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.”