Restoration of Rights Series/Iowa

Iowa flagI.  Restoration of Civil/Firearms Rights
A.  Vote/Office

Under the Iowa Constitution, persons convicted of an “infamous crime” (any crime punishable by imprisonment in the penitentiary, which may include aggravated misdemeanors as well as felonies) are ineligible to vote or hold public office.  Iowa Const. art. II, § 5; see Iowa Code § 48A.30(d).  The rule in Iowa has been that “[a]ny crime punishable by imprisonment in the penitentiary is an infamous crime.” State ex rel. Dean v. Haubrich, 248 Iowa 978, 980 (1957). In 2016, the Iowa Supreme Court upheld the state’s policy of lifetime disenfranchisement of anyone convicted of any felony as being consistent with the state Constitution. See Griffin v. Pate, No 15-1661 (June 20, 2016).  Two years earlier, the court held that repeat DWI, an aggravated misdemeanor carrying a potential prison term, was not an “infamous crime” so as to constitute a bar to eligibility for office.  See Chiodo v. Section 43.24 Panel, No 14-0553 (April 15, 2014).  However, the court stressed that the category of “infamous crime” was broader than “felony.”

Iowa state offenders may regain the right to vote by applying directly to the governor for restoration of rights under Iowa Code § 914.2, or through the Board of Parole for a pardon.  Under current policy, a convicted person will be eligible for restoration of rights only upon satisfaction of fines, restitution, or other financial obligations stemming from the crime.  See Iowa Exec. Order No. 70 (Jan. 14, 2011), available at http://sentencingproject.org/doc/publications/fd_Branstad%20Exec_Order_70.pdf (last visited May 29, 2012). 1

Federal and out-of-state offenders may also obtain a restoration of rights through application to the Board of Parole, but the Governor’s Office takes the position that the persons convicted in another state jurisdiction, whose rights have been restored in that jurisdiction, may vote in Iowa.

B.  Jury

Felony offenders are not rendered ineligible for jury service, but may be challenged for cause.  Iowa R. Civ. P. 1.915(6)(a); Iowa R. Crim. P. 2.18(5)(a).

C.  Firearms

Conviction or adjudication of a felony, or conviction of misdemeanor domestic violence, renders an individual ineligible to possess a firearm.  Iowa Code § 724.26.  See also §§ 724.8(4), 724.15(1)(b).  In addition, a person convicted within the previous three years of “any serious or aggravated misdemeanor defined in chapter 708 not involving the use of a firearm or explosive” may not possess a firearm.  Iowa Code § 724.8(5).  See also § 724.15(1)(b).  Restoration of citizenship by governor or expungement restores firearms rights unless the conviction is of a forcible felony or firearms offense.  Iowa Code §§ 724.27; 914.7(1).  See Part IIA, infra.

II.  Discretionary Restoration Mechanisms
A.  Executive pardon and restoration of rights
Authority

The governor has the authority, except in cases of treason or impeachment, to grant reprieves, commutations, and pardons, after conviction, “subject to such regulations as may be provided by law.” Iowa Const. art. IV, § 16; accord Iowa Code §§ 914.1-914.7.  Application for clemency may be made at any time either to the Board of Parole or to the governor.  Iowa Code § 914.2.2  Every two years, the governor must report to the legislature on pardons issued, “and the reasons therefor . . . .” Iowa Const. art. IV, § 16.  The pardon power includes the power to restore rights of citizenship.  See State ex rel. Dean v. Haubrich, 83 N.W.2d 451, 455-56 (Iowa 1957).

Restoration of Citizenship, including firearms rights

Restoration of the right to vote and hold public office is handled by the Office of the Governor.  There is a special process for restoration of firearms rights. The governor’s website on executive clemency includes application forms and instructions as well as frequently asked questions. See https://governor.iowa.gov/constituent-services/restoration-of-citizenship-rights (accessed July 6, 2017).

Pardon

Applications for pardon are also submitted to the governor.  However, the Board of Parole is authorized to periodically review applications for pardon and make recommendations to the governor for all applications by persons convicted of criminal offenses.  Iowa Code § 914.3(1).  Upon request of the governor, the board may “take charge of all correspondence in reference to an application filed with the governor” and provide the governor with advice and recommendation concerning “any person for whom the board has not previously issued a recommendation.”  § 914.3(2).  The governor is required to respond to recommendations of the Board within 90 days; he must “state whether the commendation will be granted and shall specifically set out the reasons for such action.”  § 914.4.  However, the governor’s power to pardon and restore rights of citizenship “shall not be impaired.”  Iowa Code § 914.1; see State v. Duff, 122 N.W. 829 (Iowa 1909) (statute authorizing board to parole prisoners does not confer power upon the board to reprieve or pardon and hence does not violate the constitutional provision granting such power to the governor).

The predecessor statute to section 914.3 does not require the governor to present a case to and obtain a recommendation from the Board of Parole before granting a pardon.  See 1940 Op. Att’y Gen. 125 (reversing 1934 Op. Att’y Gen. 372).  A challenge to this opinion was rejected in the context of the governor’s blanket restoration of voting rights to all persons who have completed their court-imposed sentences.  See Iowa Exec. Order No. 70; see also Ruling on Mot. for Summ. J., State ex rel. Gary R. Allison v. Vilsack, No. EQCV 018165 (Oct. 27, 2005).

Eligibility
Restoration of Citizenship (Vote and Office)

Application for restoration of civil rights may be made directly to the Office of the Governor at any time following conviction. Iowa Code § 914.2.  It is not necessary for a person to have completed parole, probation, or paid all fines (though progress toward satisfying court-imposed obligations will be considered).   Federal and out-of-state offenders may obtain a restoration of civil rights, but not restoration of firearms rights or pardon.

Special Restoration of Citizenship (Firearms)

Firearms restoration must be applied for separately, and requires a waiting period of five years from the date of discharge of sentence. All fines and restitution must be paid.  Persons convicted of forcible felonies, or felonies involving drugs or weapons, are ineligible to have their firearms rights restored, even by pardon. Iowa Code § 914.7.

Pardon

Application may be submitted “at any time following the conviction,”  Iowa Code § 914.2, though it is the general policy of the governor’s office to require at least ten years to pass from the date that a person is discharged from the sentence of that person’s most recent conviction before granting a pardon.  An applicant must submit criminal history and credit history information.  Evidence of rehabilitation and good character must be demonstrated, and the applicant is invited to submit as many letters of recommendation as possible.  Review appears to be a paper review, since no in-person hearing specified.

The governor’s website on executive clemency includes application forms and instructions as well as frequently asked questions. See https://governor.iowa.gov/constituent-services/restoration-of-citizenship-rights (accessed July 6, 2017).

Effect

Restoration of rights restores right to vote and hold public office.  Pardon relieves all legal disabilities (including public employment disabilities).  See Slater v. Olson, 299 N.W. 879 (Iowa 1941) (invalidating a statute barring convicted persons who had been pardoned from civil service positions, on ground that it encroached upon the governor’s constitutional powers).  Firearms rights may be restored by pardon, restoration of rights, or expungement of a conviction for a disqualifying offense, Iowa Code § 724.27, except for persons convicted of forcible felonies or firearms offenses, § 914.7.

Process
Role of Board

The Board “shall recommend to the governor the reprieve, pardon, commutation of sentence, remission of fines or forfeitures, or restoration of the rights of citizenship for persons who have by their conduct given satisfactory evidence that they will become or continue to be law-abiding citizens.”  Iowa Code § 914.3(1); see Iowa Admin. Code rules 205-14.3-14.4.  For violent crimes, notice of application for commutation or pardon must be given to registered victims. Iowa Code § 915.19; see paragraph above on governor’s obligation to respond to Board recommendations and give his reasons; see also http://www.bop.state.ia.us/pdf/07-01-2009.205.pdf (last visited July 27, 2013).

Restoration of Citizenship

There is a streamlined statutory process for restoration of citizenship by the governor.  Persons sentenced to prison must initiate application under section 914.2, and upon request from the governor, the warden or superintendent of prison shall provide the government with a statement of the prison conduct and recommendation “as to the propriety of restoration.” Iowa Code § 914.5(3).  For those sentenced to probation, upon discharge the sentencing judge “shall forward to the governor a recommendation for or against restoration of citizenship rights . . . .” § 907.9(4)(a).  The abbreviated process takes from four to six months.  A list of the persons whose rights have been restored must be delivered to the state registrar of voters at least once each month.  § 914.6(3).

Pardon

An application may be filed with Board of Parole or directly with the governor.  Each application is forwarded to the Department of Public Safety for a full review of criminal and traffic violations as well as a credit history.  According to law, these materials will be reviewed by the Board of Parole, and a recommendation will be submitted to the governor.  The governor may ask the judge and prosecutor for facts or a recommendation.  Upon receipt of recommendation from the Board of Parole, the governor must act on it within 90 days, stating whether or not the recommendation will be granted.  The governor may interview an applicant personally.  The governor must give reasons for decision in either case.  If the governor does not grant the recommendation, the recommendation shall be returned to the board of parole and may be re-filed with the governor at any time.  Iowa Code § 914.4.

Frequency of Grants

See Iowa Board of Parole Annual Reports, 1999 through present. http://www.bop.state.ia.us/AnnualReports; see also charts below.

Year
Pardon Applications
reviewed

Rec. favorable/
denial
Pardons Granted
Special Restoration applications
reviewed (w/gun)

Special Restoration of rights (w/gun) granted/denied
Restoration applications
reviewed
Restoration granted/denied

2015
21
6/15
5
26
7/19
23
18 granted

2014
20
2/18
2
46
6/40
27
25 granted

2013
56
22/34
1
66
36/30
18
21 granted

2012
28
8/20
7
38
17/21
22
19 granted

2011
43
14/25
14
49
26/21
11/11
11/11

2010
27
11/16
11
30
14/16
11
11/0

2009
57
42/32
48
61
48/26
41
53/1

2008
49
26/23
34
70
34/36
147
133/14

2007
82
41/41
59
107
59/48
90
90/0

2006
31
18/12
29
42
29/9
2503
167/80

2005
27
29/16
30
29
30/31
551
320/244

2004
43
17/12
33
79
33/23
485
380/105

2003
9
2/2
4
5
4/1
351
263/

2002
30
9/10
15
54
15/15
402
285/119

Contact

Colin Smith
Deputy Legal Counsel, Office of the Governor
(515) 725-3516
Colin.Smith@iowa.gov

Sarah Harms
Board of Parole
(515)725-5717
Sarah.Harms@ibop.state.ia.us

B.  Judicial sealing or expungement of adult felony convictions
1.  Deferred Adjudication and Expungement

For a first felony offense (excluding forcible felonies and certain sex offenses) , the court may defer judgment and place the defendant on probation.4 Iowa Code § 907.3(1).  At any time, if the court determines that the purposes of probation have been fulfilled and fees have been paid, the court may order the discharge of a person from probation. § 907.9(1).  If the defendant is discharged from probation, no conviction occurred in strict legal sense because no adjudication of guilt was made.  State v. Farmer, 234 N.W.2d 89, 92 (Iowa 1975); accord Daughenbaugh v. State, 805 N.W.2d 591, 597 (Iowa 2011).  Upon successful completion of probation, “the court shall forward to the governor a recommendation for or against restoration of citizenship rights to that person . . . .”  § 907.9(4)(a).  In addition, a person who has been discharged from probation “shall no longer be held to answer for the person’s offense,” id. and “the court’s criminal record with reference to the deferred judgment shall be expunged,” § 907.9(4)(b).  The court’s record “shall not be expunged in any other circumstances, unless authorized by law.”  Id.; see Op. Iowa Att’y Gen. No. 75-9-11, 1975 WL 368808 (Sept. 10, 1975) (“expungement” refers only to that part of the court’s criminal record “with reference to the deferred judgment” and there is no authority for expunging the docketing or indexing of the case, the defendant’s name, the charge filed or the plea).5

Expunged records are “segregated in a secure area or database which is exempted from public access.” Iowa Code § 907.1.  However, a deferred judgment that has been expunged may be used to enhance punishment for a subsequent offense.  State v. Moore, 569 N.W.2d 130, 131-32 (Iowa 1997).  Convictions expunged under this authority count as prior convictions under the U.S. Sentencing Guidelines.  See United States v. Townsend, 408 F.3d 1020, 1025 (8th Cir. 2005) (concluding that “Iowa state-court conviction for third-degree burglary was not expunged due to constitutional invalidity, innocence, or a mistake of law . . . [i]nstead, the conviction was exempted from public access to permit [defendant] Townsend a clean start and to restore some civil rights”).

2.  Juvenile records
Confidentiality

Adjudication records in delinquency proceedings arising on or after July 1, 2016 are presumptively confidential if they do not involve a forcible felony offense.   Iowa Code Ann. §§ 232.147(3), 232.149B(1) (amended and enacted by 2015 SF 2288).  Forcible felony records may be treated as confidential if, upon petition, the court finds that the juvenile’s interest in making the records confidential outweighs the public’s interest in the records remaining public. § 232.149A(1).  Confidential records are not available to the general public but remain available to law enforcement, county attorneys, and military recruiters, among others. §§ 232.147(3), 232.149A(3).

For non-forcible felony offenses, presumptively confidential records may be made public while the juvenile court holds jurisdiction if the court finds, upon a motion by the court or anyone else, any of the following: that the public interest in disclosure outweighs the juvenile’s interest in confidentiality; that, in certain “youthful offender” cases, jurisdiction will be transferred to district court upon the juvenile’s 18th birthday; or the juvenile was subsequently charged with or adjudicated for a serious misdemeanor, aggravated misdemeanor, or felony. § 232.149B(2), (3).  Records made public may be subsequently sealed under § 232.150, discussed below. § 232.149B(4).

Sealing

Sealing is governed by Iowa Code Ann. § 232.150(1). The court is required to schedule a sealing hearing two years after the last official action in a case or on the person’s 18th birthday, whichever is later.  Id.  For offenses other than aggravated misdemeanors and felonies, the court will seal upon a finding that the person is at least age 18; at least two years have elapsed since the last official action on the person’s case; there have been no subsequent felony or aggravated misdemeanor convictions; the person was not placed on youthful offender status, transferred to adult court, and sentenced for the underlying offense; and that the person was not adjudicated for an OWI (DUI).  Id.  Aggravated misdemeanors may be sealed upon application if they meet the same eligibility requirements (excepting the youthful offender and OWI criteria) and if sealing is in the best interests of the person and the public § 232.150(1)(b).  Unlike “confidential” records, sealed records “shall no longer be deemed to exist as a matter of law.”  § 232.150(5).  Courts and agencies shall respond to requests for sealed records that no such records exist.  Id.  “All agencies and persons having custody of [sealed records] shall send such records to the court issuing the [sealing] order,” and “all index references to sealed records shall be deleted.”  Id.

Status of records at age 21

Iowa Code Ann. § 692.17(1):

Criminal history data shall not include custody or adjudication data, except as necessary for the purpose of administering chapter 692A, after the juvenile has reached twenty-one years of age, unless the juvenile was convicted of or pled guilty to a serious or aggravated misdemeanor or felony between age eighteen and age twenty-one.

3.  Non-conviction records

Effective January 1, 2016, a person acquitted of all charges or whose charges have been dismissed (except deferred adjudication cases) is entitled to have the record expunged after 180 days. Iowa Code § 901C.1.  Same definition of expungement as for deferred adjudication under § 907.4.  See also Iowa Code § 962.17(1):  “Criminal history data in a computer data storage system shall not include arrest or disposition data or custody or adjudication data after the person has been acquitted or the charges dismissed . . . .”

C.  Administrative certificate
“Certificate of Employability”

In 2008, the Iowa legislature authorized the Board of Parole to develop and implement a “certificate of employability program” for certain formerly incarcerated persons on parole (no sex offenders), or no longer on parole but unemployed or underemployed.  The purpose of the program is to “maximize the opportunities for rehabilitation and employability of a person and provide protection of the community, while considering the needs of potential employers.”  Iowa Code § 906.19(2).  The program developed by the Board is described at Chapter 9 of the Parole Board Rules, http://www.bop.state.ia.us/pdf/07-01-2009.205.pdf (last visited May 29, 2012).

Certificates may be issued by the board at the time the offender is released from prison or at any time thereafter, with a positive recommendation from the department of corrections or community-based corrections in the state of Iowa.  The Board must determine that relief “is consistent with the employability of the eligible offender,” and “consistent with the public interest.”  Iowa Code § 9.3(2).  The certificate may be revoked during the parole period for a new arrest, or afterwards for a new conviction.  § 9.3(3).  A certificate of employability may be presented to any public agency or private employer, except where a statutory bar exists to employment.  The only legal effect given a certificate under the Board Rules relates to licensing:  Under section 9.2(2), licensing agencies cannot deny a license based on the felony conviction or based on a lack of good moral character, unless the agency makes a determination that there is a direct relationship between the offense and the license sought or that the issuance of the license involves unreasonable risk to property or the safety and welfare of specific individuals or the general public.

III.  Nondiscrimination in Licensing and Employment:

Iowa has no general law regulating consideration of conviction in employment or licensure.  It does apply a direct relationship test in connection with some licenses.  See, e.g., Iowa Code § 147.3 (health-related professions licensing; “[a] board may consider the past criminal record of an applicant only if the conviction relates to the practice of the profession”); see also Part II C, supra, on certificates of employability.


  1. Between 2005 and 2011, an executive order issued by Governor Tom Vilsack automatically restored the right to vote and to hold public office to offenders who had completed their court-imposed sentences.  See Iowa Exec. Order No. 42, available at http://publications.iowa.gov/3762/1/EO_42.pdf.  According to news accounts of Governor Vilsack’s action, the order restored the right to vote to some 80,000 persons then unable to vote in Iowa.  His successor Chet Culver continued this automatic restoration policy, and rights were restored to offenders completing their sentences on a monthly basis (about 25,000 individuals over his four-year term).  Governor Terry Branstad rescinded the Vilsack order on January 14, 2011, so requests for restoration of rights are again handled on a case-by-case basis by the Office of the Governor.  See Iowa Exec. Order No. 70, available at https://governor.iowa.gov/documents/executive-order-70.
  2. An exception is stated under section 902.2, which provides that persons sentenced to life in prison may apply for clemency “no more frequently than once every ten years.”  This provision, enacted in 1995, was sustained against constitutional challenge under the ex post facto clause in Snodgrass v. Robinson, 512 F.3d 999 (8th Cir.), cert. denied, 555 U.S. 813 (2008).  To the extent this provision appears to require the Governor to send applications for clemency to the Parole Board, it may be constitutionally problematic.  See State ex rel. Gary R. Allison v. Vilsack, No. EQCV 018165.
  3. Prior to 2005, when Governor Vilsack issued a blanket restoration of the right to vote, much of the Board’s clemency work was consumed with processing applications for restoration of rights.  Now that Governor Vilsack’s executive order has been rescinded, this work may pick up again.
  4. If a case qualifies for disposition under section 907.3, a defendant is entitled to be considered for deferred judgment.  See State v. Johansen, Nos. 6-451, 05-1106, 2006 WL 1751285, at *1 (June 28, 2006).
  5. In Dickerson v. New Banner Institute, the Supreme Court held that a guilty plea and deferred sentence that was expunged under the Iowa deferred adjudication scheme did not relieve a defendant of federal firearms disabilities.  460 U.S. 103 (1983), superseded by statute, Firearms Owners’ Protection Act, 100 Stat. 449 (1986), as recognized in Logan v. United States, 552 U.S. 23, 27-28 (2007) (citing 18 U.S.C. § 921(a)(20)).  Congress subsequently amended the Federal Firearms Act to give effect to state relief provisions, including set-aside and expungement provisions.  See 18 U.S.C. § 921(a)(20).

Copyright © 2017

Restoration of Rights Series/Indiana

Indiana_Flag_(1903)I.  Restoration of Civil/Firearms Rights
A.  Civil Rights
Vote

The Indiana Constitution authorizes the legislature to pass laws disenfranchising those convicted of an “infamous crime.” Ind. Const. art. 2, § 8 (“The General Assembly shall have power to deprive of the right of suffrage, and to render ineligible, any person convicted of an infamous crime.”).1  In addition, Indiana law provides that a person who has been imprisoned following conviction of a “crime” may not vote until release from incarceration or other lawful detention.  Ind. Code § 3-7-13-4.  See Snyder v. King, 958 N.E.2d 764, 785-86 (Ind. 2011)(holding that “the Indiana General Assembly has authority under its general  police power to disenfranchise persons incarcerated upon conviction of a crime, so long as the disenfranchisement lasts only for the duration of incarceration”).

Jury

A person who “has had the right to vote revoked by reason of a felony conviction and the right has not been restored” is disqualified from jury service; the right to serve as a juror is automatically restored upon restoration of the right to vote.  Ind. Code § 33-28-5-18.

Office

A person convicted of a felony, or who pled guilty or nolo contendere, is disqualified from holding or being a candidate for elected office. § 3-8-1-5(c)(3).  Whenever a person is convicted of misdemeanor violation of the laws against bribery, conflict of interest, and official misconduct, the sentencing court may include in the sentence an order rendering the person ineligible to hold office of profit or trust for a period not to exceed 10 years.  § 35-50-5-1.1(a).  Disabilities affecting the right to hold office may be removed by expungement under Ind. Code § 35-38-9 (see Part II, infra) or by pardon.

B.  Firearms

Indiana’s laws relating to gun possession by convicted persons appear to bar possession of handguns only. See, e.g., Ind. Code § 35-47-2-3(g)(1)(license to carry a handgun shall not issue to anyone convicted of a felony).  Under these laws, those convicted of a felony or of domestic battery are barred from handgun licensure. §§ 35-47-2-3(g)(1), 35-47-2-1(c), 35-47-4-7(a).  Restoration by expungement, §§ 35-38-9-10(b), or by  governor’s pardon if 15 years have passed since commission of the offense.  § 35-47-2-20.  The governor may issue a conditional pardon under § 11-9-2-4, which will remove the handgun disability “if the superintendent [of State Police] determines after an investigation that circumstances have changed since the pardoned conviction was entered to such an extent that the pardoned person is likely to handle handguns in compliance with the law.” § 35-47-2-20.  A person convicted of domestic violence may petition the court five years after conviction to regain firearms privileges.  § 35-47-4-7-(b).

II.  Discretionary Restoration Mechanisms
A.  Executive pardon  
Authority

The constitution gives pardon power to the governor, “subject to such regulations as may be provided by law.”  It also authorizes the legislature to create a “council composed of officers of state, without whose advice and consent the Governor may not grant pardons.”  Const. art. 5, § 17.  In 1980, the legislature abolished the Commission on Clemency, and gave the Parole Board authority to review applications and make advisory recommendations to the governor regarding applications for pardons, commutations, and reprieves.  See Ind. Code §§ 11-9-2-1 to 11-9-2-3.  While there is a statutory requirement that all applications for pardon be filed with the Board, § 11-9-2-1, there is also a specific disclaimer of any intent to limit the constitutional power of the Governor.   § 11-9-2-3.2  The constitution requires the governor to report to the legislature his pardons at next scheduled meeting.  Ind. Const. art. 5, § 17.

Administration

The Parole Board consists of five members appointed by the governor to four-year terms. Not more than three of these members may be from same party.  Code § 11-9-1-1(a).  The Parole Board members are full-time salaried employees.

Eligibility

Recent governors have required a 5-year waiting period and evidence of rehabilitation.  A person convicted under the laws of another state or by the federal government is ineligible for a pardon.  Firearms disability relieved only after 15 years.

Effect

The Indiana Supreme Court has held that pardon essentially wipes out both the punishment prescribed for the offense and the guilt of the offender.  Kelley v. State, 185 N.E. 453, 458-59 (Ind. 1933).  Based on the Supreme Court’s holding in Kelley, the Indiana Court of Appeals has found that a pardon provides automatic grounds for judicial expungement. See State v. Bergman, 558 N.E.2d 1111 (Ind. Ct. App. 1990).  A pardon removes firearm disabilities, except for crimes against the person, “if fifteen (15) years have elapsed between the time of the offense and the application for a license under this chapter.”   Code § 35-47-2-20(a).  In addition, a pardon may be issued that is conditional upon a determination by the Superintendent of State Police that the person is “likely to handle handguns in compliance with the law.”   § 11-9-2-4.  If that determination is made in conjunction with such a conditional pardon, the firearms disability is removed.  §§ 11-9-2-4, 35-47-2-20(b).

Process

The governor in recent years has relied on the Parole Board for all pardon investigations and accepts a majority of its recommendations (which, if true, suggests that it recommends very few).  Applications are filed in the first instance with the Parole Board.  Instructions and application forms are at http://www.in.gov/idoc/files/online_pardon_packet.pdf.  The Indiana pardon process is described in detail at http://www.pardon411.com/wiki/Indiana_Pardon_Information.

By statute, the Parole Board must: 1) notify the victim, sentencing court, and prosecuting attorney; 2) conduct an investigation; and 3) conduct a hearing at which the petitioner and other interested parties are given an opportunity to present their position. Ind. Code § 11-9-2-2(b).  Whenever the Parole Board is conducting an inquiry, investigation, hearing, or review, it may delegate that function to one or more members of the Board.  § 11-9-1-3(a).  If one or more member acts on behalf of the Board, he or she may exercise all the powers of the Board except the power to render a final decision.   § 11-9-1-3(b).  Upon completion of the inquiry, the member acting on behalf of the Board files the complete record of the proceedings together with his or her findings, conclusions, and recommended decision.  Based upon the record and the findings, conclusions, and recommendations, the Board renders a final decision.  Id.  In making its recommendation to the governor, the board must consider: “1) the nature and circumstances of the crime for which the offender is committed, and the offender’s participation in that crime; 2) the offender’s prior criminal record; 3) the offender’s conduct and attitude during commitment; and 4) the best interests of society.”  220 Ind. Admin. Code 1.1-4-4(d).  Additionally, in making its recommendation to the governor, the board may consider other issues relating to the offender and his rehabilitation.  1.1-4-4(e).  This process takes six to eight months to complete.

Frequency of Grants

Mike Pence granted his only three pardons in January 2015.   Governor Mitch Daniels (2005-2013) granted 62 pardons during his eight years in office, generally pursuant to favorable Board recommendations. Several pardons went to non-citizens seeking to avoid deportation, and many to minor drug offenders (though only three to those convicted of selling drugs).   See Executive Order archives, http://www.in.gov/gov/3635.htm.  In the seven-year period between 1997 and 2004, 129 pardons were granted, and a high percentage of those who applied were granted.3   Source: Indiana Parole Board.

Contact

Parole Board
317-232-5789

B.  Judicial expungement and sealing
1.  Expungement and sealing

A comprehensive new law enacted in May 2013 authorized “expungement” of all but the most serious violent and sexual offenses, and in addition “sealing” of non-conviction records and minor offenses that have been expunged. See Ind. Code § 35-38-9.4   (The term “expungement” is not defined except by its practical effect, which involves restricting the use of records that have been expunged, as further explained below.)  Expungement is available after a waiting period that varies depending upon the seriousness of the offense, and is mandatory where eligibility criteria are met for non-conviction records, misdemeanors and less serious felonies.5  Even where expungement is discretionary, relief may not be denied based on non-statutory criteria where “all evidence presented to the trial court militated toward expungement.” 6

As explained below, non-conviction records and records of misdemeanors and minor felonies are “sealed” upon expungement, which limits public access without a court order. While the records of more serious felonies “remain public” after expungement, there are limits on the uses to which they may be put.  A petitioner must have completed the terms of a court-imposed sentence, and may not waive the right to seek expungement as part of a plea agreement.  The law was amended in March 2014 and June 2015 to add certain procedural provisions and modify eligibility requirements.7

Non-conviction records and vacated convictions

After one year, non-conviction records (including non-adjudication records in juvenile cases), and records of convictions vacated on appeal may be expunged and sealed by the circuit or superior court in the county where the charges were filed, or, if no charges were filed, in the county of arrest. § 35-38-9-1.  Once records are sealed under this provision, no information concerning the arrest or charges may be retained in “any state central repository for criminal history information or in any other alphabetically arranged criminal history information system maintained by a local, regional, or statewide law enforcement agency,” with the exception of non-public internal law enforcement documents created at the time of arrest. § 35-38-9-1(f).  All court records, including those of appellate courts, must be permanently sealed or redacted.  Id. Official online versions of opinions and memorandum decisions of the supreme court and court of appeals must also be redacted.

Misdemeanors and low-level felonies

After waiting periods ranging from five to eight years, records of most misdemeanors and Class D felonies or level 6 felonies may be expunged, and are then automatically sealed and, with some exceptions, may not be disclosed even to a prosecutor, unless ordered by the court.  Ind. Code §§ 35-38-9-2, -3, -6(a).8  If sealed records are unsealed upon request of a prosecutor to use in a subsequent prosecution of the person, or to a defense attorney, they shall be resealed at the earliest possible time if the person is not convicted, but need not be resealed if a new conviction results.  § 35-38-9-6(d).

Felonies

Most serious felonies may also be expunged, with certain exceptions (e.g., offenses involving sexual offenses), after waiting periods of eight or ten crime-free years from date of conviction, or three-to-five years from completion of sentence, but they are not sealed.  See § 35-38-9-4, -5.  The record of more serious felonies “remain public” after expungement, although they must be “clearly and visibly marked or identified as being expunged.” § 35-38-9-7. Expungement of these more serious felonies is discretionary, (and in the case of offenses committed while holding elective office and offenses “resulting in serious bodily injury,” may not be granted without the prosecutor’s consent, see § 35-38-9-5), although “[t]he expungement statutes are inherently remedial and, as such, should be liberally construed to advance the remedy for which they were enacted.”  See Cline v. State, 38A04-1512-XP-2221 (Ind.Ct.App. 2016), supra, quoting from Taylor v. State, 7 N .E.3d 362 (Ind.Ct.App.2014).9

Eligibility waiting periods

A petition for expungement may be granted only after completion of sentence (including payment of fines and restitution) and only if the person has no pending criminal charges or existing/pending drivers’ license suspensions.  See, e.g., Ind. Code § 35-38-9-2(e).  Expungement is not available to any person who has been previously convicted of two or more felonies involving unlawful use of a deadly weapon. §§ 35-38-9-2(b), -3(b)(6), -4(b)(6), -5(b)(4).  Persons convicted of misdemeanors or the lowest level felonies are eligible to petition for expungement five years after conviction (unless the prosecutor consents to a shorter period).  Id.  Persons convicted of less serious felonies may apply for expungement eight years after conviction or three years after completion of sentence whichever is later (unless the prosecutor consents to a shorter period), if the crime was not committed while holding elective office and did not involve sex or violence.  §§ 35-38-9-2 through -4.   Felonies committed while holding elective office or involving serious bodily harm may be expunged ten years after conviction, or five years after completion of sentence.  Offenses involving  human/sex trafficking, sex crimes, and certain violent crimes are not eligible for expungement. § 35-38-9-5(b).

Procedures and scope of relief

Procedures for filing an expungement petition with the sentencing court are set forth in Ind. Code § 35-38-9-8.  Expungement may be granted without a hearing unless the prosecutor objects.  § 35-38-9-9(a).  A petitioner may seek to expunge multiple convictions in multiple courts, but all petitions must be filed within one year — after that year has passed, a person may not file another petition in their lifetime.  § 35-38-9-9(h). Two exceptions apply: 1) If a petition for mandatory expungement is denied in whole or part, it may be amended and refiled at a later date once eligibility requirements are met (an additional three-year waiting period applies for discretionary expungement),  § 35-38-9-9(i);10 2) After the one year filing period has passed, a person may file an amended petition seeking expungement of an additional conviction if that conviction’s omission from the original petition was the result of “excusable neglect” or “circumstances beyond the petitioner’s control,” § 35-38-9-9(j).  Those filing for expungement must pay the filing fees required for filing a civil action ($141), though those fees may be reduced or waived for indigent petitioners.  § 35-38-9-8(d).  There is no filing fee requirement for petitions to expungement non-conviction records. § 35-38-9-1(c).  An expungement case, and all documents filed in the case become confidential only after the court issues the order granting the petition.  § 35-38-9-10(i).  The Indiana courts have published sample petitions for expungement at http://www.in.gov/judiciary/2706.htm.

Effect of expungement

Restoration of rights: Civil rights, including voting rights and eligibility for public office and jury service, are restored upon expungement, as are firearm rights (“to the extent not prohibited by federal law”). § 35-38-9-10(b).

Discrimination: “It is unlawful discrimination for any person to” refuse to employ, admit or license or “otherwise discriminate against” a person because of a conviction or arrest record that has been expunged or sealed.  § 35-38-9-10(a).  A person whose record is expunged shall be treated “as if the person had never been convicted of the offense,” except that an expunged conviction may be considered in imposing sentence in the event of a subsequent conviction.  § 35-38-9-10(d).  Any person that so discriminates commits a Class C infraction and may be held in contempt by the court issuing the order of expungement or by any other court of general jurisdiction. §35-38-9-10(e).

Employer inquiry: In any application for employment, license or “other right or privilege, a person may be questioned about a previous criminal record only in terms that exclude expunged convictions or arrests, such as: ‘Have you ever been arrested for or convicted of a crime that has not been expunged by a court?’” § 35-38-9-10(c).

Negligent hiring: In any action alleging negligence an expungement order may be introduced as evidence of due care, and expunged convictions are not admissible as evidence of negligence against a person who relied on the expungement order.  § 35-38-9-10(f) and (g).

Public access to records:  The records of convictions that have been expunged and sealed are not generally available to the public, or to prosecutors without a court order.  The records of convictions that have been expunged but not sealed “remain public,” although they must be “clearly and visibly marked or identified as being expunged.” § 35-38-9-7.

Credit reporting: Convictions that have been expunged may not be reported by credit reporting companies.  See § 24-4-18-6(a).

Exceptions: Expungement orders do not affect sex offender registration or driver’s license suspension. § 35-38-9-6(e), -7(b).  Expungement orders do not automatically restore firearms rights to persons convicted of domestic violence, who must wait five years before petitioning the court for restoration.

2.  Felony knocked down to misdemeanor

Certain Class D felonies committed prior to July 1, 2014, or level 6 felonies committed after that date, may be converted to Class A misdemeanors upon entry of judgment on a one-time basis (DV and child pornography offenses are ineligible).  Ind. Stat. § 35-50-2-7(c).  In addition, court may convert conviction of Class D felony (or level 6 felony) to a Class A misdemeanor upon petition of the convicted person three years after completion of sentence, upon satisfaction of certain conditions and with the agreement of the prosecutor, as long as there has been no intervening conviction.  Ind. Code § 35-50-2-7(d).  Sex offenses and offenses involving violence or official corruption are not eligible.  If a person whose Class D felony conviction has been converted to a Class A misdemeanor conviction under subsection (c) is convicted of a felony within five (5) years after the conversion under subsection (c), the prosecuting attorney may petition a court to convert the person’s Class A misdemeanor conviction back to a Class D felony conviction.  § 35-50-7-2 (e).  Expungement and sealing of records that have been converted is governed by § 35-38-9-2, discussed above.

3.  Expungement of pardoned convictions

The Indiana courts have recognized the court’s ability for judicial expungement following a pardon (discussed above).  See State v. Bergman, 558 N.E.2d 1111 (Ind. Ct. App. 1990).

4.  Deferred prosecution/adjudication

Indiana law authorizes deferral or continuance of prosecution for drug abusers and alcoholics charged with less serious felonies, if they have no more than one prior conviction and no other charges pending.  See Ind. Code §§ 12-23-6.1-1, 12-23-7-1 et seq.   The defendant “must waive a jury trial and consent to a trial by the court or must enter a guilty plea, with the general finding to be entered by the court to be deferred until the time that prosecution may be resumed.”   § 12-23-7-2.  If the treatment is completed successfully, the charges must be dismissed.  § 12-23-7-11. See also State v. Nix, 833 N.E. 2d 541 (Ind. Ct. App. 2005). With the consent of the defendant and the prosecuting attorney, a court may defer prosecution for up to one year for a defendant charged with a misdemeanor or infraction in which the use of alcohol or drugs was a contributing factor or material element of the offense or the defendant’s mental illness was a contributing factor, Ind. Code § 12-23-5-1 et seq.  The court may order the defendant to satisfactorily complete an alcohol or drug treatment program, undergo treatment for mental illness, or satisfy other conditions imposed by the court during this deferral period.   § 12-23-5-2.  If the defendant fulfills the conditions set forth by the court, the court shall dismiss the charges.   § 12-23-5-4.  A defendant is not eligible for deferral under this section if the offense giving rise to the prosecution involved a death or serious bodily injury, the defendant has at least two prior felony convictions, or other criminal proceedings (not arising out of the same incident) alleging the commission of a felony are pending against the defendant.  § 12-23-5-7.

5.  Juvenile adjudications

Expungement is governed by Ind. Code § 31-39-8-2.  At any time, a person may petition the juvenile court to expunge all records pertaining to juvenile delinquency proceedings.  Id.  In reviewing the petition, the court considers numerous factors, including the nature of the offense, case disposition, and the person’s current status.  § 31-39-8-3.  Upon a court order of expungement, all records are destroyed or given to the petitioner.  § 31-39-8-6.  There exists no statutory authority to seal a juvenile record.

C.  Administrative Sealing

Limited sealing

The state police may disclose “limited criminal history” records to noncriminal justice agencies for a variety of purposes, including where the subject of the records has applied for employment and licensing, or has been convicted of specified sexual offenses. Ind. Code § 10-13-3-27(a) and (b).  “Limited criminal history” does not include arrest records that do not indicate a disposition more than one year after the arrest.  § 10-13-3-11 (defining “limited criminal history”).  Any person who knowingly or intentionally uses limited criminal history for any purpose not specified under this section commits a Class A misdemeanor.  § 10-13-3-27(c).

Fifteen years after discharge from probation, imprisonment, or parole (whichever is later), a felony offender may petition the state police department to limit access to his criminal history to criminal justice agencies.  Ind. Code § 35-38-5-5(b).  “When a petition is filed [the state police department] shall not release limited criminal history to non-criminal justice agencies.”  § 35-38-5-5(c).  Records remain available if a person has volunteered services that involve contact with, care of, or supervision over a child who is being placed, matched, or monitored by a social services agency or a nonprofit corporation, or is being sought by the parent locator service of the child support bureau of the department of child services.  § 35-38-5-5(a), citing § 10-13-3-27(a)(8) and (12).

III.  Nondiscrimination in Licensing and Employment
A.  Licensing

Except for serious drug offenses, “a license or certificate of registration that an individual is required by law to hold to engage in a business, profession, or occupation may not be denied, revoked, or suspended because the applicant or holder has been convicted of a crime.”  Ind. Code § 25-1-1.1-1.  The acts resulting in conviction “may, however, be considered as to whether the applicant or holder should be entrusted to serve the public in a specific capacity.”  Id.   The purpose of this provision, which forbids agencies to use felony or misdemeanor convictions as the sole basis for denial of a license application, is to require that the nature of the acts underlying a prior conviction be explored and that these acts be related to both a specific statutory requirement and to the occupation or profession for which a license is sought. Ind. Bd. Registration and Ed. for Health Facility Adm’rs v. Cummings, 387 N.E.2d 491 (Ind. Ct. App. 1979).  Drug offenses are excepted from this requirement, see § 25-1-1.1-2, and certain serious drug offenses are grounds for mandatory revocation or denial.  See § 25-1-1.1-3.  Under Rule 12 Section 2 of the Indiana Rules for Admission to the Bar and Discipline of Attorneys, persons convicted of a felony are ineligible to sit for the bar.  No provisions on public or private employment.

B.  Employment
Negligent hiring protection

Pursuant to section 4 of SB-312, enacted in April of 2017, an employee’s criminal history may not be introduced as evidence against an employer in a civil suit based on the employee’s actions if,

(1) the nature of the criminal history information of the employee or former employee does not bear a direct relationship to the facts underlying the civil action

(2) before the acts giving rise to the civil action occurred

(A) a court order sealed the record of the criminal case

(B) the criminal conviction has been reversed or vacated;

(C) the employee or former employee received a pardon for the criminal conviction; or

(D) the criminal conviction has been expunged under IC 35-38-9; or

(3) the criminal history information concerns an arrest or a charge that did not result in a criminal conviction.

The law explicitly states that it does not supersede any requirement to conduct background checks mandated by law or “consider criminal history information in hiring for particular types of employment.”

Ban-the-box in executive employment

In June of 2017, Governor Holcomb issued Executive Order 17-15, mandating that job applications for employment with the Executive Branch be amended to remove questions about criminal history unless “a particular crime precludes the person from employment in the particular job to which she or he applied.” See E.O. 17-15 (2017), available at http://www.in.gov/gov/files/Executive-Order-17-15-Fair-Chance-Hiring.pdf.   The Order additionally states that criminal history background checks “typically will be conducted at a later point in the application and hiring process.”  Two months earlier, the Governor signed SB-312, prohibiting localities from banning the box or limiting employer consideration of criminal history.

C.  Fair Credit Reporting

In 2012 a new chapter 24-4-18 was added to the Indiana Code to restrict criminal history information that may be reported by a “criminal history provider” (background screening company).  As subsequently amended (twice in 2013 and again in 2014), this chapter prohibits reporting the following:

  • A record that has been expunged, either by marking the record as expunged or by removing the record from public access (which may include non-conviction data after a year, see Code § 35-38-9-1, supra11);
  • A record that is restricted by a court or the rules of a court and is marked as restricted from public disclosure or removed from public access.
  • A record indicating a conviction of a Class D felony (for a crime committed before July 1, 2014) or a Level 6 felony (for a crime committed after June 30, 2014) if the Class D felony or Level 6 felony conviction that

(A) has been entered as a Class A misdemeanor conviction; or
(B) has been converted to a Class A misdemeanor conviction;12

  • A record that the criminal history provider knows is inaccurate.

Ind. Code § 24-4-18-6(a).  A criminal history provider may provide information described above if the requester is required by state or federal law to obtain the information; or if the requester is the state or a political subdivision, and the information will be used solely in connection with the issuance of a public bond. § 24-4-18-6 (b).

“A criminal history provider may not include criminal history data in a criminal history report if the criminal history data has not been updated to reflect changes to the official record occurring sixty (60) days or more before the date the criminal history report is delivered.”  § 24-4-18-7.

The Attorney General may enforce sections 6 and 7 through injunction and fines, and a private individual injured by a violation of these sections may recover damages, court costs and attorney fees. See § 24-4-18-8.


  1. In 2011, the Indiana Supreme Court reversed the line of cases finding that an “infamous crime” for purposes of these authorities refers to any or all felonies.  See Snyder v. King, 958 N.E.2d 764, 781 (Ind. 2011) (“infamous crime includes any crime involving an affront to democratic governance or the public administration of justice such that there is a reasonable possibility that a person convicted of such crime poses a threat to the integrity of elections”)  “Prototypical examples of infamous crimes” under the Snyder v. King standard “are treason, perjury, malicious prosecution, and election fraud.”  Id.   Misdemeanor battery does not constitute an infamous crime, and the legislature may therefore disenfranchise someone convicted of this crime only under its general police power, and only if the person is sentenced to prison for the duration of the prison term. Id. at 785-86.
  2. The statutory requirement that all applications for clemency be filed with the Parole Board has evidently not been interpreted in practice as a limitation on the governor’s power to pardon without consulting the board.  See “Frequency of Grants,” Part IIA.
  3. According to the Parole Board, there have been few commutations granted since 1989, since courts have sentence modification authority and prison administrators have generous good time authority.  In 2004, two death sentences were commuted to life without parole, one on the recommendation of the Parole Board and one by the Governor without consulting the Board.
  4. The process leading up to enactment of this comprehensive scheme is described by the legislation’s chief sponsor, Rep. Jud McMillin, in Indiana’s new law the product of ‘many many compromises,’” Collateral Consequences Resource Center, December 15, 2014, http://ccresourcecenter.org/2014/12/15/indianas-new-expungement-law-product-many-many-compromises/.
  5. The Indiana Court of Appeals has held that the word “shall” in § 35-38-9-2 left the court with no discretion to withhold expungement of a misdemeanor sex offense, notwithstanding the objections of the victim.  Taylor v. State, 7 N .E.3d 362 (Ind.Ct.App.2014).  The same mandatory term appears in §§ 35-38-9-1 (non-conviction records) and 35-38-9-3 (Class D felonies).  The Taylor court pointed out that a victim’s objections may be weighed only where expungement is discretionary, as is the case with more serious felonies under §§35-38-9-4 and -5.
  6. See Cline v. State, No. 38A04–1512–XP–2221 (Ind. Ct. App., September 15, 2016), where the court of appeals reversed the trial court’s denial of relief based on the seriousness of the petitioner’s drug offense, noting that 

    Cline committed her offenses during her youth and has satisfied the statutory prerequisites for expungement. Beyond that, Cline has consistently been employed, and has obtained an Associate’s Degree in Business Administration, a CPR license, and a ServSafe certification. She testified that she had been promoted from food server to store management, but lost her job when store owners learned of her criminal record. Cline expressed a desire to return to management, a prospect more feasible with record expungement. The prosecutor offered no evidence or argument in opposition to expungement.

    But see W.R. v. State of Indiana, 17A03-1703-XP-571 (Ind. Ct. App., Nov. 1, 2017).  In W.R., the court affirmed the denial of expungement for two felony drug dealing convictions where the statutory requirements were met and the petitioner “led a generally successful life” but was subsequently convicted of a DUI misdemeanor (which was expunged in the same case).  The court stressed the discretionary nature of the statute and distinguished the case from Cline, noting the “troubling articulation” of the lower court’s reasoning in Cline along with the fact that Cline had no subsequent convictions.

  7. The 2014 amendments specify where a petition for expungement must be filed, provide that expungement proceedings may be closed (including to victims), change a petitioner’s burden of proof from “clear and convincing” to “preponderance,” remove a prohibition against a waiver or reduction of the filing fee for an indigent person, grant a defense attorney and a probation department access to expunged records if authorized by court order, and allow a court to accept filing of a subsequent petition for expungement that includes convictions not named in the original petition under certain circumstances.  The 2014 amendments reduce waiting periods while requiring a petitioner to have completed the terms of his court-imposed sentence, and add a prohibition on waiving the right to expungement as part of a plea agreement.  They specify that access to expunged records will be grated to: (1) the supreme court and the state board of law examiners to determine a person’s fitness for admission to the bar; and (2) a person required to access expunged records to comply with the federal Secure and Fair Enforcement for Mortgage Licensing Act.  Finally, they specify the procedure to regain the right to possess a firearm by a person convicted of a misdemeanor crime of domestic violence after five years. 

    The 2015 amendments disqualify any person convicted of two or more felonies involving a deadly weapon from seeking expungement of any conviction record; expand expungement eligibility to cover records of criminal charges and juvenile allegations instead of just arrest records; and expand protection of non-conviction records by requiring the courts to seal and redact their own non-conviction records .  The 2015 amendments also added § 35-38-9-8.5, which clarifies the law’s application to older offenses that were subject to indeterminate sentences.  Eligibility for those offenses is now determined by an offense’s current felony or misdemeanor classification.  See P.L. 142-2015.

  8. Exceptions allow for records to be disclosed to the state board of law examiners, persons required to access the records under the federal Mortgage Licensing Act, certain state and federal motor vehicle agencies, and the FBI and Department of Homeland Security in certain situations. § 35-38-6(a)(2).
  9. In Cline, the petitioner sought to expunge her 13 year-old felony forgery and methamphetamine distribution offenses after she had been released from probation and remained crime-free for 5 years, been consistently employed, and achieved a number of job-related credentials.    The lower court denied the petition based on the nature of the conviction, the severity of the offenses, and the “relatively short” duration since release, factors not identified in the statute.  In rendering its decision, the lower court also expressed particular disdain for methamphetamine offenders such as Cline. While the Court of Appeals recognized that the lower court had discretion to deny a petition based on factors not listed in the statute, it found that the lower court abused that discretion since “all evidence presented to the trial court militated toward expungement,” and remanded the case.
  10. Amended petitions based on denial may only seek expungement of convictions included in the original petition.  § 35-38-9-9(i).
  11. The law as originally enacted in 2012 would have permitted reporting only “criminal history information that relates to a conviction,” and 2013 amendments first deleted this provision then re-enacted it, with elaboration to specify the non-convictions records that were exempt from reporting.  In 2014, P.L. 168-2014 restricted the prohibition on reporting to non-conviction data that has been expunged under § 35-38-9-1, which has an eligibility waiting period of one year. See supra.
  12. It appears that misdemeanors may not be reported even if they have not been expunged.

Copyright © 2017

Restoration of Rights Series/Illinois

Illinois FlagI.  Restoration of Civil/Firearms Rights
A.  Vote

The right to vote is lost if convicted of a felony and sentenced to imprisonment; it is regained upon release.  See Ill. Const. art. III, § 2  (“A person convicted of a felony, or otherwise under sentence in a correctional institution or jail, shall lose the right to vote, which right shall be restored not later than upon completion of his sentence.”).  (Note that disenfranchisement extends to misdemeanants sentenced to a prison term.)  The election code provides that the right to vote shall be restored upon release from confinement.  10 Ill. Comp. Stat. Ann. 5/3-5; see also 730 Ill. Comp. Stat. Ann. 5/5-5-5(c).

B.  Office

The right to hold an office created by the state constitution (e.g., any of the five statewide officesgovernor, lieutenant governor, secretary of state, treasurer, attorney general; a member of the state General Assembly; a judgeship; a chief education officer position and a member of the state board of education) is lost upon conviction, but automatically restored upon completion of sentence (excepting convictions for crimes involving election fraud).  730 Ill. Comp. Stat. Ann. 5/5-5-5(b).  The bar is permanent for “other elected offices,” including alderman and mayor, unless restored by a pardon.  65 Ill. Comp. Stat. Ann. 5/3.1‑10‑5(b).  The disparate standards applied to municipal and legislative offices have been upheld by the Illinois courts.1

C.  Jury

Illinois law does not exclude convicted persons from jury service, nor is a prior conviction grounds for a juror challenge for cause, though jurors must be “[f]ree from all legal exception, of fair character, of approved integrity, [and] of sound judgment.” 705 Ill. Comp. Stat. Ann. 305/2; see John F. Decker, Collateral Consequences of a Felony Conviction in Illinois, 56 Chi.-Kent L. Rev 731, 741 (1980) (stating that whether a convicted person meets character standard must be decided on a case-by-case basis).

D.  Firearms

Firearm rights are lost upon a felony conviction or juvenile adjudication/misdemeanor, 720 Ill. Comp. Stat. Ann. 5/24-1.1(a), and may be restored by the Department of State Police or by the circuit court where the person resides.  430 Ill. Comp. Stat. Ann. 65/10(a), (c).   Relief may be granted if: (1) the applicant has not been convicted of a “forcible felony” within the preceding 20 years or 20 years have passed since release from imprisonment for that offense; (2) he is not “likely to act in a manner dangerous to public safety;” and (3) restoration of firearm rights. would not be “contrary to the public interest.” 430 Ill. Comp. Stat. Ann. 65/10(c).  Individuals may appeal a denial to the Director of State Police unless their conviction involves violence (including domestic violence), drugs or firearms, in which case rights may be restored only by the court.  Id.  A pardon must include a special provision restoring firearms rights.

E.  Executor

A felony offender may not serve as executor of a will or administrator of an estate.  755 Ill. Comp. Stat. Ann. 5/6-13(a), 5/9-1; see In re Estate of Muldrow, 799 N.E.2d 497, 502-03 (Ill. App. Ct. 2003) (concluding that rational basis exists under the Probate Act for excluding convicted felons from serving as executors based on a felon’s demonstrated inability to act within the confines of law, even if the felony conviction, “as applied” in particular case, is remote in time and the felon is able to demonstrate rehabilitation).

F.  Licenses

The Code of Corrections provides that “[o]n completion of sentence of imprisonment or upon discharge from probation, conditional discharge or periodic imprisonment, or at any time thereafter, all license rights and privileges granted under the authority of this State which have been revoked or suspended because of conviction of an offense shall be restored unless the authority having jurisdiction of such license rights finds after investigation and hearing that restoration is not in the public interest.”  730 Ill. Comp. Stat. Ann. 5/5-5-5(d).  This provision does not apply to the suspension or revocation of a license to operate a motor vehicle.  However, other more specific laws restrict licensure for certain professions.  For example, the Child Care Act bars licensure and employment of individuals in child care facilities when they have been convicted of any of a long list of enumerated offenses.  225 Ill. Comp. Stat. Ann. 10/4.2.  Moreover, the Illinois Vehicle Code makes conviction of any of a long list of enumerated offenses a bar to licensure as a school bus driver. 625 Ill. Comp. Stat. Ann. 5/6‑106.1(a)(11).  

G.  Juvenile adjudications

Juvenile adjudications or dispositions do not “operate to disqualify a minor from subsequently holding public office nor shall operate as a forfeiture of any right, privilege or right to receive any license granted by public authority.”  705 Ill. Comp. Stat. Ann.  405/5-410.

H.  Compilation of Collateral Consequences

Illinois Public Act 96-0593, originally signed in 2009 and amended in 2012 (20 Ill. Comp. Stat. Ann. 5000), created a Task Force on Inventorying Employment Restrictions and called for the work to be conducted within the Illinois Criminal Justice Information Authority. The legislation provides that the Task Force “review the statutes, administrative rules, policies, and practices that restrict employment of persons with criminal history and report its findings and recommendations to the Governor and General Assembly by July 1, 2013.”  On June 28, 2013 the Task Force announced online access to the Final Report of the Task Force on Inventorying Employment Restrictions. This report may be viewed and downloaded at www.icjia.org/IERTF2013.

II.  Discretionary Restoration Mechanisms:
A.  Pardon
Authority

The pardon power is vested in the Governor, although “the manner of applying therefore may be regulated by law.” Ill. Const. art. V, § 12.  By statute, the Prisoner Review Board (PRB) serves as “the board of review and recommendation for the exercise of executive clemency by the Governor.”   730 Ill. Comp. Stat. Ann. 5/3-3-1(a)(3).  The Board “shall hear and . . . decide all requests for pardon, reprieve or commutation, and make confidential recommendations to the Governor.”  5/3-3-2(c).  At the same time, “[n]othing in this Section shall be construed to limit the power of the Governor under the constitution to grant a reprieve, commutation of sentence, or pardon.”  5/3-3-13(e).  The Supreme Court of Illinois has ruled that the constitution does not give the legislature authority to limit the Governor’s power to act in the absence of an application, and that in any event the legislature has not done so.  People ex rel. Madigan v. Snyder, 804 N.E. 2d 546, 588 (Ill. 2004).  The Seventh Circuit Court of Appeals has ruled that there is no Fourteenth Amendment property or liberty interest in obtaining a pardon in Illinois; the statutory pardon procedure does not require prompt or indeed any action by the governor, but merely describes steps in the sequences of procedures in clemency matters.  Bowens v. Quinn, 561 F.3d 671, 673-75 (7th Cir. 2009).

Administration

PRB consists of 15 members appointed by the Governor to six year terms, with the advice and consent of the Senate. 730 Ill. Comp. Stat. Ann. 5/3-3-1(b), (c).  No more than 8 of the same party may be on the board.  The chair is to be appointed by the Governor.  Id.  Six-year terms, members serve full-time and may not do anything else.  Id.  The Board is charged with the duty to “hear by at least one member” and decide by at least a panel of three members all requests for pardon. 5/3-3-2(a)(6).

Eligibility

No eligibility requirements for Illinois convictions. Misdemeanants may also apply.  Federal offenders and those convicted in another state are ineligible.

Effect

“[A] pardon removes the penalties and disabilities (resulting from the conviction) and restores the [individual] to all his civil rights.” People v. Glisson, 358 N.E.2d 35, 38 (Ill. App. Ct. 1976), aff’d in part, rev’d in part on other grounds, 372 N.E.2d 669 (Ill. 1978).  A pardon authorizes judicial expungement only if provided in the terms of the pardon.  20 Ill. Comp. Stat. Ann. 2630/5.2(e); see People v. Thon, 319 Ill. App. 3d 855, 859-60 (2001).  A pardon must specifically restore firearms rights in order to qualify a pardoned individual for a FOID card.

Process

730 Ill. Comp. Stat. Ann. 5/3-3-13.  Guidelines for applying are available at http://www.illinois.gov/prb/Documents/exclemguide%204.3.13.pdf.    A sample application form is available at http://www.illinois.gov/prb/Documents/sample%20petition%204.1.15.pdf.  According to the Board’s website,

Incomplete petitions must be completed within 90 days or that [sic] are discarded. A late, but completed, petition is placed on the next available hearing docket. The petitioner is also afforded the opportunity to have a public or a non-public hearing. The Board’s recommendations are typically forwarded to the governor within 60 days following the hearing. The Governor is not under any deadline to respond to the petition.

http://www.illinois.gov/prb/Pages/prbexclemex.aspx. See Bowens v. Quinn,  561 F.3d 671, 673 (7th Cir. 2009), cert. denied, 130 S. Ct. 470 (2009) (holding that where petitioners claimed that a governor’s failure to act on their clemency petitions within a reasonable time violated their rights under the Due Process Clause, their suit should have been dismissed because there was no Fourteenth Amendment interest in obtaining a pardon).  “Notice of the proposed application shall be given by the Board to the committing court and the state’s attorney of the county where the conviction was had.” 730 Ill. Comp. Stat. Ann. 5/3-3-13(b).  The Board is required to meet to consider clemency petitions at least four times each year.  5/3-3-13(c).  “The Board shall, if requested and upon due notice, give a hearing to each application, allowing representation by counsel, if desired, after which it shall confidentially advise the Governor by a written report of its recommendations which shall be determined by majority vote.” Id.  All cases are sent to the governor with a recommendation.  Id.  The statute expressly provides that “[n]othing in this Section shall be construed to limit the power of the Governor under the constitution to grant a reprieve, commutation of sentence, or pardon.”  5/3-3-13(e).

Frequency of Grants

As of January 2017, Governor Bruce Rauner has granted 80 pardons and denied approximately 2,300 applications, a much less generous pardoning policy than his predecessor Pat Quinn.   In December 2016, Governor Rauner announced that he had eliminated a backlog dating back to Governor Blagojevich’s tenure.  See Gregory Platt, Rauner clears clemency backlog, approves just 3 percent of petitions, http://www.chicagotribune.com/news/ct-rauner-clemency-backlog-denials-met-20161212-story.html.   In Quinn’s nearly six years in office starting in April 2009, he granted 1,789 pardons (including two for innocence) and denied 3,133 requests, a nearly 37 % approval rate.  Stacy St. Clair, et al., In last days as governor, Quinn grants clemency to 232 petitioners, Chicago Tribune, http://www.chicagotribune.com/news/ct-quinn-clemency-grant-20150109-story.html (Jan. 9, 2015).   He also authorized 21 people who had previously received pardons to seek expungement of their convictions, and granted seven sentence commutations.  A large number of Quinn’s grants went to people who applied for pardon in 2002-2007 when Governor Blagojevich was in office.  (Governor Blagojevich granted only 65 pardons during his six years in office, most of them during his first two years, and left more than 2500 PRB recommendations unacted upon when he left office).  Since April 2009, the PRB has sent forward more than 3000 additional recommendations.  The average size of the Board’s quarterly clemency docket has risen from 35 petitions in 1990 to approximately 400 petitions in 2013.  About one third of all applications are filed by misdemeanants.  Source: Illinois Prisoner Review Board.  See also PRB website, http://www2.illinois.gov/prb/Pages/prbexclemex.aspx.

Contact

Kenneth Tupy
Chief Legal Counsel, IL
Prisoner Review Board
319 East Madison Street, Suite A.
Springfield, IL 62703
Phone: 217-782-1610
Fax: 217-524-0012
ktupy@prb.state.il.us

B.  Judicial Expungement and Sealing

Public Act 96-0409 (August 8, 2009) amended the Criminal Identification Act, 20 Ill. Comp. Stat. Ann. 2630/0.01 et seq.. Notably, the law added a new section entitled “Expungement and Sealing.”  2630/5.2.2

1.  Expungement and sealing
Expungement

The term “expunge” means “to physically destroy the records or return them to the petitioner and to obliterate the petitioner’s name from any official index or public record, or both.”  20 Ill. Comp. Stat. Ann. 2630/5.2(a)(1)(E).  Records that may be “expunged” are described in 2630/5.2(b), and include arrests that resulted in no charges, acquittal or dismissal; and convictions “set aside on direct review or on collateral attack and the court determines by clear and convincing evidence that the petitioner was factually innocent.”  Notwithstanding the definition of “expunge” above, records of drug offenses disposed of through diversion programs may be maintained by the state police. 2630/5.2(b)(7).  A prior conviction of any sort makes a person ineligible for expungement. 2630/5.2(b)(1)(A). 

Pardoned convictions: The only convictions that may be expunged are those that have been pardoned (if the pardon document authorizes expungement), and the term “expunge” in this context does not mean physical destruction of the record.  See 2630/5.2(e):

(e) Whenever a person who has been convicted of an offense is granted a pardon by the Governor which specifically authorizes expungement, he or she may . . .  have a court order entered expunging the record of arrest from the official records of the arresting authority and order that the records of the circuit court clerk and the Department be sealed until further order of the court . . . .  All records sealed by the Department may be disseminated by the Department only to the arresting authority, the State’s Attorney, and the court upon a later arrest for the same or similar offense or for the purpose of sentencing for any subsequent felony. Upon conviction for any subsequent offense, the Department of Corrections shall have access to all sealed records of the Department pertaining to that individual.

Sealing

The term “seal” means “to physically and electronically maintain the records . . . but to make the records unavailable without a court order, subject to [certain] exceptions,” and to “obliterate” the offender’s name from the official index required to be kept by the circuit court clerk. 20 Ill. Comp. Stat. 2630/5.2(a)(1)(K).  As of August 2017, most misdemeanor and felony convictions are eligible for “sealing” upon petition after a three-year eligibility waiting period, if no further findings of guilt. 2630/5.2(c) (as amended by HB-2373 (2017)).  Ineligible offenses include DUI, sex crimes, animal crimes, and domestic battery.  2630/5.2(a)(3).  Individuals subject to registration under the following laws remain ineligible until removed from the registry:  the Arsonist Registration Act, the Sex Offender Registration Act, and the Murderer and Violent Offender Against Youth Registration Act.  2630/5.2(c)(3)(C). Several deferred adjudication authorities involving “qualified probation” for minor drug crimes are also eligible for sealing after a waiting period of two to five years (see discussion of Section 1410 Probation and Second Chance Probation below). 

Subsequent convictions:  A person may seek to have multiple convictions sealed in the same proceeding. However, any felony offense committed after the date of the sealing may not be sealed.  In addition, the court may, upon conviction for a subsequent felony offense, order the unsealing of prior felony conviction records previously ordered sealed by the court. 2630/5.2(c)(4)

Notice of eligibility for sealing:  Notice of eligibility for sealing. Upon entry of a disposition for an eligible record under the sealing authority, the petitioner shall be informed by the court of the right to have the records sealed and the procedures for the sealing of the records. 2630/5.2(c)(5).

Procedure and standards

The same procedure applies to expungement and sealing. 20 Ill. Comp. Sat. 2630/5.2(d).  Procedure for sealing includes notice to DA, and a hearing upon objection filed.  In deciding whether to seal or expunge records, judges may consider specific collateral consequences the individual is facing, the person’s age and employment history, and the strength of the evidence supporting the conviction.  2630/5.2(d)(7).

Employment effect of expungement and sealing

With certain exceptions, an expunged or sealed record “may not be considered by any private or public entity in employment matters, certification, licensing, revocation of certification or licensure, or registration.”  20 Ill. Comp. Stat. 2630/12(a).  Exceptions are law enforcement agencies, State’s Attorneys, prosecutors, Department of Corrections.  Id.  Applications for employment “must contain specific language which states that the applicant is not obligated to disclose sealed or expunged records of conviction or arrest,” and “[e]mployers may not ask if an applicant has had his/her record expunged or sealed.”  Id.  Sealed records must be retained by the state police, and may be disseminated only to law enforcement, or (for felony convictions only) “as otherwise specifically required or authorized by a federal or State law, rule, or regulation that requires inquiry into and release of criminal records.” 2630/13(a). This includes hospitals, schools, and other agencies dealing with vulnerable populations.  (Since expungement results in destruction of the record, provisions limiting their use seem redundant.) 

2.  Judicial Certificate of Discharge

Upon discharge from incarceration or parole or probation, “or at any time thereafter, the committing court may enter an order certifying that the sentence has been satisfactorily completed when the court believes it would assist in the rehabilitation of the person and be consistent with the public welfare.”  730 Ill. Comp. Stat. Ann. 5/5-5-5(e).  Such order “may be entered upon the motion of the defendant or the State or upon the court’s own motion.”  Id.  “Upon entry of the order, the court shall issue to the person in whose favor the order has been entered a certificate stating that his behavior after conviction has warranted the issuance of the order.” 5/5-5-5(f).

3.  Second Chance Probation

Effective January 1, 2014, a new provision 730 Ill. Comp. Stat. Ann. 5/5-6-3.4 will permit persons charged with minor non-violent drug, fraud or theft felony offenses, who have not previously been convicted of a felony, or of a violent offense, to be placed on probation for a period of two years, under conditions intended to promote rehabilitation (seek employment, obtain education, perform community service, etc.). Both the individual and the prosecutor must agree. Upon successful completion of probation the charges will be dismissed and “a discharge and dismissal under this Section is not a conviction for purposes of this Code or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime,” though it may be used in subsequent criminal proceedings.  5/5-6-3.4(g).  This disposition is a “qualified probation” for purposes of expungement under 20 Ill. Comp. Stat. Ann. 2630/5.2(b)(1)(B)(i) and (iv) (eligibility after 5 years).

4.  Deferred Adjudication for First-Time Drug Offenders

Under 720 Ill. Comp. Stat. Ann. 570/410 (formerly “section 1410”), the court may defer adjudication for first-time drug offenders, and place them on 24-months probation with various conditions of reporting and treatment.  Upon successful completion of probation, the person is discharged and the proceedings dismissed.  570/410(f).  “[D]ischarge and dismissal under this Section is not a conviction for purposes of this Act or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime,” though it may be used in subsequent criminal proceedings.  570/410(g), (i).  However, the provisions governing resentencing after revocation of probation apply to revocations under this section even though revocation occurs prior to conviction, as the criminal code’s reference to “conviction” is not simply to the entry of a record judgment but to a determination of guilt.  People v. Goetz, 327 N.E.2d 516, 518 (Ill. App. Ct..1975).  Other deferred adjudication provisions for marijuana are in 550/10 (formerly “section 710”).  Dispositions under both sections shall be treated as a “qualified probation” for purposes of expungement under 20 Ill. Comp. Stat. 2630/5.2(b)(1)(B)(i) and (iv) (eligibility after five years).

5.  Juvenile Adjudications

Expungement and sealing of juvenile records are governed by 705 Ill. Comp. Stat. 405/5-915.  Juveniles must be informed orally and in writing of their right to expunge records if they are released without charges filed or during sentencing for an expungement-eligible offense.  405/5-915(2.5)–(2.6).  To expunge, the youth must complete and file a petition with the court clerk in the county of arrest.  Dorene A. Kuffer, Juvenile Expungement in Illinois Criminal Records and other Relief, § 3.15 (Illinois Institute for Continuing Legal Education, 2007).  Following the filing of a petition, the juvenile or his attorney must attend a hearing, even if there is no opposition to the petition.  Id. § 3.18.  If there is no objection, the court will order expungement; if there is an objection, the court will conduct a hearing and weigh evidence of the juvenile’s offense, criminal history, and character.  Id. § 3.19.  Juveniles have a right to records sealing, and any records that are not expunged are deemed to be sealed. 705 Ill. Comp. Stat. 405/5-915(5).

Reporting and disclosure of juvenile records to school authorities: “All courts and law enforcement agencies of the State of Illinois and its political subdivisions shall report to the principal of any public school in this State whenever a child enrolled therein is detained for proceedings under the Juvenile Court Act of 1987, as heretofore and hereafter amended, or for any criminal offense, including illegal gang activity, or any violation of a municipal or county ordinance. The report shall include the basis for detaining the child, circumstances surrounding the events which led to the child’s detention, and status of proceedings. The report shall be updated as appropriate to notify the principal of developments and the disposition of the matter.”  105 Ill. Comp. Stat. 5/22-20.   Law enforcement authorities may share juvenile records relating to criminal activity by students with school authorities, but the records cannot otherwise become a part of the public record, or part of the student’s file.   Authorities may provide information to schools “only if the agency or officer believes that there is an imminent threat of physical harm to students, school personnel, or others who are present in the school or on school grounds.”  405/1-7, 405/5-905.

C.  Judicial Certificates

Certificate of Relief from Disabilities (“CRD”) and Certificate of Good Conduct (“CGC”), 730 Ill. Comp. Stat. Ann. 5/5-5.5-5 et seq.  The purpose of the CRD is to facilitate licensing in 27 specified areas.  Like the New York CRD, on which it was modeled, it creates an enforceable “presumption of rehabilitation” that must be given effect by a licensing board.  Id.  The purpose of the CGC is to evidence an offender’s rehabilitation, and to lift bars to employment and other benefits.  5/5-5.5-25.  The certificate process and its effect are described in Margaret Colgate Love, Paying Their Debt to Society: Forgiveness, Redemption, and the Uniform Collateral Consequences of Conviction Act, 54 How. L.  J. 753 (2011).

Eligibility

Persons with out-of-state or federal convictions are eligible for relief from licensing restrictions through a CRD, but are not eligible for a CGC.  For CRDs, see 730 Ill. Comp. Stat. Ann. 5/5-5.5-5:

“Eligible offender” means a person who has been convicted of a crime in this State or of an offense in any other jurisdiction that does not include any offense or attempted offense that would subject a person to registration under the Sex Offender Registration Act, the Arsonist Registration Act, or the Murderer and Violent Offender Against Youth Registration Act. “Eligible offender” does not include a person who has been convicted of arson; aggravated arson; kidnapping; aggravated kidnapping; aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof; or aggravated domestic battery. 3

For CGCs, see 5/5-5.5-30 (describing procedure in circuit court for issuing CGC to “any eligible offender previously convicted of a crime in this state”).    

1.  Certificate of Relief from Disabilities

The sentencing court may issue a Certificate of Relief from Disabilities (CRD) to eligible offenders, either at the time of sentencing or upon satisfactory completion of sentence, when the court determines by clear and convincing evidence that it is “consistent with the rehabilitation of the eligible offender” and with “the public interest.”  730 Ill. Comp. Stat. Ann.  5/5-5.5-15(b).4  A CRD does not prevent any court or administrative body from considering the conviction, nor does it preclude its use for impeachment.  5/5-5.5-10.  The court may issue order at time of sentence, or at any time thereafter.  The court may also request investigation by probation or court services, and may hold a hearing.  5/5-5.5-15(c), (e).

CRD Effect on licensing

The CRD authorized by 5/5-5.5-15 is given legal effect in 730 Ill. Comp. Stat. Ann.  5/5-5-5 (Loss and Restoration of Civil Rights).  Under 5/5-5-5(h) and (i) a person who has been awarded a CRD may not be denied a license in 27 different fields “by reason of” conviction, or based on a finding of lack of good moral character based upon the fact of conviction unless:  (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license sought; or (2) the issuance of the license would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.  In making a determination whether to award a license, the licensing agency “shall consider” the following factors:

(1) the public policy of this State, as expressed in Article 5.5 of this Chapter [730 ILCS 5/5-5.5], to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;
(2) the specific duties and responsibilities necessarily related to the license being sought;
(3) the bearing, if any, the criminal offenses or offenses for which the person was previously convicted will have on his or her fitness or ability to perform one or more such duties and responsibilities;
(4) the time which has elapsed since the occurrence of the criminal offense or offenses;
(5) the age of the person at the time of occurrence of the criminal offense or offenses;
(6) the seriousness of the offense or offenses;
(7) any information produced by the person or produced on his or her behalf in regard to his or her rehabilitation and good conduct, including a certificate of relief from disabilities issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified in the certificate; and
(8) the legitimate interest of the licensing agency in protecting property, and the safety and welfare of specific individuals or the general public.

5/5-5-5(h).  At the same time, the fact that an individual has received a CRD does not preclude a licensing board from relying on the conviction “as the basis for the exercise of its discretionary power” to suspend or deny any license.  5/5-5.5-10.

CRD Effect on Employer Liability

730 Ill. Comp. Stat. Ann. 5/5-5.5-15(f): “An employer is not civilly or criminally liable for an act or omission by an employee who has been issued a certificate of relief from disabilities, except for a willful or wanton act by the employer in hiring the employee who has been issued a certificate of relief from disabilities.”

Reporting Obligation

The Department of Professional Regulation is required to report to the General Assembly each year the number of people with criminal records who applied for licenses, both with certificate of relief from disabilities and without, and the numbers of licenses granted and rejected. 730 Ill. Comp. Stat. Ann. 5/5-5.5-50.  In lifting occupational bars, the law gives felony offenders access to licenses in fields which current legislation presumes denial of licensure, including those related to animal welfare, athletic training, cosmetology, boxing, interior design, land surveying, marriage and family therapy, professional counseling, real estate, and roofing.  “Certificate is not to be deemed a pardon.”  5/5-5.5-45.

2.  Certificate of Good Conduct

A court may issue a CGC to eligible offenders “to relieve an eligible offender of any employment bar.  The certificate may be limited to one or more disabilities or bars or may relieve the individual of all disabilities and bars.” 730 Ill. Comp. Stat. Ann. 5/5-5.5-25(a).  The court must determine by clear and convincing evidence that the offender “has demonstrated that he or she has been a law-abiding citizen and is fully rehabilitated.”  Id.  A CGC does “not relieve an offender of any employment-related disability imposed by law by reason of his or her conviction of a crime that would prevent his or her employment by the Department of Corrections or the Department of Juvenile Justice, or any other law enforcement agency in the State.”  Id.  Eligibility criteria for in-state convictions are the same as for a CRD, see 5/5-5.5-5, except that there is a “minimum period of good conduct” that the individual must establish before a court may grant this certificate.  See infra.

A CGC does not prevent any court or administrative body from considering the conviction, does not preclude use of the conviction for impeachment, and does not expunge or seal the record.  730 Ill. Comp. Stat. Ann. 5/5-5.5-25(b).  “An employer is not civilly or criminally liable for an act or omission by an employee who has been issued a certificate of good conduct,” unless the employer’s actions were “willful or wanton.”  5/5-5.5-25(c).

Procedure

After a “minimum waiting period” of good conduct, the court must hold a “rehabilitation review” (“in a manner designated by the chief judge of the judicial circuit in which the conviction was entered”) and may issue a certificate after making “a specific finding of rehabilitation with the force and effect of a final judgment on the merits.”  730 Ill. Comp. Stat. Ann. 5/5-5.5-30(a).  The “minimum waiting period” for misdemeanors is one year for misdemeanants and two years for felonies, and it begins to run upon release from custody or payment of fine, whichever is later.  5/5-5.5-30(c).  The court must find that the relief to be granted by the certificate “is consistent with the rehabilitation of the applicant” and “consistent with the public interest.”  5/5-5.5- 30(a)(2), (3).  The court may enlarge relief, and may also revoke the certificate upon a violation of supervision or a subsequent conviction.  5/5-5.5-30(d)-(f).

Out-of-state offenses

The court may issue a certificate to an applicant convicted in another jurisdiction if the applicant demonstrates that “there exist specific facts and circumstances and specific sections of Illinois State law that have an adverse impact on the applicant and warrant the application for relief to be made in Illinois.”  730 Ill. Comp. Stat. Ann. 5/5-5.5- 30(b)(1).

III.  Nondiscrimination in occupational licensing and employment
A.  Ban-the-Box in employment

820 Ill. Comp. Stat. Ann. 75/15.  Effective January 1, 2015, private employers with more than 15 employees will be prohibited from asking about an applicant’s criminal record until the first interview, or at the point of making an offer if no interview, with the exception of certain jobs.  On October 3, 2013, Illinois governor Pat Quinn issued an administrative order removing inquiries into applicants’ criminal history on state employment applications.  http://www.nelp.org/content/uploads/2015/03/Illinois-Administrative-Order-1-2013.pdf. The order directed each state agency to establish a “documented review process” to ensure that any exclusion related to a criminal record is “job-related and consistent with business necessity,” considering the nature of the offense, the passage of time since conviction, and the nature of the job sought.

B.  Nondiscrimination in employment and licensing

In general, Illinois limits consideration of conviction in connection with occupational licensing only for certain employments, and only where a person has received a certificate of rehabilitation.  See Part IIC, supra, for Certificates of Rehabilitation, 730 Ill. Comp. Stat. Ann. 5/5-5-5.  In addition, the Illinois Human Rights Act prohibits employment inquiries about, or discrimination based on, criminal history records that have been ordered expunged, sealed or impounded.  775 Ill. Comp. Stat. Ann. 5/2-103(A).  A claim of racial discrimination has also been sustained under this law where a criminal conviction was the articulated basis for a refusal to hire.  See Bd. of Trs.  v. Knight, 516 N.E.2d 991, 996-97 (Ill. App. Ct. 1987) (no business necessity justified denial of employment as university police position to person convicted of single misdemeanor weapons charge; mitigating circumstances existed including time passed since conviction and record of responsible employment).  Moreover, this provision allows the consideration of such records where “authorized by law,” and thus background check laws and laws barring those convicted of offenses from employment trump the protections of this act.  775 Ill. Comp. Stat. Ann. 5/2-103.  Finally, this act specifically allows employers to obtain and use “other information which indicates that a person actually engaged in the conduct for which he or she was arrested.”  Id.

Several licensing schemes incorporate a “direct relationship” test.  See Public Accounting Act, 225 Ill. Comp. Stat. Ann. 450/20.01 (“The Department may refuse to issue or renew, or may revoke, suspend, or reprimand any license or licensee . . . [for] (4) being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of public accounting”); 335/9.1(b) (roofer’s license) (The Department may refuse to issue or revoke license for “conviction . . . of any crime under the laws of the United States or any state or territory thereof that is (i) a felony or (ii) a misdemeanor, an essential element of which is dishonesty or that is directly related to the practice of the profession”).  The latter formulation is also used for acupuncturists, 2/110(a)(2); collection agencies, 425/9(a)(2); and marriage/family therapists, 55/85(b); and many other professions.

Public Act 99-876 (HB-5973), enacted in 2016, expands upon the “direct relationship” tests for initial applicants for roofing (225 ILCS 335/7.1), cosmetology (225 ILCS 410/4-6.1), funeral director (225 ILCS 41/15-72), and related licenses.  Under the expanded tests a license may only be denied for “a felony directly related to the practice,” and only after the consideration of mitigating factors that include “the bearing, if any, the criminal offense … will have on his or her fitness or ability to perform one or more responsibilities,” age at the time of conviction, and time elapsed since conviction.  Listed violent offenses and offenses that requires sex offender registration are “directly related to the practice” per se.

The laws governing licensing for health care workers have undergone significant changes since 2011, and have tightened restrictions on convicted individuals seeking to pursue a variety of health related licenses.  See Ina Silverglide, Illinois health care licenses elude those with records, CCRC, October 16, 2016.  These additional restrictions have been steadily broadened, subsequently challenged, and are presently in an uncertain state of flux.  At the same time, waivers may be permitted under the Illinois Health Care Background Check Act, 225 Ill. Comp. Stat. Ann. 46/40.  The law governing the hiring of health care workers who are not subject to other licensing requirements requires criminal background checks, and while it disqualifies individuals from employment upon conviction of a long list of crimes, it permits a waiver by the agency that oversees the type of facility applicant is interested in working, and requires action on the waiver application within 30 days.  Id.  The statute sets forth nine mitigating circumstances (e.g., the age of the person when the crime was committed, the circumstances surrounding the crime, the length of time that has passed since the crime, the person’s work history and references) for the agencies to consider in granting a waiver, and each agency sets it own procedures for granting waivers.  Id.  At least two health care licensing agencies have adopted a two-tiered procedure for reviewing waiver applications.  See Linda Mills, Illinois Prisoner Reentry: Building a Second Chance Agenda, 141-145 (Annie E. Casey Foundation ) (July 2004).  Agency staff are authorized to grant waivers that apply to the less serious offenses listed in the act, and the agency director reviews applications involving the most serious violent offenses (including murder).  Id. at 141-43.  Neither the state law nor agency rules set forth any offense that bars a waiver.  Id. at 141.  However, a waiver does not guarantee employment; it only allows the employment of an individual with a waiver by any of the facilities regulated by the agency that issued the waiver.  Id. at 143.

Two agencies released their records of actions taken on waiver applications in connection with a 2004 request made by Linda Mills for her study of prisoner reentry issues for the Annie E. Casey Foundation. The Department of Human Services granted 77% of waiver requests received over an eight-year period between 1995 and 2003, including at least one waiver to an individual convicted of murder.  Id. at 144.  Of the 289 waivers granted by DHS over that period, only one person was later charged with abuse of a patient – and that person had only a conviction for retail theft.  Id. The Department of Public Health (“DPH”) received 6,581 waiver requests from 1996 through 2003.  Of those, 875 had no disqualifying convictions (this is due, according to the DPH to name matches that are not actual person matches).  Of the 5,706 with actual convictions, 4,130 (72.4%) were granted waivers.  Of those, 97 (2.3%) waivers were later revoked, with 38 of the revocations due to a subsequent finding of patient abuse, neglect or theft, and 59 due to a subsequent disqualifying conviction.  DPH also has been generous with its waivers of the most serious, recent or violent offenses that need director approval.

NOTE:  This data on waivers is dated (2004) and its present reliability is therefore questionable.  

C.  Chicago Reentry Initiative

In May 2004, Mayor Richard Daley created the Mayoral Policy Caucus on Prisoner Reentry, bringing together government and community leaders to address the challenges facing 20,000 people each year who return to Chicago after being released from prison.  In January 2006, the Caucus issued a major report calling for broad ranging reforms of City policy.  With regard to city hiring, the report recommended that the Mayor “[a]dopt internal guidelines for the City of Chicago’s personnel policies regarding criminal background checks, and advocate for fair employment standards.”  Recommendations from the Final Report of the Mayoral Policy Caucus on Prisoner Reentry, available at http://nelp.3cdn.net/d444d237367c41c64f_kjm6ikkla.pdf.  At the same time that the report was released, Mayor Daley announced several major “reentry” initiatives, including reform of the City’s hiring policies as recommended by the Caucus.  The Mayor’s press release described a new hiring policy requiring the City to “balance the nature and severity of the crime with other factors, such as the passage of time and evidence of rehabilitation . . . Put more simply, this change means that City hiring will be fairer and more common sense.”  Mayoral Task Force Releases Recommendations on Prisoner Reentry, available at http://www.nelp.org/page/-/SCLP/2011/MayorDalysPressRelease.pdf.  The Mayor added, “[i]mplementing this new policy won’t be easy, but it’s the right thing to do . . . We cannot ask private employers to consider hiring former prisoners unless the City practices what it preaches.”  Id.  Implementing the Mayor’s new hiring policy, the City Department of Human Resources has issued guidelines imposing standards on all city agencies regulating hiring decisions related to people with criminal records.  For the first time, the City of Chicago now requires all agencies to take into account the age of an individual’s criminal record, the seriousness of the offense, evidence of rehabilitation, and other mitigating factors before making their hiring decisions.

Additional Contact: Beth Johnson, Cabrini Green Legal Aid, BethJohnson@cgla.net


  1. See Delgado v. Bd. of Election Comm’rs, 865 N.E.2d 183, 185 (Ill. 2007) (holding that convicted felon, whose right to hold municipal office had not been restored by pardon under 10 ILCS 5/29-15, was ineligible to hold elective municipal office); Bryant v. Bd. of Election Comm’rs, 865 N.E.2d 189, 191  (Ill. 2007) (same); see also People v. Hofer, 843 N.E.2d 460 (Ill. App. Ct. 2006) (reviewing under a rational basis standard the Illinois statutory scheme that allowed a person convicted of a felony to run for constitutional office merely by completing his sentence, but did not restore the rights of such individuals to seek non-constitutional elective office without a pardon from the governor; therefore, removal of a trustee from his office pursuant to 65 ILCS 5/3.1-10-5(b) did not violate the equal protection clause).
  2. See Beth Johnson, Expungement and Sealing:  A Lawyer’s Guide, Criminal Records: Expungement and Other Relief (Ill. Inst. for CLE, 2010 Supp.):

    Prior to 2004, the only remedy of any sort for a conviction was to receive a gubernatorial pardon authorizing expungement. Whether it was a felony conviction or an ordinance violation, a pardon was the only way to obtain relief. Absent that extraordinary remedy, a person could never remove a criminal record and the stigma surrounding it from public view. The sealing law now authorizes the courts to make decisions on whether to seal minor misdemeanor offenses and limited felony offenses.

  3. As originally enacted in 2004, eligibility was restricted to first felony offenders convicted of non-violent offenses.  The eligibility criteria have been expanded several times over the years.
  4. Between January 2004 and January 2010, the Prisoner Review Board also had authority to issue certificates of relief from disabilities and certificates of good conduct.   During this period the Board issued 44 certificates of good conduct and 121 certificates of relief of disability.

Copyright © 2017

Restoration of Rights Series/Idaho

idaho flagI.  Restoration of Civil/Firearms Rights
A.  Civil Rights

A “sentence of custody to the Idaho state board of correction” following a felony conviction “suspends all the civil rights of the person so sentenced, including the right to refuse treatment authorized by the sentencing court, and forfeits all public offices and all private trusts, authority or power during such imprisonment.”  Idaho Code Ann. § 18-310(1).  A suspended sentence also results in loss of right to vote.  Id. (any such person “may lawfully exercise all civil rights that are not political during any period of parole or probation”).  Civil rights are restored upon final discharge of sentence.  § 18-310(2) (“final discharge” means satisfactory completion of imprisonment, probation and parole as the case may be).  The civil rights of those convicted in other jurisdictions may be restored on the same terms.  § 18-310(4).  The Administrative Office for U.S. Courts has taken the position that federal offenders on supervised release are entitled to register and vote.1

B.  Firearms

A felony conviction results in the loss of firearms rights only during the period of sentence, with the exception of specified serious violent crimes.  Idaho Code Ann. §§ 18-310(1), (2).  For those crimes, firearms rights may be restored by application to the Idaho Commission for Pardons and Parole five years after the date of final discharge.  § 18-310(3). See also § 18-3316(4) (firearms rights restored if a person’s “conviction has been nullified by expungement, pardon, setting aside the conviction or other comparable procedure by the jurisdiction where the felony conviction occurred; or whose civil right to bear arms either specifically or in combination with other civil rights has been restored by any other provision of Idaho law.”).

II.  Discretionary Restoration Mechanisms:
A.  Executive Pardon
Authority

The Idaho Constitution empowers legislature to create a board to grant pardons.  Idaho Const. art. IV, § 7.  This board (Idaho Commission for Pardons and Parole) has authority to grant pardons, except in cases of treason and impeachment, subject to legislative limitations on its power and manner of proceeding.  Idaho Const. art. IV, § 7; Idaho Code Ann. §§ 20-210, 20-240.2  The governor has constitutional power to grant reprieves or respites, except in the case of treason or imprisonment on impeachment.  In addition, by law the governor must approve the Commission’s recommendation in cases of murder, voluntary manslaughter, rape, kidnapping, lewd and lascivious conduct with a minor child, or manufacture or delivery of a controlled substance, before the pardon becomes effective. In such cases, the Commission’s decision constitutes a recommendation to the governor.  Idaho Code Ann. § 20-240.

Administration

Idaho Commission for Pardons and Parole is composed of five members appointed by the governor, with advice and consent of Senate, for three-year terms; no more than three may be from the same party.  Commission members may be removed by the governor for any reason.  The governor also appoints the Executive Director of the Commission, who is a full-time employee of the Commission.  Idaho Code Ann. § 20-210.

Eligibility

For non-violent offenses (both felony and misdemeanor), individuals are eligible for pardon three years after completion of the sentence.  For violent and sex offenders, individuals are eligible for pardon five years after completion of the sentence.  See Rules of the Commission of Pardons & Paroles, Idaho Admin. Code 50.01.01 § 550.01 (hereafter Board Rules), available at http://adminrules.idaho.gov/rules/current/50/0101.pdf.  Only persons convicted under Idaho law are eligible for a state pardon.  See Idaho Const. art. IV, § 7.

Effect

A pardon relieves welfare and employment disabilities imposed by state law or administrative regulation, e.g., health care provider, school bus driver.  Standlee v. State, 538 P.2d 778, 781 (Idaho 1975) (a pardon “does away with both the punishment and the effects of a finding of guilt”).  However, an Idaho pardon does not “expunge” the conviction, as that term has been defined by federal courts for purposes of the U.S. sentencing guidelines.  See United States v. Bays, 589 F.3d 1035, 1037-40 (9th Cir. 2009).

Process

Article IV, Section 7 of the Idaho Constitution provides that no pardon shall be granted

“. . . except by the decision of a majority of said board, after a full hearing in open session, and until previous notice of the time and place of such hearing and the release applied for shall have been given by publication in some newspaper of general circulation at least once a week for four weeks.  The proceedings and decision of the board shall be reduced to writing and with their reasons for their action in each case, and the dissent of any member who may disagree, signed by him, and filed, with all papers used upon the hearing, in the office of the secretary of state.”

Idaho Const. art. IV, § 7. All written material (except pre-sentence report and victim info) relating to the application becomes a matter of public record, including dissents, and are available from Secretary of State.  See Board Rules, supra, § 550.04(e)(i)-(ii).

The pardon application form is available at https://parole.idaho.gov/pardonsinfoandapppage.html.  Completed applications submitted to the Commission of Pardons and Parole are assigned for investigation to a parole officer in area where the applicant resides, who inquires into criminal history, reputation in the neighborhood, employment, and makes a recommendation to Commission.  Id.; see also Board Rules, supra, § 550.02(b).  The Commission decides in executive session whether to convene as a Pardon Board for a hearing.  See Rules of the Commission of Pardons & Paroles, § 550.03. If a hearing is granted, notice must be published pursuant to constitutional requirement, supra, and prosecutor and victims also notified so they may participate.  See Board Rules, supra, § 550.04.  Information on hearing schedules can be found at https://parole.idaho.gov/hearingschedules.html.

In cases where the governor retains final authority to pardon, the Commission conducts the same full hearing and makes written recommendation to the governor; if no action is taken within 30 days, the application is deemed denied.  See Board Rules, supra, § 550.05.

Firearms

Idaho Code Ann. §§ 18-310(3), (2). A person whose gun rights are not restored automatically (see Part I) may apply to the Commission five years after final discharge. Persons convicted of murder or whose sentence was enhanced for the use of a firearm during the commission of a felony are ineligible.

Frequency of Grants

Since 2009, the number of applications for pardon annually has more than doubled, to 30-40 per year.  Between 25% and 50% of these are granted by the Board.

Year
Eligible petitions received
Hearings granted/held
Pardon granted

2010
41
15/10
9

2011
35
16 /14
14

2012
28
21/13
13

2013
31
–/26
21

2014
38
–/15
15

2015
65
–/21
21

2016
70
–/30
28

Source: https://parole.idaho.gov/statistics.html

Contact

Idaho Commission of Pardons and Parole
3056 Elder St.
Boise, Idaho  83705
(208) 334-2520 ext. 229

B.  Judicial sealing or expungement
Knockdown of felony to misdemeanor

Between 2006 and 2014 Idaho gradually expanded its statute authorizing downgrading of offenses after successful completion of probation.  What began as a drug court program is now a comprehensive program applicable to any misdemeanor or felony offender qualifying for deferred sentencing or who has not been sentenced to a prison or jail term.  See Idaho Code § 19-2604.  A 2013 provision permits a defendant who has been convicted of a felony and who has been discharged from probation to apply to the sentencing court for a reduction of the conviction from a felony to a misdemeanor, if less than five (5) years have elapsed since the defendant’s discharge from probation, and the prosecuting attorney stipulates to the reduction; or if at least five (5) years have elapsed since the defendant’s discharge from probation.  If the defendant was convicted of a list of serious violent offenses, the application may be granted only if the prosecuting attorney stipulates to the reduction. § 2604(3).  The application may be granted only if the court finds that the applicant has been convicted of no further felony, is not currently charged with any crime, and “there is good cause for granting the reduction in sentence.”  This authority does not apply to anyone required to register as a sex offender. A violation of the terms of an agreement of supervision with the board of correction “shall not preclude the granting of relief to that person under this section.”

Deferred Adjudication/Suspended Sentences

Idaho Code Ann. § 19-2601(3) authorizes any Idaho state district court, in any case except treason and murder, to withhold judgment “on such terms and for such time as it may prescribe,” and place the individual on probation.  See also 19-2601(4) (suspension of sentence).  Upon successful completion of probation, the court may allow the defendant to change his or her plea to not guilty, “set aside” the conviction, and dismiss the charges.  § 19-2604(1).  The dismissal “shall have the effect of restoring the defendant to his civil rights,” including firearms rights.  Id.  “Where a judgment has been vacated under this statute [Section 19-2604], ‘it is a nullity, and the effect is as if it had never been rendered at all,’ and there are no limits or conditions on the rights defendant regains.” State v. Parkinson, 172 P.3d 1100, 1103 (Idaho 2007) (quoting Manners v. Bd. of Veterinary Med., 694 P.2d 1298, 1300 (Idaho 1985) (quoting State v. Barwick, 483 P.2d 670, 674 (Idaho 1971))), overruled on other grounds, Verska v. St. Alphonsus Reg’l Med. Ctr., 265 P.3d 502 (Idaho 2011).

However, the statute does not authorize the complete expungement of all records and references to the charge.  See Idaho Code Ann. § 19-2604(1); Parkinson, 172 P.3d at 1103 (finding that Section 19-2604 “does not require or authorize the complete expungement of all records and references to the charge”).  This statute does not apply to any offense requiring sex offender registration.  § 2604(3).

A person whose DUI charge was dismissed pursuant to this section, but whose conviction was not set aside, is considered a person previously found guilty of DUI for purposes of the penalty-enhancing statute (Idaho Code Ann. § 18-8005(4)) applicable to repeat DUI offenders.  State v. Deitz, 819 P.2d 1155, 1157-58 (Idaho Ct. App. 1991); see also State v. Reed, 243 P.3d 1089, 1090-92 (Idaho Ct. App. 2010) (DUI charge dismissed under Section 19-2604(1) can be considered for purposes of penalty-enhancing statute even when the court order dismissing the first conviction stated that the plea was “unconditionally withdrawn” and “deemed as though it had never been tendered to or accepted by” the court).

Juvenile adjudications

Expungement of juvenile adjudications is governed by Idaho Code Ann. § 20-525A, which provides that juveniles may petition the court for expungement after a waiting period, with certain serious violent offenses excepted.  For felonies, eligibility begins the latest of reaching age 18, five years after release, or five years after the end of the juvenile court’s jurisdiction.  § 525A(1).  For misdemeanors, eligibility is the later of one year after the end of the juvenile court’s jurisdiction or reaching age 18.  §§ 525A(2), (A)(3).  Following a hearing, the court shall grant the juvenile’s expungement petition if it finds that the juvenile has been held accountable, is a contributing member of society, and expungement will not risk public safety.  § 525A(5).  If the expungement request is granted, all records are sealed and removed from public access, and the juvenile may deny the existence of any record.  Id.3

Non-conviction records

Idaho law makes no provision for limiting access to non-conviction records except for unreturned arrest records.  See C.A.R. Rule 32.

Sex Offenders

Idaho Code Ann. § 18-8310:  Sex offenders (other than recidivists, offenders convicted of an aggravated offense, or offenders designated as violent sexual predators) may petition court after ten years of law-abiding conduct for “expungement” from sex offender registry.  See also § 2604(3) (sex offenders ineligible for deferred adjudication and set-aside).

III.  Nondiscrimination in Licensing and Employment

Idaho has no general law regulating consideration of conviction in employment or licensure.  It does apply a direct relationship test in connection with licensure as a veterinarian.  See Idaho Code Ann. § 54-2103(23) (“In good standing” means that an applicant:  (e) Has not been convicted of a felony . . .; and (f) Has no criminal conviction record or pending criminal charge relating to an offense the circumstances of which substantially relate to the practice of veterinary medicine”).  See also § 54-923 (dental professional’s certificate or qualification to practice may be revoked if convicted of felony or certain misdemeanors, even if conviction occurred before certified/qualified); § 54-2012 (past convictions of felonies or certain misdemeanors considered in connection with licensure of real estate salesperson or broker); § 19-5109(9) (certification/training of peace officers); id. § 23-910(1)(selling liquor); § 26-31-207(1)(d) (mortgage brokers); § 33-1202(4) & 1204 & 1208 (teachers); §54-1510(3)(optometrists); §69-504(6) (commodity dealers).


  1. 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.  (On file with author.)
  2. The state constitution originally provided for a Board of Pardons composed of the Governor, the Attorney General, and the Secretary of State.  In 1945 the Constitution was amended to give the legislature power to create a pardoning board.  See Idaho Const. art. IV, § 7.
  3. §525A(5) provides in part:

    “If the court finds after hearing that the petitioner has not been adjudicated as a juvenile offender for any [ineligible offence] . . .  and that no proceeding involving such felony or misdemeanor is pending or being instituted against him, and if the court further finds to its satisfaction that the petitioner has been held accountable, is developing life skills necessary to become a contributing member of the community and that the expungement of the petitioner’s record will not compromise public safety, it shall order all records in the petitioner’s case in the custody of the court and all such records, including law enforcement investigatory reports and fingerprint records, in the custody of any other agency or official sealed; and shall further order all references to said adjudication, diversion or informal adjustment removed from all indices and from all other records available to the public. However, a special index of the expungement proceedings and records shall be kept by the court ordering expungement, which index shall not be available to the public and shall be revealed only upon order of a court of competent jurisdiction. Copies of the order shall be sent to each agency or official named in the order. Upon the entry of the order the proceedings in the petitioner’s case shall be deemed never to have occurred and the petitioner may properly reply accordingly upon any inquiry in the matter. Inspection of the records may thereafter be permitted only by the court upon petition by the person who is the subject of the records or by any other court of competent jurisdiction, and only to persons named in the petition.”

Copyright © 2017

Restoration of Rights Series/Hawaii

hawaii flagI.  Restoration of Civil/Firearms Rights
     A.  Vote

Uniform Act on Status of Convicted Persons:  The right of felony offenders to vote is suspended while actually incarcerated.  “[I]f the defendant is placed on probation or the defendant is paroled after commitment to imprisonment, the defendant may vote during the period of the probation or parole.”  Haw. Rev. Stat. § 831-2(a)(1).

B.  Office

The right to seek and hold public office is restored upon final discharge of sentence.  § 831-5.

C.  Jury

Only a pardon restores the right to serve on a jury.  Haw. Rev. Stat. § 612-4(b)(2).  Other provisions of the UASCP govern the effect of prior conviction and expungement.  §§ 831-3.1, 3.2 (see infra).

D.  Firearms

No one may own possess, or control a firearm if he has been prohibited from owning firearms under federal law; or convicted of committing a felony, crime of violence, or an illegal drug sale; or is under age 25 and has been adjudicated by the family court of committing a felony, two or more crimes of violence, or an illegal drug sale.  See Haw. Rev. Stat. §§ 134-7(a), (b), (d).  A pardon does not relieve firearms disabilities unless expressly provided.  Cf. Haw. Op. Att’y. Gen. No. 81-12, 1981 WL 37235 (1981).

II.  Discretionary Restoration Mechanisms:
A.  Executive Pardon
Authority

The power to grant pardons of state convictions is vested in the Governor. Haw. Const., art. V, § 5.  The Governor may seek the recommendation of the director of public safety and the Hawaii State Paroling Authority, but the governor’s pardon power is independent.  See Haw. Const., art. V, § 5; Haw. Rev. Stat. § 353-72 (directory of public safety and Paroling Authority “shall consider every application for pardon which may be referred to them by the governor”).  While the Hawaii Constitution specifically permits the legislature to “authorize the governor … to restore civil rights denied by reason of conviction of offenses by tribunals other than those of this State,” Haw. Const., art. V, § 5, no such statute has been enacted.

Eligibility

There are no restrictions for state offenders. Federal and out-of-state offenders are ineligible.  See Haw. Const., art. V, § 5; U.S. Const., art. II, §2.

Effect

A pardon will state that the person has been rehabilitated, and a pardon relieves legal disabilities and prohibitions.1  A pardon does not expunge records, and a pardoned offense may be used in a subsequent criminal proceeding.

Process

No statutory process is specified for considering pardon applications, but the Governor, as a matter of policy, always asks the Paroling Authority (HPA) and Attorney General for advice and recommendation.  See Haw. Rev. Stat. § 353-72:

“The director of public safety and the Hawaii paroling authority shall consider every application for pardon which may be referred to them by the governor and shall furnish the governor, as soon as may be after such reference, all information possible concerning the prisoner, together with a recommendation as to the granting or refusing of the pardon.”

The application form is posted on the Paroling Authority website, http://hawaii.gov/psd/attached-agencies/hpa/Pardon-application2.pdf.

According to the Pardons Administrator of the Hawaii Paroling Authority, pardon applicants undergo a formal investigation process conducted under the direction of HPA, including a face-to-face interview by a parole officer with the petitioner (if practicable, by phone if not).  Two affidavits attesting to character must be filed in support by persons in the community.  The administrative staff develops recommendations to the Parole Board, which are considered in monthly administrative sessions.  The Director of Public Safety reviews recommendations, and endorses or recommends disapproval, and then sends them to the Attorney General’s office where a second investigation and confidential summary is completed.  The entire investigative process takes about eight months from filing to the Governor’s desk.

Frequency of Grants

Governor Abercrombie granted 83 pardons during his tenure from 2011 to 2014, 50 of which were during his final year in office. See Honolulu Star Adviser Pardon Database, http://data.staradvertiser.com/pardons/pardons. During the 2011 through 2014 fiscal years, the Paroling Authority conducted 467 pardon investigations and recommended 230 cases favorably.  See Hawaii Paroling Authority Annual Statistical Reports, available at http://dps.hawaii.gov/hpa.  The Paroling Authority reviews applications on a regular basis, sending its recommendations through the Attorney General to the Governor.

Governor Lingle granted 132 pardons in her eight years in office, 55 of which were in her last year (2010).  See Derrick DePledge, Lingle’s 55 pardons are most in 8 years, Star Advertiser, Dec. 4, 2010, available at http://www.staradvertiser.com/news/hawaiinews/20101204_lingles_55_pardons_are_most_in_8_years.html.  The two governors immediately preceding Governor Lingle had similar records, granting 204 (Cayetano) and 115 (Waiheee) pardons respectively in their eight years in office.

Contact

Tommy Johnson
Paroles & Pardons Administrator
Hawaii Paroling Authority
808-587-1295

B.  Judicial Expungement and Sealing
Deferred adjudication

Procedure for deferred acceptance of guilty plea (DAGP) or deferred acceptance of no contest (DANC) is available for persons with no prior felony convictions charged with certain offenses that are otherwise eligible for probation.  See Haw. Rev. Stat. §§ 853-1, 853-4.  Enumerated serious offenses are ineligible.  § 853-4.  Deferred treatment is available when “[i]t appears to the court that the defendant is not likely again to engage in a criminal course of conduct,” and “the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law.”  §§ 853-1(a)(2), (3).  In such cases “the court, without accepting the plea of nolo contendere or entering a judgment of guilt and with the consent of the defendant and after considering the recommendations, if any, of the prosecutor, may defer further proceedings” and place the defendant on probation for a term not exceeding the maximum potential sentence, but in the event of a petty misdemeanor no more than a year.  §§ 853-1(a), (b).  If the defendant successfully completes probation, the court discharges him and dismisses the charges without an adjudication of guilt. “Discharge of the defendant and dismissal of the charge [following successful completion of the deferral period] . . . is not a conviction.”  § 853-1(d).  One year after the discharge and dismissal, the defendant may apply to the Attorney General for expungement.  Haw. Rev. Stat. § 853-1(e); see also Haw. Rev. Stat. § 831-3.2(a)(5).  Info:  Office of the Attorney General:  808-586-1500.

The DAGP procedure was enacted

“because [the legislature] determined that certain offenders should be provided the opportunity to be conviction free consistent with the government’s penal goals. The legislature explained that ‘in certain criminal cases, particularly those involving first time, accidental, or situational offenders, it is in the best interest of the [prosecution] and the defendant that the defendant be given the opportunity to keep his [or her] record free of a criminal conviction, if he [or she] can comply with certain terms and conditions during a period designated by court order.’”

State v. Shannon, 185 P.3d 200, 205 (Haw. 2008)(quoting State v. Putnam, 3 P. 3d 1239, 1244-45 (Haw. 2000), quoting 1976 Haw. Sess. L. Act 154, § 2 at 279); see also id. at 221 (Nakayama, dissenting), quoting Sen. Stand. Comm. Rep. No. 616.76, in 1976 Senate Journal, at 1152 (internal quotations omitted):

“[For certain offenders], the humiliation and inconvenience of arrest and prosecution satisfy the need for punishment; and a trial and conviction would serve no purpose other than to impair the offenders’ educational, employment, and professional opportunities and ability to function as a responsible and productive member of the community.  Additionally, the [DAG plea] procedure . . . has the . . . benefit of saving time and money for the criminal justice system without adversely affecting the public interest.  Also, [i]t will further relieve the congestion in the courts and enable the criminal justice system to direct its limited resources where they can be most beneficial to the community.”

Deferred adjudication and expungement are also authorized for minor first time drug offenders under Haw. Rev. Stat. § 712-1255.  Discharge and dismissal upon completion of probation under this section “shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.”  § 712-1255(3).  A defendant may apply to the court for expungement if under age of 20.  § 712-1256.2

Juvenile Records

Expungement is governed by Haw. Rev. Stat. §§ 571-88(a), (e).  A juvenile may motion the court for an expungement, which annuls the arrest record and prevents circulation of court records. § 571-88(a).  Sealing is governed by Haw. Rev. Stat. § 571-84(e).  Juvenile records are considered confidential, rendering them per se sealed.  Id.  A court order is required for any agency to access sealed juvenile court records.  Id.  Pursuant to informal court policy, a juvenile’s attorney may motion for a dismissal in the interest of justice following the disposition, which, if granted, would destroy court records.

Non-conviction records

Only criminal justice agencies and agencies authorized by Hawaii’s laws, such as the Department of Human Services for their child care program, can access non-conviction information.  In addition, upon application by the affected individual, the Attorney General “shall issue an expungement order annulling, canceling, and rescinding the record of arrest” not leading to conviction, except in cases where arrested person absconded. Haw. Rev. Stat. § 831-3.2.  Expungement available in deferred adjudication cases after a one-year waiting period.  § 831-3.2(a)(5).

Effect of Expungement

Persons whose records have been expunged shall be treated “as not having been arrested.”   Haw. Rev. Stat. § 831-3.2(b).  Records shall not be divulged except upon inquiry by a court or agency thereof (including for preparation of presentence report), a government agency considering the subject person for a position immediately and directly affecting the national or state security, or a law enforcement agency acting within the scope of its duties.  § 831-3.2(d).  “Response to any other inquiry shall not be different from responses made about persons who have no arrest records.”  Id.  The Attorney General shall issue to the person for whom an expungement order has been entered, a certificate stating that the order has been issued and that its effect is “to annul the record of a specific arrest.”  § 831-3.2(e).  The certificate “shall authorize the person to state, in response to any question or inquiry, whether or not under oath, that the person has no record regarding the specific arrest.  Such a statement shall not make the person subject to any action for perjury, civil suit, discharge from employment, or any other adverse action.”  Id.

Info

AG’s office, criminal records section
808-587-3106

C.  Administrative certificate

Uniform Act on Status of Convicted Persons (see below)

III.  Nondiscrimination in Licensing and Employment:
A.  Fair Employment Practices

Hawaii includes discrimination based on conviction record in its more general fair employment practices law.  Haw. Rev. Stat. §§ 378-2 to 378-6.  Under § 378-2.5(b), it is an unlawful employment practice to inquire into arrest and conviction records before the employee receives a conditional offer of employment, which may be withdrawn if a conviction within the previous 10 years “bears a rational relationship to the duties and responsibilities of the position.”  § 378-2.5(b), (c).  The Hawaii Supreme Court held in August 2006 that this law also prohibits termination of existing employment because of a previous conviction, absent a showing that the conviction bears a rational relationship to the employment.  Wright v. Home Depot, 142 P. 3d 265, 275 (Haw. 2006).3  The law includes a long list of exceptions for various public and private employments where an employer is expressly permitted to ask about a conviction record, such as health, education, law enforcement and security services, public employment, transportation, public libraries, insurance and banks, coop or condominium housing, etc.  Haw. Rev. Stat. § 378-2.5(d).

The law is enforced by the Hawaii Civil Rights Commission.  The 1998 amendments were evidently precipitated when the HCRC promulgated regulations that addressed what constitutes a “bona fide occupational qualification” and what is an “inquiry.”  See Sheri-Ann S.L. Lau, Recent Development: Employment Discrimination Because of One’s Arrest and Court Record in Hawaii, 22 U. Haw. L. Rev. 709, 714-15 (2000).  “Significantly, an application form cannot ask the prospective employee whether he or she has an arrest record, court record, or conviction record unless ‘the inquiry is pursuant to a statutory exemption and seeks information about a conviction for a specific offense within the exemption.’”  Id.  The HCRC makes it clear that the employer has the burden of proving a BFOQ based on the employer’s business requirements and the totality of the circumstances.  See id. at 715-16 (footnote omitted) (“it appears that the legislature’s main emphasis is to provide employment opportunities for individuals with conviction records and reduce the likelihood that they will return to public assistance or a life of crime.  The Legislature’s secondary concern is protecting employers from litigation when trying to provide a safe environment for customers and employees.”).  As to arrests alone, it is an unlawful discriminatory practice to refuse to hire, to fire or to otherwise discriminate against an individual based on their arrest and court record.  Haw. Rev. Stat. § 378-2(a)(1).

B.  The Uniform Act on Status of Convicted Persons

Provides that a person may not be disqualified from public office or government employment, or be disqualified from licensure, solely because of a prior conviction, except that a crime committed within the past 10 years (excluding any period of incarceration) may be considered “if it bears a rational relationship to the duties and responsibilities of a job, occupation, trade, vocation, profession, or business.”  Haw. Rev. Stat. § 831-3.1(a).  A crime committed more than 10 years ago may only be considered if it directly relates to the possible performance in the occupation sought and after a determination supported by investigation that the person has not been sufficiently rehabilitated. Id. § 831-3.1(c). In addition, a person convicted of a felony may be denied a liquor license.   § 831(a)(1).  The statute does not apply to employment in regulated health care facilities, a youth correctional facility, detention or shelter facility, or correctional facility, or to government positions with contact with children or dependent adults where the applicant poses a risk to their health, safety or well-being, or positions with contact with persons committed to a correctional facility for certain crimes and where the applicant poses a risk to the inmates, staff or public.  § 831-3.1(f).

Refusal to hire or denial of license may occur only when the agency determines after appropriate investigation, notification of results and planned action, and opportunity to meet and rebut the finding, “that the person so convicted has not been sufficiently rehabilitated to warrant the public trust.”  Haw. Rev. Stat. § 831-3.1(c).  A person who is denied a position in the civil service on the basis of a criminal conviction “may appeal the adverse decision to the civil service commission or merit appeals board, as appropriate, within twenty days after the notice of action has been sent to the person.”  § 831-3.1(e).

C.  Ban-the-Box

In 1998, Hawaii became the first state to ban the box as applied to both public and private employment.  Haw. Rev. Stat. § 378-2.5 prohibits employers from inquiring into an applicant’s criminal history until after a conditional offer of employment has been made. The offer may be withdrawn if the applicant’s conviction bears a “rational relationship” to the duties and responsibilities of the position sought. Under the law, employers may only consider an employee’s conviction record within the most recent ten years, excluding periods of incarceration. Prior to 1998, the definition of unlawful discriminatory practices (§ 378-2) included “arrest and court record” as an impermissible reason for an employer to “refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual.”


  1. In a press release accompanying 11 grants in 2010 grants, Governor Lingle stated: “The individuals broke the law, but they have served their sentences, kept their records clean and have proven that they are now leading law-abiding lives in the community.”  Star-Advertiser staff, 11 given pardons this year, Star Advertiser, Jul. 3, 2010, available at http://www.staradvertiser.com/news/20100703_11_given_pardons_this_year.html
  2. 2006 law extending this expungement authority to all deferred adjudication situations was vetoed by the Governor based on objections to the amount and kinds of violations that could be expunged, referring specifically to trespass, disorderly conduct and loitering for prostitution.  Permitting expungement would make records of those crimes unavailable to criminal justice agencies and officials who are not entitled to “law enforcement” access.
  3. Wright is discussed in Christine Neylon O’Brien and Jonathan J. Darrow, Adverse Employment Consequences Triggered by Criminal Convictions: Recent Cases Interpret State Statutes Prohibiting Discrimination, Wake Forest L. Rev. 991, 996-1002 (2007).

Copyright © 2017

Restoration of Rights Series/Georgia

Georgia FlagI.  Restoration of Civil/Firearms Rights
A.  Civil rights

“No person who has been convicted of a felony involving moral turpitude may register, remain registered, or vote except upon completion of the sentence.”  Ga. Const. art. II, § 1, para. III(a).  The right to vote is restored automatically “upon completion of the sentence.”  Id.  “No person . . . who has been convicted of a felony involving moral turpitude” may hold public office “unless that person’s civil rights have been restored and at least ten years have elapsed from the date of the completion of the sentence without a subsequent conviction of another felony involving moral turpitude . . . .”  Ga. Const. art. II, § 2, para. III. The right to sit on a jury is regained by pardon or restoration of civil rights.  1983 Ga. Op. Att’y Gen. 69 (No. 83-33), 1983 WL 41667 (May 27, 1983).  The legislature may supersede the effect of a pardon in some cases.  See Ga. Peace Officer Standards & Training Council v. Mullis, 281 S.E.2d 569, 571 (Ga. 1981) (constitutional prohibition against felony offenders holding an appointment of honor or trust, such as position of deputy sheriff, unless pardoned, did not prevent General Assembly from making conviction absolute bar to qualification as peace officer, since General Assembly was authorized by law to provide for higher qualifications for the officers) (citing Ga. Code Ann. § 92A-2108(d)). Juvenile delinquency adjudications do “not impose any civil disability ordinarily resulting from a conviction nor operate to disqualify the child in any civil service application or appointment.”  Ga. Code Ann., § 15-11-72.

B.  Firearms

A person convicted of a felony in any jurisdiction cannot receive, possess or transport a firearm, unless pardoned.  See Ga. Code Ann. § 16-11-131(b)-(c).  A “firearm” is defined as “any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge.”  Id.  Such a person is also prohibited from receiving a license to carry a “weapon” (defined to include both a knife and a handgun), unless pardoned.  § 16-11-129(b)(2)(B).1  In 2010, the legislature amended the license to carry weapons law contained in § 16-11-129, creating a new subsection applicable to first offenders:

If first offender treatment without adjudication of guilt for a conviction [related to certain drug offenses] was entered and such sentence was successfully completed and such person has not had any other conviction since the completion of such sentence and for at least five years immediately preceding the date of the application, he or she shall be eligible for a weapons carry license . . . .

§ 16-11-129(b)(3).

II.  Discretionary Restoration Mechanisms
A. Executive pardon
Authority

The power to pardon and to remove disabilities is vested in the state Board of Pardons and Paroles, although it may be prohibited from issuing a pardon or superseded by the legislature in cases involving recidivists and persons serving life sentences.  Ga. Const. art. IV, § 2, para. II; see generally Ga. Peace Officer Standards & Training Council v. Mullis, supra.  The Governor is expressly precluded from exercising power or authority over pardons.  Ga. Code Ann. § 42-9-56.  In addition to pardons and sentence commutations, the Board may issue “Restoration of Civil and Political Rights” to felony offenders (including out-of-state and federal convictions).  Board instructions and pardon application form, available at http://pap.georgia.gov/pardons-restoration-rights

Board of Pardons and Paroles

The Board is composed of five full-time members appointed by the Governor and confirmed by the senate. Ga. Code Ann. §§ 42-9-2, 42-9-5.  The Board chooses its own chairman, and also makes parole determinations.  Id. § 42-9-6; Ga. Const. art. IV, § 2, para. II.  The Board must report annually to legislature, the Attorney General and the Governor.  Ga. Code Ann. § 42-9-19.  The Board decides cases by majority vote, and in a written opinion.  Id. §§ 42-9-42(a) and (b).

Eligibility

For restoration of rights, the applicant must have completed sentence (including fine), have no pending charges, and completed two years without any criminal involvement.  For a full pardon, the applicant must have completed a five-year waiting period after completion of sentence (including probated sentence) with no criminal involvement.  For sex offenders the waiting period is 10 years.  Waiver of the waiting period is available “if the waiting period is shown to be detrimental to the applicant’s livelihood by delaying his or her qualifying for employment in his or her chosen profession.” Ga. Comp. R. & Regs. 475-3-.10(3) (pardon) and (6) (restoration of rights).  See also Board instructions, supra.  Restoration of rights is available to federal and out-of-state offenders as long as the applicant is residing in the state.  Ga. Comp. R. & Regs. 475-3-.10(6).  Under Board policy, misdemeanants may apply for a pardon only if they are subject to deportation because of their conviction.  Source:  Georgia Board of Pardons and Paroles.

Effect

Pardon is “a declaration of record that a person is relieved from the legal consequences of a particular conviction.”   Ga. Comp. R. & Regs. 475-3-.10(3).  “It restores civil and political rights and removes all legal disabilities resulting from the conviction.”  Id.  A full pardon relieves “those pardoned from civil and political disabilities imposed because of their convictions,”  Ga. Code Ann. § 42-9-54), and also relieves licensing and employment restrictions.   A pardon, however, does not restore a convicted felony offender to a public office he was forced to relinquish as a result of the conviction.  Morris v. Hartsfield, 197 S.E. 251, 253 (Ga. 1938).  If the applicant requests restoration of firearms rights, this must be explicitly stated in the pardon.  See “Firearms,” infra.  Restoration of rights affects only basic civil rights (jury, public office).  A pardon does not expunge, remove, or erase the crime from the person’s record.  See http://pap.georgia.gov/pardons-restoration-rights.

Process

The Board generally considers cases on a paper record without an in-person hearing, though it has the power to conduct public hearings.  An investigator for the Board conducts an in person interview.  It also acts by majority vote by written decision, and gives no reasons.  Ga. Code Ann. § 42-9-42.  To request a full pardon, information and an application form can be obtained at http://pap.georgia.gov/pardons-restoration-rights.  The form itself is at http://pap.georgia.gov/sites/pap.georgia.gov/files/ParoleConsideration/PardonApplicationRevisedJanuary2015%20_1_%20working%20link%20to%20voter%20seal%20added%20Owens.pdf.    Clemency requests are screened by Board staff. And requests deemed meritorious are forwarded to Board members for individual review and decision.  Effective January 1, 2015 a new longer form for pardon is required, which requests extensive information about an applicant’s personal life, financial and employment history, civil involvement, and reasons for seeking a pardon.  The Board website advises that a waiver of the eligibility waiting period may be granted if necessary to secure employment, and that it is not necessary to have a lawyer to apply.  http://pap.georgia.gov/pardons-restoration-rights.  The Board indicates that processing a pardon application takes 6 to 9 months, on average, and may take longer based on the Board’s workload.  See id.

Firearms

Firearm privileges are restored only if a pardon expressly authorizes the receipt, possession, or transportation of a firearm.  Ga. Code Ann. § 16-11-131(c).  Federal and out-of-state pardons are specifically recognized.  Id.  A pardon applicant may request that the pardon be specially worded to restore this firearm right, but he must provide in detail his reason for the request, and provide letters from three “citizens of unquestioned integrity.”  See Applications for Restoration of Rights at 2, http://pap.georgia.gov/pardons-restoration-rights.  Applicants must be interviewed by a Board staff member.  Id.  Restoration “cannot be granted for any offense in which a firearm was used or possessed.”  Id.  Alternative procedure involving the Board of Public Safety are available where relief is granted under federal law, including the exception in federal law for antitrust and trade violations.  § 16-11-131(d).  Persons sentenced under First Offender Act without an adjudication of guilt regain rights automatically upon completion of sentence, and misdemeanants do not lose rights.  § 16-11-131(f).

Sex offender registration

A separate form is provided for those required to register as a sex offender. https://pap.georgia.gov/sites/pap.georgia.gov/files/ParoleConsideration/PardonApplicationforRegisteredSexOffendersRevisedJanuary2015%20_1_%20voter%20link%20seal%20Owens.pdf.

The Board’s work is described in Steve Visser, Convicted Look to the State for Forgiveness, Atlanta Journal-Constitution (Dec. 20, 2010), available at http://www.ajc.com/news/convicted-look-to-the-782143.html.

Frequency of grants

Applications received
Pardon w/o firearms
Pardon w/ firearms
Immigration pardons
Restoration of rights

2015
Data pending
374 (total)
Data pending
107

2014
1564
297
684
No data
170

2013
3231
720
397
No data
232

2012
1307
552
176
No data
136

2011
No data
817 (total)
No data
117

2010
1677
682
162
21
136

2009
1774
350
105
6
138

2008
2059
372
73
11
118

2007
1486
385
109
24
206

2006
1292
310
165
15
204

2005
1360
244
143
18
269

2004
1321
223
157
36
238

2003
1093
204
165
21
261

Source: Georgia Board of Pardons and Paroles.

Contact

State Board of Pardons and Paroles
2 Martin Luther King, Jr. Drive
S.E. Balcony Level, East Tower
Atlanta, GA 30334-4909
Tel: (404) 651-5198 (direct), (404) 657-9350 (general)

B.  Judicial sealing or expungement
“Exoneration” under the “First Offender Act”

First felony offenders prosecuted under Georgia law may be placed on probation or sentenced to confinement without an adjudication of guilt.  Ga. Code Ann. § 42-8-60(a).  Certain serious violent offenses and sex offenses are not eligible. Upon successful completion of probation or sentence, the offender is discharged without adjudication, which “completely exonerate[s] the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties.”  § 42-8-62(a).  While those sentenced to confinement are considered “convicted” during the period of incarceration, § 42-8-65(c), after discharge the offender is “not [] considered to have a criminal conviction,” § 42-8-62(a), and “is to suffer no adverse [effect] upon his civil rights or liberties.”  1990 Ga. Op. Att’y Gen. No. U90-6, 1990 WL 600184 (Feb. 27, 1990).  In addition, an offender sentenced to probation under this scheme is not disqualified from jury service during the probation period, id., or from voting, 1974 Ga. Op. Att’y Gen. 48 (1974).  A discharge without adjudication restores firearms privileges, § 16-11-131(f), and the conviction cannot generally be used to disqualify the offender from employment or from public or private office.  § 42-8-63.  However, discharge may be used to disqualify an individual from employment if the discharge took place on or after July 1, 2004 and the job is a) with a school, child welfare agency, or other childcare provider, and the underlying prosecution was for child molestation, sexual battery, enticing a child for indecent purposes, sexual exploitation of a child, pimping, pandering, or incest; b) with a nursing home, assisted living community, personal care home, or otherwise involves care for the elderly, and the underlying prosecution was for sexual battery, incest, pimping, pandering, or other offenses involving the abuse or neglect of the elderly or disabled; or c) with a facility that serves the mentally ill or developmentally disabled, and the underlying prosecution was for sexual battery, incest, pimping, or pandering.  § 42-8-63.1.

Access to records restricted: The state records repository “may not provide records of arrests, charges, or sentences for crimes relating to first offenders . . . where offenders have been exonerated and discharged without court adjudications of guilt, except as specifically authorized by Code Section 35-3-34.1 or other law.”  Ga. Code Ann. § 35-3-34.   The exceptions relate to employment with a public school, child care center, nursing home, and other facilities for vulnerable populations. § 35-3-34.1(a).  Note that this authority does not apply to court records.

Predicate effect:  For any future prosecutions, a finding of guilt for a discharged offense “may be pleaded and proven as if an adjudication of guilt had been entered and relief had not been granted” to discharge the offender pursuant to this procedure.  § 42-8-65(a).

Record restriction and sealing

A new scheme of limiting public access to criminal records enacted in May 2012 became effective in July 2013.  See 2012 Ga. Laws Act 709, 6-2 (H.B. 1176), codified at Ga. Code Ann. § 35-3-37.  The new law provides for “record restriction” instead of “expungement” of non-conviction records, including cases where charges dismissed court records of deferred adjudication cases (see below), and of certain misdemeanor records. See also Bill Rankin, Ga. bill would hide arrest information, Atlanta Journal-Constitution, March 26, 2012, available at http://www.policeone.com/legal/articles/5325010-Ga-bill-would-hide-arrest-information/ (noting the new law would no longer give prosecutors sole discretion to approve or deny expungement applications).2 “Restrict” means that the criminal history record information held by the Criminal Information Center shall be available only to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment, and shall not be disclosed or otherwise made available to any private persons or businesses, or to licensing boards.  See Ga. Code Ann. § 35-3-37(a)(6); see also §§ 35-3-34, 35-3-35. 

Sealing of court records after restriction:  While record restriction does not affect court records, individuals whose records are restricted may petition for sealing of court records. See § 35-3-37(m).  Sealing may be granted if the court finds that “the harm otherwise resulting to the privacy of the individual clearly outweighs the public interest in the criminal history record information being publicly available.” Id.

Record restriction is available in the following cases:

First offender drug possession

Record restriction is available to a person who pleaded guilty to or was found guilty of drug possession, who has not previously been convicted of a drug offense, who successfully completed the terms and conditions of his probation. Ga. Code Ann. §§ 35-3-37(h)(2)(B), 16-13-2.

Youthful offender misdemeanors

Record restriction is available to persons convicted of a misdemeanor or series of misdemeanors arising out of the same incident while less than 21 years of age, after five years of law-abiding conduct. See Ga. Code Ann. § 35-3-37(j)(4)(A).  Record restriction will not be appropriate in case of conviction for certain sexual offenses, theft, and serious traffic offenses.  § 35-3-37(j)(4)(B).

Accountability courts

Effective July 1, 2016, record restriction authority was extended to Georgia’s system of “Accountability Courts,” authorizing diversion in drug, veterans, mental health and other specialized treatment courts, after five years of law-abiding conduct.  See Ga. Code Ann. §§ 35-3-37(h)(2)(C), 15-1-20(b). 

Non-conviction records

Records of the Crime Information Center of charges dismissed before a charging instrument is filed are automatically restricted once the Center is notified that the case has been closed. Ga. Code Ann. § 35-3-37(h)(1) Restriction is available absent notification of closure after varying time frames depending on the seriousness of the charges (2 years for misdemeanors, four years for most felonies, 7 years for serious felonies). Id.  Records dismissed after a charging instrument is filed may be automatically restricted if all charges are dismissed .  § 35-3-37(h)(2)(A).  Exceptions apply for certain dispositions.  § 35-3-37(i).  Records of felony charges dismissed pursuant to a plea to a misdemeanor may be restricted after four years.  § 35-3-37(j)(1).  Acquittals will be restricted, unless, within ten days of the verdict, the prosecuting attorney demonstrates to the trial court through clear and convincing evidence that the harm otherwise resulting to the individual is clearly outweighed by the public interest in the criminal history record information being publicly available .  § 35-3-37(h)(2)(E).

Correction of records

Persons may request that their criminal history record be modified, corrected, supplemented, or amended if the information is inaccurate, incomplete, or misleading. See Ga. Code Ann. §§ 35-3-37(b)-(g)).  Additionally, the law provides that under certain circumstances before or after indictment, access to a person’s criminal history record information (including any fingerprints or photographs of the person taken in conjunction with the arrest) shall be restricted.  See §§ 35-3-37(h)-(j)). For example, record restriction will be available to a person whose case was never referred for further prosecution or was dismissed.  See § 35-3-37(h)(1).

Sealing for juvenile adjudications

Sealing of juvenile records is governed by Ga. Code Ann. § 15-11-701.  Juveniles have the right to seal their records, and the court must order automatic sealing of a file after a case is dismissed or handled through informal adjudication. § 15-11-701(a).  A juvenile adjudicated delinquent or unruly must petition to have the record sealed.  § 15-11-701(b).  Such juveniles are eligible for expungement upon a court’s finding that two years have passed since final discharge, there has been no subsequent adjudication or conviction involving moral turpitude, no proceeding or charges are pending, and the juvenile has been rehabilitated.  Id.  Once sealed, the proceeding is treated as if it never occurred, and the juvenile may indicate that no record exists.  § 15-11-701(d).

C.  Administrative certificate

2014 legislation created a Program and Treatment Completion Certificate issued by the Board of Corrections. “Such certificate shall symbolize an offender’s achievements toward successful reentry into society.” Ga. Code Ann. § 42-2-5.2(c). The certificate is intended to encourage hiring, licensing, and admission to schools and other programs by offering protections for those engaging certificate holders against liability for the actions of those with certificates. See Ga. Code Ann § 51-1-54(b).  Certificates are issued according rules promulgated by the board. “The board’s rules and regulations relating to the issuance of such certificate shall take into account an offender’s disciplinary record and any other factor the board deems relevant to an individual’s qualification for such certificate.” Id. Eligibility considerations and requirements are specified by the board. Id. By statute, persons convicted of a serious violent offense are ineligible.  Id. Certificates were created under a section of the Code that also requires the Board of Corrections to implement reentry programs for “adult offenders.”  It is unclear whether certification is tied explicitly to completion of such programs or whether persons not under the jurisdiction of the Board of Corrections are eligible for such certificates.  The Board has yet to promulgate rules governing eligibility.

III.  Nondiscrimination in Licensing and Employment
A.  Ban-the-box

On February 23, 2015, Governor Nathan Deal signed an executive order eliminating a question about criminal record from applications for state employment. See  https://gov.georgia.gov/sites/gov.georgia.gov/files/related_files/document/02.23.15.03.pdf.  The order states that the new policy should

establish practices that

  • prohibit the use of a criminal record as an automatic bar to employment;
  • prevent the use of an application form that inappropriately excludes and discriminates against qualified job applicants;
  • promote the accurate use and interpretation of a criminal record; and
  • Provide qualified applicants with the opportunity to discuss any inaccuracies, contest the content and relevance of a criminal record, and provide information that demonstrates

The new policy “[s]hall not affect applications for sensitive governmental positions in which a criminal history would be an immediate disqualification and initial disclosure on such applications shall still be required.”

B.  Professional licensure

Professional licensing boards may deny or revoke a license of a person convicted of a felony or a crime involving moral turpitude, or of a person arrested, charged and sentenced for such offenses pursuant to the first offender statute or where adjudication of guilt was otherwise withheld. Ga. Code Ann § 43-1-19(3), (4).  However, effective July 1, 2016:

No professional licensing board shall refuse to grant a license to an applicant therfor or shall revoke the license of a person licensed by that board due solely or in part to a conviction of any felony or due to any arrest, charge, and sentence for the commission of any felony unless such felony directly relates to the occupation for which the license is sought or held.

§ 43-1-19(p) (as amended by SB-367, §10-1 (2016)).  A board shall consider the following factors when determining whether a felony “directly relates” to the occupation:

(A) The nature and seriousness of the felony and the relationship of the felony to the occupation for which the license is sought or held;

(B) The age of the person at the time the felony was committed;

(C) The length of time elapsed since the felony was committed;

(D) All circumstances relative to the felony, including, but not limited to, mitigating circumstances or social conditions surrounding the commission of the felony; and

(E) Evidence of rehabilitation and present fitness to perform the duties of the occupation for which the license is sought or held.

Id. No similar limitation applies to consideration of crimes involving moral turpitude.

Juvenile delinquency adjudications do “not impose any civil disability ordinarily resulting from a conviction nor operate to disqualify the child in any civil service application or appointment.”   § 15-11-606.

C.  Negligence liability

Employers, schools, licensing boards and others that engage persons that have received a pardon or “Program and Treatment Completion Certificate” receive protection from liability in civil suits based on the actions of the pardoned person or certificate holder.  Per Ga. Code Ann. § 51-1-54(b):

Issuance of a Program and Treatment Completion Certificate by the Department of Corrections or the granting of a pardon from the State Board of Pardons and Paroles as provided in the Constitution and Code Section 42-9-42 shall create a presumption of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise engaging in activity with the individual to whom the Program and Treatment Completion Certificate was issued or the pardon was granted. Such presumption may be rebutted by relevant evidence which extends beyond the scope of the Program and Treatment Completion Certificate or pardon and which was known or should have been known by the person against whom negligence is asserted.


  1. Ga. Code Ann. § 16-11-131(d) provides an administrative procedure for restoration of firearms rights by the Board of Public Safety, for persons who have had their federal firearms rights restored by ATF, or who have been convicted of certain white-collar crimes that do not give rise to federal firearms disability (“antitrust violations, unfair trade practices, or restraint of trade”).  This section is rarely used as a practical matter and all applications for firearms relief are handled through the Board of Pardons and Paroles.
  2. Prior to July 2013 expungement was available for non-conviction records where an individual was not prosecuted or where charges were dismissed only if no other criminal charges were pending against the individual and the individual had not been previously convicted of the same or similar offense in Georgia or elsewhere in the United States within the past five years, excluding any period of incarceration.  Ga. Code Ann. § 35-3-37(d)(3).  Upon receipt of a written request for expungement, the agency was required to provide a copy of the request to the prosecuting attorney, who was required to review the request to determine if it met the statutory criteria for expungement.  § 35-3-37(d).

Copyright © 2017

Restoration of Rights Series/Florida

florida flagI.  Restoration of Civil/Firearms Rights
A.  Civil Rights

All civil rights of felony offenders are suspended upon conviction until restored by pardon or restoration of civil rights.  Fla. Const. art. VI, § 4; Fla. Stat. § 944.292(1).  The Governor controls both pardon and restoration of rights, subject to the recommendations of the Clemency Board.1 Under the Rules of Executive Clemency, as revised in March 2011, persons convicted of certain minor felony offenses may apply for restoration of civil rights five years after completion of sentence.  See Rule 9A of the Rules,    https://www.fcor.state.fl.us/docs/clemency/clemency_rules.pdf.  More serious offenders must wait seven years and have a hearing.  See Rule 10A.  The voting rights of individuals convicted of federal offenses or in other states must also apply to the Board under the same terms as persons with Florida convictions.  See Rules 9C and 10B.2  However, restoration of rights by another state will be given effect under the Full Faith and Credit Clause.  See Schlenther v. Depart. of State, Div. Of Licensing, 743 So.2d 536, 537 (Fla. 2d DCA 1998) (“Once another state restores the civil rights of one of its citizens whose rights had been lost because of a conviction in that state, they are restored and the State of Florida has no authority to suspend or restore them at that point. The matter is simply at an end.”).  Restoration does not include firearms rights and, as of 2011, does not affect licensing eligibility.3

B.  Firearms

Any felony conviction within Florida, a federal felony conviction, or a conviction in another state punishable by a term exceeding one year results in a state bar against owning or possessing a firearm.  Fla. Stat. §§ 790.001(6), 790.23(1).  The governor, upon recommendation of the Clemency Board, must specifically grant relief from this disability, and there is an eight-year eligibility waiting period.  See Rule 5D of the Rules of Executive Clemency of Florida, supra.  Firearms relief granted by another jurisdiction will be given effect by Florida.  See Schlenter, 743 So.2d 536In addition, Florida may not deny a concealed weapons permit to an individual with an out-of-state conviction whose firearms rights were never lost.  See Doyle v. Depart. of State, Div. of Licensing, 748 So. 2d 353, 356 (Fla. 1st DCA 2000).

C.  Inventory of Licensing Restrictions

See Fla. Stat. § 112.0111, discussed in Part III.

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

The power to grant a pardon and/or to restore civil rights (except in cases of treason or impeachment) is vested in the governor, who may, “by executive order filed with the Secretary of State, suspend collection of fines and forfeitures, grant reprieves not exceeding 60 days, and, with the approval of two members of the Cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.”  Fla. Const. art. IV, §8 (a); Fla. Stat. §§ 940.01, 940.05.  The governor and three members of his Cabinet are constituted as a Clemency Board4 As of April 2016, the Attorney General, the Chief Financial Officer, and the Agriculture Commissioner join the Governor on the Board.  See Office of Executive Clemency, https://www.fcor.state.fl.us/clemency.shtml. The Governor may deny, for any reason, any request for clemency.  The Governor must report to the legislature each restoration and pardon granted at the beginning of each legislative session.  Fla. Stat. § 940.01.

Administration

The Office of Executive Clemency (OEC), established in 1975, administers the day-to-day business of the Clemency Board, and interprets the Rules of Executive Clemency of Florida.  The rules are available at https://www.fcor.state.fl.us/docs/clemency/clemency_rules.pdf.   The OEC is a constituent part of the state Parole Commission, which provides investigative support.  Fla. Stat. § 947.01 – 947.27See also Office of Executive Clemency Overview, https://www.fcor.state.fl.us/clemencyOverview.shtml; and Frequently Asked Questions,  https://www.fcor.state.fl.us/faq-clemency.shtml.

Eligibility
Restoration of rights (RCR)

Rules 9 and 10 of the Clemency Rules provide two levels of eligibility, depending upon the seriousness of an offense. Sentence must be completed, including fines and court costs (latter may be waived), supervision (e.g., probation or community control), and restitution to victims, and no new charges can be pending.  See Rule 5E (all restitution must be paid before rights will be restored, though waiver of this and other eligibility requirements may be sought under Rule 8).   Persons convicted of specified serious offenses must wait seven years after completion of sentence to apply, and have a hearing before the board.  Others may apply after five years and a hearing may be waived with the approval of governor and two Board members.5 Persons residing in Florida with federal and out-of-state convictions are eligible for restoration of rights but not for pardon.  Rule 9D.

Pardon

Ten years following completion of sentence, plus no outstanding financial obligations resulting from convictions, including traffic fines. See Rule 5E.  Persons whose guilty pleas are set aside pursuant to Fla. Stat. § 948.01(2) (see infra), may also apply.  Eight years for firearms restoration (see infra).

Effect
Restoration of rights (RCR)

Restores “the basic civil rights” (the right to vote, the right to serve on a jury, and the right to hold public office).  In addition, restoration of rights “may allow you to be considered for certain types of employment licenses.” Rule 4F. By statute, a person who has had rights restored may not be denied a license based solely on conviction, requiring a case-by-case inquiry in each case into whether the crime is “directly related to the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought.” Fla. Stat. § 112.011(1)(b).  Florida law independently prohibits disqualification from most public employment, even without a restoration, solely because of a prior conviction for a crime.  A convicted person may be denied such public employment “if the crime was a felony or first degree misdemeanor and directly related to the position of employment sought.” § 112.011(1)(a).  The law does not apply to law enforcement, firefighting, and county “positions deemed to be critical to security or public safety.” § 112.011(2).

Pardon

Full Pardon “unconditionally releases the person from punishment and forgives guilt. It entitles an applicant to all of the rights of citizenship enjoyed by the person before his or her conviction, including the right to own, possess, or use firearms.”  Rule 4A.  Pardon may also be made conditional, and breach of conditions results in revocation of pardon.

Process

A different process applies for each of two different categories of offenses, identified in Clemency Rules 9A (without a hearing) and 10A (with a hearing).  Application forms and instructions can be downloaded at https://www.fcor.state.fl.us/restoration.shtml.  Separate procedures and eligibility periods apply for restoration of firearms (see infra).

To be eligible for restoration without a hearing, a person cannot have been convicted of a long list of serious crimes, must have been crime- and arrest-free for a period of five years from the end of supervision, and must have paid restitution and costs.  If an application for restoration without a hearing is denied, a person may apply for restoration with a hearing.  To be eligible for restoration with a hearing, a person must have been off supervision for seven years, and have paid all restitution and costs.

In cases where a hearing is required, provisions of Rule 6 apply.  Notification to the prosecutor and victims is required, and the Parole Commission conducts an extensive investigation to determine whether the person is crime-free and rehabilitated (e.g., must have no outstanding traffic fines).  When the investigation is complete, examiners put their recommendations into confidential files given to the Clemency Board before the hearing.  Applicants may wait years for a hearing.

Hearings are held on a quarterly basis, and the agenda is posted on the Board’s website.  Applicants are not required to attend the hearing, but they have a right to make an oral presentation if they do.  Rule 11. At the hearing in person, each applicant may be questioned directly by members of the Board on matters relating to his character, rehabilitation, etc..  Strict time limits in Rule 11C apply for presentations (5 minutes, 10 minutes for all witnesses).  Applicants who are denied must wait two years to reapply.  Rule 14.

Comments

Between 1975 and 1991, restoration of rights in Florida was automatic upon completion of sentence, though it was still necessary to apply and demonstrate eligibility. See Gallie v. Wainwright, 362 So.2d 936, 938 (Fla. 1978).  The practice of requiring a hearing before restoration began in 1991, and the list of qualifying offenses was lengthened in 1999 to include about 200 crimes.  The list of qualifying offenses was shortened by Governor Bush in 2004 after a series of investigative reports in the Miami Herald revealed lengthy delays and other shortcomings in the clemency process.6  In April 2007, in accordance with a campaign promise, Governor Charlie Crist persuaded the Board to approve new rules making restoration automatic in many cases.  In 2011, Governor Crist’s reforms were rolled back by Governor Scott, and eligibility periods lengthened and standards toughened.  See notes 1 and 2, supra.

Frequency of Restoration of Rights Grants

Year
RCR Grants

2013-2014
1,131

2012-2013
911

2011-2012
420

2010-2011
5,771

2009-2010
30,672

See Clemency Action Reports, https://www.fcor.state.fl.us/reports.shtml.7 In December of 2014, 11,638 RCR applications were pending.  Source: Commission on Offender Review. Pardons and firearms restorations have been fewer since Governor Scott took office. 8

Firearms

Any felony conviction within Florida, a federal felony conviction, or a conviction in another state punishable by a term exceeding one year results in a state bar against owning or possessing a firearm.  Fla. Stat. §§ 790.001(6), 790.23(1).  The Governor, upon recommendation of the Clemency Board, must specifically grant relief from this disability, and there is an eight-year eligibility waiting period.  Rule 5D.

Pardons to Restore Firearms Authority: 2006 – 2014


Applications received – firearms
Firearms restored
Applications received – pardon
Pardon granted 

2014

19

30

2013

30

25

2012

15

24

2011

14

9

2010
76
21
53
23

2009
121
57
41
23

2008
99
60
39
22

2007
98
61
55
40

2006
144
97
49
38

Contact

Julia McCall
Coordinator, Office of Exec. Clemency
(850) 488-2952 / FAX (850) 488-0695

B. Judicial sealing or expungement
Withholding adjudication of guilt

Under Fla. Stat. § 948.01(2), trial courts may withhold adjudication of guilt after a plea has been accepted or after a verdict of guilty has been rendered and place the defendant on probation if it appears “that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law . . . .”  See also Fla. R. Crim. P. Rule 3.670 (“where allowed by law, the judge may withhold an adjudication of guilt if the judge places the defendant on probation”).  Upon successful completion of probation, charges may be dismissed.  Id.  Where adjudication has been withheld, there is no conviction for purposes of impeachment.  See State v. McFadden, 772 So.2d 1209, 1213 (Fla. 2000).  Records may be expunged if they have been sealed for at least ten years.  Fla. Stat. § 943.0585 (2)(h). Expunction is defined as the physical destruction of records. See § 943.045(13).

Under legislation adopted in 2004, trial courts no longer have authority to withhold adjudication in first degree felony cases.  They may withhold adjudication in second and third degree felony cases upon request of the prosecutor, or if “the court makes written findings that the withholding of adjudication is reasonably justified based on circumstances or factors in accordance with those set forth in [Fla. Stat. § 921.0026, ‘mitigating circumstances’].”  In second degree felony cases no authority exists if adjudication has been previously withheld.  Fla. Stat. § 775.08435.

Expungement and sealing of non-conviction records

Sealing and “expunction” are available for non-conviction records that do not involve specified sexual, violent and/or otherwise serious misdemeanors.  Expunction is defined as the physical destruction of records, while sealing is defined as limiting access to anyone who has no specific legal right of access.9  Eligibility criteria and applicable procedures are set forth in § 943.0585 (expunction) and § 943.059 (sealing).  In general, sealing is available in cases where there’s been no adjudication of guilt, including withheld adjudication, while expunction is available only in cases where no charges are filed or charges are dismissed prior to trial.  In both cases relief is available only if a person has no prior record. Records that have been expunged are destroyed except for one copy retained by the Department of Law Enforcement.  Records that have been sealed are available only to the subject of the record or the subject’s attorney; to criminal justice agencies for their respective criminal justice purposes, which include conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law; or to certain entities for their respective licensing and employment purposes. § 943.059(4).

Juvenile Records

In general, records of juvenile adjudications are confidential,  Fla. Stat. § 985.04(1), subject to substantial exceptions.  Under  Fla. Stat. § 985.04(2),  juvenile records are available if the child has been taken into custody by a law enforcement officer for a violation of law which, if committed by an adult, would be a felony; found by a court to have committed three or more violations of law which, if committed by an adult, would be misdemeanors; or transferred to the adult system.  See also § 985.04(1) (juvenile records may be disclosed to authorized personnel of the court, law enforcement and corrections, school superintendents and their designees, and any licensed treatment professional).  Expungement is available for any non-judicial record of a minor’s arrest (non-violent misdemeanor, first offense) after successful completion of a pre-arrest or post-arrest diversion program.  § 943.0582.

Victims of Human Trafficking

Expungement available pursuant to Fla. Stat. § 943.0583.

III.  Nondiscrimination in Licensing and Employment
A.  Employment

Public employment may not be denied “solely because of” a conviction record, but only if the crime of conviction is “directly related” to the job.  Fla. Stat. § 112.011(1)(a).  These restrictions do not apply to law enforcement, firefighting, and “positions deemed to be critical to security or public safety.”  § 112.011(2).  Drug offenders must comply with certain additional treatment and rehabilitation requirements before they may qualify for public employment or licensing.  § 775.16.  Successful completion of Correctional Education Program by drug offenders may satisfy eligibility requirements for occupational licensure.  Id.  See also Op. Att’y. Gen. Fl., 1973-355 (1973) (licensing authorities may not deny licenses to individuals whose civil rights have been restored, nor may they revoke such persons’ licenses which have been granted, unless the licensing authority determines and finds, after due investigation, that the offense directly relates to the license sought or held and the crime was a felony or first degree misdemeanor).

Health care employment and licensing: 

Conviction may be the basis for disqualification from employment or contracting with state agencies in connection with various health care and related professions, including care for children, and developmentally disabled or vulnerable adults.  See e.g., Fla. Stat. § 110.1127 (state employee positions for which screening required); § 409.175 (foster care); § 400.953. (home medical equipment providers); § 400.215 (nursing homes); § 393.0655 (developmental disability direct service providers); § 397.451 (substance abuse services); § 489.129(1)(b) (construction contractor).

Case-by-case exemptions may be granted by licensing agencies, state-regulated facilities, and state agencies in cases where an individual would otherwise be disqualified as a result of a criminal record, pursuant to Fla. Stat. § 435.07(1).  This exemption procedure applies to some but not all types of conviction, and is available three years after completion of sentence.  In order to qualify for exemption an applicant must demonstrate “by clear and convincing evidence” that he or she “should not be disqualified from employment.”  § 435.07(3).  Applicants for an exemption

have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed.

Id.  The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in Fla. Stat. chapter 120.  See Fla. Stat. § 120.51 et seq. (Administrative Procedure Act).  No exemption may be granted to persons who have been convicted of any offense enumerated in § 435.03, even if they have been pardoned.  § 435.07(4).  These offenses include specified sex offenses; abuse of a child or vulnerable adult; assault or any other violence, including domestic violence; sale of controlled substances; felony theft or robbery.

B.  Licensing

A convicted person may not be denied a license based on criminal record unless convicted of a felony or first-degree misdemeanor that is “directly related to the standards determined by the regulatory authority to be necessary and reasonably related to the protection of the public health, safety, and welfare for the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought.”  Fla. Stat. § 112.011(1)(b).10 In June 2011 a law was enacted requiring each state agency responsible for professional and occupational regulatory boards to report to the governor and legislature all laws and rules governing the ability of professional licensing boards to deny employment or licensure based upon an individual’s criminal history, and to identify alternatives to any disqualifying statutes or rules.  See Fla. Stat. § 112.0111.11


  1. In 1976, the Florida Supreme Court overturned a legislative enactment purporting to automatically restore civil rights to convicted persons, opining that the Governor’s power to grant clemency and restoration of civil rights cannot be exercised or regulated by the legislature.   See In re Advisory Opinion of the Governor, 334 So.2d 561 (Fla. 1976).
  2. In 2011, the Clemency Board modified the clemency rules to roll back changes dating from 2007 that had been intended to make certain less serious offenders eligible for “automatic” restoration of all civil rights by the Board upon determination of eligibility by the Parole Commission.  See Erika Wood,Turning Back the Clock in Florida, March 10, 2011, http://www.huffingtonpost.com/erika-wood/turning-back-the-clock-in_b_834239.html. See also Voting Rights Restoration Efforts in Florida, Brennan Center for Justice, http://www.brennancenter.org/content/pages/voting_rights_restoration_efforts_in_florida (March 2014).   The 2011 changes stiffened eligibility requirements for all offenders beyond those in effect prior to 2007.  See Part II, infra.
  3. In 2011, the Florida legislature passed the “decoupling bill,” which prohibits licensing boards from denying any license based solely on the fact that the applicant has not had civil rights restored.  See Fla. Stat. § 112.011(1)(c).  There are exceptions for law enforcement agencies, and agencies are not precluded from taking into account the fact that civil rights have not been restored.  See § 112.011(2) (listing exceptions). See also § 112.0111, also enacted in 2011, which requires agencies to inventory and analyze laws allowing agencies to restrict licenses based upon criminal history.  The full text of this law is reprinted at note 11, infra.
  4. Prior to 2003 approval of all three Cabinet members required; 2/3 requirement introduced by Revision No. 8 (1998), effective January 7, 2003).
  5. A provision restoring rights automatically without a hearing 15 years after completion of sentence was deleted in the March 2011 amendments to the rules.  See note 2, supra.
  6. See Debbie Cenziper & Jason Grotto, Clemency Proving Elusive for Florida’s Ex-Cons, Miami Herald, October 31, 2004; The Long Road to Clemency, Miami Herald, November 7, 2004.
  7. The statistics on the number of RCR grants issued from 2004 onward are contained in Proviso Report to the Legislature, A Report on the Status of the Processing of Civil Rights Clemency Cases for FY 2008-2009, https://www.fcor.state.fl.us/docs/reports/FCORprovisoreport0809.pdf.  In the 18 months after April 5, 2007, the Commission processed 271,000 applications for restoration of rights, and granted 146,549 of them, with about 60,000 cases still pending.  Proviso Report at pp. 6, 9.  According to an investigative series by the Miami Herald the fall of 2004, see note 4 supra, 48,000 requests for restoration of rights were granted between 1999 and 2004, compared with 200,000 rejected during that period.  No specific information available on the number of pardons granted during this period.
  8. See Michael Bender, Citrus County Electrician Gets Gov. Rick Scott’s First Pardon, Tampa Times/Herald, June 2, 2011, available at http://www.tampabay.com/news/politics/gubernatorial/citrus-county-electrician-gets-gov-rick-scotts-first-full-pardon/1173320.
  9. See Fla. Stat. § 943.045(13) and (14):

    (13) “Expunction of a criminal history record” means the court-ordered physical destruction or obliteration of a record or portion of a record by any criminal justice agency having custody thereof, or as prescribed by the court issuing the order, except that criminal history records in the custody of the department [of law enforcement] must be retained in all cases for purposes of evaluating subsequent requests by the subject of the record for sealing or expunction, or for purposes of recreating the record in the event an order to expunge is vacated by a court of competent jurisdiction.

    (14) “Sealing of a criminal history record” means the preservation of a record under such circumstances that it is secure and inaccessible to any person not having a legal right of access to the record or the information contained and preserved therein.

  10. A provision making eligibility for licenses dependent on a person’s having had their rights restored was repealed in 2011.  See note 3, supra.
  11. § 112.0111.  Restrictions on the employment of ex-offenders; legislative intent; state agency reporting requirements

    (1) The Legislature declares that a goal of this state is to clearly identify the occupations from which ex-offenders are disqualified based on the nature of their offenses. The Legislature seeks to make employment opportunities available to ex-offenders in a manner that serves to preserve and protect the health, safety, and welfare of the general public, yet encourages them to become productive members of society. To this end, state agencies that exercise regulatory authority are in the best position to identify all restrictions on employment imposed by the agencies or by boards that regulate professions and occupations and are obligated to protect the health, safety, and welfare of the general public by clearly setting forth those restrictions in keeping with standards and protections determined by the agencies to be in the least restrictive manner.

    (2) Each state agency, including, but not limited to, those state agencies responsible for professional and occupational regulatory boards, shall ensure the appropriate restrictions necessary to protect the overall health, safety, and welfare of the general public are in place, and by December 31, 2011, and every 4 years thereafter, submit to the Governor, the President of the Senate, and the Speaker of the House of Representatives a report that includes:

    (a) A list of all agency or board statutes or rules that disqualify from employment or licensure persons who have been convicted of a crime and have completed any incarceration and restitution to which they have been sentenced for such crime.

    (b) A determination of whether the disqualifying statutes or rules are readily available to prospective employers and licensees.

    (c) The identification and evaluation of alternatives to the disqualifying statutes or rules which protect the health, safety, and welfare of the general public without impeding the gainful employment of ex-offenders.

    In January 2012, the Florida Department of Business and Professional Regulation submitted a report to the Governor pursuant to this law, which included a list of laws and regulations that govern the ability of the DBPR and various licensing boards to deny licensure based upon criminal record and a “list of crimes for each profession that do not relate to an applicant’s ability to practice that profession,” and that are considered not “substantially related” to an individual’s ability to practice that profession.  See Letter from Ken Lawson, DBPR, to Governor Rick Scott, January 4, 2012 (on file with author). 

    This letter reported that “very few of our statutes and rules automatically disqualify applicants,” but that in most cases statutes and rules authorize denial of professional license for lack of good moral character when there is a “substantial connection between the prior criminal conviction and the practice of the profession.”  In addition, the DBPR also applies a “substantial connection” standard to deny business licensure. Executive Order No. 06-89:  On April 25, 2006, Governor Jeb Bush issued Executive Order No. 06-89, directing each state agency 1) to conduct a comprehensive inventory of their employment disqualifications affecting people with convictions; 2) report to him the reasons for any automatic disqualifications and any available procedures for waiver; and 3) to eliminate or modify such disqualifications that are not tailored to protect the public safety; and  4) to create case-by-case review mechanisms to provide individuals the opportunity to make a showing of their rehabilitation and their qualifications for employment.  The Governor asked his executive agencies to “assume a leadership role in providing employment opportunities to ex-offenders by reviewing their employment policies and practices and identifying barriers to employment that can safely be removed to enable ex-offenders to demonstrate their rehabilitation.”  The Governor also encouraged other public entities and private employers, “to the extent they are able, to take similar actions to review their own employment policies and provide employment opportunities to individuals with criminal records.”  The text of the order is at http://edocs.dlis.state.fl.us/fldocs/governor/orders/2006/06-89-exoftf.pdf.  The order emerged from the work of the Governor’s Ex-Offender Task Force, which found “many state laws and policies that impose restrictions on the employment of people who have been to prison,” affecting “more than one-third of Florida’s 7.9 million non-farm jobs, including state and local government jobs, jobs in state-licensed, regulated and funded entities, and jobs requiring state certification.”  See Final Report of the Florida Ex-Offender Task Force (2006),  available at http://www.pdmiami.com/governors_ex-offender_task_force.pdf

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