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/District of Columbia

I.  Restoration of Civil/Firearms Rights
A.  Vote

A resident of the District of Columbia who is convicted of a felony may vote if not actually incarcerated.  D.C. Mun. Regs. tit. 3, § 500.3.  A person incarcerated for a misdemeanor violation of D.C. Code §§ 1-1001.14 (corrupt election practices), 1-1105.07 (lobbying violations), or 1-1107.01 (miscellaneous provisions under election laws chapter) loses the right to vote during the period of incarceration.  D.C. Code § 1-1001.02(7) (violations of §§ 1-1001.14, 1-1105.07, and 1-1107.01 included in definition of “felony” for purposes of qualification to vote).

B.  Office, Jury

The right to hold office is also restored automatically upon release from prison.  D.C. Code § 1-204.02.  An individual who is disqualified from jury service by reason of a felony conviction, “may qualify for jury service not less than one year after the completion of the term of incarceration, probation, or parole following appropriate certification under procedures set out in the jury system plan.” § 11-1906(b)(2)(B). Pursuant to D.C. Superior Court policy, a person with a felony conviction is ineligible for jury service for a ten-year period.

A convicted person may not serve as a personal representative in probate of an estate if his sentence has not expired or has expired within 10 years (unless pardoned on the basis of innocence). § 20-303(b)(4).  Occupational licenses may be revoked because of a conviction.  See, e.g., § 3-1205.03(a)(1) (heath care); § 25-301(a)(3)-(4) (liquor license); § 3-509(a)(2) (veterinarian).  See generally Washington Lawyer’s Committee for Civil Rights & Urban Affairs, The Collateral Consequences of Arrests and Convictions under D.C., Maryland, and Virginia Law (Oct. 2014), available at http://www.washlaw.org/pdf/wlc_collateral_consequences_report.pdf.

C.  Firearms

D.C. Code § 7-2502.03:  In order to possess a firearm, a person must be registered. Certain classes of ex-offenders are prohibited from registering.  No firearm registration will be issued if the person has,  (1) “been convicted of a crime of violence, weapons offense, or of a violation of the registration regulations;” (2)  is “under indictment for a crime of violence or a weapons offense;” (3) has “been convicted within 5 years prior to the application of any violation in any jurisdiction of any law restricting the use, possession, or sale of any narcotic or dangerous drug;” or (4) has “been convicted within 5 years prior to the application of a violation of § 22-407, regarding threats to do bodily harm, or § 22-404, regarding assaults and threats, or any similar provision of the law of any other jurisdiction so as to indicate a likelihood to make unlawful use of a firearm.”  A person also may not be licensed if, within the 5-year period immediately preceding the application, he was acquitted of any criminal charge by reason of insanity or was adjudicated a chronic alcoholic by any court, unless the person can present “a medical certification indicating that the applicant has recovered from such insanity or alcoholic condition and is capable of safe and responsible possession of a firearm.”

D.  Collateral Consequences Report

The Washington Lawyers Committee for Civil Rights and Urban Affairs issued a report in October 2014 titled The Collateral Consequences of Arrests and Convictions under D.C., Maryland and Virginia Law, available at  http://www.washlaw.org/pdf/wlc_collateral_consequences_report.pdf.  One of its recommendations is that D.C. extend its ban-the-box policy to private employment, and that Maryland and Virginia both enact ban-the-box policies.  The report does not address individualized relief in detail, but proposes to do so in a future report.  See also the earlier WLC report on arrest rates and their impact in the District, http://www.washlaw.org/pdf/wlc_report_racial_disparities.pdf.

II.  Discretionary Restoration Mechanisms:
A.  Executive pardon

Only the President has authority to pardon D.C. Code offenses.1

Eligibility, effect and process for presidential pardon are all the same as for federal offenses. See Federal profile.

Frequency of Grants

Pardon grants to D.C. Code offenders are rare, with only one issued since 19902, although more than a dozen individual convicted in federal court in the District have been pardoned during that period.  Source: Office of the Pardon Attorney.

B.  Judicial sealing or expungement
Misdemeanor Convictions and Nonconviction Records

D.C. Code § 16-803 (part of The Criminal Record Sealing Act of 2006, codified at D.C. Code § 16-801 et seq.), authorizes sealing of records not resulting in conviction, as well as records of conviction for certain non-serious misdemeanors, and of felony failure to appear.  Misdemeanors that are defined as “ineligible” for sealing are listed in § 16-801(9), and include DUI and driver’s license offenses, intra-family offenses, sex offenses, a variety of misdemeanor fraud offenses (including credit card, public assistance, and insurance fraud), and building code violations.3

Eligibility

Applicants for sealing under D.C. Code § 16-803 must have no pending charges and satisfy the applicable minimum waiting period — 2 years in case of arrest for an eligible misdemeanor, 4 years in case of arrest for an ineligible misdemeanor or any felony (3 if no charges were brought), and 8 years for conviction of an eligible offense.  § 16-803(a)-(c).  Waiting periods may be waived by the prosecutor.  § 16-803(e).

Conviction records, and non-conviction records where charges were dismissed after completion of a deferred sentencing agreement, may not be sealed if the person has been convicted at any time of an ineligible offense under § 16-801(8), (9) or of any offense after the date of the conviction or arrest to be sealed.  § 16-803(a) – (c).  For non-conviction records (except those resulting from completion of a deferred sentencing agreement), conviction at any time of an ineligible offense or a subsequent offense does not disqualify from sealing relief under this provision, but it increases the applicable waiting period (5 years must have elapsed since conviction of most recent ineligible/subsequent misdemeanor; 10 years for felony).  § 16-803(a), (b).

Criteria

D.C. Code § 16-803(h):  The Superior Court shall grant a motion to seal under § 16-803 “if it is in the interests of justice to do so.”

In making this determination, the Court shall weigh:

(A) The interests of the movant in sealing the publicly available records of his or her arrest, related court proceedings, or conviction;

(B) The community’s interest in retaining access to those records, including the interest of current or prospective employers in making fully informed hiring or job assignment decisions and the interest in promoting public safety; and

(C) The community’s interest in furthering the movant’s rehabilitation and enhancing the movant’s employability.

In making this determination, the Court may consider:

(A) The nature and circumstances of the offense at issue;

(B) The movant’s role in the offense or alleged offense and, in cases terminated without conviction, the weight of the evidence against the person;

(C) The history and characteristics of the movant, including the movant’s:

(i) Character;

(ii) Physical and mental condition;

(iii) Employment history;

(iv) Prior and subsequent conduct;

(v) History relating to drug or alcohol abuse or dependence and treatment opportunities;

(vi) Criminal history; and

(vii) Efforts at rehabilitation;

(D) The number of the arrests or convictions that are the subject of the motion;

(E) The time that has elapsed since the arrests or convictions that are the subject of the motion;

(F) Whether the movant has previously obtained sealing or comparable relief under this section or any other provision of law other than by reason of actual innocence; and

(G) Any statement made by the victim of the offense.

D.C. Code § 16-803(h).

Procedure and Burdens of proof

The court may dismiss a petition for sealing without a hearing if “it plainly appears from the face of the motion … that the movant is not eligible for relief or is not entitled to relief;” otherwise prosecutor has 60-90 days to respond, after which the court may grant, deny, or order a hearing within 30 days.  D.C. Code § 16-805.  Witnesses and other evidence may be presented at hearing.  Id.

In a motion filed under § 16-803(a) (eligible misdemeanor not resulting in conviction), the burden shall be on the prosecutor to establish by a preponderance of the evidence that it is not in the interests of justice to grant relief.  § 16-803(i).  In a motion filed under § 16-803(b) (ineligible misdemeanor or any felony not resulting in conviction), the burden shall be on the movant to establish by a preponderance of the evidence that it is in the interests of justice to grant relief. Id.  In a motion filed under § 16-803(c) (eligible conviction), the burden shall be on the movant to establish by clear and convincing evidence that it is in the interests of justice to grant relief.  Id.

Effect

Records sealed under § 16-803 are placed in a non-public file but remain available to law enforcement, courts, prosecutors, licensing agencies, public employers, and schools and child care facilities, to be used “for any lawful purpose.” §§ 16-806(b), 16-801(11). Sealed records may also be used in civil litigation relating to the arrest or conviction.  §§ 16-806(b)(2).  Records may be made available to others “upon order of the Court for good cause shown.”  § 16-806(b)(3).  An individual whose record has been sealed under D.C. Code § 16-803 may deny the arrest or conviction, except in response to an inquiry from one of the entities expressly authorized to access the records.  §§ 16-803(m), 16-801(11).

Assistance

Sealing services and additional information are offered by the Public Defender Service of the District of Columbia.  See http://www.pdsdc.org/need-legal-advice/record-sealing-and-expungement.

Other Sealing Authorities — Actual Innocence, Legalized Offenses & Fugitive Arrests

A person may petition for sealing on grounds of actual innocence under D.C. Code § 16-802.  Conviction and non-conviction records for decriminalized/legalized offenses may be sealed under § 16-803.02.  Non-conviction records of a person arrested as a fugitive for justice may be sealed under § 16-803.01.  Different eligibility criteria apply.

Records sealed for actual innocence under § 16-802 may only be opened by a court order “upon a showing of compelling need.”  § 16-806(a).  Records sealed under §§ 16-803.01 and § 803.02 are available only to courts and law enforcement, and for use in civil litigation related to the arrest or conviction. § 16-806(b)

An individual whose record has been sealed under any of these sealing authorities may deny the arrest or conviction upon an inquiry made “for any purpose.”  § 16-802(i), -803.1(c)(5), -803.02(b)(6).

Juvenile Adjudication Records

Sealing of juvenile delinquency proceedings is governed by D.C. Code § 16-2335.  Upon motion by the juvenile or on its own motion, the court will order all records sealed if it finds that 1) a neglected child has reached age of majority or two years has elapsed since final discharge from custody/supervision; and 2) there have been no subsequent convictions or adjudications of delinquency.  § 16-2335(a).  Subsequent convictions or adjudications will nullify the sealing order.  § 16-2335(e).  Upon sealing, all proceedings are treated “as if they never occurred,” including for law enforcement purposes.  § 16-2335(c).  Any court or agency that “shall reply, and the person who is the subject matter of the records may reply, to any inquiry that no record exists with respect to such person.”  Id

Per D.C. Code § 16-2335(h), “a juvenile shall not be required to disclose and shall have the right to refuse disclosure of his or her juvenile delinquency history in an application for employment, education, or housing.”

Youth Rehabilitation Act

Under D.C. Code § 24-901 et seq., a person less than 22 years of age who is convicted of a crime other than murder may be given the benefit of sentencing under this act.  If discharged unconditionally prior to completion of probation, the conviction is automatically set aside by the court, § 24-906(a).  If the sentence expires before unconditional discharge, the conviction may be set aside by the U.S. Parole Commission, in its discretion.  § 24-906(b).  A conviction set aside under this section may be used as a predicate offense or to enhance a subsequent sentence, for sex offender registration, and for a firearms offense predicate. § 24-906(f).  As a non-conviction record, it is eligible for sealing under D.C. Code § 16-803 (see above).

III.  Nondiscrimination in Licensing and Employment
Municipal Hiring – Ban-the-Box Policy

Returning Citizen Public Employment Inclusion Amendment Act of 2010,” Chapter XX-D of D.C. Merit Personnel Act, D.C. Code § 1-601.01 et seq., available at http://www.dcregs.dc.gov/Gateway/NoticeHome.aspx?noticeid=693664.  This Act limits pre-employment inquiries for all municipal government positions except those that require a background check.  § 1-620.42.  In considering whether to disqualify an applicant for employment or terminate an existing employee based on criminal record, the employer shall consider

(1) The specific duties and responsibilities of the position sought or held;

(2) The bearing, if any, that an applicant’s or employee’s criminal background will have on the applicant’s or employee’s fitness or ability to perform one or more of such duties or responsibilities;

(3) The time that has elapsed since the occurrence of the criminal offense;

(4) The age of the person at the time of the occurrence of the criminal offense;

(5) The frequency and seriousness of the criminal offense;

(6) Any information produced regarding the applicant’s rehabilitation and good conduct since the occurrence of the criminal offense; and

(7) The public policy that it is generally beneficial for ex-offenders to obtain employment.

§ 1-620.43. The Fair Criminal Record Screening Act of 2014 expands the “ban the box” policy to private employers with more than 10 employees in D.C., effective October 21, 2014.4  The 2014 law prohibits any inquiry into arrests or charges that are not pending and that did not result in a conviction, and bars employers from considering an applicant’s criminal convictions until after the employer has extended a conditional offer of employment.  An employer may withdraw a conditional offer of employment based on an applicant’s conviction history only for a “legitimate business reason” that is “reasonable” in light of the seven factors outlined above. If an offer is withdrawn, the applicant is entitled to request within 30 days and receive a written statement explaining the legitimate business reason for the action in light of the seven factors.  The applicant may also file a complaint with the D.C. Office of Human Rights (OHR), which can bring administrative proceedings against an employer that it believes has violated the law and levy fines.  A portion of these fines may go to the job applicant.  In contrast with other matters brought to OHR, however, the new law specifically states that it does not authorize the filing of lawsuits alleging improper denials to job applicants.

Limitation on Employer Liability

Under the Re-entry Facilitation Amendment Act of 2012, employers will not be held liable for negligent hiring if they have made “a reasonable, good faith determination” that certain factors favored the hiring or retention of an applicant with a criminal record, including nature of the crime, duties of the position, time elapsed since conviction, information relating to rehabilitation and good character, and “the public policy that it is generally beneficial for persons with criminal records to obtain employment.” See D.C. B19-889 (2012).

Licensure of non-health related occupations

A person may be denied a license based upon criminal conviction only if it “bears directly upon the fitness” of the person to be licensed.  D.C. Code § 47-2853.17(a).  Under this provision, a person may be denied a license only after consideration of the following criteria:

  1. The specific duties and responsibilities necessarily related to the license sought;
  2. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more of the duties or responsibilities specified under paragraph (1) of this subsection;
  3. The time that has elapsed since the occurrence of the criminal offense or offenses;
  4. The age of the applicant at the time of occurrence of the criminal offense or offenses;
  5. The seriousness of the criminal offense or offenses;
  6. Any information produced by the applicant, or produced on his behalf, in regard to his rehabilitation and good conduct; and
  7. The legitimate interest in protecting property, and the safety and welfare of specific individuals or the general public. 

§ 47-2853.17(c-1).

If the license is denied on grounds of conviction, the denial must be in writing and must specify the reason(s) for the denial. The applicant must be provided a copy of the notice.  § 47-2853.17(c-2).

Professions requiring a license are listed at § 47-2853.04.  Certain occupations 5 are subject to a higher standard under § 202 of Omnibus Public Safety Ex-Offender Self-Sufficiency Reform Amendment Act of 2004, D.C. Law 15-357 (2005).

Legislation passed in 2006 by D.C. City Council would have included conviction as a basis of prohibited discrimination in D.C. human rights law.  This legislation was vetoed by the Mayor.

Licensure of health-related professions

Licensing is also governed by D.C. Code § 3-1205.03, which states that, “[a]n individual applying for a license under this chapter shall establish to the satisfaction of the board regulating the health occupation that the individual has not been convicted of an offense which bears directly on the fitness of the individual to be licensed.” § 3-1205.03(a)(1).  See also § 3-1205.14(a)(4) (health occupation board may take disciplinary action against a health professional based upon conviction of a crime of moral turpitude or offense that bears directly on the fitness of the individual to practice).


  1. The Mayor of the District has a limited power to pardon violations of municipal ordinances, though this authority has not been used.  See D.C. Code § 1-301.76 (Mayor may grant “pardons and respites for offenses against the late corporation of Washington, the ordinances of Georgetown and the levy court, the laws enacted by the Legislative Assembly, and the police and building regulations of the District”).
  2. Albert Mack, convicted in 1982 in D.C. Superior Court of a controlled substance offense, was pardoned by President Obama in 2013.  No sentences imposed under the D.C. Code have been commuted.
  3. An earlier provision authorizing “Treatment Instead of Jail for Certain Non-violent Offenders” was repealed.

    Former D.C. Code § 24-751.01 et seq. authorized deferred adjudication for eligible first-and second-offenders charged with drug use and possession.  Eligibility requirements were spelled out in § 24-751.05.  Upon completion of a treatment program, charges would be dismissed and record expunged.  § 24-751.10.  The effect of expungement was “to restore such person, in the contemplation of the law, to the status he or she occupied before such arrest or indictment or information.”  Upon expungement, a person could deny conviction except in an application to be a law enforcement officer.  § 24-751.10.

  4. See Council of the District of Columbia, B20-0642, Fair Criminal Record Screening Act of 2014,  http://lims.dccouncil.us/Legislation/B20-0642.
  5. Asbestos worker; Barber; Cosmetologist; Commercial bicycle operator; Electrician; Funeral Director; Operating engineer; Plumber/gasfitter; Refrigeration and air conditioning mechanic; and Steam engineer.  See Trade Occupations Exemption from Conviction Restriction on Licensure Act of 2004, codified at D.C. Code § 47-2853.17(a)(5).

Copyright © 2017

Restoration of Rights/Delaware

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

A person convicted of a felony forfeits the right to vote.  See Const. art. V, § 2; Del. Code Ann. tit. 15, § 1701.  In addition, persons guilty of certain misdemeanor election law violations are prohibited from voting for ten years following completion of sentence.  Del. Const. art. V, § 7; Del. Code Ann. tit. 15, § 1701.  Under a 2013 amendment to the Delaware Constitution, most persons disenfranchised because of a conviction may regain the vote upon expiration of sentence.1 Prior to 2016, Del. Code Ann. tit. 16, § 6102 required that outstanding fines and restitution be paid before rights could be restored, but that requirement has now been repealed. Individuals seeking to have voting rights restored may apply to their county department of elections and, following a review initiated by the State Election Commissioner, restoration is automatic upon a determination of eligibility.  Del. Code Ann. tit. 15, §§ 6103-05.  Convicted persons shall not be registered earlier than expiration of sentence unless pardoned.  Del. Code Ann. tit. 15, § 6103(c).  Persons convicted of certain serious offenses (murder, manslaughter, bribery or public corruption, sex offense) are constitutionally barred from voting unless pardoned.2

B.  Public Office

Article II, section 21 of the Delaware Constitution states that no person convicted of “embezzlement of the public money, bribery, perjury or other infamous crime, shall be eligible to a seat in either House of the General Assembly, or capable of holding any office of trust, honor or profit under this State.” The governor may remove from office a public officer convicted of misbehavior in office or an “infamous” crime.  See Del. Const. art. XV, § 6.  See also Slawik v. Folsom, 410 A.2d 512 (Del. 1979) (power to remove from office includes removal for federal convictions).  A pardon does not remove this bar.  See Del. Code. Ann. tit. 11, § 4364 (even if granted pardon, person convicted of infamous crime is ineligible to hold a seat in the General Assembly or other office of honor, trust, or profit in the State).  In In re Request of the Governor for an Advisory Opinion, 950 A.2d 651, 653 (Del. 2008), the court ruled that an offense committed when as a juvenile that was subsequently pardoned did not constitute an “infamous offense” so as to disqualify an individual from being appointed as a family court commissioner, citing State ex rel. Wier v. Peterson, 369 A.2d 1076, 1081 (Del. 1976) for the proposition that “the totality of the circumstances in each case must be examined before a determination may be made that a specific felony is infamous.”  Because the constitutional disqualification depends upon “character,” it is not automatically relieved by a pardon.

C.  Jury

Convicted felony offenders may not serve on juries, unless pardoned.  Del. Code Ann. tit. 10, § 4509(b)(6).

D.  Firearms

Persons convicted of “a felony or a crime of violence involving physical injury to another, whether or not armed with or having in possession any weapon during the commission of such felony or crime of violence crime of violence;” a drug offense; or a crime of domestic violence lose firearms rights, unless pardoned.  Del. Code Ann. tit. 11, §§ 1448(a)(1), (3), (7); see also Op. Att’y Gen. 03-IB04, 2003 WL 1088725 (Feb. 4, 2003) (while a Delaware pardon does not remove guilt for the underlying criminal offense, it nonetheless restores the right to purchase and possess firearms).  However, a prohibition based on a crime that is not a felony lasts only five years.  § 1448(d).

II.  Discretionary Restoration Mechanisms:
A.  Executive pardon
Authority

The power to pardon, except in cases of impeachment, is vested in the governor.  Del. Const. art. VII, § 1.  The governor cannot grant a pardon or commutation in the absence of an affirmative recommendation of a majority of the Board of Pardons after a full hearing, but the governor is not bound to accept the Board’s affirmative recommendation, and exercises independent judgment in all cases submitted to him or her following an affirmative recommendation by the Board.  Id.  The governor must “fully set forth in writing the grounds of all reprieves, pardons and remissions, to be entered in the register of official acts and laid before the General Assembly at its next session.”  Id.  The Board of Pardons consists of the chancellor, lieutenant governor, secretary of state, state treasurer, and auditor of accounts.  Del. Const. art. VII, § 2.  Under the Board’s rules, the lieutenant governor is president of the Board, and the secretary of state acts as secretary.  Del. Bd. of Pardons, Rules of the Board of Pardons, Rule 5(c)-(d) (re-adopted Apr. 2009), available at http://pardons.delaware.gov/rules/.

Effect

“Except as otherwise provided by the Delaware Constitution, or expressly by any provision of the Delaware Code or any court rule, the granting of an unconditional pardon by the Governor shall have the effect of fully restoring all civil rights to the person pardoned.” Del. Code Ann. tit. 11, § 4364.  Such civil rights include, but are not limited to, the right to vote, the right to serve on a jury if selected, the right to purchase or possess deadly weapons and the right to seek and hold public office provided however, that this section shall not limit or affect the Governor’s authority to place lawful conditions upon the granting of a pardon.”  Id.; see also Heath v. State, 983 A.2d 77 (Del. 2009) (individual pardoned unconditionally allowed to deregister as a sex offender);  Del. Op. Att’y Gen. 03-IB04 (2003), 2003 WL 1088725 (unconditional pardon restores right to possess firearms).  According to the Board of Pardons, a pardon also relieves employment-related and other legal disabilities.  However, the generally prevailing rule is that a pardon does not preclude consideration of the conviction in sentencing for a subsequent offense.  State v. Robinson, 251 A.2d 552, 556 (Del. 1969).  Moreover, a pardon does not remove the prohibition against persons convicted of “embezzlement of the public money, bribery, perjury or other infamous crime” from holding a seat in either House of the General Assembly or holding any office of trust, honor or profit in the State.  Del. Code Ann. tit. 11, § 4364.  See  State ex rel. Wier v. Peterson, supra Part I.

With certain exceptions, misdemeanor and violation convictions that have been unconditionally pardoned may be expunged in the discretion of the court, with petitioner required to prove manifest injustice by a preponderance of the evidence.  Del. Code Ann. tit. 11, § 4375.  “The fact that the petitioner was convicted of the criminal offense that is the subject of that petitioner’s expungement application shall be considered by the Court as prima facie evidence that the continued existence and possible dissemination of information relating to the arrest in question does not constitute a manifest injustice to the petitioner.”  Id.

Eligibility

According to Board staff, a waiting period after conviction is informally imposed by Board:  three to five years after sentence completed, depending on seriousness of offense, unless a legitimate hardship can be demonstrated (e., a need for employment, pending deportation, etc.).  Applications from misdemeanants are accepted.  See http://pardons.delaware.gov/frequently-asked-questions/.  Out-of-state and federal convictions are ineligible for a pardon by the Delaware Governor.

Process

Applications for a pardon or commutation are made in writing through the office of the Secretary of State, who acts as the secretary of the Board.  See Rules of the Board of Pardons, supra, at Rule 3; Bd. of Pardons, Pardon Application Package, available at http://pardons.delaware.gov/wp-content/uploads/sites/42/2017/03/PardonApp-pack.pdf.  The Board meets on the final Thursday of each month in Dover in open session (except for July and August), and hears every application it receives.  Rules of the Board of Pardons, supra, at Rule 1; http://pardons.delaware.gov/meeting-calendar/.  Before the Board may consider applications relating to certain crimes, including from certain violent and sex offenders, such an applicant must have been recently examined by a psychiatrist and psychologist, who must submit an opinion to Board as to the applicant’s mental and emotional health, and likelihood of re-offending.  Del. Code Ann. tit. 11, § 4362.  The Board must also request a full report on each case, including an opinion concerning the state of rehabilitation, from the Board of Parole.  Rules of the Board of Pardons, supra, at Rule 3(f) (citing Del. Code Ann. tit. 11, § 4363).  A hearing is generally held within a year of filing.  See Frequently Asked Questions, http://pardons.delaware.gov/frequently-asked-questions/.  If an application is denied, the applicant must wait for fifteen months before refiling, and a hearing will not be scheduled for a full eighteen months after denial, unless the Board agrees in advance to consider the new application sooner.   Rules of Board of Pardons, at Rule 7(c).

Application

The applicant must complete an application form that includes an explanation of the offense and reasons for seeking a pardon. Bd. of Pardons, Pardon Application Package, supra.  As a requirement of filing a petition for pardon and commutation, the applicant must notify the judge who imposed the sentence on the applicant, the Attorney General, the chief of police having jurisdiction of the place where the crime occurred, and the Superintendent of the Delaware State Police.  Rules of the Board of Pardons, supra, at Rule 2(d).  The Attorney General’s office is responsible for notifying the victim (or, if deceased, surviving family members) and witnesses when a convicted felon applies for a pardon or commutation.  Del. Code Ann. tit. 11, § 4361(d).  If the victim or surviving family members wish, the Attorney General is responsible for presenting the position of the victims, and the Board requests that a legal representative from the Attorney General’s office attend all sessions of the Board.  Rules of the Board of Pardons, supra, at Rule 8.

Public Record

The hearings of the Board are public hearings at which any person with an interest in the matter will normally be accorded an opportunity to speak.  Del. Code Ann. tit. 11, § 4361(d).  Individuals may and are encouraged to represent themselves before the Board when their cases are scheduled for presentation.  The Board has full subpoena power and may require the attendance of witnesses and production of evidence.  Id. § 4361(a).  It may also administer oaths, and those who testify falsely are subject to criminal penalties.  Id. §§ 4361(a), (c).  Decisions of the Board with respect to an application are often made in executive session of the Board at which the Board may discuss and debate the record.  The Board announces its recommendation from the bench.  Rules of the Board of Pardons, supra, at Rule 5(a).  A decision reached by majority is recorded and filed in the office of the Secretary of State, who in turn notifies the Governor.  Del. Const. art. VII, § 1.  The Governor’s decision may take several months.

Standards

In reaching its decisions, the Board considers nature and age of crime, rehabilitation of applicant and contributions to the community, applicant’s remorse, employment-related need for a pardon, official support, and lack of opposition by the victim.

Frequency of Pardon Grants

2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016

Total Number of Petitions for Pardon
130
153
129
129
160
231
230
300
321
343
411
432
466
468

Pardons Recommended to the Governor
116
134
106
112
146
191
188
246
278
282
337
352
388
411

Pardons Denied by the Board
9
13
21
13
13
23
22
30
38
44
68
71
75
48

Pardons Granted by the Governor
32
130
97
105
140
105
175
214
246
204
207
336
472
366

Pardons Denied by the Governor
13
4
8
6
5
5
9
6
4
17
5
15
25
9

Source: Delaware Board of Pardons

Recent increase in pardon applications/grants

Governor Jack Markell granted 1569 pardons during his 6-year tenure.  He noted that there have been “50 different pieces of legislation” requiring a background check, and that people are seeking pardon to improve their job prospects.  The board caseload has gone from about a dozen each month 20 years ago to over 50.  The Attorney General’s office has begun providing some staff assistance to the board in briefing cases.  See Cris Barrish and Jonathan Starkey, Dramatic Rise in Pardons in Delaware, http://www.delawareonline.com/story/news/local/2015/04/25/dramatic-rise-pardons-delaware/26374339/pcts./ See also Barrish and Starkey, Pardons Driven by Getting Jobs, http://www.delawareonline.com/story/news/local/2015/04/25/pardons-driven-getting-jobs/26354375/.  According to Board staff, the increase in applications relates to more stringent employer background checks since 9/11.  Sixty percent of applications come from misdemeanants.3

Contact

Judy A. Smith
Board of Pardons
401 Federal Street
Townsend Building, Suite 3
Dover, DE 19901
Phone: (302) 739-4111
Fax: (302) 739-7654

Smith@state.de.us.

B.  Judicial sealing or expungement

The expungement laws (Del. Code Ann. tit. 11, §§ 4372, et seq.) were revised in July 2008 in part to facilitate consideration for qualifying non-conviction records, including deferred adjudication and first offender drug diversion (“facilitate the rehabilitative efforts”). Delaware House Bill No. 496 (2008), at Synopsis, available at http://legis.delaware.gov/LIS/lis144.nsf/6073710c7262e49f85257426006e8626/f39d948b58119365852572de006d94b7?OpenDocument.

Deferred adjudication & diversion

Expungement may be ordered by the court where charges have been dismissed pursuant to Probation Before Judgment program, § 4218, or the first offenders controlled substances diversion program, id., tit. 16 § 4767.  See Ryan v. State, 791 A.2d 742, 744 (Del. 2002) (even if the petitioner was not innocent in fact, his completion of probation before judgment and subsequent dismissal of charges rendered him “innocent as a matter of law”).  A 2010 amendment eliminated the five-year waiting period for people who received probation before judgment, and the two-year waiting period for first offenders who completed a controlled substance diversion program to apply for expungement.  See 77 Del. Laws 348 (2010), § 7 (repealing Del. Code Ann. tit. 11, § 4378 in its entirety).  In 2014, Del. Code Ann. tit. 10, § 1025 and tit. 11, § 4372 were amended to add cases resolved by probation before judgement to the list of cases “terminated in favor of the accused,” making them eligible for expungement subject to the same criteria and procedures applicable to other non-conviction records.  See “Non-conviction records” infra.

Pardoned misdemeanor convictions

With some of the same exceptions as specified in Title 11, section 4373 of the Delaware Code (regarding mandatory expungement), misdemeanor and violation convictions that have been unconditionally pardoned may be expunged in the discretion of the court, with petitioner required to prove manifest injustice by a preponderance of the evidence.  Del. Code Ann. tit. 11, § 4375.  “The fact that the petitioner was convicted of the criminal offense that is the subject of that petitioner’s expungement application shall be considered by the Court as prima facie evidence that the continued existence and possible dissemination of information relating to the arrest in question does not constitute a manifest injustice to the petitioner.”  Id.

Old age expungement

The State Bureau of Identification may not destroy information identifying a person until a person reaches age eighty, or reaches age seventy-five with no criminal activity listed on the person’s record in the past forty years.  Del. Code Ann. tit. 11, § 8506(c).

Juvenile records

New laws regarding expungement of juvenile delinquency records took effect in January 2012.  Del. Code Ann. tit. 10, §§ 1014-1020.  The purpose of the laws is to “protect children and citizens from unwarranted damage which may occur as a result of a juvenile arrest record[.]” Id. § 1014.  The new scheme mirrors the one applicable to adult expungement, i.e., provides for mandatory and discretionary expungements.  Id. §§ 1017, 1018.   Under § 1018, a court may to grant a petition for expungement of a juvenile record “provided the petitioner has no other subsequent adjudication of delinquency or adult conviction.” Traffic offenses do not constitute disqualifying subsequent adjudications. See Fuller v. State, 2014 Del. LEXIS 504 (Del. 2014).

Non-conviction records

Title 11, section 4372 of the Delaware Code authorizes expungement of non-conviction records where the case results in acquittal, nolle prosequi, or all charges are otherwise dismissed — including discharge following probation before judgement.  Expungement is mandatory upon request for those charged with misdemeanors or certain violations (except for specified excluded offenses, including sex and violent offenses) who have not previously or since been convicted of another crime.  Del. Code Ann. tit. 11 § 4373.  Discretionary judicial expungement for other non-conviction records is authorized by section 4374.  A petitioner requesting discretionary expungement under this provision must establish to the satisfaction of the court, by a preponderance of the evidence, that “the continued existence and possible dissemination of information relating to the arrest of the petitioner causes, or may cause, circumstances which constitute a manifest injustice to the petitioner. . . .”  Id. § 4374(c).  The existence of a prior record (other than the one that is the subject of the expungement petition) will be prima facie evidence that disclosure will not constitute manifest injustice.  Id.

Effect of expungement

With certain exceptions applicable to use of records for law enforcement purposes, it is unlawful (Class B misdemeanor) for any person having or acquiring access to an expunged court or police record to open or review it or to disclose to another person any information from it without an order from the court that ordered the record expunged.  Del. Code Ann. tit. 11, § 4376(a)(f).4  State records repositories must respond to non-law enforcement requests for records “that there is no record.”  § 4376(b).

General availability of records

Criminal records policy is:  state criminal records are not generally publicly available except for limited research and statistical purposes, or to prospective employers.  § 8513.  However, courts have discretion to provide news media and employers with identification and conviction information only.  Id. §§ 8502(2) (defining “conviction data”), 8513(c); see also Bd. of Managers of Del. Criminal Justice Info. Sys. v. Gannett Co., 847 A.2d 1123, 1125 (Del. Super. Ct. 2004) (holding media outlet in this case was entitled to police officer identification information, but not non-conviction data or geographic information).  Delaware provides for civil and criminal penalties for knowingly providing criminal history records information for profit (felony), or to unauthorized persons (misdemeanor), and may be grounds for dismissal from public employment.  Del. Code Ann. tit. 11, § 8523(c)-(e).

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

In May 2014 the legislature amended § 711 of Title 19 of the Delaware Code to make it an unlawful employment practice for public employers to inquire into or consider the criminal record, criminal history or credit history or score of an applicant “during the initial application process, up to and including the first interview.”  Del. Code Ann. tit. 19, § 711(g)(1). In addition, a public employer may inquire into or consider an applicant’s criminal record “only after it has determined that the applicant is otherwise qualified and has conditionally offered the applicant the position.” § 711(g)(2).  A public employer “may disqualify an applicant from employment based on criminal history where the exclusion is job related for the position in question and consistent with business necessity.” § 711(g)(3).  In connection with any hiring decision, a public employer “shall consider” the following factors: “a. The nature and gravity of the offense or conduct; b. The time that has passed since the offense or conduct and/or the completion of the sentence; and c. The nature of the job held or sought.” Id.5 The law does not apply to police forces, the Department of Correction, the Department of Justice or Public Defender, or “any position where federal or state law requires or expressly permits the consideration of an applicant’s criminal history.  § 711(g)(4).

B.  Uniform Licensing Policy

Legislation enacted in 2004 created a uniform approach throughout Title 24 of the Delaware Code relating to professions and occupations, regarding disqualifications for licensure.  74 Del. Laws 262 (2004).  The act requires that the refusal, revocation or suspension of licenses for professions and occupations regulated under Title 24 be based upon conviction of crimes that are “substantially related” to the profession or occupation at issue, and not for crimes that are unrelated to the profession or occupation.  See, e.g., Del. Code Ann. tit. 24, § 107 (accountancy); § 307 (architecture); § 508 (podiatry); § 707 (chiropractic); §§ 1122, 1126 (dentistry); § 1204 (in application for license to operate a security business, evidence of lack of good character includes “convictions for crimes involving offenses against the person, dishonesty or fraud”); § 1922 (nursing).6   Boards of affected professions and occupations are required to promulgate regulations that specifically identify the crimes that are “substantially related” to the profession or occupation.  In August 2009 this scheme was further amended to require affected boards to promulgate criteria for waiving disqualification based on convictions substantially related to the professions either by a hearing or a review of documentation to determine whether applicants meet the specified criteria for a waiver.  See 77 Del. Laws 199 (2009).  For waiver of disqualification in the case of a felony, five years must have elapsed since the conviction; for misdemeanors there is no waiting period, provided that applicants are not incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence, and are in substantial compliance with all fines, restitution and community service.  See Del. Code Ann. tit. 24, §§ 1808(a)(5), 1821(a)(7), 3319(a)(4).

C.  Governor’s Statement on Reentry

In his 2014 State of the State address, Governor Markell called on the legislature to repeal the law banning persons convicted of a drug offense from acquiring a driver’s license, criticized the law precluding the Department of Correction from hiring anyone with a felony conviction, and proposed a state-wide ban-the-box policy for public sector hiring. See http://governor.delaware.gov/speeches/2014StateOfTheState/unleashingpotential.pdf.


  1. Article V, section 2 of the Delaware Constitution provides in pertinent part:

    “[T]he General Assembly may impose the forfeiture of the right of suffrage as a punishment for crime. Any person who is disqualified as a voter because of a conviction of a crime deemed by law a felony shall have such disqualification removed upon being pardoned, or after the expiration of the sentence, whichever may first occur. The term “sentence” as used in this Section shall include all periods of modification of a sentence, such as, but not limited to, probation, parole and suspension. The provision [sic] of this paragraph shall not apply to (1) those persons who were convicted of any felony of murder or manslaughter, (except vehicular homicide); or (2) those persons who were convicted of any felony constituting an offense against public administration involving bribery or improper influence or abuse of office, or any like offense under the laws of any state or local jurisdiction, or of the United States, or of the District of Columbia; or (3) those persons who were convicted of any felony constituting a sexual offense, or any like offense under the laws of any state or local jurisdiction or of the United States or of the District of Columbia.”

    Prior to the 2013 amendment there was a five-year waiting period before persons could register to vote.  78 Del. Laws c. 332 (2012) initially approved the deletion of “five years” following “pardoned or” in the second sentence of Article V, a measure that was passed for a second time on April 16, 2013.

  2. See note 1, supra.  Under title 11, section 4347(i) of the Delaware Code, “civil rights” are automatically restored by certificate from Board of Parole upon discharge of sentence, but not earlier than one year after release from prison except when the sentence expires earlier thereto.  However, these rights have been ruled by Delaware Attorney General to include only “those commonly exercised in everyday life,” not the rights to vote, sit on jury, or hold office.  See U.S. Dep’t of Justice, Office of the Pardon Att’y, Civ. Disabilities of Convicted Felons: A State-by-State Survey, at 37-38, n.2 (1996), available at https://www.ncjrs.gov/pdffiles1/pr/195110.pdf.
  3. The Board also hears a number of requests for sentence commutation, and recommends a handful to the governor each year.  In 2006, the Board received twenty-one requests for commutation, recommended five favorably, of which the governor granted none; in 2007 the Board received twenty-five commutation requests, recommended three favorably, and two were granted by the Governor; in 2008, the Board received thirty-two commutation requests, recommended six, and one was granted; in 2009 the Board received thirty-seven requests, recommended thirteen favorably, and one was granted; in 2010, the Board received twenty-four requests, recommended thirteen favorably, of which seven were granted by the governor; in 2011 the Board received 54 requests, recommended 19 favorably, or which 10 were granted; in 2012 the Board received 65 requests, recommended 24, of which 2 were granted; in 2013 the Board received 73 requests, recommended 17 favorably, of which 2 were granted.  Until recently the Board held an in-person hearing in every commutation requests, but it has now begun to dispose of some on a paper record.
  4. Expunged records may be disclosed to law-enforcement officers acting in the lawful performance of their duties in investigating criminal activity, for the purpose of an employment application as an employee of a law-enforcement agency, or for the purpose of determining whether a person is eligible for probation before judgment or first offender controlled substance diversion.  Id. § 4376.
  5. Last-minute amendments to the law eliminated provisions that would have prohibited consideration of certain types of criminal records, including felony convictions more than ten years old and misdemeanor convictions more than five years old.
  6. The uniform regulatory scheme in Title 24 applies to the boards of Accountancy, Landscape Architecture, Architects, Podiatry, Chiropractic, Cosmetology & Barbering and Aestheticians, Dentistry and Dental Hygiene, Electrical Examiners, Medical Licensure and Discipline, Plumbing/HVACR Examiners, Nursing, Occupational Therapy, Examiners in Optometry, Pharmacy, Physical Therapists and Athletic Trainers, Professional Land Surveyors, Professional Engineers, Dietetics/Nutrition, Real Estate Services, Real Estate Appraisers, Mental Health and Chemical Dependency Professionals, Funeral Services, Veterinary Medicine, Examiners of Psychologists, Geologists, Speech/Language Pathologists, Audiologists, and Hearing Aid Dispensers, Clinical Social Work Examiners, Examiners of Nursing Home Administrators, Massage and Bodywork, Manufactured Home Installation, Athlete Agent Examiners, and Board of Home Inspectors (home inspector statutory provisions effective August 6, 2013).  See, e.g., 74 Del. Laws 262, supra; 74 Del. Laws 267 (2004) (professional engineers); 78 Del. Laws 170 (2011) (home inspectors).

Copyright © 2017

Restoration of Rights/Colorado

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

A person convicted of a felony loses the right to vote if sentenced to a prison term, and does not regain it until completion of parole.  See Colo. Const. art. 7, § 10 (A person shall not be eligible to vote “while confined in any public prison,” but shall be restored to the rights of citizenship “after serving out his full term of imprisonment.”); Col. Rev. Stat. § 1-2-103(4).1  Persons sentenced to a term of probation only do not lose the right to vote.  By statute, disenfranchisement continues through a period of parole.  See Col. Rev. Stat. § 1-2-103(4) (“No person while serving a sentence of detention or confinement in a correctional facility, jail, or other location for a felony conviction or while serving a sentence of parole shall be eligible to register to vote or to vote in any election.”).2  A person in pre-trial detention may vote by mail. § 1-2-103(4).  The Administrative Office for U.S. Courts has taken the position that federal offenders on supervised release are entitled to register and vote.3

B.  Office, Jury

Persons convicted of a felony are disqualified from public office only while incarcerated, or while on parole from a prison sentence, Col. Rev. Stat. § 18-1.3-401(3), with certain exceptions specified in the state constitution.  See Colo. Const. art XII, § 4 (embezzlement of public money, bribery, and perjury all result in permanent disqualification).  The right to sit on a jury is not lost at all (the disqualification statute was repealed in 1989).

C.  Firearms

Persons convicted of a felony may not possess firearms, unless pardoned.  Col. Rev. Stat. § 18-12-108(1), (2).  Penalty for illegal possession is enhanced if possession occurs within ten years of conviction or release from supervision, for burglary, arson, or any felony involving violence.   § 18-12-108(2)(c).

D.  Compilation of collateral consequences

The Colorado State Public Defender has compiled an inventory of collateral consequences and statutory relief provisions under Colorado law.  See The Consequences of Conviction: Sanctions Beyond the Sentence Under Colorado Law (2014 update), available at http://www.coloradodefenders.us/consequences-of-conviction-2/consequences-of-conviction-2/.  Provisions governing sealing and expungement are at pp. 5-9.  Mark Evans, Deputy State Public Defender, is the primary author of this very useful study.

II.  Discretionary Restoration Mechanisms:
A.  Executive pardon
Authority

The pardon power is vested in the governor, except in cases of treason or impeachment, “subject to such regulation as may be prescribed by law relative to the manner of applying for pardons.”   Colo. Const. art. IV, § 7.  In every instance where the governor exercises the power, he must “send to the General Assembly at its first session thereafter, a transcript of the petition, all proceedings, and the reasons for his action.”  Id.   The clemency power is regulated by Colo. Rev. Stat. §§ 16-17-101 and 102, and grants not issued in compliance with those provisions are invalid.  See People ex rel. Garrison v. Lamm, 622 P.2d 87 (Colo. App. 1980).  Section 16-17-102 provides that

“Before the governor approves [a pardon] application, it shall be first submitted to the present district attorney of the district in which the applicant was convicted and to the judge who sentenced and the attorney who prosecuted at the trial of the applicant, if available, for such comment as they may deem proper concerning the merits of the application, so as to provide the governor with information upon which to base his or her action. The governor shall make reasonable efforts to locate the judge who sentenced and the attorney who prosecuted at the trial of the applicant and shall afford them a reasonable time, not less than fourteen days, to comment on such applications.”

Administration

The governor is advised by the non-statutory Colorado Executive Clemency Advisory Board, established within the Office of the Governor and consisting of seven members appointed by the governor, including the Executive Director of the Corrections Department, the Executive Director of the Department of Public Safety, and one crime victim representative. Executive Order B008-07 (Aug. 29, 2007).  The Board must meet at least once every six months.  Id.  The Board is staffed by personnel from those two agencies, and assisted by the Colorado Bureau of Investigation for background investigations.

Eligibility

Pardon applications are not generally accepted until at least 10 years after completion of a sentence.  Persons convicted under federal law or in another state are not eligible for gubernatorial pardon.

Effect

Colo. Rev. Stat. § 16-17-103, enacted in 2013, provides that “A pardon issued by the governor shall waive all collateral consequences associated with each conviction” unless the pardon limits the scope.   Executive Order B007-8 provides:

“[T]he Board may make favorable recommendation for pardon on clemency applicants who have completed their sentences and demonstrate they are fully rehabilitated and reintegrated into society, and to:

  1. Restore civil rights, including but not limited to voting, jury service, holding public office and reinstatement of firearms privileges;
  2. Assist with licensing, certification or employment requirements;
  3. Recognize meritorious educational or vocational achievement;
  4. Reward exceptional or extraordinary citizenship.”
Process

See Colo. Rev. Stat. § 16-17-102.  After a conviction, all applications for commutation of sentence or pardon for crimes committed shall be accompanied by a certificate of the respective superintendent of the correctional facility, showing the conduct of an applicant during his confinement in the correctional facility, together with such evidences of former good character as the applicant may be able to produce. Before the governor approves such application, it shall be first submitted to the present district attorney of the district in which the applicant was convicted and to the judge who sentenced and the attorney who prosecuted at the trial of the applicant, if available, for such comment as they may deem proper concerning the merits of the application, so as to provide the governor with information upon which to base his action. The governor shall make reasonable efforts to locate the judge who sentenced and the attorney who prosecuted at the trial of the applicant and shall afford them a reasonable time, not less than ten days, to comment on such applications.   Favorable recommendations must receive the support of at least four Board members. Executive Order B007-8.

Qualifications

“Good character previous to conviction, good conduct during confinement in the correctional facility, the statements of the sentencing judge and the district attorneys, if any, and any other material concerning the merits of the application shall be given such weight as to the governor may seem just and proper, in view of the circumstances of each particular case, a due regard being had to the reformation of the accused.”   Colo. Rev. Stat. § 16-17-102.

Frequency of Grants

As of June 2017, Governor Hickenlooper had granted only one pardon since taking office in 2012, to a native of Cuba seeking to avoid deportation.  See Keith Coffman, Colorado Governor Pardons Man Facing Deportation to Cuba, http://www.reuters.com/article/us-usa-immigration-colorado-idUSKCN18G058.  Other than this controversial grant of clemency, Governor Hickenlooper has showed very little interest in his pardoning power. He created a Executive Clemency Advisory Board in 2012, but did not appoint its members until January 2015.  A total of 220 applications were pending at that time. 

In recent years, there have been very few pardons granted by Colorado governors. Governor Ritter (2007-2011) granted only three pardons until his final two weeks in office, when he granted 39 pardons (one posthumously) and ten commutations.  His predecessor Bill Owens granted 13 pardons over his eight years in office.  Source: Colorado Governor’s Office.   It seems fair to conclude that the pardon power in Colorado is not functioning in a meaningful fashion.

Contact

Mark Noel
(303) 866-2471
Noel@doc.state.co.us.

B.  Judicial sealing and other relief

Criminal records can be sealed only under limited circumstances. Instructions for sealing criminal records, as well as the documents necessary for doing so, can be found on the Colorado State Judicial Branch website. http://www.courts.state.co.us/Forms/SubCategory.cfm?Category=Seal.

In 2011 Colorado enacted a major revision of its laws on sealing, and in 2014 it relocated and revised these laws.  Further revisions were made in 2016.  An additional filing fee is charged only for sealing of controlled substances convictions.

1.  Sealing of conviction records
  a. Records relating to controlled substance convictions

Individuals may request the court to seal conviction records for selected offenses involving controlled substances committed after 2008. Colo. Rev. Stat. § 24-72-704 (convictions between 2008 and 2011), § 24-72-705 (convictions after July 1, 2011). For pre-2011 convictions, there is a 10-year waiting period after completion of sentence, during which the petitioner cannot have been “charged or convicted” of a crime.  For post-2011 convictions, there is a variable eligibility waiting period ranging from one year for petty offenses, 3-to-5 years for misdemeanors, and 7-to-10 years for felonies.  § 24-72-705(1)(b).  An additional filing fee of $200 is charged over and above the fee otherwise required by law, which is deposited in the “Judicial Stabilization Cash Fund.” § 24-72-704(2)(b)(III).  

Felony drug offense “knocked down” to misdemeanor

Effective July 1, 2013, persons convicted of less serious felony drug offenses (whether by plea or trial) with no more than one prior conviction may have their convictions vacated and reduced to a misdemeanor upon successful completion of probation.  Colo. Rev. Stat. § 18-1.3-103.5 (“In order to expand opportunities for offenders to avoid a drug felony conviction, to reduce the significant negative consequences of that felony conviction, and to provide positive reinforcement for drug offenders who work to successfully complete any community-based sentence imposed by the court, the legislature hereby creates an additional opportunity for those drug offenders who may not otherwise have been eligible for or successful in other statutorily created programs that allow the drug offender to avoid a felony conviction, such as diversion or deferred judgment.”)  Felonies otherwise ineligible for sealing, see above, may become eligible following reduction.

Decriminalized marijuana offenses 

Effective August 2017, courts must, upon petition, seal the records of misdemeanor marijuana possession or use offenses that would not have been crimes if committed on or after December 10, 2012.  Colo. Rev. Stat. § 24-72-710  (added by HB 17-1266).

  b.  Sealing of petty and other convictions

Conviction records pertaining to petty offenses and municipal violations may be sealed under § 24-72-708 after a three-year waiting period during which the person has not been charged with or convicted of a felony or misdemeanor.  Effective August 2017, the standard will be loosened to permit sealing of violations not related to domestic violence after 3 years even if there was intervening conviction, so long as there was only one conviction; it was not a felony and did not involve domestic violence, child abuse, or sex abuse; and the person has not been convicted of another felony or misdemeanor in the 10 years preceding final disposition (or release, if later) in the intervening case.  § 24-72-708(a)(II) (added by HB 17-1360 (2017)). Exclusions apply for misdemeanor traffic offenses committed by commercial drivers. § 24-72-708(1)(a)(III). 

Victims of human trafficking convicted of several types of offenses, § 24-72-706; people convicted of posting a private image for harassment or pecuniary gain, § 24-72-709; those convicted of theft of public transportation services by fare evasion. § 24-72-707.  In addition, anyone convicted or charged with underage possession or consumption of alcohol or marijuana may apply for sealing. § 18-13-122(13).

Effect of sealing

Under the revised sealing scheme, employers, landlords, and state and local government agencies are generally prohibited from requiring applicants to disclose any information contained in sealed records. § 24-72-703(4)(d).   Upon the entry of an order to seal the conviction records, the defendant and all criminal justice agencies may properly reply, upon an inquiry in the matter, that public conviction records do not exist with respect to the defendant.  § 24-72-703(4).  However, an order sealing conviction records does not deny access to courts and law enforcement agencies, or any “party or agency required by law to conduct a criminal history record check on an individual.”  Id.  Also, some organizations, including the bar committee, the Department of Education, and criminal justice agencies, may still have access to some information in records sealed under these provisions.  Id.  The Colorado State Public Defender notes that “Individuals with sealed convictions may face a difficult decision regarding whether to tell others about a conviction the individual is not required to disclose but could nevertheless be uncovered during a background check.”

Procedural issues

Individuals must be advised by the court at sentencing about the provisions for sealing, and by the probation officer or parole officer upon the conclusion of supervision.  Colo. Rev. Stat. § 24-72-703(1).   Sealing does not vacate the conviction, and it may be used in subsequent prosecutions.  Id. § 24-72-703(4).  Any member of the public may petition the court to unseal “upon a showing that circumstances have come into existence since the original sealing and, as a result, the public interest in disclosure now outweighs the defendant’s interest in privacy.”  Id.  If a defendant is convicted of a new criminal offense after an order sealing conviction records is entered, the court shall order the conviction records to be unsealed. Id.

The office of the state court administrator shall post on its web site a list of all petitions to seal conviction records that are filed with a district court. A district court may not grant a petition to seal conviction records until at least thirty days after the posting. Id. at (5).   In regard to any conviction of a defendant resulting from a single case in which the defendant is convicted of more than one offense, records of the conviction may be sealed pursuant to the provisions of this part only if the records of every conviction of the defendant resulting from that case may be sealed.  Id. at (7). Conviction records may not be sealed if the defendant still owes restitution, fines, court costs, late fees, or other fees ordered by the court in the case that is the subject of the petition to seal conviction records.  Id. at (8).

Standards

The court may order the record sealed after a hearing “if the court finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records.” §§ 24-72-702(b), 703(c), 704(c).  In the case of conviction records, the court “shall, at a minimum, consider the severity of the offense that is the basis of the conviction records sought to be sealed, the criminal history of the defendant, the number of convictions and dates of the convictions for which the defendant is seeking to have the records sealed, and the need for the government agency to retain the records. §§ 704(c)(1), 705(e).  In the case of nonconviction records, the court is required to give notice of the reasons for denial. § 24-72-702(b).

2.  Sealing of non-conviction records

Under Colo. Rev. Stat. § 24-72-702, individuals may petition the court to seal arrest and criminal records other than those pertaining to a conviction if:

The records pertain to official actions involving a criminal offense for which the person in interest completed a diversion agreement, or was not charged and any applicable statute of limitations has run, or was not charged but the person is no longer being investigated by law enforcement, or a case which was completely dismissed, or a case in which the person was acquitted ….

Sealing may also be sought where a case was dismissed pursuant to a plea agreement in a separate case, after a 10-year waiting period following final disposition of all criminal proceedings against the person, as long as there are no intervening criminal charges.

Non-conviction records (other than those involving deferred dispositions) “shall” be sealed if eligible. § 24-72-702(1)(b)(II)(A).  Court is required to advise a defendant of the availability of this relief.  § 24-72-702(3).   Records pertaining to serious traffic offenses, and offenses involving holders of commercial drivers’ licenses, and sex offense, are not eligible for sealing. § 24-72-702(4).

Records pertaining to offenses resolved by pretrial diversion generally must be sealed, upon request by the defendant, following successful completion of the agreement. Colo. Rev. Stat. § 18-1.3-101(10)(c).

Sealed records are confidential, and criminal justice agencies receiving a record request must respond that “that no such record exists.”  An individual may deny the existence of the record in most instances, and employers, educational institutions, and state and local government agencies may not require disclosure. § 24-72-702(f)(I).

Expedited process for non-conviction sealing

In 2016, Colorado enacted Colo. Rev. Stat. § 24-72-702.5, creating an alternative expedited process for sealing non-conviction records.  Defendants may move immediately and informally to have the records of a case sealed at the time of acquittal or dismissal of all charges, including where charges are dismissed pursuant to diversion or deferred sentencing.  The eligibility requirements and standards applicable to sealing by petition apply. 

       Deferred Sentencing

Colo. Rev. Stat. § 18-1.3-102.  When a defendant enters a guilty plea, courts are authorized, with the consent of the defendant, his attorney, and the prosecutor, to “continue” the case, i.e. postpone the sentencing portion of the case.  The court may continue felony cases for up to four years, and misdemeanor cases for up to two years, during which the defendant is on probation.  Upon completion of the probationary period, the guilty plea is withdrawn and the charges are dismissed with prejudice.  If the defendant violates the terms of the probation, the prosecutor may move to revoke probation, and the judge decides, at a hearing, whether to revoke probation.  Deferred sentencing is used mostly for first-time drug offenders referred to drug court.  Sealing of arrest records is available if the charges are dismissed (see above).

       Pretrial Diversion

Effective August 7, 2013, each district attorney is authorized to establish a program for pretrial diversion available to all but specified serious sex offenses. See Colo. Rev Stat. § 18-1.3-101The purpose of the new authority is “to ensure defendant accountability while allowing defendants to avoid the collateral consequences associated with criminal charges and convictions.” § 18-1.3-101(1).  Eligibility:  In determining whether an individual is appropriate for diversion, the district attorney shall consider: (a) The nature of the crime charged and the circumstances surrounding it; (b) Any special characteristics or circumstances of the defendant; (c) Whether diversion is consistent with the defendant’s rehabilitation and reintegration; and (d) Whether the public interest will be best served by diverting the individual from prosecution.” § 18-1.3-101(3).  The term of diversion is generally two years.

“Upon the defendant’s satisfactory completion of and discharge from supervision, the court shall dismiss with prejudice all charges against the defendant. The effect of the dismissal is to restore the defendant to the status he or she occupied before the arrest, citation, or summons. A successfully completed diversion agreement shall not be considered a conviction for any purpose. A person with an order of dismissal entered pursuant to this article may not be subject to charge, prosecution, or liability under Colorado law of perjury or otherwise giving a false statement by reason of his or her failure to recite or acknowledge the arrest, citation, or summons in response to any inquiry made for any purpose.”

§ 18-1.3-101(10(b).

  Expungement of arrests based on mistaken identity:

“Notwithstanding any other provision of law, a court shall expunge the arrest and criminal records information of a person who was arrested as a result of mistaken identity and who did not have charges filed against him or her.” Colo. Rev. Stat. § 24-72-701.5 (enacted July 10, 2016).  The process is initiated by the arresting law enforcement agency, which must file an expungement petition with the district court within 90 days of “find[ing] that a person was arrested as a result of mistaken identity and no charges were filed.”  The court must expunge the records within 90 days of filing.  Employers, state and local agencies, and educational institutions may not require disclosure of records expunged under this authority, and a person may deny the fact of arrest without penalty.

3.  Expungement of juvenile records

A major rewrite of the juvenile expungement law, Colo. Rev. Stat. § 19-1-306, will take effect July 1, 2017.4 Under the new law, courts must expunge records of the following after 42 days: acquittals and dismissals (except in cases of diversion, deferred adjudication, or informal adjustment), and, upon completion of sentence, adjudications for petty offenses, class 3 & 4 misdemeanors, and level 1 & 2 drug misdemeanors. Colo. Rev. Stat. § 19-1-306(4)(a).  In the case of adjudications, exceptions apply for sex offenses, domestic violence, and crimes requiring victim notification.  § 19-1-306(4)(a)(III).

Most other less-serious dispositions, including some low-level felony adjudications, may be expunged through a process that it is automatically initiated 91 days after completion of diversion, deferred adjudication, adjustment, or adjudication for an eligible offense. § 19-1-306(5).5  The prosecutor (who receives notice of eligibility from the court after 91 days) and victim (who receives notice from the prosecutor) each have 84 days to object to the expungement.  § 19-1-306(5)(a) – (e).6  If neither objects, the court must order expungement. § 19-1-306(5)(d). If either objects, a hearing is held, to determine whether “the rehabilitation of the juvenile has been attained to the satisfaction of the court,” and that “the expungement is in the best interest of the juvenile and the community.”  § 19-1-306(5)(e) – (g).

Individuals adjudicated as “repeat offenders” and “mandatory sentence offenders” are not eligible for expugement under subsection (5), see § 19-1-306(5)(j), but may petition for expungement 36 months after completion of sentence if no charges or delinquency proceedings are pending.  § 19-1-306(6)(e).  The eligibility requirements, procedures, and standards set forth in subsection (5) apply.

Pursuant to § 19-1-306(8),

A court shall not expunge the record of a person who is:

(A) adjudicated as an aggravated juvenile offender pursuant to section 19-2-516 (4) or as a violent juvenile offender pursuant to section 19-2-516 (3);

(B) adjudicated of homicide and related offenses pursuant to part 1 of article 3 of title 18;

(C) adjudicated for a felony offense involving unlawful sexual behavior as described in section 16-22-102 (9); or

(D) charged, adjudicated, or convicted of any offense or infraction pursuant to title 42 [“Vehicles and Traffic”].

Records of municipal juvenile adjudications are automatically expunged 42 days after completion of sentence.  § 19-1-306(9).  The prosecutor may object, triggering a hearing in which the only issue is whether the sentence has been completed or the case is closed.  § 19-1-306(9)(c) – (e).

Expungement of records in other cases, including closed cases, is covered by subsection (6).

Expungement under § 19-1-306 seals the relevant records of the courts, law enforcement, the Division of Youth Corrections, and the Colorado Bureau of Investigation, and the records “are deemed never to have existed.” § 19-1-306(2)(g), (3); § 19-1-103(48).  An individual may deny the fact of arrest or adjudication. § 19-1-306(1)(a).

Separate sealing authority exists for juvenile records in cases of underage alcohol consumption/possession.  Sealing is available after 1 year if the person has not been arrested, charged, or convicted of a crime in the year following conviction.   See Colo. Rev. Stat. § 18-13-122(10).

Expungement of underage DUI offenses

Records of conviction for less serious underage DUI offenses (“UDD” offenses) may be         “expunged” after a person’s twenty-first birthday subject to certain conditions and exceptions.  See Colo. Rev. Stat. §§ 42-4-1715(1)(b),  42-2-121(5).

C.  Collateral Relief at Sentencing

Effective May 2013, the sentencing court imposing a non-prison sentence may enter an “order of collateral relief” “for the purpose of preserving or enhancing the defendant’s employment or employment prospects and to improve the defendant’s likelihood of success” while serving the non-prison sentence.  See subsection 1 of the substantially identical provisions of Colo. Rev. Stat. §§ 18-1.3-107 (sentencing alternatives), 18-1.3-213 (probation), and 18-1.3-303 (community corrections).  Under subsection 2 of the three provisions, an application for an order of collateral relief must cite the grounds for granting the relief, the type of relief sought, and the specific collateral consequence from which the applicant is seeking relief.   The applicant must provide a copy of the application to the district attorney and to the regulatory or licensing body that has jurisdiction over the collateral consequence from which the applicant is seeking relief, if any.  Subsection 3 of each of the three statutes provides:

An order of collateral relief may relieve a defendant of any collateral consequences of the conviction, whether in housing or employment barriers or any other sanction or disqualification that the court shall specify, including but not limited to statutory, regulatory, or other collateral consequences that the court may see fit to relieve that will assist the defendant in successfully completing probation or a community corrections sentence.

An order of collateral relief cannot relieve any collateral consequences imposed by law for licensure by the department of education or any collateral consequences7 imposed by law for employment with the judicial branch, the department of corrections, division of youth corrections in the department of human services, or any other law enforcement agency in the state of Colorado.  Certain offenses are not eligible, including crimes of violence and sexual offenses.  Standards for relief are set forth in subsection 6(a):

A court may issue an order of collateral relief if the court finds that: (I) The order of collateral relief is consistent with the applicant’s rehabilitation; and (II) Granting the application would improve the applicant’s likelihood of success in reintegrating into society and is in the public’s interest.

The court “may at any time issue a subsequent judgment to enlarge, limit, or circumscribe the relief previously granted,” or may revoke the relief upon evidence of a subsequent criminal conviction or proof that the defendant is no longer entitled to relief.  See subsection 6(b)-(c).

The Colorado State Judicial Branch has issued instructions for filing for orders of collateral relief, at http://www.courts.state.co.us/Forms/renderForm1.cfm?Form=869.

III.   Nondiscrimination in Licensing and Employment
A.  Consideration of conviction in public employment & licensing

Colo. Rev. Stat. § 24-5-101(1)(a):

[T]he fact that a person has been convicted of a felony or other offense involving moral turpitude shall not, in and of itself, prevent the person from applying for and obtaining public employment or from applying for and receiving a license, certification, permit, or registration required by the laws of this state to follow any business, occupation, or profession.8

Whenever any state or local agency is required to make a finding of “good moral character” as a condition of issuing a license or permit, the fact that someone has in the past been convicted  “shall be given consideration in determining whether, in fact, the applicant is a person of good moral character at the time of the application. The intent of this section is to expand employment opportunities for persons who, notwithstanding that fact of conviction of an offense, have been rehabilitated and are ready to accept the responsibilities of a law-abiding and productive member of society.”   § 24-5-101(2).    See Smith v. Colo. Motor Vehicle Dealer Bd., 200 P.3d 1115 (Colo. App. 2008) (conviction may serve as a basis for delaying, but not permanently denying, a motor vehicle salesperson license; fact that licensing statute specifies certain convictions within the past 10 years as potentially disqualifying does not create irreconcilable conflict with [§ 24-5-101(1)]”). See also City of Colo. Springs v. Givan, 897 P.2d 753 (Colo. 1995) (reversing intermediate court finding that city manager abused discretion in discharging long-time city employee because of incest conviction; though employee’s work record was excellent, and testimony of co-workers was equivocal on likely impact of his serious conviction on morale in workplace, city may consider both impact on employees he supervised and public perception of city).

Ban-the-Box and Standards for considering arrests and convictions

In May 2012, Colo. Rev. Stat. § 24-5-101 was amended to prohibit state agencies from performing a background check “until the agency determines that an applicant is a finalist or makes a conditional offer of employment to the applicant.” § 24-5-101(3)(b).  In determining whether a conviction disqualifies an applicant, the state or licensing agency must consider (1) the nature of the conviction; (2) the relationship of the conviction to the job; (3) the applicant’s rehabilitation and good conduct; and (4) time elapsed since conviction.  § 24-5-101(4).  The law prevents agencies from using arrests not leading to conviction in deciding whether to deny or withdraw an offer.  Agencies may not disqualify an applicant based on an expunged, sealed, or pardoned conviction or charges dismissed pursuant to a deferred judgment, unless they first consider the four factors listed above.  § 24-5-101(3)(d).  This law does not apply where a statute bars licensing based on criminal convictions.  § 24-5-101(3)(a).  Consideration of criminal history information that the applicant voluntarily provides is permitted.  § 24-5-101(3)(e).  The law addresses blanket bans in job ads by prohibiting the advertisement of a position with a statement that a person with a criminal record may not apply (unless the law itself prohibits hiring someone with a conviction).  § 24-5-101(3)(a).

Exceptions

Section 24-5-101(1) does not apply to certain persons seeking public office and persons seeking licensure and employment in positions involving direct contact with vulnerable persons, public safety, corrections, education, or with the public employees’ retirement association.9 Section 24-5-101 may also be overridden by statutory requirements related to specific licenses or employment.  See § 24-34-102(8.7) (§ 24-5-101 applies to licensing under titles 10 (“Insurance”) and 12 (“Professions and Occupations”) of the Colorado Statutes “[u]nless there is a specific statutory disqualification that prohibits an applicant from obtaining licensure”); see also § 27-90-111 (screening and disqualification requirements applicable to department of human services employees who have direct contact with vulnerable persons).

B.  General Assembly review of regulatory agencies

Under a law enacted in 2013, General Assembly must determine “Whether the agency through its licensing or certification process imposes any disqualifications on applicants based on past criminal history and, if so, whether the disqualifications serve public safety or commercial or consumer protection interests.” Colo. Rev. Stat. § 24-34-104(6)(b)(IX).  To assist in considering this factor, the department of regulatory agencies shall prepare an analysis including “data on the number of licenses or certifications that were denied, revoked, or suspended based on a disqualification and the basis for the disqualification.” Id.

C.  Sunrise provision for new licensing requirements

Any proposal to regulate a new profession or occupation must include “A description of any anticipated disqualifications on an applicant for licensure, certification, relicensure, or recertification based on criminal history and how the disqualifications serve public safety or commercial or consumer protection interests.” Colo. Rev. Stat. § 24-34-104.1(2)(f).  See also id. at (4)(b)(IV) (factors to be considered in deciding whether regulation is necessary include “Whether the imposition of any disqualifications . . . based on criminal history serves public safety or commercial or consumer protection interests”).

D.  Negligent Hiring

Colorado limits employer liability exposure by preventing the introduction of an employee’s criminal record in a civil action for negligent hiring if “[t]he nature of the criminal history does not bear a direct relationship to the facts underlying the cause of action.”  Colo. Rev. Stat. § 8-2-201(b). Information regarding an employee’s criminal history also will be excluded if the employee’s record is sealed, if the employee received a pardon, if the record involves an arrest or charge that did not result in a conviction, or if the individual received a deferred judgment at sentencing.  Id.  The legislative declaration accompanying this provision states that employers may be reluctant to hire employees with a criminal record “due to a lack of clarity regarding the employer’s risk of liability for such hire,” that there is “a direct correlation between employment and reduced recidivism” so that “it is in the public interest to clarify employer liability,” and that “it is necessary and appropriate for the General Assembly to reduce unnecessary barriers to employment for persons with a criminal conviction and thereby promote economic opportunity, poverty reduction, and public safety in the state of Colorado.”  See H.B. 10-1023, ch 42, p. 167, § 2 (2010)(An act concerning clarifying civil liability regarding negligent hiring practices for an employer that hires a person with a criminal record”).


  1. Col. Rev. Stat. § 1-2-103(4) was amended in May 2005 to add “for a felony conviction” to the text of the statute.  Prior to that time, the prohibition on voting applicable to incarcerated persons had been interpreted to extend to misdemeanants as well as felony offenders.
  2. Under the determinate sentencing law adopted by Colorado in 1993, a period of “mandatory parole” following a sentence to confinement “is no longer related to the unserved remainder of the sentence to confinement.”  People v. Norton, 63 P.3d 339, 343 (Colo. 2003).  In light of the constitutional direction that a person “shall be restored to the rights of citizenship after serving out his full term of imprisonment,” it is not clear whether the statutory extension of disenfranchisement to the period of parole in § 1-2-103(4) survives this change in Colorado’s sentencing law.
  3. 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.  (Opinion on file with author.)
  4. Previously, expungement was available for less-serious offenses only by petition, and subject to the court’s discretion and a waiting period that varied based on the seriousness of the offense.
  5. Eligible dispositions and offenses are listed at § 19-1-306(5)(a):

    I) A juvenile diversion program, a deferred adjudication, or an informal adjustment;

    II) A juvenile sentence for an adjudication for a class misdemeanor or a petty or a misdemeanor offense that is not eligible for expungement under subsection (4) of this section, if the offense did not involve unlawful sexual behavior as defined in section 16-22-102 (9).

    III) A juvenile sentence for an adjudication for a misdemeanor offense involving unlawful sexual contact as described in section 18-3-404; or

    IV) A juvenile sentence for an adjudication for a felony offense or felony drug offense if:

    A) The felony offense did not constitute unlawful sexual behavior as defined in section 16-22-102 (9);

    B) The felony offense was not a crime of violence as described in section 18-1.3-406;

    C) The felony offense was not a class 1 or class 2 felony; and

    D) The juvenile had no prior felony adjudications.

  6. When accepting a plea, the prosecutor may agree, with the victim’s consent, not to object to expungement following completion of sentence.  In such cases, the court will automatically expunge the record.  § 19-1-306(5)(i).
  7. The term “collateral consequences” is defined in subsection 8 to include “collateral sanctions” and “disqualifications,” and those terms are defined in substantially the same terms as in the Uniform Collateral Consequences of Conviction Act.
  8. See Smith v. Colo. Motor Vehicle Dealer Bd., 200 P.3d 1115, 1117 (Colo. App. 2008):

    Section 24-5-101, in its original form, was part of the ‘Ex-Offenders’ Rights Act.’ See ch. 151, sec. 1, § 39-25-101, 1973 Colo. Sess. Laws 513; Ficarra v. Dep’t of Regulatory Agencies, 849 P.2d 6, 8 (Colo. 1993). This statute applies generally to state and local licensing agencies, see R & F Enters., Inc. v. Bd. of Cnty. Comm’rs, 606 P.2d 64, 66 (1980), and, according to the supreme court, ‘is an expression by the general assembly of a public concern that persons who have been convicted of felonies or crimes of moral turpitude should not be deprived of the right to gainful employment solely due to their past activities.’  Beathune v. Colo. Dealer Licensing Bd., 601 P.2d 1386, 1387 (1979).”

  9. § 24-5-101(1)(b):

    “(b) This subsection (1) shall not apply to:

    (I) The offices and convictions described in section 4 of article XII of the state constitution;

    (II) The certification and revocation of certification of peace officers as provided in section 24-31-305;

    (III) The employment of personnel in positions involving direct contact with vulnerable persons as specified in section 27-90-111, C.R.S.;

    (IV) The licensure or authorization of educators prohibited pursuant to section 22-60.5-107(2), (2.5), or (2.6), C.R.S.;

    (V) The employment of persons in public or private correctional facilities pursuant to the provisions of sections 17-1-109.5 and 17-1-202(1)(a)(I) and (1.5), C.R.S., and the employment of persons in public or private juvenile facilities pursuant to the provisions of sections 19-2-403.3 and 19-2-410(4), C.R.S.;

    (VI) The employment of persons by the public employees’ retirement association created pursuant to section 24-51-201 who, upon the commencement of that employment, will have access to association investment information, association assets, or financial, demographic, or other information relating to association members or beneficiaries; and

    (VII) The employment of persons by the department of public safety.”

Restoration of Rights/Connecticut

connecticut-flag-map-highway-sign-tee-women-s-v-neck-t-shirtI.  Restoration of Civil/Firearms Rights
A.  Civil Rights

Vote/Office:  The rights to vote and hold office are lost upon conviction of a felony and actual incarceration (“committal to the custody of the Commissioner of Correction for confinement in a correctional institution or facility or a community residence”). Conn. Gen. Stat. § 9-46(a). The right to vote is regained upon discharge from sentence, including payment of fines and any period of parole. Conn. Gen. Stat. § 9-46a(a) (right to vote “restored upon [proof of] the payment of all fines in conjunction with the conviction and once such person has been discharged from confinement, and, if applicable, parole”). Restoration of the right to vote results automatically in restoration of the right to hold public office. Id. §§ 9-46(b), 9-46a(b).  The Commissioner of Correction is required to inform prisoners of the rights and procedures to have their electoral rights restored, and to notify the Secretary of State, for transmission to local electoral boards, when prisoners are discharged from their sentences. Id. §§ 9-46a(d), (e). The Administrative Office for U.S. Courts has taken the position that federal offenders on supervised release are entitled to register and vote.1

Jury: The right to serve on a jury is lost upon conviction of a felony and restored automatically after seven years (unless the person is incarcerated).  Conn. Gen. Stat. § 51-217(a)(2).  A pardon will relieve this disability earlier.

B.  Firearms

A permit to carry a revolver or a pistol is prohibited to persons convicted of a felony or adjudicated delinquent for a “serious juvenile offense.”  See Conn. Gen. Stat. §§ 29-28(b), 29-32 (revocation of permit); see also § 53a-217(a) (felony possession of firearm). See Conn. Gen. Stat. § 29-36f(b) (denial of certificate of eligibility to purchase a pistol or revolver).  Firearms rights can only be restored through pardon.

II.  Discretionary Restoration Mechanisms
A.  Pardon (including Provisional Pardon and Certificate of Rehabilitation/Employability)
Authority

Pardons are issued by the Board of Pardons and Paroles, an autonomous state agency with administrative support provided by the Department of Correction. Conn. Gen. Stat. § 54-124a(f); http://www.ct.gov/doc/bopp. 2 The Board consists of ten full-time and five part-time members appointed by the Governor, with the advice and consent of both houses of the General Assembly. Conn. Gen. Stat. § 54-124a(a). The Governor appoints the chair. § 54-124a(a).  Five members consider pardon applications exclusively, seven members consider paroles and the chair does both. Id. § 54-124a(a). The Governor has limited power to grant reprieves after conviction. Conn. Const. art. 4, § 13. See www.ct.gov/doc/bopp for information about Board policies and procedures. See also OLR Research Report No. 2007-R-0533(“Board of Pardons and Paroles”), available at http://www.cga.ct.gov/2007/rpt/2007-R-0533.htm.

The Board offers two types of pardon: an absolute or “expungement” pardon, and a “provisional” pardon. Conn. Gen. Stat. § 54-130a(b).  See generally OLR Research Report No. 2007-R-0561 (“Pardons and Provisional Pardons”), available at http://www.cga.ct.gov/2007/rpt/2007-R-0561.htm. Effective January 1, 2015, the Board also offers a “Certificate of Rehabilitation” (COR),3 which is functionally and procedurally interchangeable with a provisional pardon – with the one significant difference that a Certificate of Rehabilitation is available from the Court Support Services Division (CSSD) to individuals under the court’s supervisory jurisdiction. Conn. Gen. Stat. § 54-130a(b); P.A. 14-27 § 3(a) (2014). By statute, both a provisional pardon and a COR share the same eligibility requirements, offer the same relief, and are subject to expansion and revocation under the same circumstances and to the same effect.4   A COR must be styled either a “certificate of employability” or a “certificate of suitability for licensure,” or both, depending on the scope of relief afforded. § 54-130e(b). Governor Malloy’s administration (2011 – ) has taken the position that it will no longer issue provisional pardons, and will grant CORs instead.  Source: Board of Parole & Probation.

Eligibility
Absolute Pardon

May be sought five years after conviction for felonies, three for misdemeanors. Eligibility period may be waived in “extraordinary circumstances.” Persons convicted under federal law or the laws of another state are ineligible for an absolute pardon. Conn. Gen. Stat. § 54-130a(c) (referring to jurisdiction over crimes “against the state”).

Provisional Pardon & Certificate of Rehabilitation/Employability

May be sought at any time after sentencing, if (1) the person was convicted of a crime in Connecticut or another jurisdiction and resides in the state (2) the relief in the provisional pardon may promote the public policy of rehabilitating ex-offenders through employment and (3) the relief is consistent with the public’s interest in safety and protecting property. Id. §§ 54-130e(a)(2), (c), (d). Individuals convicted under federal law or the law of another state are eligible for a provisional pardon or Certificate of Rehabilitation if they reside or do business in the state.

Effect
Absolute Pardon (“expungement pardon”)

Relieves all legal disabilities, including those relating to employment and licensure, and results automatically in “erasure” of court records relating to the offense. Conn. Gen. Stat. §§ 54-142a(d), (e) (see Part IIB below for effect of erasure).

Provisional Pardon & Certificate of Rehabilitation/Employability

[Provisional pardon] relieve[s] an eligible offender of barriers or forfeitures by reason of such person’s conviction of the crime or crimes specified in such provisional pardon. Such provisional pardon may be limited to one or more enumerated barriers or forfeitures or may relieve the eligible offender of all barriers and forfeitures. No provisional pardon shall apply or be construed to apply to the right of such person to retain or be eligible for public office.

Id. § 54-130e(b). “Barriers” and “forfeitures” are defined as mandatory automatic collateral penalties,5 so that the effect of a provisional pardon seems to be to remove the mandatory barriers and allow individualized consideration under the standards set forth in Connecticut’s nondiscrimination statute.  See Part III, infra.

A provisional pardon does not erase the record of the conviction of the offense, or relieve an obligation to disclose the existence of the conviction. A provisional pardon “merely states that the applicant is employable, making it illegal for the employer to deny employment based on the applicant’s criminal record alone.” http://www.ct.gov/doc/lib/doc/pdf/PardonFAQ.pdf. See also Conn. Gen. Stat. § 54-124e(a)(6) (it is a “form of relief to barriers or forfeitures to employment or the issuance of licenses”); Part III, infra (describing prohibitions on employment and licensing discrimination based on a conviction for which provisional pardon has been granted). Provisional pardon may be enlarged at any time. Id. § 54-124e(h). It is considered temporary while a person is on probation or parole, and may be rescinded in the event of a violation. Id. § 54- 124e(g). Legislation enacted in 2014 requires that a provisional pardon, temporary or otherwise, must be revoked upon conviction for a subsequent crime.  Id. § 54-124e(k) (as amended by P.A. 14-27 (2014)).

Applicable Procedures
Pardon

An application to the Board for a Pardon must describe the offense and reason for seeking a pardon. Instructions are available at http://www.ct.gov/doc/lib/doc/PDF/form/PardonClemencyInstructions.pdf. Application forms for both full and provisional pardons are available at http://www.ct.gov/doc/lib/doc/PDF/form/PardonFormerOffender.pdf. See also Frequently Asked Questions: http://www.ct.gov/doc/lib/doc/pdf/PardonFAQ.pdf. According to the Board, 35% of applications received in 2010 were denied without hearing (about 25% in 2009); about 26% of applications in 2010 (and 22% in 2009) went to hearings held eight times a year in a courtroom at alternating geographic locations throughout the state. See http://www.ct.gov/doc/lib/doc/PDF/PDFReport/PardonsCounts.pdf; Gen. Stat. § 54- 124a(k) (hearings required at least once every three months). The pardon process takes about one year. See http://www.ct.gov/doc/lib/doc/pdf/PardonFAQ.pdf.

Hearing procedure: The board sits in panels of three, and must have a hearing at least once every three months. Conn. Gen. Stat. §§ 54-124a(e), (k). Applications are sent to the States Attorney, who may appear. Conn. Agencies Regs. § 54-124a(j)(2)-6. Board members assigned to pardon hearings must issue written statements containing the reasons for rejecting any application for a pardon. Conn. Gen. Stat. §§ 54-124a (j)(3); Conn. Agencies Regs. § 54-124a (j)(3)-1.  Applicant generally are expected to appear.

Expedited proceeding for nonviolent crimes: The chair, in consultation with the executive director, is authorized by Conn. Gen. Stat. § 54-124a(j)(2) to promulgate rules to dispense with a hearing in cases of nonviolent crimes.   See Conn. Agencies Regs. §§ 54-124a (j)(2)-1a through 8a (expedited pardons process).  The waiting period for seeking pardon of these felonies without a hearing is five years for a felony and three for a misdemeanor.  Conn. Agencies Regs.  § 54-124a(j)(2)-6a.  At least two members of the Board must agree to grant a pardon without a hearing, and have discretion to require a full hearing depending upon the seriousness of the offense and other considerations. Id. § 54-124a (j)(2)-5a.

Procedures for provisional pardons and CORs

Though provisional pardons and CORs are functionally identical, a separate application exists for each. Unlike the provisional pardon application, the COR application does not require disclosure of criminal history, and the Board bears the burden of acquiring an applicant’s criminal history report. Unlike a full pardon, applications for a provisional pardon or COR are reviewed on a paper record. The entity that initially issues a COR (the Board or CSSD) retains the exclusive authority to revoke the certificate or enlarge its scope. Id. Upon revocation, the COR must be surrendered to the entity that issued it. Id. Applications for a COR from the Board are available at http://www.ct.gov/bopp/lib/bopp/BOPP_Certificate_Employability_Application_UPDATED.pdf; applications for a COR from the CSSD certificates are available at http://www.jud.ct.gov/WebForms/forms/AP187.pdf.

Connecticut Pardon Team

This organization offers assistance to individuals interested in applying for pardon, for a modest fee (packages start at $150, or hourly assistance at $75/hour). Their website is filled with helpful information about how to apply for a pardon, including coaching as to how to qualify. http://www.connecticutpardonteam.com/. “The Connecticut Pardon Team has provided information and education to thousands of individuals since 2004 which has helped them determine their eligibility to apply for an expungement pardon. By raising public awareness of the process of applying for a Pardon, and the procedures surrounding the Pardon Process, we have helped to publicize the process and make it more visible[.]” BOPP Forms and regulations are available on the website.6

Frequency of Grants

The number of pardon applications has soared in recent years, from 393 in 2006 to 1555 in 2016. According to Board staff, about half of all applications are from misdemeanants. More than half of those who applied were granted a full hearing, and most of those whose cases were heard were pardoned.  The overall grant rate has increased in recent years, from 47% in 2013 to 62% in 2016.  See http://www.ct.gov/bopp/cwp/view.asp?a=4331&q=550204.  Commutations are infrequent because state courts have general sentence modification authority, although commutations have occasionally been granted to make people eligible for parole.

Fiscal
Year
Applications received
Applications deemed eligible
Granted (Full Pardon/Provisional [COE]/Conditional)

Denied w/o hearing
Denied after hearing

2016
1555
842
672/101/0

407
62

2015
1178
740
366/168/0

328
39

2014
905
782

176/23/0


325
19

2013
926
901

254/48/12


341
14

2012
983
717
277/22/34

381
38

Year
Applications received
—-

Granted w/o public hearing (Administrative, No Shows and Provisional)

Granted after hearing
Denied w/o hearing
Denied after hearing

2011
849

147
(57 Prov. & 18 No- shows)
233
412
39

2010
925

215
(63 Prov. & 32 No- shows)
188
327
48

2009
1290

220
(66 Prov. & 8 No- shows)
259
318
26

2008
835

32 Prov.
467
304
32

2007
495

4 Prov.
312
155
17

2006
393

0
220
144
26

2005
347

0
188
121
38

Source: Connecticut Board of Pardons and Paroles, http://www.ct.gov/bopp/cwp/view.asp?a=4331&q=550204.
Multiple charts account for changes in statistical reporting by the Board.

Contact

Tara Brooks
Pardon Unit, Board of Pardons and Paroles
55 West Main Street
Waterbury, CT 06072
Phone: (203) 805-6643 (Pardons Unit)
Fax: (203) 805-6652
tara.brooks@ct.gov

B.  Judicial sealing or expungement
1.  Erasure of pardoned offenses

Conn. Gen. Stat. § 54-142a(d) provides that where an individual is granted an absolute pardon, “all police and court records and records of the state’s or prosecuting attorney pertaining to such case [are] erased.” Thereafter, “any person [or law enforcement agency] charged with retention and control of such records,” may not disclose to anyone (including law enforcement) any information pertaining to the charge erased and, upon request of the pardoned individual, must “cause the actual physical destruction of [all court] records.” Conn. Gen. Stat. § 54-142a(e); see also Doe v. Manson, 438 A.2d 859 (Conn. 1981) (holding not all prison records are “court records” subject to required destruction under § 54-142a). Although such physical destruction may not occur “until three years have elapsed from the date of the final disposition of the criminal case to which such records pertain,” upon erasure, the individual is “deemed to have never been arrested … with respect to the proceedings so erased and may so swear under oath.” Conn. Gen. Stat. § 54-142a(e); see also State v. Van Heck, 651 N.W. 2d 174, 177-79 (Mich. Ct. App. 2002) (describing effect of a Connecticut pardon).

2.  Diversion/Deferred adjudication programs leading to erasure of records

The erasure provisions of Conn. Gen. Stat. § 54-142a apply to several separate deferred adjudication programs. See Gen. Stat. § 29-33(h) (sale or transfer of pistols and revolvers); Conn. Gen. Stat. § 17a-692 et seq. (Suspended Prosecution or Conviction and Probation and Court-Ordered Treatment for Drug or Alcohol Dependency); § 46b-38c (Family Violence Education Program); § 53a-39a (Alternate Incarceration Program); § 53a-39c (Community Service Labor Program); § 54-56e (Accelerated Pretrial Rehabilitation); § 54-56g (Pretrial Alcohol Education) and § 54-56i (Pretrial Drug Education Program); § 54-56j (Pretrial School Violence Prevention Program).

3.  Juvenile and youthful offenders

Juveniles may petition for “erasure” of records. Conn. Gen. Stat. § 46b-146. Erasure is immediate when a case is dismissed and is entered 13 months after the entering of a nolle prosequi or prosecutorial inaction. , § 46b-133a(b).  Before seeking erasure, juvenile delinquents must wait two years for less serious offenses and four years for more serious offenses; good cause waivers are available. Id. § 46b-146. In addition, the juvenile must be at least age 17 and have no subsequent convictions or pending charges. Id. A person may deny the existence of an erased court record. Id.

4.  Non-conviction records

Conn. Gen. Stat. § 54-142a provides general authority for “erasure” of criminal records where charges have been dismissed or nulled, or where a person has been acquitted. Where the erasure statute applies, a court may proceed on its own motion to dismiss charges, and records will be automatically

Effect of erasure

Under Conn. Gen. Stat. § 54-142a(e), any person whose criminal records have been erased pursuant to that provision or youthful offender statutes, “shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.” See also Gen. Stat. § 31-51i(b), limitations on employer inquiries, below. In Martin v. Hearst, the federal court of appeals held that publishers could not be held liable in damages for refusing to remove from their internet site accounts of a woman’s arrest that had been erased, and that the “deemer” clause “does not purport to change history.” See Martin v. Hearst Newspapers, Docket No. 13-3315 (2d Cir., Jan. 28, 2015)  The court of appeals explained that the Erasure Statute was intended to operate in the context of the justice system, to prohibit disclosure by government agencies, to bar reliance on the arrest in any subsequent criminal proceeding, and to permit the person arrested to swear under oath that the arrest never occurred. However, it was not intended to create any duties on the part of private parties (notably including publishers) or create a cause of cause of action against them.

III.  Nondiscrimination in Licensing and Employment
A.  General Limitations on Consideration of Conviction in Public Employment and Licensing

With limited exceptions relating to law enforcement and certain mortgage-related licenses, public employers and licensing authorities may not disqualify a person automatically on the grounds of a prior conviction but must consider: 1) the nature of crime and its relationship to the job; 2) information pertaining to rehabilitation; and 3) time elapsed since conviction. Conn. Gen. Stat. §§ 46a-80(a) and (c).7 If a conviction of a crime is used as a basis for rejection of an applicant, such rejection shall be in writing and specifically state the evidence presented and reasons for rejection. § 46a-80(d). A copy of such rejection shall be sent by registered mail to the applicant. “In no case may records of arrest, which are not followed by a conviction, or records of convictions, which have been erased, be used, distributed or disseminated by the state or any of its agencies in connection with an application for employment or for a permit, license, certificate or registration.” § 46a-80(e). See Jennifer Leavitt, Walking a Tightrope: Balancing Competing Public Interests in the Employment of Criminal Offenders, 34 CONN. L. REV. 1281 (2002). The public policy in the statute is that “the public is best protected when criminal offenders are rehabilitated and returned to society prepared to take their places as productive citizens and that the ability of returned offenders to find meaningful employment is directly related to their normal functioning in the community.”  Conn. Gen. Stat. § 46a-79.

B.  Limits on discrimination in licensing and employment for provisionally pardoned offenses and certificates of rehabilitation
Private employment

“No employer or employer’s agent, representative or designee shall deny employment to a prospective employee solely on the basis that the prospective employee … had a prior conviction for which the prospective employee has received a provisional pardon or certificate of rehabilitation …” Conn. Gen. Stat. § 31- 51i(d). Discharge of an employee on the same basis is similarly prohibited. See id. § 31-51i(e).

Public employment and licensure

In 2014, new legislation augmented the law governing discrimination in public employment and licensing, see supra, to provide that “the state or any of its agencies shall give consideration to a provisional pardon . . . or a certificate of rehabilitation . . . , and such provisional pardon or certificate of rehabilitation shall establish a presumption that such applicant has been rehabilitated.” § 46a- 80(c) (as amended by P.A. 14-27 (2014)).

C.  Ban-the-Box in public & private employment

Governor Malloy signed HB 5237 in June 2016, banning the box in private and public employment effective January 1, 2017:

No employer shall inquire about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application, unless (1) the employer is required to do so by an applicable state or federal law, or (2) a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.

Conn. Gen. Stat. § 31-51i(b) (as amended by HB 5237 (2016)).  The new law covers “any person engaged in business who has one or more employees, including the state or any political subdivision of the state.”  § 31-51i(a).

HB 5237 did not explicitly repeal the existing ban-the-box provision at § 46a- 80(b), which applies only to state employers (not including political subdivisions of the state):

Except for a position for which any provision of the general statutes specifically disqualifies a person from employment by the state or any of its agencies because of a prior conviction of a crime, no employer, as defined in section 5-270, shall inquire about a prospective employee’s past convictions until such prospective employee has been deemed otherwise qualified for the position.

It is unclear whether this provision remains operative following HB 5237’s enactment. 

D.  Employer inquiries into erased convictions prohibited

No employer, including the state, may require an employee or prospective employee to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to § 54-142a(e). Conn. Gen. Stat. §§ 31-51i(c), (e) (prohibiting denial of employment on this basis), (f) (prohibiting discharge on this basis). An employment application form that contains any question concerning the criminal history of the applicant:

shall contain a notice, in clear and conspicuous language: 1) That the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased . . . 2) that criminal records subject to erasure . . . [include] records pertaining to a finding of delinquency . . . , an adjudication as a youthful offender, a criminal charge that has been dismissed or nulled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon, and 3) that any person whose criminal records have been erased . . . shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.

§ 31-51i(d). No employer may discharge, “or in any manner discriminate against” any person solely because of a conviction, the records of which have been erased. § 31-51i(f). The portion of the employment application containing criminal history may be available to employer’s personnel department and, as necessary in certain circumstances, disclosed by broker-dealers or insured banks under FDIC requirements of background check. §§ 31-51i(g), (h).


  1. In an informal opinion dated October 31, 2008 (on file with author), 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. California forbids parolees from voting and takes a similar position regarding those under community supervision: In 2015 the Secretary of State restored voting rights to those on community supervision, agreeing with a 2014 state Superior Court decision that determined that supervision was distinct from parole. See Press Release, California Secretary of State, Secretary Padilla Ends Appeal of Scott v. Bowen Case (Aug. 4, 2014), http://www.sos.ca.gov/administration/news-releases-and-advisories/2015-news-releases- and-advisories/secretary-padilla-ends-appeal-scott-v-bowen-case/; Briefs and Orders in Scott v. Bowen at https://www.brennancenter.org/legal-work/scott-v-bowen. This reversed a 2011 directive issued by the previous Secretary of State that denied voting rights to those on community supervision because it was akin to parole.
  2. Until 2004, pardon power was exercised by an independent Board of Pardons, under Conn. Gen. Stat. § 18-26 (2003). The Board was staffed by a private practitioner under contract. The Board of Pardons restructured and merged into the Parole Board in July 2004.  See Conn. Gen. Stat. § 54-124e.
  3. Both the Board and CSSD refer to the certificate as a “certificate of employability” on their website and in their applications.
  4. Though a certificate issued by CSSD may be revoked for a violation of probation or parole (as is the case with a certificate issued by the board), the statute governing CSSD-issued certificates is silent as to whether revocation of a CSSD-issued certificate is mandatory upon subsequent conviction as it is for board-issued certificates. However, the CSSD website states that “CSSD will automatically revoke any Certificate of Employability if you are convicted of any crime after you get a certificate.” See http://www.jud.ct.gov/CSSD/cert_emp.htm.
  5. A “barrier” is “a denial of employment or a license based on an eligible offender’s conviction of a crime without due consideration of whether the nature of the crime bears a direct relationship to such employment or license.” Id. § 54- 130e(a)(1). Direct relationship is defined to mean that the nature of the criminal conduct for which a person was convicted has a direct bearing on the person’s fitness or ability to perform one or more of the duties or responsibilities necessarily related to the applicable employment or license.” Id. § 54-130e(a)(2) (as amended by P.A. 14-27 (2014)). A “forfeiture” is “a disqualification or ineligibility for employment or a license by reason of law based on an eligible offender’s conviction of a crime.” Id. § 54-130e(a)(6).
  6. Thoughtful comments on the Pardon Team website suggest some of the common reasons people may apply for pardon:

    Does this sound like you?

    At some time in your past, you made a mistake. You were convicted of a crime, and you served your sentence or completed your probation or parole, and are now attempting to rebuild your life.

    Perhaps you’ve already rebuilt your life – you’ve worked hard, and are now raising a family.  You are a

    hard-working, good person who has a ‘spot’ on your record that is holding you back. You sometimes live in fear that someone will discover your past and hold it against you.

    You’re afraid that you could lose a job that you love, that provides shelter and essentials for your family, or that your past becoming public knowledge could subject those you love to ridicule and persecution.

    You don’t apply for supervisory positions or promotions at your job because you’re afraid that a background check might turn up your past indiscretion, even if it was more than 20 years ago. You have a degree or advanced training, but can’t put it to work because of your record.

    It’s time to stop worrying about your past and DO something about it. . . .

    http://www.connecticutpardonteam.com/aboutourparticipants.htm.

  7. Section 46a-80(a) provides in full as follows:

    “[With limited exceptions,] a person shall not be disqualified from employment by the state of Connecticut or any of its agencies, nor shall a person be disqualified to practice, pursue or engage in any occupation, trade, vocation, profession or business for which a license, permit, certificate or registration is required to be issued by the state of Connecticut or any of its agencies solely because of a prior conviction of a crime.”

    The statement accompanying the 2010 amendments to § 46a-80 provides as follows:

    With two exceptions, the law prohibits the state and its agencies from disqualifying a person from state employment or denying, suspending, or revoking a credential (such as a professional, trade, or business license) solely because of the person’s prior conviction. The exceptions are for law enforcement agencies and licensing mortgage lenders, correspondent lenders, and brokers. Instead, prior to making a decision based on a prior conviction, the relevant agency must consider the nature of the crime, its relation to the job, the person’s rehabilitation, and the time since the conviction or release before finding someone unsuitable for the position or credential.”

    An agency must consider these factors regardless of other law and even when another law purports to govern denying credentials due to lack of good moral character or suspending or revoking a credential due to a conviction.

    See http://www.cga.ct.gov/2010/FC/2010HB-05207-R000628-FC.htm.

Copyright © 2017

Restoration of Rights Series/California

California-Outline-and-Flag

Restoration of Civil/Firearms Rights

A.  Civil Rights

Vote

The right to vote is suspended while a person is “imprisoned or on parole for the conviction of a felony.”Cal. Const. art. II, § 4;Cal. Elec. Code § 21011 A person whose prison sentence is suspended does not lose the right to vote unless and until actually incarcerated in state or federal prison. A person regains voting rights automatically upon completion of any period of parole.  Those serving a term of felony probation, “mandatory supervision,” or “post-relief community supervision” may also vote.2 Presumably, federal offenders on supervised release would be regarded as similarly situated.

3: Jury

Persons convicted of a felony or malfeasance in office may not serve on a jury.  Cal. Civ. Proc. § 203(a)(5).  The California Constitution disqualifies from office anyone convicted of vote-buying, and authorizes laws disqualifying from public office anyone convicted of bribery, perjury, forgery, malfeasance in office, and other “high crimes.”  Cal. Const. art VII, § 8; See Cal. Gov’t § 1021; Cal. Penal §§ 67, 68, 74, 88, 98.  If lost, these civil rights may be regained only by a governor’s pardon.

B.  Firearms

A person convicted of a felony in any jurisdiction, or of a misdemeanor offense involving the violent use of a firearm, cannot own, purchase, receive, possess or exercise custody or control over any firearm. See Cal. Penal §§ 29800, 29805. Federal offenders lose rights under state law only if their offense would be a felony under California law or if they spent at least 30 days in prison.  § 29800(c). The right to possess a firearm is restored by pardon based on a certificate of rehabilitation except when the underlying offense involved the use of a dangerous weapon. § 4852.174  See People v.Frawley, 98 Cal. Rptr.2d 555, 563-64 (Cal. App. 2000);People v. Ratcliff, 273 Cal. Rptr. 253, 259 (Cal. App. 1990).   When granting a pardon, the governor may also provide for a restoration of firearm rights, except where the person was convicted of a felony involving a dangerous weapon.  Cal. Penal § 4854.  Federal offenders may regain right to possess firearms only through full and unconditional presidential pardon, and those convicted of out-of-state convictions may regain rights by pardon expressly restoring firearms rights. See 66 Op. Cal. Att’y Gen. 343 (1983).  Set-aside of conviction does not restore gun rights under state law. See Frawley, 98 Cal. Rptr.2d at 791 (set-aside remedy under Cal. Penal § 1203.4does not “expunge” a conviction so as to remove state firearms disabilities).  It is not entirely clear whether a California set-aside relieves federal firearms liability.5 See also infra Part II B.

Certain misdemeanor offenses, including domestic violence, may result in loss of firearms rights for a period of 10 years.  Cal. Penal § 29805.  Special relief provisions for law enforcement personnel and those convicted prior to enactment in 1991.  §§ 29855, 298606

C.  Summary of California Relief Mechanisms

California offers a variety of routes to restoration of rights, depending on the particular type of conviction or disposition, the individual’s circumstances (including residence), and the reasons for seeking relief.  These are listed below, and most are discussed in the pages that follow.  Individuals uncertain about which type of relief best suits their needs and circumstances should seek advice of a legal aid lawyer familiar with the range of possible routes to relief.

“Wobbler” felony reduction – PC § 17(b) Misdemeanor reduction – PC § 17(d)Early termination of probation – PC § 1203.3 Set aside & dismissal – probation imposed* – PC § 1203.4 Set aside & dismissal – no probation imposed* – PC § 1203.4a Set aside & dismissal – PC § 1170(h) sentence* – PC § 1203.41 Sealing misdemeanor adult conviction by minor – PC § 1203.45 Certificate of Rehabilitation & Pardon – Cal. Penal §§ 4852.01 .Direct Pardon (notably for out-of-state residents) –  Cal Penal § 4852.16Restoration remedy for veterans – PC § 1170.9 Certificate describing arrest as detention – PC § 851.6 Record sealing – juvenile misdemeanor arrest – PC § 851.7 Record sealing & destruction following arrest – factual innocence – PC § 851.8 Record sealing following acquittal – factual innocence – PC § 851.85 Record sealing following conviction – factual innocence – PC § 851.86 Record sealing following non-drug DEJ (NEW 01/01/2014) – PC § 851.87 Record sealing & registration following identity theft – PC § § 530.6/530.7 Record sealing following drug diversion – PC § 851.90 Juvenile Record Sealing & Other Juvenile Record Remedies – W & I Code §§ 781, 1772, 1179, PC § § 851.7, 1203.47Automatic destruction of records of some marijuana arrests/convictions – HS § 11361.5

* Also known as “expungement”

II.  Discretionary Restoration MechanismsA.  Governor’s PardonAuthority

For persons convicted of no more than one felony, the pardon power rests exclusively with the governor, who may request investigation and advisory recommendation from the Board of Parole Hearings (formerly the Board of Prison Terms).Cal. Const. art. V, § 8(a);Cal. Penal §§ 4800, 4812-4813. “The Governor may not grant a pardon or commutation to a person twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring.” Cal. Const. art. V, § 8.  The governor is required by statute to refer applications from persons convicted of two or more felonies to the BPH (though he is not bound by its recommendation). Cal. Penal § 4802.  The BPH, “after investigation, shall transmit its written recommendation upon such application to the Governor, together with all papers filed in connection with the application.”  § 4813.  Governor required by the constitution to report to the legislature “each reprieve, pardon, and commutation granted, stating the pertinent facts and the reasons for granting it.”Cal. Const. art. V, § 8; Cal. Penal § 4852.16.

Administration

By statute, the Board of Parole Hearings consists of 17 commissioners appointed by the governor to staggered three-year terms, which may be renewed. Commissioners are full-time employees, and can be removed by the governor only for misconduct or incompetence or neglect, after a full hearing.7 Cal. Gov. Code § 12838.4 Board of Parole Hearings, Dep’t of Corrs. & Rehab., http://www.cdcr.ca.gov/BOPH/.  Currently, only 12 commissioners sit on the Board. Board of Parole Hearings, Dep’t of Corrs. & Rehab, http://www.cdcr.ca.gov/BOPH/(last visited March 17, 2016).

Eligibility

Instructions issued by the Governor’s Office describe a pardon  as follows: :

A gubernatorial pardon is an honor that may be granted to people who have demonstrated exemplary behavior following their conviction. A pardon will not be granted unless it has been earned. Obtaining a pardon is a distinct achievement based upon proof of a productive and law-abiding life following conviction. Historically, governors have granted very few pardons.

Office of the Governor,How to Apply for a Pardon, available athttp://gov.ca.gov/docs/How_To_Apply_for_a_Pardon.pdf (revised Sept. 5, 2013).

Absent extraordinary and compelling circumstances, an application will not be considered unless the applicant has been discharged from probation or parole for at least 10 years without further criminal activity during that period. Federal offenders and persons convicted under the laws of a state other than California are ineligible for a gubernatorial pardon, and may regain their civil rights (other than the right to vote) only through a pardon or similar action in the jurisdiction of their conviction.

Process

There are two procedural routes to pardon.  For those who reside in the state, the pardon process ordinarily starts with an application for a Certificate of Rehabilitation in the county of residence. Convicted persons who reside outside the state, or who are otherwise ineligible for a COR (e.g. misdemeanants, certain sex offenders) may apply directly to the governor.  See How to Apply for a Pardon,supra.

Certificate of Rehabilitation

The process for petitioning for a Certificate of Rehabilitation (COR) is described in Part II-B-3, infra.  If a COR is issued, the court forwards to governor (and Supreme Court in the case of person convicted of more than one  felony) with a recommendation that the individual be pardoned.  Cal. Penal § 4852.14. The forwarded certificate itself serves as an application for pardon. §4852.16. Upon receipt of COR and recommendation from court, governor may request that BPH investigate and make a recommendation. § 4812. 8. DA and court are asked for views.§ 4803.  Indigent persons seeking a pardon through a certificate of rehabilitation are entitled to representation by a public defender. § 4852.08; Ligda v. Superior Court of Solano County, 85 Cal. Rptr. 744, 752 (Cal. Ct. App. 1970).

If the applicant was twice convicted of a felony, the governor must receive a recommendation from a majority of the Supreme Court before granting.§ 4852.16  No requirement that governor seek Court’s recommendation, and governor is not bound to grant if Court so-recommends.  If recommendation is sought, Court holds a hearing and application is treated like a case and assigned a number.  Cal. Sup. Ct., Internal Operating Practices and Procedures, § XIVA, XV.  BPH is obligated to make a recommendation in these cases as well, but this does not limit the governor’s ability to act. § 4813.  Notice must be given to DA at least 10 days before action.  § 4804.

“Direct pardon”

(Persons ineligible for Certificate of Rehabilitation) – Process explained in “How to Apply for a Pardon,”supra.  Application available athttps://www.gov.ca.gov/docs/Application_for_Pardon.pdf.  Applications are made directly to the governor, and court of conviction, DA, BPH, and the Supreme Court serve the same roles described above.   See Cal. Penal §§ 4801 – 4813.  There is no right to a public defender in direct pardon cases.

Effect

A pardon restores civil rights lost, but does not seal or expunge the record of conviction.  The conviction may still be considered in certain licensing proceedings.Cal. Penal §§ 4852.15,4853. 9

The right to possess a firearm is restored upon a full and unconditional pardon based upon a COR, except when the underlying offense involved the use of a dangerous weapon.  Cal. Penal § 4852.17.  A “direct” pardon only restores firearms rights if specified, and the same exception for dangerous weapon offenses applies.  See §4854.   Only a pardon restores civil rights  See Office of the Governor,How to Apply for a Pardon, available athttp://gov.ca.gov/docs/How_To_Apply_for_a_Pardon.pdf, comparing the effect of pardon and COR.  A pardon based on a COR  must be recorded on the person’s criminal record and reported to the FBI. § 4852.17.

Frequency of Grants

As of April 15, 2017, Governor Jerry Brown had issued 929 pardons during his third and fourth terms as governor. See Gov. Jerry Brown issues pardons, commutes sentences hours before Easter Sunday, http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-gov-jerry-brown-issues-pardons-1492284380-htmlstory.htmlMost of Governor Brown’s pardons went to ordinary citizens of California, though one “celebrity” pardon was granted in 2015.  See Robert Downey Jr. among Jerry Brown’s 91 Christmas pardons, The Sacramento Bee, http://www.sacbee.com/news/politics-government/capitol-alert/article51502260.html(Dec. 24 2015).  (During his first two terms (1976-1984) he issued 403 pardons.)  Brown’s pardons are generally issued at Easter and Christmas.  A majority of the convictions pardoned have been drug offenses, almost all more than two decades old, and all recipients residing in the state first received a certificate of rehabilitation from a court, in accordance with the established process. There are several thousand pardon applications filed each year through court-issued certificates of rehabilitation.

The pardoning record of recent previous governors is as follows:  Governor Schwarzenegger issued only 16 pardons during his two terms, two to the same person.  Governor Davis granted none; Governor Wilson granted 13; Governor Deukmejian, 328; Governor Jerry Brown, 403; Governor Reagan, 575.   Source: California Board of Parole Hearings.

Contact

Office of the Governor
(916) 445-0873.

B.  Judicial set-aside and sealing1.  Set-Aside of ConvictionEligibility

Probationers:  In any case where a person sentenced to probation (including felony offenders, but not including any sex offenders) has successfully completed the sentence and has no charges pending, “or in any other case in which a court, in its discretion and in the interests of justice, determines that a defendant should be granted the relief available under this section,” the person may apply to the court to withdraw the plea and the court must (“shall”) “set aside” the verdict of guilty.Cal. Penal § 1203.4(a)(1).  This has the effect of releasing the offender “from all penalties and disabilities resulting from the offense of which he or she has been convicted.” § 1203.4(a) also provides that “the probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon.”   No relief shall be granted under § 1203.4unless the prosecuting attorney has been given 15 days’ notice of the petition for relief.  § 1203.4(e)(1).

Misdemeanants not sentenced to probation, and those convicted of infractions (including traffic infractions, possession of small amounts of marijuana), may apply for change of plea and dismissal of charges one year from entry of judgment, which the court “shall” grant if the petitioner can show, in addition to successful completion of probation and no charges pending, that they have, “since the pronouncement of judgment, lived an honest and upright life and ha[ve] conformed to and obeyed the laws of the land.” Cal. Penal § 1203.4a(a). In 2011 a provision was added providing that the court “may” grant relief to misdemeanants who do not satisfy the “honest and upright life” standards in (a).  § 1203.4a(b).  Anomalous higher standard under this provision compared to § 1203.4 is noted in People v. Bradley,57 Cal. Rptr. 82, 84 (Cal. Ct. App. 1967).

Minor felony offenders sentenced to county jail: In October 2013 Governor Brown signed into law a new authority for courts to set aside the conviction of defendants sentenced to county jail for a felony under the so-called Realignment legislation enacted in 2011.  A defendant so sentenced may withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty, after the lapse of one or 2 years following the defendant’s completion of the sentence, provided that the defendant is not currently serving a sentence or charged with the commission of any offense. Cal. Penal § 1203.41(a).

Proposition 47:  Proposition 47 substantially expanded the number of offenses that are eligible for set-aside by reducing certain felonies to misdemeanors, and limiting sentences that may be imposed. A number of individuals previously convicted of felonies are permitted under this 2014 authority to return to court to have their convictions reduced to misdemeanors, and therefore become eligible for set-aside under Cal. Penal § 1203.4aCalifornia’s Proposition 47 and collateral consequences: Part II (reentry and restoration of rights), Collateral Consequences Resource Center,http://ccresourcecenter.org/2014/12/01/californias-proposition-47-collateral-consequences-part-ii-reentry-restoration-rights (Dec. 1, 2014).

Proposition 64:  Approved in November 2016, Proposition 64 (“Adult Use of Marijuana Act”) made a number of prior marijuana convictions eligible for set-aside, either directly or by reducing felony convictions to misdemeanors.  Seethe helpful memorandum prepared by Judges Richard Couzens and Tricia Bigelow on “Resentencing Procedures and Other Selected Provisions” (November 2016),  http://www.courts.ca.gov/documents/prop64-Memo-20161110.pdf.

Effect of set-aside

While these statutes are frequently characterized as authorizing “expungement,” the setting aside of a conviction does not seal or otherwise limit public access to the record.   UnderCal. Penal § 1203.4(a)(1), “the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.”  See, e.g., People v. Field,31 Cal. App. 4th 1778 (1995) (“Expungement, however, does not obliterate a conviction for all purposes, and records of an expunged conviction are accessible to the public”).

Under California law, convictions that are set aside may be used when sentencing petitioner for subsequent convictions, for prosecution for possession of firearm by ex-felon, for purposes of California’s “three strikes” law, and for denial of professional licenses. See Doe v. Brown, 177 Cal. App. 4th 408, 423 (Cal. App. 2009)(sex offender whose conviction set aside pursuant to § 1203.4 still required to register); People v. Frawley, 98 Cal. Rptr.2d 555, 563-64 (Cal. App. 2000) (set-aside does not “expunge” conviction so as to restore firearms rights); see also Jennings v. Mukasey, 511 F.3d 894 (9th Cir. 2007)(set-aside under § 1203.4 does not “expunge” a prior conviction for purposes of eliminating liability under 18 U.S.C. § 922(g), the federal felon in possession statute).  In addition, setting aside alien’s plea of guilty, substitution of plea of not guilty and dismissal of information pursuant to § 1203.4(a) does not expunge conviction for purposes of avoiding deportation. Garcia-Gonzales v. Immigration and Natur. Service, 344 F.2d 804, 806 (9thCir. 1965), cert. denied, 382 U.S. 840 (1965).   Finally, the 9th Circuit has held that state convictions that were “set aside” were not “expunged” for purposes of calculating defendant’s criminal history under United States Sentencing Guidelines.  U.S.  v. Hayden, 255 F.3d 768, 770 (9th Cir. 2001) (California set-aside does not amount to expungement under USSG 4A1.2(j)), cert. denied, 534 U.S. 969, 122 S. Ct. 383 (2001).

That said, there are substantial employment benefits for individuals in having a conviction set aside. See Cal. Labor Code § 432.7(a); Part IIIinfra.  In addition, under regulations of the California Fair Employment and Housing Commission, it is unlawful for a public or private employer to inquire into or seek information about a conviction that has been set-aside and dismissed pursuant to this authority. See Cal. Code Regs. tit. 2 § 11017(d)(1).State business and occupational licensing boards may not deny an applicant solely on the basis of a conviction that was set-aside and dismissed. Cal. Bus. & Prof. Code § 480(c).

Set-aside procedure

The procedure for obtaining a set-aside is explained at this advocacy website: Starting Over Strong, http://www.startingoverstrong.com/Home_Page.php A Cost-Benefit Analysis of Criminal Record Expungement in Santa Clara County, Stanford University, Public Policy Program, https://publicpolicy.stanford.edu/publications/cost-benefit-analysis-criminal-record-expungement-santa-clara-county.

2.  SealingUnder-age first offender misdemeanants

Misdemeanants who were under 18 at the time their crime was committed, and who are eligible for or who received relief under either 1203.4 or 1203.4a, may petition the court to have the record sealed. Cal. Penal § 1203.45(a).

Juvenile adjudications

Most juvenile adjudications may be sealed after 5 years upon petition to the court, by the individual or the probation department, after jurisdiction is terminated or after the child reaches age 18.  Court must find that 1) the child has not subsequently been convicted of a felony or a misdemeanor crime of moral turpitude; and 2) that “rehabilitation has been attained to the satisfaction of the court.”  See Cal. Welf. & Inst. § 781(a)(1)(A).  DA must be notified.  A sealing order may direct that a person be removed from sex offender registry.  § 781(a)(1)(C).  “The records shall be confidential and shall be available for inspection only by the court, jury, parties, counsel for the parties, and any other person who is authorized by the court to inspect them.”  § 781(b).  “Unless for good cause the court determines that the juvenile court record shall be retained, the court shall order the destruction of a person’s juvenile court records that are sealed pursuant to this section” after five years.  § 781(d).  DMV records remain available to insurers.  § 781(c).  Records of certain serious offenses committed after reaching age 14 may not be sealed.  § 781(a)(1)(D).   “Once the court has ordered a person’s records sealed, the proceedings in the case shall be deemed never to have occurred, and the person may properly reply accordingly to any inquiry about the events, the records of which are ordered sealed.” § 781(a)(1)(A).  Effective January 1, 2015, the juvenile court or probation officer must inform any person brought within their jurisdiction of the availability of sealing, and must develop explanatory materials.  See § 781(h).

Nonconviction records

Cal. Penal § 851.8(d):  In any case where a person has been arrested and an accusatory pleading has been filed, but where no guilty plea or conviction has occurred, the court may, with the concurrence of the prosecuting attorney, order that the records be sealed and destroyed.  Most juvenile misdemeanor arrest records may be sealed pursuant to § 851.7(a).

Expungement of certain marijuana convictions and arrests

Cal. Health & Safety Code §11361.5:  Authorizes destruction of arrest and conviction records for possession or transportation of small amounts of marijuana violations of marijuana laws, either by adult and juvenile offender, two years from the date of conviction or arrest if no conviction. Where violation occurs on school property by a person under the age of 18, “the records shall be retained until the offender attains the age of 18 years at which time the records shall be destroyed as provided in this section.”

** See Part III for discussion of prohibition on employer inquiry into and consideration of non-conviction records, sealed records, convictions that have been set aside

3.  Certificate of RehabilitationEligibility

A California resident convicted of a state law offense may apply to the Superior Court of his county of residence for a Certificate of Rehabilitation (COR).  Cal. Penal §§ 4852.01 through .06, 4852.19.  The COR is an order embodying a court’s finding that the defendant is rehabilitated and its recommendation that he be pardoned.  § 4852.13; see Section IIA, supra.  To obtain a COR, a convicted person must complete his or her sentence and period of parole, remain a resident of the state for a specified period with no further violations of the law, demonstrate good conduct, and satisfy other statutory requirements.  §§ 4852.01, 4852.03, 4852.05, 4852.06.   Prison wardens are required to advise prisoners of their right to apply for a COR upon their release from prison. § 4852.21.

A person may apply to court after completion of “period of rehabilitation” running from release from prison or release on probation:  five years’ residence in CA plus four years for serious offenses and two years for less serious offenses.  Court may order additional years in case of concurrent sentences.  (Sex offenders who are required to register, except for indecent exposure, have an additional five-year waiting period, for a total necessary rehabilitation period of 10 years.)  § 4852.03.  Effective January 1, 2014, a trial court hearing an application for a COR before the applicable period of rehabilitation has elapsed may grant the application if the court, in its discretion, believes relief serves the interests of justice. § 4852.22.

Persons convicted of misdemeanors are ineligible to obtain a COR, except for certain sex offenders.  See Newland v. Board of Governors 19 Cal. 3d 705, 712-714 (Cal. 1977).

Effect

Sections 480(b) and490 of the California Business & Professional Code provide that no one who has been granted a COR shall be denied an occupational license “solely” on the basis that he has been convicted of a felony.  See Part III, infra.  See alsoCal. Ed. Code § 44346.1(d) (teacher’s certificate; mandatory bar converted to discretionary). A COR mitigates the effect of some statutory employment barriers by removing mandatory bars, serving as a basis for waiver, and evidencing rehabilitation.  See, e.g., Cal. Health & Safety § 1522(g)(1)(A)(ii) (waiver for licensed community care facility employment; certain offenses excepted);Cal. Admin. Code tit. 10, § 3723 (factors into rehabilitation determination for real estate appraiser license); Cal. Ed. Code § 44830.1(f) (public school employment; may not deny solely on the basis of conviction if COR issued).  See also Doe v. Saenz, 45 Cal. Rptr. 3d 126, 142-43 (Cal. App. 2006) (limitation of certificate to certain serious offenses in connection with employment in community care and childcare facilities violates Equal Protection).

A COR provides relief from sex offender registration obligations for less severe offenses.  SeeCal. Penal § 290.5.

A COR does not restore civil rights, seal or expunge a criminal record, or allow an applicant for employment to claim they have not been convicted of a crime.  See Office of the Governor, How to Apply for a Pardon, available athttp://gov.ca.gov/docs/How_To_Apply_for_a_Pardon.pdf.

Procedure for Applying

The petition for COR must be filed in the superior court of the applicant’s current county of residence.  Cal. Penal § 4852.06.  The petition form can usually be obtained from the court clerk, probation department, or public defender’s office. The petitioner is required to notify the district attorney in their county of residence and the district attorney of each county in which the petitioner was convicted of a felony. The notice must identify all crimes for which the person is requesting a COR. The form for sending these notices can also be obtained from the court clerk, probation department, or public defender.  Once a petition is filed, the court will schedule a hearing. Before the hearing, the court may require an investigation by the district attorney. § 4852.10.  At the hearing, the court may require testimony and records pertaining to the petitioner, including information about the conviction offense and the person’s conduct while incarcerated and since release.

The petition form and additional information is available here: http://www.sdcourt.ca.gov/pls/portal/docs/PAGE/SDCOURT/GENERALINFORMATION/FORMS/CRIMINALFORMS/PKT016.PDF.

Representation

Persons applying for a COR are entitled to assistance in processing their petitions from the county probation office(s), state parole office(s), and for persons under the age of 30, from the California Youth Authority. The person may also be represented by counsel of his or her own selection. If the person does not have counsel, he or she may be represented by the public defender, the probation department, or the court may assign counsel. Cal. Penal § 4852.08.

Standards

Cal. Penal § 4852.13(a):

Except as otherwise provided in subdivision (b), if after hearing, the court finds that the petitioner has demonstrated by his or her course of conduct his or her rehabilitation and his or her fitness to exercise all of the civil and political rights of citizenship, the court may make an order declaring that the petitioner has been rehabilitated, and recommending that the Governor grant a full pardon to the petitioner. This order shall be filed with the clerk of the court, and shall be known as a certificate of rehabilitation.

(Exception in subsection (b) for registered sex offenders “if the court determines    that the petitioner presents a continuing threat to minors . . .

4. Felony treated as misdemeanor (“Wobbler” offenses)

A crime that is otherwise a felony (“punishable by either imprisonment in the state prison or the county jail”) may be treated as a misdemeanor “for all purposes” if the court imposes punishment other than a state prison term, or “grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” Cal. Penal § 17(b)(1) and (b)(3).  Also, the prosecutor may file a complaint treating the offense as a misdemeanor. § 17(b)(4).  Upon a request by California’s Commission on Peace Officer Standards and Training, the California Attorney General opined that the Commission’s power to revoke a peace officer license when an officer is convicted of a felony did not extend to convictions under § 17(b) which are to be treated as misdemeanors “for all purposes” unless the conduct itself involved moral turpitude or some other indication of the applicant’s unfitness to be a peace officer. 76 Op. Cal. Att’y Gen. 270, 275 (1993).  However, while a blanket prohibition would be inappropriate in light of the purposes of § 17(b), case-by-case analysis of an applicant’s conduct would permit denial of licensure by the California Commission on an individual basis.

III.  Nondiscrimination in Licensing and EmploymentA.  Licensing

Cal. Bus. & Prof. Code, §§ 480et seq. contains detailed provisions for considering conviction in the context of licensing. The list of boards covered by these provisions is at http://www.dca.ca.gov/about_dca/entities.shtml.

Denial of License – Effect of Certificate of Rehabilitation/Set-aside

Cal. Bus. & Prof. § 480(b) prohibits denial of a license based on a felony conviction if the person has received a certificate of rehabilitation, or based on a misdemeanor conviction if the person is deemed rehabilitated:

(b) Notwithstanding any other provision of this code, a person shall not be denied a license solely on the basis that he or she has been convicted of a felony if he or she has obtained a certificate of rehabilitation under Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code or that he or she has been convicted of a misdemeanor if he or she has met all applicable requirements of the criteria of rehabilitation developed by the board to evaluate the rehabilitation of a person when considering the denial of a license under subdivision (a) of Section 482.

Sections 481 and 482provide that each Board must develop criteria for determining rehabilitation, for considering rehabilitation, and for determining substantial relationship.   For example, criteria for determining rehabilitation for real estate appraiser license in Cal. Code Regs. tit. 10 § 3723, include passage of time, restitution to victim, judicial relief (certificate of rehabilitation), evidence of involvement in community and stability of family life, abstinence from controlled substances, testimony of affiant.  For procedure for denial oflicense based onconviction, see Cal. Bus. & Prof. §§ 485-489.

Cal. Bus. & Prof. Code § 480(c) provides that a license may not be denied solely on the basis of a conviction that has been set-aside and dismissed under Cal. Penal §§ 1203.4, 1203.4a, or 1203.41.

Suspension and Revocation of Licensee – Substantial Relationship Standard

Cal. Bus. & Prof. § 490: A board may suspend or revoke a license on the ground that the licensee has been convicted of a crime only if the crime is “substantially related” to the qualifications, functions, or duties of the business or profession for which the license was issued.  Compare Petropopulos v. Department of Real Estate, 47 Cal. Rptr 3d 812, 822-23 (Cal. App. 2006), modified on denial of rehearing (misdemeanor domestic battery not substantially related to real estate license) with Robbins v. Davi, 95 Cal. Rptr. 3d 792, 797 (Cal. App. 2009) (misdemeanor building code violations substantially related to license as real estate broker).  See § 494 for procedures foruspension andevocation.

Recognition of prison training in qualifications for license

Cal. Bus. & Prof. § 23.9:

[A]ny individual who, while imprisoned in a state prison or other correctional institution, is trained, in the course of a rehabilitation program approved by the particular licensing agency concerned and provided by the prison or other correctional institution, in a particular skill, occupation, or profession for which a state license, certificate, or other evidence of proficiency is required by this code shall not, when released from the prison or institution, be denied the right to take the next regularly scheduled state examination or any examination thereafter required to obtain the license, certificate, or other evidence of proficiency and shall not be denied such license, certificate, or other evidence of proficiency, because of his imprisonment or the conviction from which the imprisonment resulted, or because he obtained his training in prison or in the correctional institution, if the licensing agency, upon recommendation of the Adult Authority or the Department of the Youth Authority, as the case may be, finds that he is a fit person to be licensed.

B.  EmploymentConsideration of certain criminal records

Under amendments toCal. Labor Code § 432.7(a) that took effect January 1, 2014, public and private employers are prohibited in most situations from inquiring into or considering any arrest or detention that did not result in conviction, resulted in referral to any pretrial or post-trial diversion program, any conviction that has been ordered sealed, or judicially dismissed (set aside) pursuant to Cal. Penal §§ 1203.4, 1203.4a, 1203.41, or 1203.345, or (as of 2016) any arrests, dispositions, or other actions that occurred under juvenile court jurisdiction.  See Part II,supra; s Cal. Code Regs. tit. 2 § 11017.1(b). Cal. Labor Code § 432.8further specifies that employers may not inquire about non-felony marijuana convictions more than two years old.  These prohibitions on inquiry do not apply if the employer is required by law to obtain that information, the applicant would be required to possess or use a firearm in the course of his or her employment, an individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been sealed, statutorily eradicated, or judicially dismissed following probation, or if the employer is prohibited by law from hiring an applicant who has been convicted of a crime.

See also Cal. Labor Code § 432.7 (g)(1)-(3) (law enforcement agencies and others authorized to receive criminal history information may not disclose “with intent to affect a person’s employment” any information about arrest not resulting in conviction, or about referral to pretrial or post-trial diversion program).

In 2017 the regulations of the California Fair Employment and Housing Commission were amended to provide that consideration of criminal history by employers may violate the state’s Fair Employment and Housing Act if such consideration has “an adverse impact on individuals on a basis protected by the Act, including, but not limited to, gender, race, and national origin.”  Cal. Code Regs. tit. 2 § 11017.1(d) – (g).10 If such an adverse impact can be shown, an employer has the burden of showing that the practice at issue is “job-related” and “consistent with business necessity;” and, even then, the employer may still be in violation if “less discriminatory alternatives” would achieve the employer’s legitimate goals.

Ban-the-Box

Under Cal. Labor § 432.9, a state or local agency “shall not ask an applicant for employment to disclose, orally or in writing, information concerning the conviction history of the applicant . . . until the agency has determined the applicant meets the minimum employment qualifications, as stated in any notice issued for the position.”  This section does not apply to any position for which a background check is mandated by law, to any person working on a temporary or permanent basis for a criminal justice agency.  This provision is effective July 1, 2014.  Under policies put in place under Governor Schwarzenegger, questions asking about criminal convictions were removed from the state employment form.  Even where a criminal record is “pertinent” to a particular job, the Criminal Record Supplemental Questionnaire restricts inquiries to felonies and domestic violence misdemeanors.

In 2014 The Fair Chance Employment Act was enacted (codified at Cal Pub Contract Code § 10186), prohibiting state contractors providing onsite construction-related services from inquiring about the criminal history of applicants for construction jobs on an initial application.

Notice of reasons for denial of public employment

Cal. Gov. Code § 11546.6requires that a person, who is rejected as a result of a criminal background check by a state agency for employment, contract, or volunteer work involving confidential or sensitive information, be provided with a copy of his or her criminal record. Additionally, this law requires the state to institute a written appeals process for rejected individuals to challenge ineligibility determinations based on the individual’s criminal record.

C. Regulation of background-checking

California’s Investigative Consumer Reporting Agencies Act, Cal. Civ. C. § 1786 et seq. (the California analogue to FCRA), provides:

No consumer credit reporting agency shall make any consumer credit report containing any of the following items of information:
….

(6)  Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that in the case of a conviction a full pardon has been granted, or in the case of an arrest, indictment, information, or misdemeanor complaint a conviction did not result.

§ 1785.1311

Background check companies “may not make an inquiry for the purpose of preparing an investigative consumer report on a consumer for employment purposes if the making of the inquiry by an employer or prospective employer of the consumer would violate applicable federal or state equal employment opportunity law or regulation.” Cal. Civ. C. § 1786.20(c). Note that by inquiring into and reporting misdemeanors dismissed pursuant to Cal. Penal §§ 1203.4, 1203.4a, the background check company is going beyond what a private employer can do.

Effective in January 2013, every entity that conducts a criminal background check under the mandate of a state or local occupational or licensing law must automatically provide the subject of the background check with a copy of his or her state and federal rap sheet whenever the agency makes a negative decision based on the record.  SeeCal. Penal § 1110512

Effective January 2017, “imprisoned” in section 2101 is defined as “currently serving a state or federal prison sentence,” making it clear that those serving felony sentences in county jails retain their voting rights.  Cal. Elec. Code § 2101(c)(1) (as amended by AB-2466 The Criminal Justice Realignment Act of 2011 (CJRA) created three new categories of sentencing for people convicted of low-¬level felonies: mandatory supervision, post–release community supervision (PRCS), and a term in county jail. In 2014, a California court held that those on mandatory supervision and PRCS must be permitted to vote, and the State agreed to recognize the voting rights of more than 50,000 people in these two categories. See Briefs and Orders in Scott v. Bowen at https://www.brennancenter.org/legal-work/scott-v-bowen; Press Release, California Secretary of State, Secretary Padilla Ends Appeal of Scott v. Bowen Case (Aug. 4, 2014),http://www.sos.ca.gov/administration/news-releases-and-advisories/2015-news-releases-and-advisories/secretary-padilla-ends-appeal-scott-v-bowen-case/.  In 2016, AB 2466 amended the Elections Code to reflect the decision in Scott v. Bowen and clarified that the third category of CJRA sentencing – a term in county jail – likewise does not strip people of the right to vote.   Seenote 1, supra  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.  (Opinion on file with author.) § 4852.17:

Whenever a person is granted a full and unconditional pardon by the Governor, based upon a certificate of rehabilitation, the pardon shall entitle the person to exercise thereafter all civil and political rights of citizenship, including, but not limited to: (1) the right to vote; (2) the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 17800 and 23510 and Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.

In 2007, the federal court of appeals for the 9th Circuit followedFrawley in holding that a set-aside under § 1203.4 does not “expunge” a prior conviction for purposes of eliminating liability under 18 U.S.C. § 922(g), the federal felon in possession statute.  See , 511 F.3d 894 (9th Cir. 2007).  However, that court had earlier held in U.S. v. Laskie, 258 F.3d 1047 (9th Cir. 2001) that a Nevada conviction that had been set aside could not serve as predicate felony for federal firearms prosecution.Law enforcement personnel with a single misdemeanor domestic violence conviction may petition the court to regain firearms rights, but only once.  § 29855(a).  “In making its decision, the court shall consider the petitioner’s continued employment, the interest of justice, any relevant evidence, and the totality of the circumstances. The court shall require, as a condition of granting relief from the prohibition under this section, that the petitioner agree to participate in counseling as deemed appropriate by the court.”  § 29855(e).  Persons subject to this prohibition by virtue of a conviction prior to the date of enactment may also petition the court for relief, but here again only once. § 29860(a). In making its decision, the court may consider the interest of justice, any relevant evidence, and the totality of the circumstances. It is the intent of the Legislature that courts exercise broad discretion in fashioning appropriate relief under this paragraph in cases in which relief is warranted.” § 29860(e).  Effective July 1, 2005, a new California Department of Corrections and Rehabilitation (CDCR) assumed responsibility for all correctional services.  The BPH was created by collapsing three boards into one – the BPT, Youthful Offender Parole Board, and the Narcotic Addict Evaluation Authority.  See CA SB 737 (enrolled May 10, 2005).   Cal. Penal § 4812:

[T]he board shall examine and consider all applications so referred and all transcripts of judicial proceedings and all affidavits or other documents submitted in connection therewith, and shall have power to employ assistants and take testimony and to examine witnesses under oath and to do any and all things necessary to make a full and complete investigation of and concerning all applications referred to it.

Cal. Penal § 4852.15:

Nothing in this chapter shall be construed to abridge or impair the power or authority conferred by law on any officer, board, or tribunal to revoke or suspend any right, privilege, or franchise for any act or omission not involved in his or her conviction, or to require the reinstatement of the right or privilege to practice or carry on any profession or occupation the practice or conduct of which requires the possession or obtaining of a license, permit, or certificate. Nothing in this chapter shall affect any provision of Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code or the power or authority conferred by law on the Board of Medical Examiners therein, or the power or authority conferred by law upon any board that issues a certificate permitting any person to practice or apply his or her art or profession on the person of another. Nothing in this chapter shall affect any provision of Chapter 4 (commencing with Section 6000) of Division 3 of the Business and Professions Code or the power or authority in relation to attorneys at law and the practice of the law in the State of California conferred by law upon or otherwise possessed by the courts, or the power or authority conferred by law upon the State Bar of California or any board or committee thereof.

However, per Cal. Bus. & Prof. § 480(b), a license may not be denied solely on the basis of a felony if the applicant possesses a Certificate of Rehabilitation (COR). See also Part III-A, infra.

This provision tracks closely with the EEOC’s guidance on consideration of criminal records under Title VII of the federal Civil Rights Act which endorses a disparate impact theory of liability based on criminal history consideration that negatively impacts groups, such as racial minorities, protected under the Act.  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 .   Because the California’s ICRRA antedates the federal FCRA, its stricter limitations on credit reporting companies are not preempted by 15 U.S.C.§ 1681t(a).  See Love et al, Collateral Consequences of Criminal Conviction § 5:31. See Madeline Neighly & Maurice Emsellem, National Employment Law Project, Wanted: Accurate Background Checks for Employment 24 (July 2013), available at http://www.nelp.org/content/uploads/2015/03/Report-Wanted-Accurate-FBI-Background-Checks-Employment.pdf:

[I]n FY 2011/12, California exceeded one million FBI criminal background checks for employment and licensing purposes, thus representing a considerable share of the nearly 17 million rap sheets generated by the FBI for employment screening. California laws mandating FBI background checks cover a range of occupations, with the highest volume of FBI background checks produced for school employees, social services workers, private security guards, healthcare workers, and law enforcement personnel. California lawmakers and state officials have taken their responsibility seriously to ensure that the large numbers of FBI checks conducted for employment and licensing purposes are up to date and that workers have the information they need to verify accuracy. While the California state repository only has dispositions for 57 percent of all arrests, the California Department of Justice timely ensures the completeness and accuracy of records that are requested for employment and licensing decisions.

Restoration of Rights Series/Arkansas

ArkansasI.  Restoration of Civil/Firearms Rights
A.  Vote

The right to vote is lost upon conviction of a felony, and automatically restored upon completion of sentence, including any term of probation or parole.  Ark. Const. art. III, §§ 1 (lawful registration to vote required for electors), 2 (prohibiting restrictions on suffrage “except for the commission of a felony, upon lawful conviction thereof); amended by Ark. Const. art. 51, § 11(a)(4) (requiring city registrars to cancel the registration of voters “[w]ho have been convicted of a felony and have not discharged their sentence or been pardoned”).  This provision applies to felony convictions from any jurisdiction. See Merritt v. Jones, 533 S.W.2d 497, 500 (Ark. 1976) (conviction from another jurisdiction is a “felony” if punishable in that jurisdiction by imprisonment in a penitentiary, or death).1

B.  Jury/Office

Arkansas law disqualifies from jury service those “who have been convicted of a felony and not pardoned.”  Ark. Code Ann. § 16-31-102(a)(4).  The Arkansas Constitution disqualifies anyone “convicted of embezzlement of public money, bribery, forgery or other infamous crime” from election to the General Assembly and holding any office of trust or profit in this State.  Ark. Const. art. V, § 9.  Infamous crimes “include elements of deceit and dishonesty.” Unlike the right to serve on a jury, a pardon does not restore eligibility to hold office, see State v. Oldner, 206 S.W.3d 818, 826 (Ark. 2005); Ridgeway v. Catlett, 379 S.W.2d 277 (Ark. 1964), which can be restored only through expungement process set forth in Ark. Code. Ann. §§ 16-93-301 et seq. (first-time felony offender probation and expungement), or a similar expungement statute from another jurisdiction. § 7-6-102(d);   see Powers v. Bryant, 832 S.W. 2d 232 (1992) (coram nobis proceeding that declared conviction “null and void” meant person had not been “convicted” under art. 5, § 9); Tyler v. Shackleford, 799 S.W.2d 789, 790 (Ark. 1990) (same for convictions expunged under federal law). See discussion in Part III, below.

C.  Firearms

No person convicted or adjudicated guilty of a felony (including suspended sentences and probation) may possess or own any firearm unless: 1) the person’s conviction is dismissed and expunged under § 16-93-301 et seq. (first offender) or § 16-98-303(g) (drug court) (see infra Part II B); 2) the person is granted a pardon expressly restoring the ability to possess a firearm; or 3) the governor accepts the recommendation of the chief law enforcement officer in the person’s residence to “restore” the ability to possess a firearm (available only if the underlying felony or adjudication did not involve a weapon and occurred more than 8 years ago). See Ark Code. Ann. § 5-73-103; see also Irvin v. State, 784 S.W.2d 763 (Ark. 1990) (under prior version of statute that made expungement mandatory, no prior conviction for purposes of statute despite fact that state officer had not completed ministerial duties necessary for expungement) .

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

The governor has full clemency authority, except in cases of treason and impeachment, “under such rules and regulations as shall be prescribed by law.” Ark. Const. art. VI, § 18.  By statute, all applications for clemency “shall be referred to the Parole Board for investigation.”  Ark. Code Ann. § 16-93-204(a).2  The Parole Board “shall thereupon investigate each case and shall submit to the Governor its recommendation, a report of the investigation, and all other information the board may have regarding the applicant.” § 16-93-204(b).  While the governor is thus required to seek the non-binding advice of the Parole Board, his own power does not depend upon receiving a favorable recommendation.  Under Constitution, governor must report to legislature on all grants and give reasons.  Ark. Const. art. VI, § 18.  (Pending legislation requiring detailed reasons has stalled.)

Administration

Parole Board consists of seven full-time members appointed by governor to seven-year terms. Four constitutes a quorum. Grounds for removal for cause may not include any proper official action.  Ark. Code Ann. § 16-93-201(a).

Eligibility

Only state offenders are eligible for a governor’s pardon, but there is no waiting period for in-state convictions.

Effect

Pardon restores jury eligibility but not right to hold public office. See Part I, Pardon removes conviction-related barriers to licensing and employment.   Under state habitual offender statute, a pardoned conviction cannot be used to enhance a later sentence.  Duncan v. State, 494 S.W. 2d 127 (1973).

Expungement follows automatically upon receipt of pardon for all but a few serious offenses:  “Upon issuing a pardon, the Governor shall notify the sentencing court, and the court shall issue an order expunging the records relating to the conviction of the person pardoned.” Ark. Code Ann. § 16-90-605(a).  Exceptions where victim under 18, sex offenses, and where death or serious physical injury results.  16-90-605(c).  For effect of expungement see below.

Firearms

Pardon must specifically restore firearms privileges.  The governor may separately restore firearm privileges, upon the recommendation of the chief law enforcement officer of the jurisdiction in which the convicted person resides, if the offense occurred more than eight years before and did not involve the use of a weapon. Ark. Code Ann. § 5-73-103(a)(1), (b), (d).

Process

See http://www.paroleboard.arkansas.gov/.  Policies and procedures are at http://www.paroleboard.arkansas.gov/clemency/pages/default.aspx.   The application form is at http://www.paroleboard.arkansas.gov/Websites/parole/images/PardonApplication050415.pdf.

Before considering an application for pardon, Parole Board must request a (non-binding) recommendation of sentencing court, prosecuting attorney, and sheriff of county of conviction. Ark. Code Ann. §§ 5-4-607(d)(1);16-93-204(d)(1).  (Notice to victim and solicitation of recommendation required only in connection with capital murder cases and class Y, A, and B felonies. § 16-93-204(d)(2).)   Ordinarily no formal hearing is required in pardon cases.  If a majority of Board votes to recommend pardon, sends written recommendation to governor.  Board must give 30-days public notice of intention to make favorable recommendation to governor, and must also send notice to judge and prosecutor.  § 16-93-204(e).

Before acting, governor must give 30 days notice (including statement of reasons) to Secretary of State, judge, prosecuting attorney, sheriff, and, if applicable, the victim.  § 16-93-207(a)(1).  A failure to give proper notice renders grant void.  Id at (a)(2).  If Governor does not act on a Board recommendation within 240 days, application deemed denied.  If an application is denied by the Governor in writing, applicant must wait four years from time of original application before reapplying; if denial by inaction, applicant may reapply immediately. § 16-93-207(c).

Frequency of Grants

Pardons are processed by the Board at monthly hearings, and acted on by the governor on a regular basis.  Since 2004, between 400 and 500 pardon applications have been received each year.  In the past a substantial percentage of applications were granted, but Governor Asa Hutchinson has granted only about 10% of applications received.  See http://www.paroleboard.arkansas.gov/past-recommendations/.  As of July 1, 2017, Governor Hutchinson had granted about 175 pardons since taking office in 2015. See http://governor.arkansas.gov/clemency-extraditions. Governor Beebe (2007-2014) granted over 700 pardons during his tenure (many without restoring firearms, and some restoring firearms only).  While sentence commutations in recent years have occasionally given rise to controversy and legislative limits on the pardon power, no similar concerns have been expressed about post-sentence pardons, with one conspicuous exception.3  In July of 2004, Governor Huckabee was reported to have pardoned a total of 567 persons since taking office in 1996. See Bob McCord, “Huckabee’s Pardons,” Arkansas-Times (July 29, 2004), http://www.arktimes.com/arkansas/huckabees-pardons/Content?oid=948418.  He granted another 200 pardons after that time.

Year
Applications rec’d
Recommended fav.
Pardons Granted
Firearms only

2004
408
114
148
10

2005
480
204
117
11

2006
530
210
115
24

2007
503
196
46
20

2008
447
245
92
14

2009
404
232
129
7

2010
308
119
76
10

2011
366
175
100
6

Contact

Counsel for Clemency and Corrections
Office of the Governor
501-682-8184, -6447

B.  Judicial sealing or expungement
Comprehensive Criminal Record Sealing Act of 2013

In 2013 the Arkansas legislature enacted an entirely new chapter of Title 16 of the Arkansas Code to simplify and reconcile its laws on sealing of criminal records.  See Ark. Code Ann. § 16-90-1401, et seq.  Effective January 1, 2014, the Comprehensive Criminal History Sealing Act of 2013 repealed a number of authorities for expungement and sealing of conviction records that had accumulated over 40 years.4  Certain authorities for non-conviction dispositions were left undisturbed, including the authority in § 16-93-314 authorizing dismissal of charges for first offenders granted probation, and diversionary dispositions (including deferred adjudication) for persons sentenced to probation, first felony offenders, and juveniles.5  The new sealing law is intended to supersede all other provisions for sealing of criminal records except under the Arkansas Drug Court Act, § 16-98-301, and those applicable to juvenile records under § 16-90-1403.

Eligibility

Conviction records: This law expanded slightly the classes of offenders eligible for sealing relief to include minor felony offenders: Class C and D felonies and certain drug convictions are now eligible for sealing after five years (if no more than one prior felony), § 16-90-1406; and, misdemeanor convictions are eligible for sealing immediately after completion of sentence, § 16-90-1405.  Special provision for sealing certain drug convictions immediately upon completion of sentence are set forth in § 16-90-1407.  Serious violent and sexual offenses are ineligible for sealing, as are motor vehicle violations committed by a holder of a commercial driver’s license.  16-90-1408.

Non-conviction records: A person may petition a district circuit court to have arrest records sealed if no charges are filed within one year, §16-19-1409, and records in which charges are dismissed or no conviction is obtained. 16-90-1410.

Pardoned offenses: § 16-90-1411.  Certain serious offenses excepted even if pardoned.

Victims of human trafficking: See below.

Procedures

Procedures for sealing are set forth in § 16-90-1413, and include filing a uniform petition, which must be served on the prosecuting attorney.  A hearing will be scheduled in the case of misdemeanors only if the prosecutor objects, but must be scheduled in every case where felonies are concerned.  Provisions on release of sealed records in certain circumstances are set forth in §16-90-1416 (to criminal justice agencies in case of application for employment, to courts and prosecutors).

Standards and Burden of proof

There is a presumption in favor of sealing in misdemeanor and violation cases (court “shall seal” the record unless the court “is presented with and finds that there is clear and convincing evidence that a misdemeanor or violation conviction should not be sealed”). § 1415(a).  The court “may seal” the record of eligible felonies, including drug possession cases, “if the court finds by clear and convincing evidence that doing so would further the interests of justice,” considering certain factors related to the likelihood of recidivism (including the person’s other criminal history, the pendency of other charges, and input from the victim. §1415(b) and (c). The court “shall seal” the nonconviction records, including records of cases in which charges dismissed, unless it finds there is a public safety risk.  § 1415(d).  An appeal of the grant or denial of the petition to seal may be taken by either party. § 1415(f).

Effect of sealing

§ 16-90-1417:  A person whose record has been sealed under this subchapter shall have all privileges and rights restored, and the record that has been sealed shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law.  Sealing does not restore the right to carry a firearm if that right was removed as the result of a felony conviction.  A sealed convictionshall be deemed as a matter of law never to have occurred, and the person may state that the underlying conduct did not occur and that a record of the person that was sealed does not exist.”  § 16-90-1417(b)(1).  That notwithstanding, a sealed conviction may be used as a predicate and to enhance a subsequent sentence.  Id. at (b)(2).

Human trafficking victims

A person convicted of a prostitution offense as a result of being a victim of human trafficking may petition for sealing at any time.  Ark. Code Ann. § 16-90-1412.  Sealing is mandatory so long as the court finds by a preponderance of the evidence that the conviction was the result of being a victim of human trafficking.  In addition to restoring the individual’s rights in the manner specified above, the petitioner’s name is redacted from all records and files related to arrest and conviction. 

Expungement available in only two situations:

Juvenile offenses: An individual who was convicted of a nonviolent felony committed when the individual was less than 18 years old may petition for expungement. Ark. Code Ann. § 16-90-602.

Drug court: Under Ark. Code Ann. § 16-98-303, each district may establish its own drug court.  May be pre-adjudication or post-adjudication, and all but violent and sex offenses eligible.  Upon successful completion, court may order expungement, with concurrence of prosecuting attorney, if after considering the offender’s past criminal history the judge feels expungement and dismissal of the case is appropriate.  Court may also expunge a case from another Arkansas court, with the concurrence of that court.  Burglary, breaking and entering, and fourth DUI are ineligible for expungement.  § 16-98-303(g).  Those convicted of or currently charged with violent felonies, and those required to register are sex offenders, are not eligible for drug court programs.  § 16-98-303(c)(1).

C.  Administrative certificate: N/A
III.  Nondiscrimination in Licensing and Employment:
A.  Criminal Offender Rehabilitation Act

“It is the policy of the State of Arkansas to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the assumption of the responsibilities of citizenship. The public is best protected when offenders are given the opportunity to secure employment or to engage in a meaningful trade, occupation, or profession.” Ark Code Ann. § 17-1-103(a).  Licensing boards “may take into consideration conviction of certain crimes which have not been annulled, expunged, or pardoned. However, such convictions shall not operate as an automatic bar to registration, certification, or licensing for any trade, profession, or occupation.” § 17-1-103(b).  Arrest records not leading to conviction, convictions that have been pardoned or expunged, and misdemeanor convictions (except misdemeanor sex offenses) may not be “used, distributed, or disseminated” in connection with an application for a license. § 17-1-103(b)(2).   Completion of parole or probation supervision plus five years after release from prison will be “prima facie evidence of rehabilitation.” § 17-1-103(e).

Boards and agencies shall “state explicitly in writing the reasons for a decision which prohibits the applicant from practicing the trade, occupation, or profession if the decision is based in whole or in part on conviction of a felony.”  § 17-1-103(c).  Complaints are adjudicated under Arkansas APA. § 17-1-103(e).  Does not apply to teacher licensure or certification, or nursing licensure and certification, which are governed by §§ 6-17-410 and 17-87- 312 respectively.  § 17-1-103(g).  Secretary of State must make section known to any affected agency.  § 17-1-103(f)(2).  See also Bolden v. Watt, 719 S.W.2d 428 (Ark. 1986) (criminal offender act benefits DWI offender seeking licensure as taxi driver, in spite of specific prohibition in taxi licensing law, since individual could be prevented from obtaining particular job because of direct connection between nature of conviction and job).

B.  Teachers License

Ark. Code Ann. § 6-17-410 provides for revocation or denial of teaches license for conviction of a wide variety of crimes.  However, under § 410(f)(2) the revocation provisions of subsection (c) of this section may be waived taking into account:

(A) The age at which the crime or incident was committed;

(B) The circumstances surrounding the crime or incident;

(C) The length of time since the crime or incident;

(D) Subsequent work history;

(E) Employment references;

(F) Character references; and

(G) Other evidence demonstrating that the applicant does not pose a threat to the health or safety of school children or school personnel.

C.  Nursing license

Ark. Code Ann. § 17-87-312(g)(2) provides substantially the same scheme as for teachers.

D.  Elder Care License

Ark Code  Ann. § 20-33-213 imposes mandatory record checks, and § 20-38-105(b) bars licensure for wide variety of offenses for limited periods of time (five years for misdemeanors, ten years for felonies) as long as applicant has not been convicted in the meantime.  § 20-38-105(d).   Permanent disqualification for smaller group of violent offenses, including expunged convictions.  § 20-38-105(c).

E.  Scholarships

Ark. Code Ann. § 6-82-107:  “A criminal conviction shall not be used as a basis to disqualify a person from eligibility for a scholarship, grant, loan forgiveness program, or other benefit subsidized by state funds under this chapter unless there is a specific statutory reason for denial that relates to the basis of assistance.”


  1. When Merrit was decided, Arkansas law defined a felony as a crime punishable by imprisonment in a penitentiary or death.  Today, § 5-1-106 defines a felony as any crime so designated by statute.
  2. The Arkansas legislature reconstituted the Post Prison Transfer Board as the Parole Board in 2005, and made other modifications in parole and pardon policy.  See Acts 1033,  85th Gen. Sess., 2005.
  3. The Board recommended that Governor Beebe pardon his son, who had been convicted of a minor marijuana offense in 2003, reasoning that the case was similar to others it had recommended favorably.  See Lucy McCalmont, “Arkansas governor to pardon own son,” Politico (Nov. 13, 2014), http://www.politico.com/story/2014/11/arkansas-gov-mike-beebe-pardon-son-112857.html.
  4. See § 16-90-1401 (“The General Assembly recognizes that historically the laws of this state involving the procedure a person must follow to have his or her prior criminal history information sealed have been confusing, from the standpoint of both practicality and terminology. . . . It is the intent of the General Assembly to provide in clear terms in what instances and, if applicable, how a person may attempt to have his or her criminal history information sealed.”)
  5. See also the Community Punishment Act of 1993 (“Act 531”), Ark. Code Ann. § 16-93-1201 et seq.; First Offenders Act of 1975 (“Act 346”), Ark. Code Ann. § 16-93-314 (authorizing dismissal of charges after completion of probationary sentences); Ark. Code Ann. § 5-4-312 (authorizing the court to suspend any sentence to community corrections).

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