/pardons.htm.  By statute OEC must notify the victim that it is considering a grant of clemency; that the victim has the right to present a written statement that OEC will consider before clemency is granted; and of the decision that is made.  N.C. Gen. Stat. § 15A-838.  By executive order the DA in the county of conviction also must be notified of, and given the opportunity to comment upon, an application for clemency.  For a further description of the process see http://www.cga.ct.gov/2009/rpt/2009-R-0201.htm.

Frequency of grants

Pardons in recent years have been rare – only sixteen pardons have been granted since 2001, all of which were granted for innocence.2  Pardon applications average about 150 annually.  Recommendations are submitted by governor’s clemency staff to the governor’s legal counsel.  In the past, governors granted pardons fairly regularly, but there have been no “forgiveness” pardons since 2001.  Source: Governor’s Office of Executive Clemency.

Contact

Pat Hansen
Governor’s Clemency Office
919-715-1695
Pat.Hansen@nc.gov

B.  Judicial sealing or expunction

NOTE:  Professor John Rubin’s Guide to Relief Mechanisms, noted in Part I above, contains a wealth of current information about state expungement and sealing authorities.  https://nccriminallaw.sog.unc.edu/relief-guide-2017/ This indispensable Guide catalogues and analyzes state expungement provisions, including specialized relief provisions applicable to sex offender registration and firearms, as well as drug and juvenile offenses.

Nonviolent first offender felonies and misdemeanors

Minor nonviolent felony convictions and nonviolent misdemeanor convictions are eligible for “expunction,” as long as the person has no other convictions other than traffic violations.  The eligibility waiting period is 10 years after completion of sentence for felonies, and five years after completion of sentence for misdemeanors.  See N.C. Gen. Stat. § 15A-145.5(a), (b).   (These eligibility waiting periods were reduced from 15 years for both categories effective December 1, 2017.)  Class A through G felonies and Class A-1 misdemeanors are not eligible, nor are DWI’s and a number of drug offenses.  An applicant must have paid all restitution; have no pending charges; and must demonstrate that his or her “character and reputation are good” by filing two character affidavits by non-relatives.  § 15A-145.5(c).  A petition must be filed in the court of conviction, and the district attorney must be given an opportunity to object.  Id.   The court must find that the applicant has had no prior expunctions under this authority or under § 15A-145.1 through 145.4 (deferred adjudication or youthful offender, see infra).  Id.

Effect of expunction

If granted, the effect of expunction is that the person is “restored, in the contemplation of the law, to the status he occupied before such arrest or indictment or information.”  N.C. Gen. Stat. § 15A-145.5(c).  However, a conviction expunged on or after July 1,  2018, may be treated as a predicate offense for the purpose of calculating “prior record level” in subsequent prosecutions and sentencing.  See § 15A‑151.5 (enacted by SB-445 (2017)).

No person as to whom an order has been entered pursuant to subsection (c) of this section shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of that person’s failure to recite or acknowledge the arrest, indictment, information, trial, or conviction. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense. 

§ 15A-145.5(d).  The “non-acknowledgement” provision above does not apply when an individual is seeking certification for law enforcement employment.  § 15A-145.5(d1).

After granting expunction, the court will order that the conviction be removed (“expunged”) from the records of the court, law enforcement agencies, and other state and local government agencies.  §§ 15A-145.5(e), (f).3  “A private entity that holds itself out as being in the business of compiling and disseminating criminal history record information for compensation shall destroy and shall not disseminate any information” about a record that has been expunged if the entity has received notice of the expunction. § 15A-152(a).   In addition, “persons required by State law to obtain a criminal history record check on a prospective employee shall not be deemed to have knowledge of any convictions expunged under this section.” § 15A-152(d).

Deferred adjudication in first-offender drug cases

A first offender with no previous felony or drug-related convictions who pleads or is found guilty on a charge of drug possession may be placed on probation.  If probation is successfully completed (including any treatment ordered), the court will discharge the person and dismiss the proceedings without an adjudication of guilt.  No conviction results, including for predicate offense purposes.  N.C. Gen. Stat §§ 90-96(a); 90-113.14(a) (relating to toxic vapors offenses).  If the offense is committed under age 22, the person may apply for expunction of records under N.C. Gen Stat. §§ 15A-145.2(a) or 15A-145.3(a) (relating to toxic vapors offenses).  Sections 15A-145.2 and 15A-145.3 also provide for the expunction of certain first-time drug convictions.

Youthful offenses

First offenders who committed certain specified nonviolent felonies when under 18 may petition for expunction after four years. See N.C. Gen. Stat. § 15A-145.4.  Misdemeanors committed under age 18 (except for traffic violations) and first offender alcohol-possession misdemeanors committed under age 21 are eligible for expunction two years after the date of conviction or after completion of any period of probation, whichever is later.  See § 15A-145.  The petition must be filed in the court of conviction, and must include affidavits of good character. The petitioner must agree to perform a minimum of 100 hours of community service and complete high school or earn a GED. If the court grants the expunction petition, the individual is not required to acknowledge the criminal records on any application, except for certain state certifications.

Note on “first offender” status under § 15A-145.1 through 145.4: Based on the requirement in § 15A-145.5(c) that an applicant show no previous expunctions under §§ 15A-145.1 through 15A-145.5, the courts have interpreted the term “first offender” to extend to someone previously granted relief under § 15A-145.5.

Non-conviction records

When charges against a person are dismissed or he is found not guilty, the person may apply to the court for an expunction of records relating to his apprehension or trial.  If the court finds that he has no prior felony convictions, the court “shall order” expunction.  An additional requirement that the person have no prior expunctions – including of non-conviction records –  was repealed effective December 1, 2017.  N.C. Gen. Stat. § 15A-146(a) – (a2) (as amended by SB-445 (2017)).  Section 15A-146(a3) provides that

[n]o person as to whom such an order has been entered under this section shall be held thereafter under any provision of any law to be guilty of perjury, or to be guilty of otherwise giving a false statement or response to any inquiry made for any purpose, by reason of his failure to recite or acknowledge any expunged entries concerning apprehension or trial.

See also §§ 15A-147(a)-(b) (expunction in case of identity theft); § 15A-149 (expunction where pardon of innocence granted).

Partial expunction

Effective December 1, 2017, courts in N.C. are specifically authorized to redact conviction records to expunge dismissed charges, as long as the person has no prior felony convictions. § 15A-146(a1) (as amended by SB-445 (2017)). Previously, some judges took the position that expunction was unavailable unless all charges were dismissed.

Juvenile adjudication sealing 

The court may order the sealing of a juvenile court record. N.C. Gen. Stat. § 7B-3000(c).  Sealed court records may only be viewed with a court order.  Id.

A juvenile adjudicated undisciplined may petition the court for expunction upon turning age 18.  N.C. Gen. Stat. § 7B-3200(a).  A juvenile adjudication, with exceptions for certain classes of felonies, is eligible for expunction if the petitioner is at least age 18 and at least 18 months has elapsed since the adjudication.  § 7B-3200(b).  The petitioner must demonstrate good behavior and no subsequent adjudications or convictions.  § 7B-3200(c).  Juveniles do not need to report expunged proceedings.  § 7B-3201(a).  Certain gang crimes and cyber-bullying offenses committed under age 18 may be expunged as provided in N.C. Gen. Stat. §§ 15A-145.1 and 14-458.1(c).

C.  Certificate of Relief

Eligibility

Effective December 1, 2011, individuals with misdemeanor and minor felony conviction records were authorized to “petition the court where the individual was convicted for a Certificate of Relief relieving collateral consequences[.]”4  N.C. Gen. Stat. § 15A‑173.2(a).  As originally enacted, Certificates were available only to individuals convicted of “no more than two Class G, H, or I felonies or misdemeanors in one session of court,” and who have no other convictions for a felony or misdemeanor other than a traffic violation.  In 2018, eligibility was expanded to include multiple misdemeanors, but contracted to remove Class G felonies from eligibility.  Petitions are heard by “the senior resident superior court judge if the convictions were in superior court, or the chief district court judge if the convictions were in district court.”  Id.  The court may issue the certificate one year after the individual has completed his sentence (including any period of probation, post-release supervision, and parole), if he has complied with all requirements of his sentence, if he “is engaged in, or seeking to engage in, a lawful occupation or activity, including employment, training, education, or rehabilitative programs, or . . . otherwise has a lawful source of support,” if no criminal charges are pending against him, and if granting the petition “would not pose an unreasonable risk to the safety or welfare of the public or any individual.”  § 15A-173.2(b)(1) through (6).

Effect

A Certificate of Relief “relieves all collateral sanctions, except those listed in [N.C. Gen. Stat.] § 15A-173.3, those sanctions imposed by the North Carolina Constitution or federal law, and any others specifically excluded in the certificate.  A Certificate of Relief does not automatically relieve a disqualification; however, an administrative agency, governmental official, or court in a civil proceeding may consider a Certificate of Relief favorably in determining whether a conviction should result in disqualification.”  § 15A-173.2(d).  A Certificate of Relief does not result in “the expunction of any criminal history record information, nor does it constitute a pardon.”  § 15A-173.2(e).

Exceptions

A Certificate of Relief “shall not be issued to relieve” the collateral sanctions relating to: sex offender registration; prohibition on firearm possession; driver’s license suspension, revocation, limitation or ineligibility; ineligibility for certification as a criminal justice officer or justice officer; and ineligibility for employment as a corrections or probation officer, or a prosecutor or investigator in either the Department of Justice or in the office of a district attorney.  N.C. Gen. Stat. § 15A-173.3(1) – (5).

Procedures

Procedures for issuance, modification and revocation are set forth in N.C. Gen. Stat. § 15A‑173.4 and include the following provisions:

  • The court must provide notice of the petition to the District Attorney, who may appear and be heard at any proceeding relating to the issuance, modification, or revocation of a Certificate of Relief. § 15A‑173.4(a), (c).  Victims may also be heard.  § 15A‑173.6.
  • The issuance, modification, and revocation of Certificates of Relief shall be a public record. § 15A‑173.4(e).
  • The court may modify or revoke a Certificate of Relief for just cause, which includes subsequent conviction of a felony or misdemeanor other than a traffic violation or a material misrepresentation in the petition. § 15A‑173.4(b).

In addition, N.C. Gen. Stat. § 15A-173.2(g) provides that the denial of a petition for a Certificate of Relief “shall state the reasons for the denial, and the petitioner may file a subsequent petition 12 months from the denial and shall demonstrate that the petitioner has remedied the defects in the previous petition and has complied with any conditions for reapplication set by the court . . . in order to have the petition granted.”

Certificate as evidence of due care

N.C. Gen. Stat. § 15A-173.5 provides:

“In a judicial or administrative proceeding alleging negligence, a Certificate of Relief is a bar to any action alleging lack of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the individual to whom the Certificate of Relief was issued, if the person against whom the judicial or administrative proceeding is brought knew of the Certificate of Relief at the time of the alleged negligence.”

 

III.  Nondiscrimination in Licensing and Employment 

North Carolina’s general licensing non-discrimination law, enacted in 2013,  prohibits occupational licensing boards from automatically disqualifying an individual based on a criminal record unless the board is otherwise authorized by law to do so:

Unless the law governing a particular occupational licensing board provides otherwise, a board shall not automatically deny licensure on the basis of an applicant’s criminal history. If the board is authorized to deny a license to an applicant on the basis of conviction of any crime or for commission of a crime involving fraud or moral turpitude, and the applicant’s verified criminal history record reveals one or more convictions of any crime, the board may deny the license if it finds that denial is warranted after consideration of the following factors:

(1) The level and seriousness of the crime.

(2) The date of the crime.

(3) The age of the person at the time of the crime.

(4) The circumstances surrounding the commission of the crime, if known.

(5) The nexus between the criminal conduct and the prospective duties of the applicant as a licensee.

(6) The prison, jail, probation, parole, rehabilitation, and employment records of the applicant since the date the crime was committed.

(7) The subsequent commission of a crime by the applicant.

(8) Any affidavits or other written documents, including character references.

N.C. Gen. Stat. § 93B-8.1(b).  The law does not apply to licenses issued by The North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriffs’ Education and Training Standards Commission.

 


  1. This exception, enacted in July 2010, is responsive to the North Carolina Supreme Court’s decision in Britt v. State, 681 S.E.2d 320 (N.C. 2009), which held that the right to bear arms in the state constitution precluded applying to the plaintiff, who had been convicted in 1979, had his rights restored in 1987 and whose rehabilitation was well established, the 2004 amendment to N.C. Gen. Stat. § 14-415.1 by which its ban on the possession of firearms by a convicted felon first became absolute, thereby requiring the plaintiff to relinquish firearms of which his ownership had been lawful under the previous version of the statute.
  2. Ten of the sixteen pardons were granted by Governor Beverly Perdue (2009-2013) to the so-called “Wilmington 10” based on convictions stemming from the same incident.  See Anne Blythe, Perdue pardons Wilmington 10, News and Observer (Jan. 1, 2013)  http://www.newsobserver.com/2013/01/01/2576074/governor-pardons-wilmington-10.html.
  3. Pursuant to N.C. Gen. Stat. § 15A-151(a), the Administrative Office of the Courts maintains a confidential file relating to expunged records, the contents of which may be disclosed to state court judges and other specified state agencies only for certain specified purposes: e.g., to a judge “for the purpose of ascertaining whether a person charged with an offense has been previously granted a discharge or an expunction,” and to law enforcement agencies for employment and certification purposes.
  4. “Collateral consequence” is defined in N.C. Gen. Stat. § 15A‑173.1(1) as a “collateral sanction or a disqualification.”  “Collateral sanction” is defined as a “penalty, disability, or disadvantage, however denominated, imposed on an individual as a result of the individual’s conviction of an offense which applies by operation of law, whether or not the penalty, disability, or disadvantage is included in the judgment or sentence.”  Id. § 15A‑173.1(2).  “Disqualification” is defined as a “penalty, disability, or disadvantage, however denominated, that an administrative agency, governmental official, or court in a civil proceeding may impose on an individual on grounds relating to the individual’s conviction of an offense.”  Id. § 15A‑173.1(3).

 

Restoration of Rights Series/New York

I.  Restoration of Civil/Firearms Rights

A.  Voting

In New York, the right to vote is lost upon conviction of a felony if sentenced to a term of actual imprisonment, and restored upon expiration of sentence of imprisonment, including parole.  See N.Y. Elec. Law § 5-106(2) (“No person who has been convicted of a felony pursuant to the laws of this state, shall have the right to register for or vote at any election unless he shall have been pardoned or restored to the rights of citizenship by the governor, or his maximum sentence of imprisonment has expired, or he has been discharged from parole.”); § 5-106(3) (federal convictions); § 5-106(4) (out-of-state convictions).  These provisions “shall not apply if the person so convicted is not sentenced to either death or imprisonment, or if the execution of a sentence of imprisonment is suspended.”  § 5-106(5).  The right to vote is automatically restored upon expiration of sentence or discharge from parole, and can be restored during parole if the individual is issued a Certificate of Relief from Disabilities or Certificate of Good Conduct.1 .  The Administrative Office for U.S. Courts has taken the position that persons convicted of federal offenses who are on supervised release are entitled to register and vote.2  

Pardon of those on parole: On April 18, 2018, Governor Cuomo issued an executive order directing that all those being released from prison onto parole and those currently on parole “will be given consideration for a conditional pardon that will restore voting rights without undue delay.” The order directed the Department of Correction and Community Supervision to submit a list of all those then on parole, and a similar list each month thereafter.  “Each individual on the eligible list will be reviewed to determine whether he or she will be granted a pardon that will restore voting rights.”  The order made clear the limited nature of pardon, and noted that pardoned individuals could still apply for a Certificate of Relief from Disabilities (see below). The statement accompanying the order noted that

Parole voting restrictions have a disproportionate impact on New Yorkers of color, with African Americans and Hispanic New Yorkers comprising 71 percent of the population so disenfranchised. Civic engagement is linked to reduced recidivism and this action will promote access to the democratic process and improve public safety for all New Yorkers.

 

B.  Jury/Office

A person convicted of a felony may not serve on a jury, N.Y. Jud. Law § 510(3), and forfeits any public office they hold.  N.Y. Pub. Off. Law § 30(1)(e).  Additionally, a public official forfeits their office if convicted of a crime involving violation of the oath of office, defined as a crime an element of which is “knowing or intentional conduct indicative of a lack of moral integrity.”  See Feola v. Carroll, 10 N.Y.3d 569, 572-73, 890 N.E.2d 219, 860 N.Y.S.2d 457 (2008) (citing Duffy v. Ward, 81 N.Y.2d 127, 134-35, 612 N.E.2d 1213, 596 N.Y.S.2d 746 (1993)).  New York does not disqualify all convicted persons from holding future public office as a general matter, though specific professions may be restricted.  See Op. Att’y Gen. 83-60 (1983) (conviction of felony resulting in sentence of probation and fine does not render the individual ineligible to run for public office).  But see N.Y. Const. art. VI, § 22(h) (judges removed from office disqualified from future judicial office); In re Alamo v. Strohm, 544 N.E.2d 608 (N.Y. 1989) (officeholder who forfeits office is ineligible to stand for election to the remainder of the unexpired term).  While it is not clear whether a convicted individual may stand for a new elective office, those seeking public employment as a police officer, firefighter, or notary, for example, must obtain a Certificate of Good Conduct.  See N.Y. Exec. Law § 130 (executive pardon or CGC sufficient to overcome bar to notary public position for person with conviction).   Civil rights lost may be restored either by a governor’s pardon (rarely granted, see IIA below), or by a Certificate of Relief from Disabilities or Certificate of Good Conduct (available from sentencing court or Department of Corrections and Community Supervision (formerly the Parole Board), see IIC below).

C.  Firearms

Firearms rights are lost upon conviction of a felony or “serious offense.”  N.Y. Penal Law §§ 400.00(1)(c), 265.01(4) (rifles, shotguns, antique firearms, black powder shotguns, black powder rifles, or any muzzle loading firearm).  Rights may be regained by a pardon, or by a Certificate of Relief from Disabilities or Good Conduct.  See N.Y. Correct. Law §§ 701(2), 703-a (2); see also 1975 NY Ops Atty Gen Nov 24.  Restoration must be specified in the document, and Class A-1 and violent felonies are ineligible.  

D.  Information about sealing, rights restoration, and employment discrimination

The Legal Action Center has prepared a very helpful booklet that explains in laymen’s terms how to get a record sealed and how to obtain certificates relieving disabilities (see Part IIB) and the effect of these forms of relief.  It includes a step-by-step guide to how a private individual can go about having their record sealed, including model letters and forms.  See Legal Action Center, Lowering Criminal Record Barriers: Certificates of Relief/Good Conduct and Record Sealing (2013), available at http://www.lac.org/doc_library/lac/publications/LoweringCriminalRecordBarriers_rev3.pdf.   LAC also has a booklet explaining what New York employers may and may not ask about a person’s criminal record, how a person should describe their record, and what rights people with a criminal record have to be free of job discrimination.  See Legal Action Center, Criminal Records and Employment: Protecting Yourself From Discrimination (2013), available at  http://lac.org/wp-content/uploads/2014/11/Criminal_Records_Employment_2013.pdf.

II.  Discretionary Restoration Mechanisms

A.  Executive pardon

Authority

The pardon power is vested in the governor (except in cases of treason or impeachment).  N.Y. Const. art 4, § 4.  It may be regulated only as to the manner of applying.  The governor must report annually on the number of pardons and his reasons for granting them.

Administration

The New York State Department of Corrections and Community Supervision (DOCCS) (formerly the Board of Parole) advises the governor on clemency cases if requested.  N.Y. Exec. Law § 259-c.  Absent exceptional or compelling circumstances, a pardon will not be considered if there is an adequate administrative remedy available.  Pardon is considered only if there is no other legal remedy in three cases:  1) to set aside a conviction in cases of innocence; 2) to relieve collateral disability (“This is rarely used since relief may generally be obtained by means of a Certificate of Good Conduct or Relief from Disabilities.”); and 3) to prevent deportation or permit reentry.  http://www.ny.gov/services/apply-clemency.  The Executive Clemency Bureau within the DOCCS screens candidates for eligibility requirements, gathers materials concerning clemency applications, and responds to letters from applicants and others regarding clemency applications.  Id.   Ordinarily a pardon is not a basis for sealing or expungement (but see the new pardon initiative applicable to 16- and 17-years-olds, infra.)  See http://www.ny.gov/services/apply-clemency#overview.

On January 1, 2015 Governor Cuomo announced the establishment of a dedicated website administered by his office to serve as a resource for pardon applicants.  http://www.ny.gov/services/apply-clemency.  The website includes procedural and substantive standards for considering pardon (e.g., “Pardon applicants must demonstrate a specific and compelling need for relief and a substantial period of good citizenship” and “Unless there are exceptional and compelling circumstances, a pardon is not considered if the applicant has other administrative remedies available to them, such as a certificate of good conduct or a certificate of relief from disabilities, pursuant to provisions of Article 23 of the Corrections Law.”)

Statistics on the website reveal that the number of applications for full pardon have plummeted during Governor Cuomo’s term, down from 496 in 2011 to 21 in 2014. Guidelines for prisoner petitions for commutation are available at http://www.doccs.ny.gov/Directives/6901.pdf

Conditional pardons for youthful offenders: At the end of 2015, Governor Cuomo announced a special pardon program that would apply to approximately 10,000 people convicted of misdemeanors or non-violent felonies that were committed at age 16 or 17. See Governor Cuomo Offers Executive Pardons to New Yorkers Convicted of Crimes at Ages 16 and 17, https://www.governor.ny.gov/news/governor-cuomo-offers-executive-pardons-new-yorkers-convicted-crimes-ages-16-and-17. Pardons under this program are not based on specific need or the availability of other administrative relief, and will be recommended so long as the applicant meets certain screening requirements, including being crime-free for at least 10 years. See Pardons, New York State, http://www.ny.gov/services/apply-clemency. According to the state’s clemency website, “If you receive this pardon, the New York State Office of Court Administration has stated that it will restrict public access to your criminal history, meaning that it will not be available to private employers, landlords or other companies that seek this information.” Id.
In December 2016 Governor Cuomo issued 101 conditional pardons through the youthful offender program described above. His office has estimated that as many as 10,000 individuals may be eligible for relief.

Frequency of grants

In recent years, gubernatorial pardons have been rare, and usually in immigration cases where certificates provide no remedy.3  As of July 1, 2017, Governor Andrew Cuomo had granted only seven pardons, most of them to help their recipients avoid deportation and/or become citizens.  4  He also granted more than 100 “conditional” pardons through the youthful offender program described above.

Prior to his establishment of an immigration pardon panel in May 2010, infra, Governor Paterson had granted only three pardons, one in 2008 to rapper Ricky Walters (to avoid deportation);5 one in 2009 to Osvaldo Hernandez (to assist him in his effort to join the New York Police Department);6 and one in 2010 to Qing Hong Wu, to avoid deportation.7  The last-mentioned case provided the impetus for the immigration pardon panel.  Governor Spitzer pardoned one individual, also to avoid deportation.8  In 2003 Governor Pataki issued a posthumous pardon to satirist Lenny Bruce for his 1964 obscenity conviction based on his use of “bad words in a Greenwich Village nightclub act.”9

Paterson immigration pardons: Governor Paterson was the only New York governor in many years to have used his pardon power on anything approaching a regular basis.  On May 3, 2010, Governor Paterson announced the establishment of a special panel of state officials to review cases of noncitizens lawfully resident in New York who were seeking pardon to avoid deportation.  See Danny Hakim & Nina Bernstein, New Paterson Policy May Reduce Deportations, N.Y. Times (May 3, 2010), http://www.nytimes.com/2010/05/04/nyregion/04deport.html.10 In December 2010 he pardoned 33 such individuals, many of whom had come to this country as children.  See, e.g., Press Release, New York State Office of the Governor, Governor Paterson Announces Pardons (Dec. 6, 2010), available at http://readme.readmedia.com/Governor-Paterson-Announces-Pardons/1791096.

B.  Judicial sealing or expungement

General conviction sealing authority

Effective October 1, 2017, the state’s first general adult conviction sealing authority went into effect, allowing individuals with up to two convictions and only one felony to seal the records of conviction for all crimes other than sex offenses and class A and violent felonies after a 10-year waiting period.  See N.Y. Law  59, Part VVV, § 48 (2017) (to be codified at N.Y. Crim. Proc. Law § 160.59).

Eligibility

Individuals may seek sealing for up to two eligible convictions, only one of which may be a felony. N.Y. Crim. Proc. Law § 160.59(2)(a).  Multiple eligible convictions “committed as part of the same criminal transaction” are considered a single conviction. § 160.59(1)(a). Ineligible offenses include most sex offenses, all “violent felonies,” and all Class A felonies. § 160.59(1)(a).  Sealing is not available to individuals convicted of more than two crimes or more than one felony.  § 160.59(3)(h).  A 10-year waiting period applies, counted from the date of imposition of sentence, or the date of release from the latest period of incarceration (if applicable). § 160.59(5).  Individuals required to register as sex offenders and individuals who have exceeded the maximum allowable number of sealings under this section or the conditional sealing authority at N.Y. Crim. Proc. Law § 160.58 (applicable to diversion/drug treatment dispositions) are ineligible, as are those with pending charges or who have been convicted subsequent to the last conviction for which sealing is sought. § 160.59(3).

Procedure

Application is made to the court where the conviction for the most serious offense sought to be sealed occurred, or to the court where the individual was last convicted if all offenses for which sealing is sought are of the same class. N.Y. Crim. Proc. Law § 160.59(2)(a).  Among other requirements, the application must contain a sworn statement of reasons why sealing should be granted. § 160.59(2)(b)(v).  The application is assigned to sentencing judge if sealing is sought for a single conviction, and to the county/supreme court otherwise. § 160.59(2)(d).  The District Attorney must be served, and has 45 days to object to the application.  If there is no objection, the court may decide the application without a hearing. § 160.59(6).

Standard

N.Y. Crim. Proc. sec. 160.59(7):

In considering any such application, the sentencing judge or county or supreme court shall consider any relevant factors, including but not limited to:

(a)  the amount of time that has elapsed since the defendant’s last conviction;

(b) the circumstances and seriousness of the offense for which the defendant is seeking relief, including whether the arrest charge was not an eligible offense;

(c)  the circumstances and seriousness of any other offenses for which the defendant stands convicted;

(d) the character of the defendant, including any measures that the defendant has taken toward rehabilitation, such as participating in treatment programs, work, or schooling, and participating in community service or other volunteer programs;

 (e)  any statements made by the victim of the offense for which the defendant is seeking relief;

 (f) the impact of sealing the defendant’s record upon his or her rehabilitation and upon his or her successful and productive reentry and reintegration into society; and

 (g)  the impact of sealing the defendant’s record on public safety and upon the public’s confidence in and respect for the law.

Effect

If sealing is granted, all “official records and papers relating to the arrests, prosecutions, and convictions, including all duplicates and copies thereof, on file with the division of criminal justice services or any court shall be sealed and not made available to any person or public or private agency.” N.Y. Crim. Proc. Law § 160.59(8).  Exceptions apply:  The records remain available to enumerated “qualified agencies,” including courts, corrections agencies, and the office of professional medical conduct;11 to federal and state law enforcement for law enforcement purposes; to state entities responsible for issuing firearm licenses; to employers for screening applicants for police officer/peace officer employment; and to the FBI for firearm background checks. § 160.59(9).  Additionally, law enforcement fingerprint records are not affected by the sealing order. § 160.59(8). Sealed convictions remain “convictions” for the purpose of sentence enhancement or establishing the elements of crime. § 160.59(10).

The New York State Human Rights Law, N.Y. Exec. Law § 296(16) was amended concurrent with the enactment of the sealing authority, prohibiting public and private employers and occupational licensing agencies from asking about, or taking adverse action (i.e., denying employment or licensure) because of, a sealed conviction.  See also Part III-A, below.

Judicial diversion and conditional sealing of drug and other convictions 

N.Y. Crim. Proc. Law § 160.58 (2010) provides for conditional sealing of certain felony drug and other specified convictions, as defined in § 220 of the penal law (sale of controlled substances in the first degree, Class B felony), § 221 (criminal sale of marijuana, Class C felony), and certain offenses listed in N.Y. Crim. Proc. Law § 410.91(5) (burglary, possession of stolen property, criminal mischief) upon completion of a judicial diversion program or a drug treatment alternative to prison or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision.   Sealing may also extend to up to three prior misdemeanors.  The procedure is set forth in N.Y. Crim. Proc. Law § 160.58(3):

At the request of the defendant or the district attorney of a county in which the defendant committed a crime that is the subject of the sealing application, the court may conduct a hearing to consider and review any relevant evidence offered by either party that would aid the court in its decision whether to seal the records of the defendant’s arrests, prosecutions and convictions. In making such a determination, the court shall consider any relevant factors, including but not limited to: (i) the circumstances and seriousness of the offense or offenses that resulted in the conviction or convictions; (ii) the character of the defendant, including his or her completion of the judicially sanctioned treatment program as described in subdivision one of this section; (iii) the defendant’s criminal history; and (iv) the impact of sealing the defendant’s records upon his or her rehabilitation and his or her successful and productive reentry and reintegration into society, and on public safety.  

Pre-plea diversion options

Authority for pre-plea judicial diversion is found in N.Y. Crim. Proc. Law §§ 216.00, .05, for persons charged with Class B and lesser felonies who have not been convicted of a violent offense in the past ten years, and no more than one violent felony.

“Adjournment in Contemplation of Dismissal” (ACD) is available for those charged with a misdemeanor. § 170.55.  Upon successful completion of a period of probation, the record is may be sealed under § 160.50 (see below).  An ACD disposition is not a conviction or admission of guilt and restores status lost:

The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt. No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.

Deferred adjudication (DTAP)

Prior to the enactment of N.Y. Crim. Proc. Law § 160.58 in 2010, some New York district attorneys accomplished the same end through informal means.  For example, in Brooklyn, an individual was permitted to plead guilty and have sentencing deferred upon agreement to participate in an in-patient drug treatment under the Drug Treatment Alternative to Prison (DTAP) program. The program targets drug-addicted defendants arrested for nonviolent felony offenses who have previously been convicted of one or more nonviolent felonies.  Eligibility for this program is controlled by the prosecutor.  Qualified defendants enter a felony guilty plea and receive a deferred sentence that allows them to participate in a residential therapeutic community drug treatment program for a period of 15 to 24 months.  Those who successfully complete the program have charges dismissed, and the record sealed.  Those who fail are brought back to court by a special warrant enforcement team and sentenced to prison.  The program, including the respective roles of the court and prosecutor, is described in People v. Fiammegta, 14 N.Y.3d 90; 923 N.E.2d 1123 (2010) (in its supervision of the DTAP plea and as a measure of the due process owed defendant, the trial court was obligated to make the requisite inquiry into the merits of defendant’s discharge).  See also People v. Jenkins, 11 N.Y.3d 282; 898 N.E.2d 553 (2008) (court has broad discretion when supervising a defendant subject to DTAP, and in deciding whether the conditions of a DTAP plea agreement have been met).

Other deferred adjudication or deferred sentencing programs may also be available for people charged with minor offenses and people with mental illness, which may result in dismissal of charges and no record.

Juvenile records

If a delinquency procedure terminates in favor of the juvenile, the court must immediately order the sealing of records, unless the interests of justice require otherwise.  N.Y. Fam. Ct. Act § 375.1(1).  A juvenile may also move in writing to seal a record, except for felony acts; the court will grant the motion if “in the interest of justice.”  § 375.2(1).  All records for adjudicated youthful offenders are sealed automatically.  N.Y. Crim. Proc. Law § 720.35(2).

Sealing of non-conviction records

Sealing is automatic upon termination of the action in favor of a person (e.g. acquittal, dismissal, declined prosecution), unless the district attorney demonstrates to the satisfaction of the court or the court determines on its own motion “that the interests of justice require otherwise, and states the reasons for such determination on the record . . . .” § 160.50.

Upon the termination of a criminal action or proceeding against a person in favor of such person . . . the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution. The arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution.

N.Y. Crim. Proc. Law §160.60.   In addition, sealing is mandatory for non-criminal infractions/violations (except DWI and prostitution) unless a court directs that these records not be sealed.  See N.Y. Crim. Proc. Law § 160.55.  Additional confidentiality and suppression provisions apply to Youthful Offender adjudications and juvenile delinquency proceedings. N.Y. Crim. Proc. Law § 720.35; N.Y. Fam. Ct. Act §§ 375.2, 380.1.

These provisions are part of a broad public policy of protecting those who have been charged but not convicted, or convicted of minor offenses, from the collateral consequences arising from any criminal record.  In response to a lawsuit, in August 2007 the Office of Court Administration ceased providing information on minor violation convictions.  See N.Y.L.J. at 1, col. 5 (Aug. 10, 2007); OCA website:  https://www.nycourts.gov/apps/chrs/faqs.shtml#faqfunction.

C.  Judicial and administrative certificates

A Certificate of Relief from Disabilities (CRD), N.Y. Correct. Law §§ 701-703, or a Certificate of Good Conduct (CGC), §§ 703-a, 703-b, may be obtained to restore certain rights, and may be limited to one or more specific rights.  Their purpose is to effectuate the public policy of encouraging the licensure and employment of convicted individuals.  See People v. Adams, 747 N.Y.S.2d 909 (2002).  The Certificate of Good Conduct dates from the 1940s, and the Certificate of Relief from Disabilities was added in 1966 with the support of Governor Rockefeller as an aid to rehabilitation as opposed to recognition of it.12   A 2011 amendment to the law authorizing certificates of relief from disabilities is intended to require courts to consider this relief for eligible individuals at sentencing.  See infra.  New York practitioners claim that the certificate program is of limited value, in part because some courts are disinclined to certify rehabilitation as early as sentencing, and in part because employers and others are unwilling to rely on them.  See scholarly articles, discussed elsewhere on this site, describing certificates as “frequently inaccessible to their intended beneficiaries and misunderstood both by the officials tasked with issuing them and the employers and licensing boards that should be giving them effect.”  New York certificates fall short in practice, http://ccresourcecenter.org/2016/02/29/new-york-certificates-of-relief-fall-short-in-practice/.

Both types of certificate are given effect under Article 23-A of the Corrections Law as evidence of rehabilitation.  See discussion below.

Eligibility 

1.  Certificate of Relief from Disabilities

A CRD is available to people with no more than one felony conviction and any number of misdemeanor convictions, either from the sentencing court (for misdemeanor convictions and for felony convictions if no prison term is imposed), or from the Board of Parole (for persons sentenced to prison under New York law or who reside in New York but were convicted in another jurisdiction, including federal).  N.Y. Correct. Law §§ 700(1)(a), 703(1).  Under § 701(1) a CRD may be granted

to relieve an eligible offender of any forfeiture or disability, or to remove any bar to his employment, automatically imposed by law by reason of his conviction of the crime or of the offense specified therein.  Such certificate may be limited to one or more enumerated forfeitures, disabilities or bars, or may relieve the eligible offender of all forfeitures, disabilities and bars. Provided, however, that no such certificate shall apply, or be construed so as to apply, to the right of such person to retain or to be eligible for public office.

The court may issue a CRD at the time sentence is pronounced, in which case it may grant relief from forfeitures as well as from disabilities, or at any time thereafter.  § 702(1).  The Parole Board may issue a CRD at any time after release from prison.  § 703(1)(a).  A CRD is also available to people with federal convictions who reside in New York at sentencing, or at any time thereafter.  If issued prior to expiration of supervision, it is deemed temporary, and may be revoked.  § 703(4).  It is important to seek a CRD at sentencing in order to avoid public housing and employment bars.  The Court or Parole Board must find that the issuance of a CRD is “consistent with the rehabilitation of the eligible offender,” and “consistent with the public interest.”  §§ 702(2), 703(3).

2.  Certificate of Good Conduct

A CGC is available to people with multiple felony convictions from the Board of Parole, “or any three members thereof by unanimous vote,” after a waiting period of one to five years, depending on the seriousness of the offense(s).  N.Y. Correct. Law §§ 703-b(1), (3).  A Certificate of Good Conduct is also available to persons convicted outside New York, including federal offenders.  § 703-b(2).  It is granted only if the person has demonstrated “good conduct” for the requisite period and if (like the CRD) granting relief would be “consistent with the rehabilitation of the eligible offender” and “consistent with the public interest.”  § 703-b(1).  If granted during a period of parole, the CRD is temporary, and it may be revoked at any time until the Board’s jurisdiction is ended. If not revoked, it becomes permanent at the conclusion of parole supervision.

Persons convicted in jurisdictions outside New York State must in addition demonstrate “that there exist specific facts and circumstances, and specific sections of New York state law that have an adverse impact on the applicant and warrant the application for relief to be made in New York.”  § 703-b(2).

Effect

Certificates issued under either N.Y. Correct. Law § 703 (CRD) or § 703-b (CGC) have essentially the same effect:  they relieve an eligible person of “any forfeiture or disability,” and “remove any barrier to . . . employment that is automatically imposed by law by reason of conviction of the crime or the offense.” §§ 701(1), 703-a.  (The CRD statute contains certain exceptions that apparently do not apply to CGCs, as described in the section on “public office,” below.)  A certificate may be limited to particular disabilities, and the relief may be enlarged by the court or Board of Parole at any time, to include firearms permits.

Neither type of certificate voids the conviction as if it were a pardon.  § 706.  (As noted above in IIA, gubernatorial pardons are not generally available in New York State.)  A CRD does not authorize a job applicant with a criminal record to deny on an employment application that he has ever been convicted of a crime. Nor does a certificate preclude employers or licensing agencies from relying on the conviction as a factor in denying or revoking a license or making other discretionary decisions, §§ 701(3), 703-a(3), but a certificate does create a “presumption of rehabilitation” that must be given some effect in deciding whether there is a disqualifying “direct relationship” between a crime and a job or license under Article 23-A of the New York Corrections Law discussed in Part III below.  See  §§ 752, 753(2) (Part III infra); see also, e.g., Adams, 747 N.Y.S.2d at 916 (CRD creates a “presumption of rehabilitation” and removes the automatic bar from obtaining a license, but does not establish a prima facie entitlement to the license; the licensing agency still maintains the ultimate control whether to grant the license.); Op. N.Y. Att’y Gen. (Inf.) 81-124 (1981).

These certificates, with certain exceptions, preclude reliance on the conviction as an automatic bar or disability, but they do not preclude agencies from considering the conviction as a factor in licensing or other decisions.  N.Y. Correct. Law §§ 701(3), 703-a(3)Compare Meth v. Manhattan & Bronx Surface Transit Operating Auth., 521 N.Y.S.2d 54 (N.Y. App. Div. 1987) (transit authority improperly denied employment as a bus driver to man convicted of bribery, who had been granted certificate of relief from disabilities; authority presented no evidence of consideration of the eight factors to rebut the presumption of rehabilitation that the certificate of relief from disabilities creates) with Soto-Lopez v. N.Y. City Civil Serv. Comm’n, 713 F. Supp. 677 (S.D.N.Y. 1989) (dated manslaughter conviction alone was not directly related to a caretaker position nor did it pose an unreasonable risk to persons or property; however, unreasonable risk test met when combined with more recent conviction for sale of narcotics).

Public office: A CRD does not apply to “the right of such person to retain or to be eligible for public office.”  N.Y. Correct. Law § 701(1).  Nor does a CRD overcome automatic forfeiture resulting from convictions for violations of N.Y. Pub. Health Law § 2806(5) (nursing home operator’s license) or N.Y. Veh. & Traf. Law § 1193(f)(2) (driver’s license suspension).  However, these exceptions do not appear in the statute authorizing issuance of CGCs.  Therefore, a CGC would appear to be sufficient to overcome bars to public employment.  Compare People v. Olensky, 91 Misc. 2d 225, 397 N.Y.S.2d 565 (N.Y. Sup. Ct. 1977) (Notary Public was a “public officer” so that CRD not sufficient to enable defendant to obtain a notary public commission and work as a court reporter) with N.Y. Exec. Law § 130 (executive pardon or CGC sufficient to overcome bar to notary public position for person with conviction).  Accordingly, a first offender who is eligible for a CRD must in addition obtain a CGC if he wishes to obtain certain kinds of public employment deemed to be a “public office,” or overcome the specific disabilities in the public health and vehicle codes.   But see People v. Flook, 164 Misc. 2d 284, 285 (N.Y. Cnty. Ct. 1995) (noting that some licensing statutes require persons convicted of the designated crimes to obtain a CGC and others permit them to obtain either a CGC or a CRD, and finding no relevant distinction between the two statutes for purposes of restoration of firearms rights).

Firearms: Either type of certificate may restore firearm rights, except to those convicted of Class A-1 felonies or violent felonies, and this relief must be specified in the certificate. N. Y. Correct. Law §§ 701(2), 703-a (2).

Process

The application for a CRD from the New York courts is explained at http://www.nycourts.gov/courts/6jd/forms/dmv/DP-53.pdf, and from the Department of Corrections and Community Supervision (DOCCS) (formerly the Parole Board) at http://www.doccs.ny.gov/certrelief.html.   The court may request an investigation from the probation service and a written report.  N.Y. Correct. Law § 702(3).  If a CRD is sought from the DOCCS Board, the process may take several months.  See https://www.parole.ny.gov/pdf/parolecert.pdf.  The certificate is temporary during the period of parole supervision, and becomes permanent thereafter if not revoked.  “In granting or revoking a certificate of relief from disabilities the action of the board of parole shall be by unanimous vote of the members authorized to grant or revoke parole.  Such action shall be deemed a judicial function and shall not be reviewable if done according to law.”  § 703(5).

In August 2011 subsection (1) of N.Y. Correct. Law § 702 was amended to require a court, upon application, and prior to or at the time of imposing a sentence that does not involve commitment to state prison, to consider an individual’s fitness for a CRD.  The memorandum accompanying this change in the law states that certificates are a “powerful tool [to] promote and encourage reintegration after a conviction,” but notes that they are “underutilized” and that “only a tiny fraction” of those eligible actually hold them.  http://www.communityalternatives.org/pdf/2011-amend-Corr-L-702.pdf.  This memorandum notes that the purpose of CRDs is to “prevent eviction, loss of a job and loss of an occupational license,” and that they may accordingly be issued “prior to an individual’s demonstration of proper conduct.”  Id.   New York practitioners report that some courts are reluctant to issue certificates at the time of sentencing because of their legal effect in establishing “rehabilitation” under Article 23A.  See

The process for seeking a CGC is more demanding, since an applicant must satisfy the “good conduct” waiting period specified in § 703-b(3).  The waiting period “shall be measured either from the date of the payment of any fine imposed upon him or the suspension of sentence, or from the date of his unrevoked release from custody by parole, commutation or termination of his sentence.”  Id.  The board “shall have power and it shall be its duty to investigate all persons when such application is made and to grant or deny the same within a reasonable time after the making of the application.”  Vote is by the whole board, or of a unanimous three-member panel.  § 703-b(1).

Presumption based on federal recommendation.

Where a certificate of relief from disabilities is sought . . . on a judgment of conviction rendered by a federal district court in this state and the department is in receipt of a written recommendation in favor of the issuance of such certificate from the chief probation officer of the district, the department shall issue the requested certificate, unless it finds that the requirements of paragraphs (a), (b) and (c) of subdivision three of this section [regarding the rehabilitation of the applicant and the public interest] have not been satisfied; or that the interests of justice would not be advanced by the issuance of the certificate.

N.Y. Correct. Law § 703(7).

Additional guidance

Additional information about the process for applying for a CRD or CGC is in Judge Gleeson’s opinion in Doe v. United States, 2016 U.S. Dist. LEXIS 29162 (E.D.N.Y. 2016).   The Legal Action Center has prepared a very helpful booklet that explains in laymen’s terms how to get a record sealed and how to obtain certificates relieving disabilities, and the effect of these forms of relief.  It includes a step-by-step guide to how a private individual can go about having their record sealed, including model letters and forms.  See Legal Action Center, Lowering Criminal Record Barriers: Certificates of Relief/Good Conduct and Record Sealing (2013), available at http://www.lac.org/doc_library/lac/publications/LoweringCriminalRecordBarriers_rev3.pdf.

Frequency of grants

According to the Executive Clemency Bureau of the Division of Parole, 1,621 certificates of both kinds were issued in 2010; 1,857 granted in 2009; 3,046 granted in 2008; 1,637 granted in 2007; and 657 granted in 2006.  The percentage granted exceeds 95% each year.  There are no figures on grants made by the courts.  A 2006 report of a New York State Bar Association committee speculated that the relatively low number of certificates issued each year can be attributed to the fact that most people convicted of crimes are not informed about them.13

Contact

For information concerning certificates of relief and certificates of good conduct, applicants are directed to write to:

New York State Department of Corrections and Community Supervision
Executive Clemency Bureau
The Harriman State Campus – Building 2
1220 Washington Ave, Albany, NY
PardonsAndCommutations@doccs.ny.gov.

III.  Nondiscrimination in Licensing and Employment 

A.  Non-conviction records

The New York State Human Rights Law, N.Y. Exec. Law § 296(16), prohibits public and private employers and occupational licensing agencies from asking about, or acting adversely (i.e., denying employment or licensure) because of, any arrest that did not result in a conviction, or that terminated as a youthful offender adjudication; or that resulted in a sealed conviction, including violations, infractions, and misdemeanors and felonies sealed under the 2009 Drug Law Reform Act (for individuals who successfully completed a diversion program).  The Human Rights Law does not distinguish between current employees and applicants for employment, but insofar as its protections apply only to accusations that are “not then pending” it appears to provide limited protection to current employees who are accused of crime.14 In addition, it does not apply to police or law enforcement jobs.

B.  Human Rights Law – Violation of Article 23-A 

Article 23-A of the Corrections Law (“Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses”) prohibits “unfair discrimination” against a convicted person by public and private employers and licensing entities, “except where a mandatory forfeiture, disability or bar to employment is imposed by law, and has not been removed by an executive pardon, certificate of relief from disabilities or certificate of good conduct.”  N.Y. Corr. L. § 750 et seq.   Article 23-A may be enforced through the courts or through the New York State Human Rights Law, which makes it an unlawful discriminatory practice to deny employment in violation of Article 23-A.  .

It shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to deny any license or employment to any individual by reason of his or her having been convicted of one or more criminal offenses, or by reason of a finding of a lack of “good moral character” which is based upon his or her having been convicted of one or more criminal offenses, when such denial is in violation of the provisions of article twenty-three-A of the correction law.

N.Y. Exec. Law § 296(15).

Section 752 of Article 23-A makes it unlawful for public employers, occupational licensing authorities, and private employers with more than ten employees, to deny or terminate15 employment or licensure based on a previous conviction unless:

(1) there is a “direct relationship” between one or more of the previous criminal offenses and the specific license or employment sought; or

(2) the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

N.Y. Correct. Law. § 752.  The term “direct relationship” is defined as follows:  “the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license or employment sought.”  This prohibition does not apply if disqualification is mandated by law, and the person has not received a certificate of relief from disabilities or certificate of good conduct.  § 751.  Law enforcement positions are excluded from the definition of “employment” under this section.  Id.

Section 753(1) provides that in making a determination under § 752 a public agency or private employer “shall consider” the following factors:

(a) the public policy of this state . . . to encourage the licensure and employment of all persons previously convicted of one or more criminal offenses;

(b) the specific duties and responsibilities necessarily related to the license or employment sought;

(c) the relation of the conviction to the applicant’s ability to perform his responsibilities;

(d) the time elapsed since offense;

(e) the age of the person at the time of offense;

(f) the seriousness of the offense;

(g) any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and

(h) the interest of the employer of protecting property, and the safety and welfare of individuals or the general public.

An employer’s failure to consider each of these factors may violate § 753.  See Acosta v. Dep’t of Education of City of N.Y., 16 N.Y.3d 309, 320 (2011)(Department of Education acted arbitrarily when it failed to consider the documentation petitioner submitted which evidenced her education, rehabilitation and volunteer work over the 13 years since her teenage conviction for robbery, despite its policy of closely reviewing first time applicants; “it is difficult to conclude on this record that the ‘closer review’ purportedly applied here amounted to anything more than a pro forma denial of petitioner’s application on the basis of her prior criminal conviction,” without considering each of the eight factors set forth in § 753);  Boone v. New York City Department of Education, No. 2016 NY Slip Op 26240 (Sup. Ct. 2016) (denying petitioner a security clearance for a position as a School Bus Attendant, without due regard to the factors set forth in Article 23-A, or petitioner’s CRD, was arbitrary and capricious).  But see Arrocha v. Bd. of Educ. Of City of N.Y., 93 N.Y.2d 361 (1999) (Board of Education’s determination that teaching license applicant’s prior conviction for sale of cocaine came within statutory “unreasonable risk” exception to general rule that prior conviction should not place person under disability, was neither arbitrary nor capricious, where Board properly considered all statutory factors and determined that those weighing against granting license outweighed those in favor; age of conviction, applicant’s positive references and educational achievements, and presumption of rehabilitation were outweighed by teacher’s responsibility as role model and nature and seriousness of applicant’s offense.).

Section 753(2) provides that the public agency or private employer shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant,16 “which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein.”  This provision has been interpreted by the courts to create a presumption of rehabilitation that must be given effect by the employing or licensing agency even where an applicant’s prior conviction is directly related to the license or employment sought.   See Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 612 (1988) (because presumption of rehabilitation applies even where there is a direct relationship, the agency or employer must consider statutory factors to determine whether that relationship is sufficiently attenuated to warrant issuance of license or employment).  The authority of an agency to refuse a license based on conviction alone is discussed in La Cloche v. Daniels, 2006 N.Y. Misc. LEXIS 9379; 235 N.Y.L.J. 118 (N.Y. Sup. Ct. 2006).17

Section 754 provides that if an individual who was previously convicted of at least one offense was denied employment or licensure, the employer or licensing agency must provide  a statement of reasons for the denial, if the individual so requests.  Section 755 specifies the mode of enforcement (in case of public employer through a civil action, and private employer through division of human rights and commission on human rights). The New York State Human Rights Law also authorizes filing a civil action in court against private employers.  N.Y. Exec. Law § 297(9).

Negligent hiring protections  

The Human Rights Law also extends protections against negligent hiring lawsuits to employers who have “made a reasonable good faith determination” pursuant to the factors set forth in Article 23-A:

Further, there shall be a rebuttable presumption in favor of excluding from evidence the prior incarceration or conviction of any person, in a case alleging that the employer has been negligent in hiring or retaining an applicant or employee, or supervising a hiring manager, if after learning about an applicant or employee’s past criminal conviction history, such employer has evaluated the factors set forth in section seven hundred fifty-two of the correction law, and made a reasonable, good faith determination that such factors militate in favor of hire or retention of that applicant or employee.

N.Y. Exec. Law § 296(15).

C.  Ban the Box  

Public employment

In September 2015, Governor Andrew Cuomo announced plans to implement recommendations from the Council on Community Re-entry whereby applicants for competitive positions in state agencies will not be required to discuss or disclose prior convictions until an agency has interviewed the candidate and made an initial hiring decision. See Governor Cuomo Announces Executive Actions to Reduce Barriers for New Yorkers with Criminal Convictions, https://www.governor.ny.gov/news/governor-cuomo-announces-executive-actions-reduce-barriers-new-yorkers-criminal-convictions (Sept. 21, 2015).

New York City Fair Chance Act

The 2015 Act prohibits most entities that employ individuals in New York City from asking about a job applicant’s conviction record or running a background check (including a simple internet search) until after a job offer is made.  After making an offer, an employer may ask questions and conduct a background check, but may then only revoke that offer after determining that hiring the individual would pose a risk to persons or property, or that the conviction history is directly related to the job.  This determination must be made after evaluating the conviction history pursuant to Correction Law Art. 23-A.  Should the employer seek to revoke the job offer, it must provide the applicant with an explanation of the decision together with a copy of any background check report used in the decision, and give the applicant three business days to respond.  The 2015 Act is enforced by the NYC Human Rights Commission, whose website includes helpful information on bringing complaints.  It may also be enforced in New York State court.  See Fair Chance Act, NYC Human Rights Comm’n,  http://www1.nyc.gov/site/cchr/law/fair-chance-act.page.

D.  Additional guidance

The Legal Action Center has prepared a helpful booklet explaining in laymen’s terms what New York employers may and may not ask about a person’s criminal record, how a person should describe their record, and what rights people have to be free of job discrimination because of their criminal record.  See Legal Action Center, Criminal Records and Employment: Protecting Yourself From Discrimination (2013), available at  http://lac.org/wp-content/uploads/2014/11/Criminal_Records_Employment_2013.pdf.

 

 

 


  1. See NYS DOCCS website, https://www.parole.ny.gov/certrelief.html.
  2. In an opinion dated October 31, 2008, the General Counsel, Administrative Office for U.S. Courts, opined that federal supervised release, as a penalty imposed separately from a prison sentence, is analogous to probation as opposed to parole.
  3. See A.G. Sulzberger, The Tradition of Granting Clemency and Second-Guessing it, N.Y. Times (Dec. 2, 2009), available at http://cityroom.blogs.nytimes.com/2009/12/02/clemency:[I]n recent decades each successive governor, Democrat or Republican, has granted clemency to fewer inmates even as the prison population continued to rise to the current level of approximately 60,000, according to information provided by the Division of Parole.  According to that information, Gov. Hugh L. Carey commuted the sentences of 155 people in eight years in office, Mr. Cuomo commuted the sentences of 37 people in 12 years, and Mr. Pataki commuted the sentences of 33 people and pardoned one – the deceased comedian Lenny Bruce — in 12 years.  During his aborted term Gov. Eliot Spitzer pardoned one man, already out of prison, to prevent him from being deported.

     

  4.  See, e.g., Sarah Maslin Nir, To Stave Off a Deportation, Cuomo Pardons a 9/11 Volunteer, N.Y. Times, June 21, 2017, https://www.nytimes.com/2017/06/21/nyregion/cuomo-pardon-deportation-carlos-cardona.html?_r=0.
  5. See Kirk Semple, Hip-Hopper Is Pardoned by Governor, N.Y. Times (May 24, 2008), available at    http://www.nytimes.com/2008/05/24/nyregion/24pardon.html?_r=1&em&ex=1211774400&en=1501eee6aa64326d&ei=5087%0A&oref=slogin.
  6. See Al Baker, Soldier Says Pardon Buoys His Hopes for Police Career, N.Y. Times (Jan. 2, 2010); C.J. Chivers & William Rashbaum, Army Lets a Felon Join Up, but N.Y.P.D. Will Not, N.Y. Times (Jan. 6, 2008), available at http://www.nytimes.com/2010/01/03/nyregion/03soldier.html.
  7. Nina Bernstein, Paterson Rewards Redemption With a Pardon, N.Y. Times (Mar. 6, 2010), available at http://www.nytimes.com/2010/03/07/nyregion/07pardon.html?scp=1&sq=wu%20pardon&st=cse;  Nina Bernstein, Judge Keeps His Word to Immigrant Who Kept His, N.Y. Times (Feb. 19, 2010), available at  http://www.nytimes.com/2010/02/19/nyregion/19judge.html.
  8. See Anahad O’Connor, Spitzer Pardons Ex-Convict to Spare Him Deportation, N.Y. Times (Dec. 22, 2007), available at http://www.nytimes.com/2007/12/22/nyregion/22pardon.html?scp=2&sq=frederick%20Lake%20pardon&st=cse.
  9. See John Kifner, No Joke! 37 Years After Death Lenny Bruce Receives Pardon, N.Y. Times (Dec. 24, 2003), http://www.nytimes.com/2003/12/24/nyregion/no-joke-37-years-after-death-lenny-bruce-receives-pardon.html.
  10. See Margaret Colgate Love, The Quality of Mercy in New York: A Different Kind of State Challenge to Federal Immigration Policy, ACSBlog, http://www.acslaw.org/acsblog/the-quality-of-mercy-in-new-york-a-different-kind-of-state-challenge-to-federal-immigration.
  11. NY CLS Exec § 835(9) defines “qualified agencies” as,courts in the unified court system, the administrative board of the judicial conference, probation departments, sheriffs’ offices, district attorneys’ offices, the state department of corrections and community supervision, the department of correction of any municipality, the financial frauds and consumer protection unit of the state department of financial services, the office of professional medical conduct of the state department of health for the purposes of section two hundred thirty of the public health law, the child protective services unit of a local social services district when conducting an investigation pursuant to subdivision six of section four hundred twenty-four of the social services law, the office of Medicaid inspector general, the temporary state commission of investigation, police forces and departments having responsibility for enforcement of the general criminal laws of the state, the Onondaga County Center for Forensic Sciences Laboratory when acting within the scope of its law enforcement duties and the division of forensic services of the Nassau county medical examiner’s office when acting within the scope of its law enforcement duties. 
  12. Legislative History of Certificate Statutes, Memorandum to Alan Rothstein, Corporate Counsel for the New York City Bar Association, from Danielle D’Abate, Summer Intern for the Legal Clinic for the Homeless, August 11, 2006 (on file with authors).  See generally Joy Radice, Administering Justice: Removing Statutory Barriers to Reentry, 83 U. Colo. L. Rev. 715 (2012) (describing history and operation of the New York’s certificate statute).
  13. See Reentry and Reintegration: The Road to Public Safety, Report and Recommendations of the Special Committee on Collateral Consequences of Criminal Proceedings at 99-106 (May 2006), available at http://www.nysba.org/workarea/DownloadAsset.aspx?id=26857.
  14. Respecting current employees accused of crime, the New York Legal Aid Society reports that

    We generally advise that current employees whose cases are sealed prior to any adverse action being taken, based on the arrest, are entitled to the statute’s protection. But there is no clear authority as to whether the statute entitles persons who have been suspended to be restored to the “status quo ante” once the criminal case has been sealed.  This is a major issue because many government employers and licensing agencies are electronically notified of their employees’ and licensees’ arrests, and frequently issue suspensions pending the outcome of the criminal case.

  15. Until 2007, current employees were not covered by Article 23A.  S.1602/A.3208 extended the anti-discrimination protections to current employees and license holders but only if their convictions predate employment or licensure.  The law does not protect individuals who lie on an employment application, or who are accused of committing a crime while employed.
  16. Certificate of Relief from Disabilities, N.Y. Correct. Law §§ 700-703, or a Certificate of Good Conduct, §§ 703-a, 703-b, may be obtained to restore certain rights, and may be limited to one or more specific rights.  See discussion in Part IIC above.
  17. The La Cloche case gained notoriety as an example of arbitrary and unreasonable agency action against a convicted person.  See Clyde Haberman, He Did Time, So He’s Unfit to Do Hair, N.Y. Times, at B1 (Mar. 4, 2005); Jennifer Gonnerman, Banned From the Barbershop: The quiet death of a fighter for civil rights, The Village Voice (Nov. 9-15, 2005).