Restoration of Rights Series/Alabama

Alabama Flag
I.  Restoration of Civil/Firearms Rights
A.  Voting

A person convicted of “a felony involving moral turpitude, or who is mentally incompetent, shall [not] be qualified to vote until restoration of civil and political rights or removal of disability.” Ala. Const. art. VIII, § 177.1 In May of 2017, the Felony Voter Disqualification Act limited the definition of “felony involving moral turpitude” under § 177 to 47 specified offenses, including many serious violent offenses, sex offenses, offenses against children, drug trafficking offenses (but not drug possession), and various property crimes.2 See Ala. Code § 17-3-30.1 (enacted by HB-282 (2017)).  Restoration by pardon or administrative procedure (infra). 

Expedited restoration of voting rights

A 2003 statute requires the Board of Pardons and Parole to issue a “certificate of eligibility to register to vote” to all persons convicted of disqualifying offenses (except those convicted of serious violent offenses and sex offenses) if they have completed their sentence and paid all fines, restitution and court costs, and have no charges pending against them.  Ala. Code § 15-22-36.1.  Restoration is automatic upon determination of eligibility.  Persons convicted of murder and sex offenses must still apply to the Board for a pardon. Id. (See discussion in Part IIA infra).  Federal and out-of-state offenders are eligible to apply for restoration of rights.

B. Office/Jury

Someone who is not a qualified elector is “ineligible to and disqualified from holding” state office. Ala. Code § 36-2-1; see Ala. Code § 15-22-36.1(a)(1), (3). A person is not “qualified” to sit on a jury if she has “lost the right to vote by conviction for any offense involving moral turpitude.”  Ala. Code § 12-16-60(a)(4).  If lost, these civil rights may be restored only through a pardon from Board of Pardons and Parole. (The expedited procedure for restoration of voting rights described above does not apply.)

C. Firearms

Any person convicted in any jurisdiction of committing a “crime of violence” may not own, possess or exercise control over “a pistol,” meaning a firearm with a barrel of less than 12 inches in length. See Ala. Code. §§ 13A-11-70(1), 13A-11-72.  Restoration by pardon, unless restoration specifically withheld. State ex rel. Sokira v. Burr, 580 So. 2d 1340, 1345 (Ala. 1991).

II.  Discretionary restoration mechanisms
A. Pardon
Authority

In 1939, the Alabama legislature was granted the pardon power by an amendment to the state constitution. It created the Board of Pardons and Parole to exercise the power, which extends to all offenses save treason and impeachment.  Ala. Const. amend. 38 (amending art. V § 124). The Governor retains reprieve and commutation authority in capital cases. The Board’s administration and procedure is governed by Ala. Code §§ 15-22-20 through 15-22-40.   Mayors have authority to pardon violations of municipal ordinances. 3

Composition of Board: The Board is composed of three members who are appointed by the Governor to six-year terms with the advice and consent of the State Senate.  Ala. Code § 15-22-20(a)-(d).  Members are selected by the Governor from a slate nominated by a board consisting of the State Chief Justice as chair, the Lieutenant Governor, the presiding judge of the court of criminal appeals, the Speaker of the House and the President pro tem of the Senate.  § 15-22-20(b).  The chairperson is designated by the Governor. § 15-22-20(d).  Members are full-time State officials, take an oath of office, and are subject to impeachment on the same grounds as other State officials.  § 15-22-20(e).  The Board must make a full annual report to the Governor. § 15-22-24(b).

Eligibility

Completion of sentence, or completion of at least three years of permanent parole, unless the pardon is sought on grounds of innocence and the judge or district attorney approve in writing.  Ala. Code § 15-22-36(c).   Persons convicted of a felony or certain other offenses involving danger to the person must submit to the taking of a DNA sample as a mandatory condition of the pardon. Ala. Code § 36-18-25(f). Board accepts applications from federal offenders and people convicted in other state jurisdictions residing in the state.  See Article 8 of Ala. Board Rules, Regulations and ProceduresSee Hogan v. Hartwell, 7 So. 2d 889 (Ala. 1942) (Board had authority to restore citizenship and political rights of federal offender, as against contention that a pardon by President was essential to restore the lost rights).

Effect

A pardon does not wipe out the historical fact of the conviction; it involves forgiveness and not forgetfulness.  Johnson v. State, 421 So.2d 1306 (Ala. Crim. App. 1982).  A state pardon does not relieve civil and political disabilities “unless specifically expressed in the pardon.”  Ala. Code § 15-22-36(c).  See also Ala. Code § 17-3-31.  A person who has forfeited his office as a result of felony conviction is not restored to that office by a pardon.  Ala. Code § 36-9-2; see also Hendrix v. Hunt, 607 So. 2d 1254 (Ala. 1992).  “[A] pardon that restores to an individual all civil rights and political privileges necessarily nullifies all legal punishment for the offense.  In other words, if the conviction incorporates certain civil and political disqualifications, then a pardon that specifically revives all civil and political rights must certainly remove any and all legal incapacities,” including handgun privileges. State ex rel. Sokira v. Burr, 580 So.2d 1340, 1345 (Ala. 1991). The Board may grant a full pardon, which restores all rights, or it may grant a pardon with restrictions (e.g., firearms privileges, sex offender registration, habitual offender status).  After the Sokira decision, it became common for the Board of Pardons and Parole to expressly exclude the right to own/possess/control a firearm from the restoration of civil rights. See Ala. Op. Atty Gen. No. 1999-060, 1998 WL 34309449, *1, 3 (1998).

Process

Hearing required, vote by majority, decision and reasons for it made public.  Board has no power to grant a pardon or other act of clemency unless the action is taken in an open public meeting, of which 30 days’ notice has been given to the Attorney General, the DA who prosecuted the case and the judge who sentenced the offender, the chief of police and the county sheriff, and the victim.  Ala. Code §§ 15-22-23, 15-22-36; see also Article 4 of the Ala. Board Rules, supra.   Application to Board of Pardons and Parole is very simple form filed with local probation office that is “intended to facilitate application by individuals who lack formal education.” Ala. Admin. Code r. 640-X-6-.01.  Investigation by a local probation officer includes current information on the applicant’s home situation, job status, and an updated criminal arrest record, written references and other information as warranted.  See Article 8 of Ala. Board Rules, supra.  The Board may not act on any application or case until a complete investigation of the prisoner’s social and criminal record has been made by a parole officer and a written report thereof made a part of the prisoner’s file.  Ala. Code § 15-22-25 (b).  Once the investigation is complete, a hearing will be set before the Board.  Required notification will be sent to the victim and concerned officials.  At hearing, a decision is made by majority vote to grant or deny the pardon request, and announced.  Process takes about a year from beginning to end.  See Article 6 of the Ala. Board Rules.  These same procedures will apply to a request for a Certificate of Eligibility to Register to Vote, except where superseded by Ala. Code § 15-22-36.1 (see below, providing for paper review).

Board Orders granting pardons, with or without restoration of civil and political rights, are public records. The statements of reasons filed by each member voting in favor of such grant are public records.  However, pardon files are otherwise confidential.  Ex parte Alabama Bd. of Pardons and Paroles, 814 So. 2d 870 (Ala. 2001).  Petitioner is not entitled to inspect his own file or to have a reason for denial.  Ex parte Alabama Bd. of Pardons and Paroles, 849 So. 2d 255 (Ala. Crim. App. 2002).

Expedited process to restore voting rights: In October 2003, the Alabama legislature enacted an expedited process for restoring right to vote to be administered by the Board, applicable to all but specified serious violent offenses and sex offenses.  Ala. Code § 15-22-36.1.  Eligibility depends upon applicant having completed sentence, including payment of fines, court costs, fees, and victim restitution ordered by the sentencing court; may have no pending felony charges. In 2005, the Attorney General of Alabama opined that if a person has been convicted of both a disqualifying and a non-disqualifying offense, the person must have satisfied all terms and conditions of the non-disqualifying offense in order to be considered for restitution. Ala. Op. Atty. Gen. No. 2005-092 (March 18, 2005).   If a person is determined to be eligible, the right to vote must be restored. § 15-22-36.1(b).   Restoration is also available to federal and out-of-state offenders. § 15-22-36.1(a)(1).

The application process may include investigation by parole officer and report to Board within 45 days.  If no board member objects within five days, issuance of Certificate of Eligibility to Vote is automatic.  § 15-22-36.1(e).  If any member of Board objects on grounds of eligibility, hearing scheduled.  § 15-22-36.1(f).  In the event the board determines, by a majority vote, that the criteria have been met, the executive director shall forthwith issue a Certificate of Eligibility to Register to Vote to the applicant. Id.

Frequency of grants

Applications for pardon have increased in recent years because pardon is necessary for employment and bonding purposes, and to regain firearms rights.  A substantial number of pardons go to those previously granted restoration of voting rights.

FY 04
FY 05
FY 06
FY 07
FY 08
FY 09
FY 10
FY 11
FY 12
FY 13
FY 14
FY

15

Pardons considered
222
500
805
692
617
398
704
964
980
798
709

Pardons granted
158
469
410
689
578
511
312
565
734
753
657
538

Pardons denied
64
90
116
114
106
86
139
230
227
141
171

Voting rights restored
2608 (includes 2003)
1233
771
1709
3017
3423
673
625
762
843
522
572

Source: Annual Reports of the Alabama Parole Board,
http://www.pardons.state.al.us/Reports.aspx.

Contact

Alabama Board of Pardons and Parole, PO Box 302405
Montgomery, AL 36130
Tel: (334) 353-7771, 353-8067
http://www.pardons.state.al.us/Pardons.aspx
questions4pardonsandparoles@alabpp.gov

B.  Judicial sealing or expungement
Conviction records

Alabama law contains no statutory provision for expungement or sealing of adult conviction records.

Despite the absence of statutory expungement authority for adult criminal records, municipal courts in the recent past appear to have regularly exercised a common law expungement authority.  See Kristin K. Hensen, Can You Make This Go Away:  Alabama’s Inconsistent Approach to Expunging Criminal Records, 35 Cumb. L. Rev. 385 (2005). See also “All Expunged Cases Should be Made Public,” Mobile Register, July 13, 2005.  Concerning the municipal courts, the Alabama Attorney General has stated in an informal opinion that “(t)here is nothing in the Constitution of Alabama 1901 or the Alabama Code granting municipal courts the power to expunge records.”  88-00410 Op. Ala. Att’y Gen. (1988).  Persons seeking expungement have sometimes relied upon statutes authorizing individuals to bring a court challenge to “inaccurate or incomplete” records.  Ala. Code § 41-9-645.  A court may order a record “appropriately purged, modified or supplemented by an explanatory notation” if the record is found to be “inaccurate, incomplete or misleading.” § 41-9-646.

Nonconviction records

Effective July 6, 2014, courts may expunge nonconviction records of non-violent felony and misdemeanor charges, including felony cases where charges were dismissed after successful completion of a drug court program, mental health court program, diversion program or veteran’s court program.  See Ala. Code § 15-27-1 (misdemeanors); § 15-27-2 (non-violent felonies). Expungement may be sought 90 days after acquittal or charges dismissed with prejudice, and five years after dismissal without prejudice “if the person has not been convicted of any other felony or misdemeanor crime, any violation, or any traffic violation, excluding minor traffic violations, during the previous five years.”  15-27-2(a)(5). There is an administrative fee of $300, and if the prosecutor or victim object a hearing shall be held at which the court will consider certain factors relating to the crime.  § 15-27-5.  Where there is no objection, “the court shall grant the petition if it is reasonably satisfied from the evidence that the petitioner has complied with and satisfied the requirements of this chapter.”  Id.   In addition, “[t]he court shall have discretion over the number of cases that may be expunged pursuant to this chapter after the first case is expunged.” Id.

Effect of expungement

After the expungement of records pursuant to subsection (a), the proceedings regarding the charge shall be deemed never to have occurred. Except as provided in this chapter, the court and other agencies shall reply to any inquiry that no record exists on the matter. The petitioner whose record was expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application. However, the petitioner whose record was expunged shall have the duty to disclose the fact of the record and any matter relating thereto to any government regulatory or licensing agency, any utility and its agents and affiliates, or any bank or other financial institution. In these circumstances, the government regulatory or licensing agency, utility and its agents and affiliates, or the bank or other financial institution shall have the right to inspect the expunged records after filing notice with the court.

§ 15-27-6(b). Expungement does not restore firearms rights, § 15-27-15, or relieve sex offender registration, which is only available from a court. See § 15-20A-24.

See also Ala. Code § 41-9-625 (state repository required to delete arrest records from rap sheets within 30 days of release from custody if the person is not charged or is cleared of the charges).

Juvenile delinquency adjudications

May be sealed two years after final discharge or court order not pertaining to custody or supervision, if the individual has not been convicted of a felony or misdemeanor involving sexual offenses, drugs, weapons, or violence, or threats of violence, and has no pending criminal proceedings. Ala. Code § 12-15-136(a).  Any adjudication of delinquency or conviction of a felony or misdemeanor involving sexual offenses, drugs, weapons, or violence, or threats of violence, subsequent to sealing shall have the effect of nullifying the sealing order.   § 12-15-136(e).  Five years after the juvenile reaches the age of majority, s/he can petition the court to have the records destroyed. § 12-15-137(a).

Administrative certificate

See Part I for “certificate of eligibility to register to vote” that must be issued any person convicted of a non-violent offense who has completed his sentence and paid all fines, restitution and court costs, and has no charges pending against him.  Ala. Code § 15-22-36.1.

III.   Nondiscrimination in occupational licensing and employment

Alabama has no general law regulating consideration of conviction.  It does apply a direct relationship test in connection with some licenses.  See, e.g., Ala. Code § 34-1A-5 (d)(2)a. (“An applicant [for an alarm system installer license] shall not be refused a license solely because of a prior criminal conviction, unless the criminal conviction directly relates to the occupation or profession for which the license is sought.”);  Ala. Code § 27-17A-18(f)(3) (“The applicant [for a pre-need sales agent for funeral services] must not have any felony or misdemeanor convictions that relate to any activity regulated by this chapter”).


  1. Prior to its 1996 amendment, the Alabama constitution disenfranchised persons convicted of specified offenses, all felonies punishable by a term of imprisonment, and all “crimes of moral turpitude.”   Ala. Const. Art. VIII, § 182 (1996).  Section 182’s extension of disenfranchisement to misdemeanor crimes of “moral turpitude,” interpreted at that time to include drug possession and DUI, was held unconstitutional in Hunter v. Underwood, 471 U.S. 222 (1985).
  2. Previously, there was no exhaustive list of disqualifying crimes, although the Supreme Court of Alabama from time to time identified felonies that were or were not disqualifying. According to a 2005 opinion of the Alabama Attorney General, assault, felony drug possession and felony DUI were not regarded as crimes of “moral turpitude.” See Ala. Op. Atty. Gen. No. 2005-092 (March 18, 2005), 2005 WL 1121853 (Ala. A.G.)  This opinion was issued in response to a request from the Board of Pardons and Paroles for a list of disqualifying offenses, and cited a number of cases in which the Supreme Court of Alabama had held that murder, rape, burglary, robbery, income tax evasion, conspiracy to commit fraud, possession of marijuana for resale, theft, transporting stolen vehicles, unauthorized sale of a controlled substance, and bigamy were all crimes involving moral turpitude.  On the other hand, assault, doing business without a license, violation of liquor laws, aiding prisoner to escape, possession of marijuana, and driving under the influence, were not.  Notwithstanding this opinion, Alabama’s Secretary of State continued to take the position that conviction of any felony prohibited voting, and so directed county registrars.  On June 1, 2007, in response to a lawsuit filed by the ACLU challenging this interpretation and application of § 177, the Supreme Court of Alabama held that while state and local election officials had acted contrary to the State Constitution and laws, no further injunctive relief was necessary.  See Chapman v. Gooden, 974 So. 2d 972 (Ala. 2007)
  3. In August 2009 the Mayor of Birmingham issued a blanket pardon to all those arrested there during civil rights protests of the 1960s.  See http://blog.al.com/live/2009/08/birminghams_mayor_langford_iss.html

Restoration Rights Series/Federal

I.  Restoration of Civil/Firearms Rights
A.  Vote

Right to vote depends upon state law, for both state and federal offenders.  See Richardson v. Ramirez, 418 U.S. 24, 54 (1974).  Most states that do not restore the right to vote automatically give federal offenders access to their restoration procedures.  (See profiles in this series for Florida, Kentucky, and Virginia.)

B.  Jury

Eligibility for federal jury service is lost upon conviction in state or federal court of a crime punishable by more than one year if a person’s “civil rights have not been restored.”  28 U.S.C. § 1865(b)(5).  The courts and the Administrative Office of United States Courts interpret this provision to require an affirmative act (such as a pardon or expungement) to restore federal jury eligibility.  See, e.g., United States v. Hefner, 842 F.2d 731, 732 (4th Cir. 1988) (legislative history of § 1865(b)(5) indicates that “some affirmative act recognized in law must first take place to restore one’s civil rights to meet the eligibility requirements of section 1865(b)(5)”).  Thus the automatic restoration of rights that takes place in many states upon completion of sentence will not be sufficient.  See Paul J. Komives & Peggy S. Blotner, Loss and Restoration of Civil Rights Affecting Disqualification for Federal Jury Service, 70 Bus. L.J. 542 (1991).

C.  Office-holding

The U.S. Constitution does not prohibit convicted persons from holding office, but some statutes provide that conviction will result in the loss of office.  See, e.g., 18 U.S.C. § 201(b) (sentencing court may order disqualification from federal office of official convicted for bribery).  A felony conviction does not disqualify a person from federal employment, but may be considered by particular agencies in connection with determining suitability.  See Kelly Salzmann & Margaret Love, Internal Exile: Survey of the Collateral Consequences of Conviction under Federal Laws and Regulations (Washington, D.C.: Am. Bar Ass’n, ABA Commission on Effective Criminal Sanctions, 2008), available at http://www.abanet.org/cecs/internalexile.pdf.

D.  Firearms

People with convictions in any court, of a crime punishable by imprisonment for a term exceeding one year, are subject to the prohibition on possession of firearms under federal law, 18 U.S.C. § 922(g)(1), and to additional prohibitions under the laws of the several states.  Persons convicted of domestic violence offenses also lose firearms rights. § 922(g)(9).   The only relief available to federal offenders is a presidential pardon.  See Beecham v. United States, 511 U.S. 368 (1994).  People with state convictions may avoid the federal bar if their convictions are pardoned, set-aside, or expunged, or if their civil rights have been restored, as long as they are not subject to state firearms disabilities.  See 18 U.S.C. §§ 921(a)(20), (a)(33).  Automatic restoration of civil rights is effective to remove federal gun dispossession.  See Caron v. United States, 524 U.S. 308 (1998). 

E.  Capacity to testify

Federal Rule of Evidence 609(b) provides that evidence of a conviction for a felony is not admissible if a period of more than ten years has elapsed since the date of the conviction unless, “[i]ts probative value, supported by specific facts and circumstances, substantially outweigh its prejudicial effect.” FRE 609(c) provides:

“Evidence of a conviction is not admissible if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or imprisonment for more than one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.”

* Additional Federal Collateral Consequences are discussed in Part III, infra. Discretionary relief may be available from a variety of these collateral disabilities from responsible agency officials.  See Salzmann & Love, Internal Exile, supra.

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

Executive pardoning power lies exclusively in President and cannot be limited or regulated by Congress.  U.S. Const. art. II, sec. 2.  By Executive Order, the Attorney General is charged with providing advice on pardon policy and investigating and making recommendations on all applications for pardon and commutation.  See 28 C.F.R. Part 1.

Eligibility

Five years after the completion of a sentence, beginning upon release from prison, or date of sentencing if not incarcerated.  Waiver of the eligibility waiting period is infrequent.  Ordinarily an applicant must have no court proceedings pending, and must have completed supervision.  28 C.F.R. Part 1.  Offenders whose convictions were prosecuted under the Uniform Code of Military Justice are eligible to apply for a presidential pardon, as are D.C. Code offenders.

Effect

A pardon “in no way reverses the legal conclusion of the courts; it ‘does not blot out guilt or expunge a judgment of ’”  Hirschberg v. Commodity Futures Trading Com’n, 414 F.3d 679, 682 (7th Cir. 2005), citing In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994).  See also Nixon v. United States, 506 U.S. 224, 232 (1993) (“a pardon is in no sense an overturning of a judgment of conviction by some other tribunal”); Burdick v. United States, 236 U.S. 79, 94 (1915) (a pardon “carries an imputation of guilt”); United States v. Noonan, 906 F.2d 958, 960 (3d Cir. 1990) (concluding that a pardon can only remove the punishment for a crime, not the fact of the crime itself, and holding that Burdick implicitly rejected the Supreme Court’s prior sweeping conception of the pardoning power in Ex Parte Garland). See additional authorities cited in 30 Op. O.L.C. 1 (2006)(“Whether a Presidential Pardon Expunges Judicial and Executive Branch Records of a Crime”).

A pardoned offense may be used as a predicate offense, and to enhance a subsequent sentence. Carlesi v. New York, 233 U.S. 51 (1914).

The effect of a presidential pardon is not to prohibit all consequences of a pardoned conviction, but rather to preclude future punishment for the conviction. See Nixon, 506 U.S. at 232; Bjerkan v. United States, 529 F.2d 125, 127-28 (7th Cir. 1975).  Thus, a pardon relieves legal disabilities arising under state or federal law solely by virtue of the conviction, but it does not preclude adverse action taken on the basis of the conduct underlying the conviction.  See, e.g., In re Abrams, 689 A.2d 6 (D.C. App. 1997) (upholding bar discipline based upon conduct underlying pardoned conviction:  “[A]lthough the presidential pardon set aside Abrams’ convictions, as well as the consequences which the law attaches to those convictions, it could not and did not require the court to close its eyes to the fact that Abrams did what he did.”); see also Effects of a Presidential Pardon, 19 Op. Off. Legal Counsel No. 160, 1995 WL 861618 (June 19, 1995).  In this regard, a pardon may be taken as evidence of rehabilitation and good character.

Process

The federal pardon process is described at http://www.justice.gov/pardon/clemency.htm.  An application is made to the Office of the Pardon Attorney (OPA), U.S. Department of Justice, on a form provided by that office.  See http://www.usdoj.gov/pardon/pardon_petition.htm.  Each pardon application is investigated by OPA, which in meritorious cases includes an FBI background investigation and inquiry to the U.S. Attorney and the sentencing judge, and a recommendation is made to the President through the Deputy Attorney General.  Cases are reviewed on a paper record, and there is no formal hearing.  Official pardon recommendations and OPA advice to the President are confidential.  Pardon recommendations are handled in the White House by the Office of White House Counsel.  Processing time for a favorable recommendation is generally at least 18 months and may be considerably longer.

Criteria

Standards applicable to a Justice Department review of pardon applications are set forth in § 1-2.112 of United States Attorneys Manual.  See http://www.justice.gov/pardon/petitions.htm.  Factors to be considered include:

  • Post-conviction conduct, character, and reputation
  • Seriousness and relative recentness of the offense
  • Acceptance of responsibility, remorse, and atonement
  • Need for relief
  • Official recommendations and reports1
Frequency of Grants

President Obama granted a total of 212 pardons and denied 1,708 applications, leaving 2011 applications pending when he left office.  (He also granted 1,715 sentence commutations, and denied 18,749 applications, leaving some 8000 prisoner petitions still pending.)   The rate of application picked up markedly at the end of his tenure, notwithstanding the sluggish grant rate.  See Office of the Pardon Attorney, Clemency Statistics, (retrieved July 1, 2017), available at http://www.justice.gov/pardon/statistics.htm (listing clemency statistics by administration from 1900 to present). George W. Bush granted a total of 189 pardons and eleven commutations, and denied more than 1700 pardon petitions.  Id.

Historically, American presidents have pardoned regularly and generously.  Presidential pardoning has abated in recent years, however, compared to pre-1980 grant rates.  See generally Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169 (2010); H. Humbert, The Pardoning Power of the President (1941).  The number of presidential pardons each year has steadily declined since 1980, as has the percentage of applications granted.2 The federal pardon process has been criticized in recent years as being unduly influenced by prosecutors.  See, e.g., Paul Larkin, Revitalizing the Clemency Process, 39 Harvard Journal of Law and Public Policy 833 (2016); Margaret Love, Justice Department Administration of the President’s Pardon Power: A Case Study in Institutional Conflict of Interest, 47 U. Tol. L. Rev 89 (2016).  In December 2011 the Washington Post co-published an investigative series on federal pardoning during the Bush Administration purporting to show racial disparity and undue congressional influence in the federal pardoning process.  See http://www.propublica.org/series/presidential-pardons.  

Contact

Office of the Pardon Attorney
145 N Street N.E.
Room 5E.508
Washington, D.C. 20530
USPardon.Attorney@usdoj.gov
202-616-6070

B.  Judicial sealing or expungement
Inherent expungement authority

There is no general federal expungement statute, and federal courts have no inherent authority to expunge records of a valid federal conviction.  See, e.g., United States v. Crowell, 374 F.3d 790, 792-93 (9th 2004), cert. denied, 543 U.S. 1070 (2005).  However, some courts have held that federal courts have inherent ancillary authority to expunge criminal records where an arrest or conviction is found to be invalid or a clerical error is made.  United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000).  See cases collected in Hall v. Alabama, 2010 U.S. Dist. LEXIS 14082, at *22-30 (M.D. Ala. 2010).3 Occasionally, courts have agreed to expunge an arrest record upon a showing of need where the government did not object.4

Federal First Offender Act (Misdemeanor Drug Possession)

Where a person with no prior drug conviction is found guilty of misdemeanor possession of a controlled substance under 21 U.S.C. § 844, courts may impose probation before entry of judgment, and subsequently dismiss the case without entry of judgment and no conviction resulting if the person has not violated of condition of his probation.  See 18 U.S.C. § 3607(a).5  Expungement of all records is available only if the defendant was less than 21 years of age at the time of offense. § 3607(c).  The effect of expungement under this section is explained as follows:

“The expungement order shall direct that there be expunged from all official records, except the nonpublic records referred to in subsection (b), all references to his arrest for the offense, the institution of criminal proceedings against him, and the results thereof.  The effect of the order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or institution of criminal proceedings.  A person concerning whom such an order has been entered shall not be held thereafter under any provision of law to be guilty of perjury, false swearing, or making a false statement by reason of his failure to recite or acknowledge such arrests or institution of criminal proceedings, or the results thereof, in response to an inquiry made of him for any purpose.”

18 U.S.C. § 3607(c).6

Congress has directed that DNA analysis be expunged from certain indices when a conviction has been overturned.  10 U.S.C. § 1565(e) (under military law); 42 U.S.C. § 14132(d) (FBI expungement).  See also 18 U.S.C. § 921(a)(20), (33)(B)(ii) (defining certain crimes to exclude convictions that have been expunged or for which the person has been pardoned or had his civil rights restored).

Juvenile Records

No provision for expungement or sealing.7

C.  Administrative certificate

While there is no general administrative relief mechanism available from federal collateral consequences, waivers in particular cases may be available from responsible agency officials for both state and federal offenders subject to disabilities under particular federal statutes.  See generally Salzmann & Love, Internal Exile, supra.  For example, exceptions to the prohibition on military enlistment of felony offenders may be authorized by the Secretary of the service involved in “meritorious cases.”  10 U.S.C. § 504(a).  Also, persons prohibited from holding national security clearance by virtue of their conviction may be granted a waiver “in accordance with standards and procedures prescribed by, or under the authority of, an Executive order or other guidance issued by the President.”  50 U.S.C. § 435c(c)(2)(A)  See also the waiver authority of the FDIC and TSA described in Part III.

State Relief Mechanisms

A few federal statutes specifically incorporate a waiver provision based on state provisions for pardon or restoration of rights.  For example, under the Firearms Owners Protection Act of 1986, state convictions that have been expunged, set aside, or pardoned, or for which a person has had civil rights restored, do not constitute “convictions” for purposes of prosecution as a felon in possession.  18 U.S.C. § 921(a)(20); James W. Diehm, Federal Expungement: A Concept in Need of a Definition, 66 St. John’s L. Rev. 73, 99 (1992).  In certain cases, an alien may avoid deportation based on conviction if he is pardoned.  See Morison, Presidential Pardons and Immigration Law, supra note 4, at 268-272; Elizabeth Rapaport, The Georgia Immigration Pardons: A Case Study in Mass Clemency, 13 Fed. Sentencing Rep. 184, 184 (2000).  A felony offender is disqualified from serving on a federal jury “if his civil rights have not been restored.”  28 U.S.C. § 1865(b)(5).  The federal prohibitions relating to involvement in labor organizations and employee benefit plans last up to thirteen years, but may be removed earlier if an individual’s civil rights have been “fully restored.”  29 U.S.C. §§ 504(a), 1111(a).  Under HUD regulations, federal restrictions on licensure as a mortgage originator for persons convicted of a felony may be waived by a pardon.  See 24 C.F.R. § 3400.105(b)(2), 76 Fed. Reg. 38464 (June 30, 2011). See also the Transportation Safety Administration regulations described in Part III, infra, which give effect in connection with employment in transportation-related occupations to both state pardons and expungements.

III. Nondiscrimination in Licensing and Employment
A.  Civil Rights Act of 1964

There is no general provision in federal law that prohibits consideration of a criminal conviction in connection with employment or licensure.  The Equal Employment Opportunity Commission (EEOC) has taken the position that “an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population. Consequently, the Commission has held and continues to hold that such a policy or practice is unlawful under Title VII in the absence of a justifying business necessity.”  See EEOC, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 915.002 (April 25, 2012), http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf .8

Recent litigation under Title VII is described in Michelle Natividad Rodriguez & Maurice Emsellem, 65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks for Employment, National Employment Law Project (2011), at 9-12, available at http://www.nelp.org/page/-/SCLP/2011/65_Million_Need_Not_Apply.pdf?nocdn=1See also NELP, Civil Rights and Consumer Protection Litigation Docket, available at http://www.nelp.org/page/-/SCLP/2011/CivilRightsConsumerProtectionLitigationDocket.pdf?nocdn=1.

B.  Fair Credit Reporting Act

Prohibits a “consumer reporting agency,” including private firms that supply criminal background information to employers, from disseminating to a prospective or current employer information about arrests that are more than seven years old, for which the statute of limitations has run.  See 15 U.S.C. § 1681c(a)(2).  However, convictions of any age may be reported.  15 U.S.C. § 1681c(a)(5).  Additional notice and other procedural protections required by the FCRA also apply directly to an employer, as discussed in FTC advisory letters.  See http://www.cardreport.com/laws/fcra/ftc-opinion/fcra-opinion.html.  For a description of recent FCRA litigation, see the NELP Publications cited in the preceding section.

C.  Federally Regulated Occupations and Employments

Federal law now authorizes or requires criminal history background checks, and mandates disqualification based on certain convictions, for a wide variety of state-licensed occupations and employments.  See Legal Action Center, National H.I.R.E. Network, “Federal Occupational Restrictions Affecting People with Criminal Records,” available at http://www.hire.web5design.com/content/federal-occupational-restrictions-affecting-people-criminal-records. Some of these regulatory schemes contain time limits or provide for administrative waiver, as described below.

Security Regulation of the Transportation Industry

Since 9/11, the nation’s transportation industry has adopted a new regime of criminal background checks intended to identify workers who may pose a terrorism security risk. Starting with the USA Patriot Act, a progression of federal laws and regulations have been enacted to screen workers employed in the air, sea, and ground transportation industries.  Although the laws themselves vary in specificity, by regulation and policy the Transportation Security Administration (TSA) has attempted to harmonize the different screening policies, though the Aviation and Transportation Security Act of 2001 imposes more stringent limits on airport employment than those applicable to maritime employees and commercial drivers.

Airport Employment

The Aviation and Transportation Security Act of 2001 (ATSA) denies “unescorted access” authority to anyone convicted of disqualifying offenses within the past ten years.  49 U.S.C. § 44936(b)(1).  Major categories of workers covered by the ATSA include airport screeners, mechanics, flight attendants and pilots, fleet service workers, and workers handling commercial or passenger cargo in secured areas.  44936(a)(1)(B).  (TSA has proposed regulations to extend a separate level of screening to workers who handle cargo in unsecured areas.)  The ATSA itself includes a list of disqualifying criminal offenses covering various dangerous acts related to transportation, crimes involving espionage and treason, violent felonies, property crimes including theft and burglary that resulted in a felony conviction, and any felony related generally to “dishonesty, fraud or misrepresentation.”  See 49 U.S.C. § 44936(b)(1)(B); see also TSA regulations at 49 C.F.R. §§ 1542.209(d), 1544.229(d), 1544.230.  In addition, some misdemeanors may also be disqualifying.  Most notably, both felony and misdemeanor convictions for unlawful possession or use of a “weapon” (ranging from explosives to firearms, knives, brass knuckles, black jacks, and mace) result in disqualification.  See United States v. Baer, 324 F.3d 282, 286-88 (4th Cir. 2003) (misdemeanor firearms offense is disqualifying under § 44936).  In contrast to the Hazmat regulations (below), the TSA regulations make felony simple possession of a controlled substance a disqualifying offense also.  49 C.F.R. § 1542.209(d)(26)(ix).  If there is no disposition, or if the disposition did not result in a conviction or in a finding of not guilty by reason of insanity of a disqualifying offense, the individual is not disqualified.  § 1542.209(g).

Waiver: Unlike the regulations applicable to commercial drivers and maritime employees, the TSA regulations implementing the ATSA do not provide for waiver.

For the effect of convictions that have been expunged, pardoned, or set-aside; or for offenses that did not result in a conviction, see TSA, “Legal Guidance on Criminal History Records Checks” (May 28, 2004) (also discussed below in “What constitutes a conviction” section).

Hazmat Licenses for Commercial Drivers

Under the USA PATRIOT Act, commercial drivers licensed by the states to transport hazardous material are subject to federal laws regulating their “hazardous materials endorsements” (HME), including new criminal background screening requirements imposed by the USA Patriot Act (49 U.S.C. § 5103a(a)(1)) to insure that “the individual does not pose a security risk warranting denial of the license.” Drivers requiring HME endorsements range from municipal trash collectors carrying items like bleach and batteries, to interstate truckers carrying nuclear and biological waste.  Unlike the ATSA, the Patriot Act does not list disqualifying offenses or impose any time limits on their consideration.  A state may not grant a driver a “license to operate a motor vehicle transporting in commerce a hazardous material” unless the DHS first notifies the state “that the individual does not pose a security risk warranting denial of the license.”  49 U.S.C. § 5103a(a)(1).  The TSA, acting on behalf of the DHS, assesses whether an individual poses a security risk; in practice the TSA notifies the state that an individual poses no threat by granting that individual an HME.

TSA’s final regulations (49 C.F.R. § 1572.103, see generally 69 Fed. Reg. 68720 (Nov. 24, 2004)), list 35 “permanent” and “interim” disqualifying offenses. “Permanent disqualifying offenses” include convictions for especially serious crimes, including murder, espionage, acts of terrorism and crimes related to explosive devices.  49 C.F.R. § 1572.103(a).  These offenses, whether felonies or misdemeanors, will be considered disqualifying no matter how dated.  (Misdemeanor offenses are disqualifying only if they are of a “terroristic nature,” such as sale of explosives or weapons.  Id.)  The regulation’s “interim disqualifying criminal offenses” are expressly limited to felonies and to those convictions that took place within the past seven years, or where the individual was released from prison within five years of the application.  § 1572.103(b).  These include various acts of violence, weapons offenses, property crimes, and a general category of crimes involving “dishonesty, fraud, or misrepresentation, including identify fraud.”   Distribution of a controlled substance is also included as a disqualifying offense.  § 1572.103(b)(2)(vii).  However, TSA removed simple drug possession from the final list of disqualifying offenses, concluding that it “generally does not involve violence against others or reveal a pattern of deception . . . .”  69 Fed. Reg. 68723.

Waiver: If the TSA determines an applicant for an HME has been convicted of any of several “disqualifying criminal offenses” listed in the TSA’s threat assessment regulation (49 C.F.R. § 1572.103) and therefore determines that he poses “a security threat warranting denial” of his application (per  § 1572.5(a)(1)), then the TSA serves the applicant with its “Initial Determination of Threat Assessment.” 49 C.F.R. § 1572.15(d).  An applicant disqualified because of a criminal offense may within 60 days appeal that determination within the TSA and, if unsuccessful, then seek review in a court of appeals.  § 1515.5.  If he does not appeal within 60 days, or if his administrative appeal is unsuccessful, then the Initial Determination of Threat Assessment becomes a Final Determination.  See  §§ 1515.5(b)(1); (c).  Alternatively, any time after receiving an Initial Determination of Threat Assessment and until 60 days after receiving a Final Determination, the applicant may request a waiver on the ground that in fact he “does not pose a security threat.” §§ 1515.7(b); (c)(iii).  Should his waiver request be denied, he may seek review of that decision as well, first before an Administrative Law Judge, then before the Deputy Administrator, and then by petitioning a court of appeals for review.  §§ 1515.7(d); 1515.11.  See also Boniface v. United States Dep’t of Homeland Security, 613 F.3d 282 (D.C. Cir. 2010), cert. denied, 131 S.Ct. 931(2011) (TSA improperly treated appeal as request for a waiver and denied it without giving petitioner an opportunity to demonstrate his rehabilitation).

“In determining whether to grant a waiver, TSA will consider the following factors, as applicable to the disqualifying condition: (i) The circumstances of the disqualifying act or offense. (ii) Restitution made by the applicant. (iii) Any Federal or State mitigation remedies. (iv) Court records or official medical release documents indicating that the applicant no longer lacks mental capacity. (v) Other factors that indicate the applicant does not pose a security threat warranting denial of the HME or TWIC.”

49 C.F.R. § 1515.7(c)(2).  As to pardoned or expunged convictions, see infra.

Maritime Employees

The Maritime Transportation Security Act of 2002 (MTSA), as amended, establishes a new “transportation worker identification credential” (TWIC) required of anyone with unescorted access to a “secure area” of a port facility or vessel. 46 U.S.C. § 70105.   Persons are ineligible for a TWIC if the Secretary determines they pose “a security risk warranting denial of the card.”  70105(b).  Persons are disqualified if they have been convicted within the preceding 7-year period of a felony that “the Secretary believes could cause the individual to be a terrorism security risk to the United States” or if they have been released from incarceration within the preceding 5-year period for committing such a felony.  §§ 70105(c)(1)(B), (c)(1)(D).  (Note that these expiration dates have been adopted by the TSA for “interim” disqualifying offenses, but not for “permanent” disqualifying offenses, while the ATSA imposes a ten-year rule on all disqualifying offenses.)  TSA regulations identifying disqualifying offenses and defining a conviction for purposes of obtaining a TWIC are at 46 U.S.C. § 70105(c); 49 C.F.R. §§ 1570.3; 1572.103.  Privacy protections are written into the law – individual employers may be informed only of the results.  See 46 U.S.C. § 70105(e) (information obtained may not be made available to the public, including the individual’s employer; employer may only be informed of whether or not the individual has been issued the card).  The TSA background check process is described in the very helpful guidance prepared by the National Employment Law Project (NELP).  See http://www.nelp.org/content/uploads/NELP-TWIC-Update-June-2008.pdf  (guidance specific to port workers).  The NELP guidance also contains sample letters for responding to TSA initial determinations of ineligibility and/or requesting a waiver.

Waiver: The MTSA as amended requires a “waiver” process that will “give consideration to the “circumstances of any disqualifying act or offense, restitution made by the individual, Federal and State mitigation remedies, and other factors from which it may be concluded that the individual does not pose a terrorism risk warranting denial of the card.”  46 U.S.C. § 70105(c)(2).  Alternatively, a waiver may be granted if the employer establishes “alternative security arrangements acceptable to the Secretary.”  § 70105(c)(2)(B).  The TSA must also establish an appeals process that requires notice and a hearing.  § 70105(c)(4).

What constitutes a “conviction”?

For all maritime and land transportation security employments subject to regulation by TSA, the rules on expunged and pardoned offenses are contained in 49 C.F.R. § 1570.3.  The TSA has taken the position that a “conviction” does not include offenses that have been discharged or set-aside such as convictions that have been expunged or pardoned.  See § 1570.3:

Convicted means any plea of guilty or nolo contendere, or any finding of guilt, except when the finding of guilt is subsequently overturned on appeal, pardoned, or expunged.  For purposes of this subchapter, a conviction is expunged when the conviction is removed from the individual’s criminal history record and there are no legal disabilities or restrictions associated with the expunged conviction, other than the fact that the conviction may be used for sentencing purposes for subsequent convictions. In addition, where an individual is allowed to withdraw an original plea of guilty or nolo contendere and enter a plea of not guilty and the case is subsequently dismissed, the individual is no longer considered to have a conviction for purposes of this subchapter.

Note that in order to be effective, an expungement must “nullify” the conviction, which means it must remove the criminal record from the applicant’s file and cannot impose any restrictions or disabilities on the applicant.  See May 28, 2004, Memorandum from the Office of the TSA Chief Counsel, “Legal Guidance on Criminal History Records Checks” at 2-3.  Examples of restrictions specifically mentioned in TSA advisory memoranda include limitations on ownership of a firearm, and limitations on employment as law enforcement officer, teacher, or health care provider.  See id. at 3.  Therefore “some expungements remove the disabling effect of the underlying conviction and some expungements do not.”  Id.  On the other hand, TSA takes the position that “all pardons will act to nullify the underlying conviction” for purposes of the airport “unescorted access” authority.  Id. at 4.  If a record fails to indicate the disposition of an arrest, the credentialing authority may take into account convictions outside the 10-year period in making a suitability determination.  Id.  The commentary to the TSA regulations refers to the May 28, 2004 policy memorandum applicable to airport personnel, discussed above, which notes that to be effective an expungement cannot place limits on hiring as a police officer, teacher, or health care worker: “TSA believes it is necessary to include this level of detail in the definition to ensure that applicants are treated consistently across the country.  Procedures on expungements vary from state to state, and may change at any time.  Therefore, TSA hopes to avoid inconsistent application of the law against hazmat drivers by providing the new definition.”  69 Fed. Reg. at 68729.  Thus pardons and some expungements will be given effect even prior to the waiver stage.

Banking

Section 19 of the Federal Deposit Insurance Act prohibits people who have been convicted of a crime of dishonesty, breach of trust, or money laundering from working in, owning, or controlling a bank (an “insured depository institution”) unless they obtain a waiver from the FDIC. 12 U.S.C. § 1829(a).  For purposes of this law, pre-trial diversion or similar programs are considered to be convictions.   1829(a)(1)(A).9  Certain specified federal crimes cannot be waived for a ten-year period after conviction, absent a motion by the FDIC and court approval.  § 1829(a)(2).  A 1998 FDIC policy statement (http://www.fdic.gov/regulations/laws/rules/5000-1300.html) (“SOP”) provides that all drug crimes require FDIC waiver, but that pre-trial diversion programs will be considered on a case-by-case basis (except for those that occurred prior to November 29, 1990, which do not require a waiver).  See SOP §§ (B)(2)-(3).  The term “dishonesty” encompasses offenses including the wrongful taking of property belonging to another, in violation of any criminal statute. See FDIC Statement of Policy, 63 Fed. Reg. 66, 177, 66, 185 (Dec. 1, 1988).10   Youthful offender adjudications and “de minimis crimes”11 are not considered “convictions” requiring a waiver, nor are convictions that have been “completely expunged.”  Id. at §§ (B)(1), (4).  However, a conviction for which a pardon has been granted will require a waiver.  Id. at § (B)(1).  The FDIC generally requires the institution to submit the request for FDIC approval on behalf of the job applicant.  Id. at § C.  (The National H.I.R.E. Network reports that institutions rarely seek a waiver, except for higher level positions when the candidate is someone the institution really wants to hire. Individuals can only seek FDIC approval themselves if they ask the FDIC to waive the usual requirement.  See www.reentry.net/library/attachment.93411.)

In determining whether to grant an applicant a waiver, the FDIC will consider the following factors: (1) the conviction and nature and circumstances of the offense; (2) evidence of rehabilitation, including age at conviction, and time elapsed; (3) the position to be held; (4) amount of influence and control over the management of the institution; (5) management’s ability to supervise and control the person’s activities; (6) degree of ownership over the institution; (7) applicability of the institution’s fidelity bond coverage to the individual; (8) opinion of primary Federal and/or state regulator; and (9) any additional relevant factors.  See SOP, § D.  Other banking agencies charged with administering laws regulating real estate and mortgage brokerage licensing may defer to FDIC for waivers.

Care Providers for Vulnerable Populations

Federal law authorizes or requires states to conduct background checks for a variety of employments affecting vulnerable populations.  See, e.g., 42 U.S.C. § 5119a (child-care, elder-care, care of individuals with disabilities); 28 U.S.C. § 534 note (nursing care facilities and home health care agencies); 20 U.S.C. § 7115(b)(2)(E)(xx) (teachers and other education agency employees); 42 C.F.R. § 418.114 (hospice employment).  See Internal Exile, supra, at 30-33.

Labor organizations

Prohibitions relating to office-holding in labor organizations and employee benefit plans last 13 years, but may be removed earlier if civil rights have been “fully restored” or if a federal court or the Parole Commission so directs. 29 U.S.C. §§ 504(a), 1111(a).

Federal defense contractors

Persons convicted of fraud or any felony arising out of a contract with the Department of Defense are prohibited for a period of “not less than five years after the date of conviction” from working in a management or supervisory capacity with a defense contractor, or from serving on the board of directors or acting as a consultant for any company that is a defense contractor.  10 U.S.C. § 2408(a).  (Waiver prior to five years available from Secretary of Defense “in the interests of national security.”  2408(a)(3).)12

Union Office

Certain classes of felons are barred for 13 years after one’s conviction from holding any of several positions in a union or other organization that manages an employee benefit plan, including serving as an officer of the union or a director of the union’s governing board.  29 U.S.C. §§ 504(a), 1111(a).

Healthcare

Those convicted of certain crimes are prohibited from providing healthcare services reimbursed by Medicare or from working for the generic drug industry.  42 U.S.C. § 1320a-7; 21 U.S.C. § 335a.

Childcare

Criminal history background checks are required for individuals who provide care for children in any Federal agency or facility operated by the Federal government.  42 U.S.C. § 13041.   In addition, the Federal Child Protection Act, 42 U.S.C. § 5119a, authorizes states to enact statutes concerning the facilitation of criminal background checks of persons who work with children.  It authorizes states to institute mandatory or voluntary fingerprinting of prospective employees in childcare fields in order to facilitate criminal background checks.  Id.

Prisoner Transportation

Prisoner transportation (including private prisoner transportation) is federally regulated. 42 U.S.C. § 13726b sets “[m]inimum standards for background checks and pre-employment drug testing for potential employees, including requiring criminal background checks, to disqualify persons with a felony conviction or domestic violence conviction . . . for eligibility for employment.”  The purpose of the act was to provide protection against risks to the public inherent in the transportation of violent prisoners and to assure the safety of those being transported.  See L. 106–560 (December 21, 2000) (“An Act To provide protection against the risks to the public that are inherent in the interstate transportation of violent prisoners.”); 42 U.S.C. § 13726(5) (private prisoner transport companies should be subject to regulation to enhance public safety).

D.  Additional Note on Federal Criminal Background Checks

In June 2006 the Attorney General issued a report pursuant to § 6403(d) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L.108-458, 118 Stat. 3638, 3759) making recommendations to Congress for standardizing non-criminal justice access to FBI-maintained criminal history records.  See The Attorney General’s Report on Criminal Background Checks, http://www.usdoj.gov/olp/ag_bgchecks_report.pdf.   The report recommends that the FBI’s national database of criminal records generally be made more widely available to private employers and private screening firms for purposes of determining suitability for employment or placement in a position of trust.13 Id. at 59.  It also recommends that privacy protections be created (including notice to an individual whose records have been requested, and an opportunity to review and challenge the accuracy of those records), and that procedures for assuring accuracy of records be improved.  Id. at 59-65, 72-73.14  It recommends national standards relating to disposition reporting and record completeness, including declinations to prosecute and expungement and sealing orders, so that there is uniformity in improvements by repositories nationwide.  Id. at 72.  As to suitability criteria, the report recommends that Congress consider “whether guidance should be provided to employers on appropriate time limits that should be observed when applying criteria specifying disqualifying offenses and on providing an individual the opportunity to seek a waiver from the disqualification.”  Id. at 68.15

 

Continue reading “Restoration Rights Series/Federal”

POLICE OFFICERS MAY MISCHARACTERIZE A CUSTODIAL SITUATION IN COURT

Police Officers generally believe that suspects are more likely to speak with them voluntarily in the absence of a Miranda warning. Thus, police officers have an incentive not to give the warning. One way they may attempt to evade the Miranda rule is by delaying the arrest of a suspect until after they’re through with the questioning. If an officer can convince a judge that the officer was engaged only in general questioning and would have let the suspect walk away had the suspect chosen to do so anything the suspect says can be used against the suspect at trial despite the lack of Miranda warnings.

 

WILL THE CHARGES AGAINST ME BE AUTOMATICALLY DISMISSED IF THE POLIE QUESTIONED ME WITHOUT ADVISING ME OF MY MIRANDA RIGHTS?

 

No. One popular misconception about the criminal justice system is that a case has to be thrown out of court if the police fail to give the Miranda warning to people they arrest. What Miranda says is that the warning is necessary if the police interrogate a suspect in custody and want to offer what he or she says into evidence at trial. This means that the failure to give the Miranda warning is utterly irrelevant to the case if:

  • the suspect is not in custody
  • the police do not interrogate the suspect, or
  • the police do interrogate the suspect, but the prosecution does not try to use the suspect’s responses as evidence.

In essence, if the prosecution can win its case without using the improperly obtained statements, a Miranda violation will not cause dismissal of the case.

 

AFTER I’M ARRESTED IS IT EVER GOOD IDEA TO TALK TO THE POLICE?

 

Not without talking to a lawyer first. Talking to the police is almost always hazardous to the health of a defense case, and defense attorneys almost universally advise their clients to remain silent until the attorney has assessed the charges and counseled the client about case strategy.

 

HOW DO I ASSET MY RIGHT TO REMAIN SILENT OR REQUEST A LAWYER IF I AM BEING QUESTIONED BY THE POLICE?

 

Suspects do not need to use a precise set of words to indicate that they want to remain silent. Arrestees may invoke their Miranda rights by saying things like the following:

  • “I don’t want to talk to you; I want to talk to an attorney.”
  • “I refuse to speak with you.”
  • “I claim my Miranda rights.”

If the police continue to question an arrestee who says anything like the above, they have violate Miranda. As a result, nothing the arrestee says after that point is admissible in evidence. Even though they don’t have to mention the Miranda case or use a particular phrase to invoke their rights, suspect who wants to prevent police questioning have to speak up and assert their desire to remain silent. If the suspects fail to tell the police that they want to remain silent or talk to a lawyer, the police have the right to question them.

 

Example:

Police officers arrest Sy Lentz for murder and advise him of his Miranda rights. When Sy remains silent, the officers question him. After three hours of questioning, Sy answers “Yes” to an officer’s question about whether he had prayed for forgiveness for shooting the victim. The prosecutor can offer the question and Sy’s response into evidence at trial to prove that Sy is quilty of murder. Sy did not demand a lawyer or tell the police that he refused to talk to them. Sy’s silence allowed the police to continue to question him, his eventual answer is admissible at trial.

3 Steps To Getting Back On Your Feet

 

3 Steps To Getting Back On Your Feet

By T. Denise Manning

Life has its own way of trying to kick us down or a way of reminding us that our journey won’t be as easy as we may have thought it would’ve been. In times like these its best to remember just who you are and what your purpose truly is in life. It’s easy to fall into the trap of working a nine to five job to pay the bills, just getting by and not being totally happy with your situation or circumstances. If you’re in that type of position its time you start reflecting on your goals and the reason you set them in the first place. What was pulling at your spirit a long time ago? What was it that you wanted to be when you grew up? You have to revisit those desires and get motivated again! Did you want to be a social worker? Did you want to lose weight? Maybe you wanted to patch up a relationship or go back to school? Whatever the case, it’s time to revisit your goals, get motivated and set realistic actions steps and timelines. Has life kicked you down!? It’s time to get back up!! But HOW do you get back up when it seems that life gave you a swift upper cut? Easy- with three simple steps.

1.  Create a to-do list. What have you been putting off? What would benefit you if you buckled down? Kill the spirit of procrastination and set your mind on accomplishing your goals once and for all!

2.  Imagine.  Remember when you use to play house as a child? Or play with your transformers or Barbie dolls? How about pretending and playing make-believe? WE HAVE TO DO THE SAME THING AS AN ADULT! Visualize yourself accomplishing, obtaining or reaching your goals. If you actually visualize your goal, it will eventually manifest itself in your life.  Create a vision board, gather up all your old magazines, a poster board, some markers and glue and find every image you can that best represents your vision for your life and your future and create your own personal vision board.

3.  Surround yourself with positive people.  Have your circle of cheerleaders or I like to call them my personal board of directors. Being around others that genuinely supports you and your goals are vital to your success. Sharing your progress and excitement are ways you can stay on track and prevent discouragement.

Imagine your potential by concentrating on the good things you have going on, the good people and relationships you have in your life. Take action NOW! Imagine your potential and go after what you desire

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  1. Helpful Unique Business leads
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