Restoration of Rights Series/ Missouri

Missouri FlagI.  Restoration of Civil/Firearms Rights
A.  Civil Rights

Persons convicted of any felony offense may not vote while incarcerated or while on parole or probation, but the right to vote is automatically restored upon final discharge from sentence.  Mo. Rev. Stat. § 115.133.2.  Misdemeanants are also disenfranchised while serving a prison sentence.  § 115.133.2(1).  Persons convicted of “a felony or misdemeanor connected with the right of suffrage” are permanently disenfranchised unless pardoned.  § 115.133.2(3). See also Mo. Const. art. VIII, § 2 (persons convicted of felony or crime connected with suffrage may be excluded from voting); Mo. Rev. Stat. § 561.026.  A felony offender or offender convicted of misconduct in office or dishonesty forfeits any elective or appointive public office.  Mo. Rev. Stat. § 561.021.1.  The right to hold office is restored upon completion of sentence (unless the crime was “connected to the exercise of the right of suffrage,” in which case disqualification is permanent).  §§ 561.021.2; 561.021.3.  A felony offender is permanently disqualified from jury service unless pardoned.  § 561.026(3).  See also § 494.425(4) (person convicted of felony disqualified from serving as petit or grand juror unless person’s civil rights have been restored).

B.  Firearms

Possession of firearms is unlawful for a person “convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony.”  Mo. Rev. Stat. § 571.070.1(1).1  Antique weapons are not prohibited.  § 571.070.3.  A pardon or expungement will restore firearms privileges.2See infra Part II.  

C.  Other Collateral Consequences

State collateral consequences are catalogued in United States v. Brown, 408 F.3d 1016 (8th Cir. 2005) (holding that because Missouri does not restore all civil rights automatically, state offender subject to prosecution under federal firearms statute).

II. Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

The pardon power is vested in the governor, except in cases of treason or impeachment, under rules and regulations prescribed for the manner of applying.  Mo. Const. art. IV, § 7.  The governor may grant pardons under conditions and with restrictions as he deems proper.  Id.  Pursuant to Mo. Rev. Stat. § 217.800.2, all pardon applications must be referred to the Board of Probation and Parole for investigation and recommendation.  The Board’s advice is not binding on the governor, and his power is not dependent upon a favorable Board recommendation.  See James G. Lindsay, Pardons in Missouri: Procedure and Policy, 48 UMKC L. Rev. 33 (1979).

Administration

The Board of Probation and Parole consists of seven members appointed by the governor to six-year terms, no more than four from the same political party.  Mo. Rev. Stat. § 217.665.  All members are  full-time salaried employees.  Id.  Chair is designated by the governor.  Id.

Eligibility

The Board policy published online outlines eligibility requirements and details investigative procedures applicable to clemency applications.  See http://doc.mo.gov/PP/Executive_Clemency.phpSee also Policy and Procedure Manual of the Board of Probation and Parole, Nos. P2-1.3 through P2-1.6 (as of May 2012, not available online.)  Pardon is available three years after  discharge from sentence, without intervening convictions or charges pending.  See http://doc.mo.gov/PP/Executive_Clemency.php.  Those denied must wait three years to reapply.  Id.  Applicants whose sentences were suspended pursuant to Mo. Rev. Stat. § 610.105 are not eligible to apply for pardon, since they are not regarded as having a conviction (see below).  Id.  Persons convicted under the law of another state are ineligible for a gubernatorial pardon.  The Board has not established substantive criteria for pardon. 

Effect

According to Board officials, each full pardon document signed by the governor states that the grant “obliterates” effect of conviction, relieves of all obligations associated with the conviction, restores all rights and relieves legal disqualifications.  However, a pardon does not “expunge” the record.  See Policy and Procedure Manual of the Board of Probation and Parole, supra, at P2-1.3; http://doc.mo.gov/PP/Executive_Clemency.php  (criminal history record still maintained as open record and will be available to public). A prior conviction that is the subject of a pardon cannot be used as the basis for subjecting a person to an extended term of imprisonment under Missouri’s persistent offender law (see Mo. Rev. Stat. § 558.016).  See Guastello v. Dep’t of Liquor Control, 536 S.W.2d 21 (Mo. 1976) (analyzing prior version of law; also noting that while fact of conviction obliterated by pardon, fact of guilt remains).  A convicted person who is required to register as a sex offender for life because of his conviction can be released from the registration requirement if he is pardoned of the offense(s) that required registration.  § 589.400.3(2).  A bill that would have required that a pardon explicitly state that the person is relieved of his/her duty to register as a sex offender passed the House in 2016 but was not acted on in the Senate. 

Process

“All applications for pardon, commutation of sentence or reprieve shall be referred to the board for investigation.”   Mo. Rev. Stat. § 217.800.  The board “shall investigate each such case and submit to the governor a report of its investigation, with all other information the board may have relating to the applicant together with any recommendations the board deems proper to make.”  Id.3  The published policy from the Board outlines eligibility requirements and thoroughly details investigative procedures applicable to clemency applications.  See Policy and Procedure Manual of the Board of Probation and Parole, supra, at P2-1.4, P2-1.6.  The Board’s online policy notes that investigation of persons not incarcerated will include reason(s) for requesting clemency, including specific collateral consequences of conviction; circumstances of present offense; other criminal record information; victim impact information; conduct since discharge in social, employment, and financial areas; significant positive achievements; testimonials from friends, employers, and general references; and comments/recommendations from the judge, prosecuting attorney, and law enforcement agency.  See http://doc.mo.gov/PP/Executive_Clemency.php.  There is no provision for a public hearing.  The Board recommendation is communicated in writing to the governor.  See § 217.800.2 (report of investigation and recommendation submitted).  Board meetings on clemency matters may be closed to the public.  § 217.670.5.  Generally, the clemency process takes a minimum of 18-24 months to complete.  See http://doc.mo.gov/PP/Executive_Clemency.php.  No fees are charged for filing for clemency.  Id.

Frequency of Grants

Governor Jay Nixon (2009-2017) granted 110 pardons, 65 of them in his final year.  Missouri governor tops 100 pardons, absolves clergy protest, http://www.sfgate.com/news/article/Missouri-governor-sets-three-decade-high-mark-for-10839848.php.   Most of the pardoned convictions were minor offenses committed decades before, but 16 of his final grants went to religious leaders who had been convicted of trespassing for protesting in the Missouri Senate in support of Medicaid expansion.  (He also commuted the sentence of one person, raising his total to 110 clemency actions.) Applications have increased dramatically in recent years, as a result of heightened employment restrictions since 9/11 and extension of firearms restrictions to long guns in 2008.   Earlier governors had pardoned sparingly.  For example, Governor Blunt (2005-2009) issued 14 pardons in four years, all to people convicted of minor offenses decades in the past, and denied 1338 pardon applications.  Source: Board of Probation and Parole.4

Contact

Linda Welch
Administrative Assistant, Board of Probation and Parole
1511 Christy Drive
Jefferson City, MO 65101
Phone: (573) 751-8488, 573-526-6551
Fax: (573) 751-8501
Email:
Welch@doc.mo.gov

B.  Judicial sealing or expungement
1.  Expungement of convictions
A.  Eligibility

Prior to January 1, 2018, the only offenses eligible for expungement were bad check convictions (both felony and misdemeanor) and certain public order misdemeanors (trespassing, gambling, disturbing the peace).   Mo. Rev. Stat. § 610.140 (2015).   The eligibility waiting period for misdemeanors was 10 years from completion of sentence, for felonies 20 years.  § 610.140(5) (2015).   The court must find that the petitioner has no intervening convictions, that “the circumstances and behavior of the petitioner warrant the expungement,” and that “expungement is consistent with the public welfare.”   Effective January 1, 2018, the availability of expungement will be greatly expanded under a law enacted in July of 2016.   The new law allows expungement of all non-Class A felonies and all misdemeanors, subject to a lengthy list of exceptions for violent offenses, sex offenses, and other more serious crimes, and driving offenses involving liquor or commercial drivers licenses. Mo. Rev. Stat. § 610.140(2) (as revised and reenacted by SB-588 (2016)).  The waiting period for misdemeanors is three crime-free years after completion of sentence, and seven for felonies.  § 610.140(5)(1).  A person may expunge one felony and two misdemeanors in their lifetime, regardless of the court in which expungement is sought. § 610.140(12). 

In addition to the basic eligibility requirements, an application must state that the petitioner’s “habits and conduct demonstrate that the petitioner is not a threat to the public safety of the state” and that “expungement is consistent with the public welfare and the interests of justice warrant the expungement.”   Such a pleading “shall create a rebuttable presumption that the expungement is warranted” so long as the more objective eligibility criteria are satisfied.  The burden then shifts to the prosecutor.  The victim may also testify.   If the presumption is not rebutted by the prosecutor, the court “shall” order expungement.  A petition for expungement must be acted on within six months of its filing. 

A person may apply to have one or more offenses expunged so long as such person lists all the offenses he or she is seeking to have expunged in the same petition and so long as all such offenses are eligible.  A person may be granted more than one expungement under this section provided that no person shall be granted more than one order of expungement from the same court. § 610.140(10). 

In addition, first-time alcohol-related misdemeanor offenses may be expunged after 10 years (except for those related to driving commercial motor vehicles while under the influence).  Mo. Rev. Stat. § 577.054(1).  See also §§ 217.360(3) (person convicted of delivery/concealment of intoxicating liquor may seek to expunge the record, unless delivery/concealment occurred in or about correctional facility); 311.326 (purchase/possession of liquor by a minor, can seek expungement one year after age 21).

B.  Effect

Prior to January 1, 2018, expunged records considered “confidential,” and only available to the parties or by court order.

Entries of a record ordered expunged shall be removed from all electronic files maintained with the state of Missouri, except for the files of the court. The records and files maintained in any administrative or court proceeding in a municipal, associate, or circuit court for any offense ordered expunged under this section shall be confidential and only available to the parties or by order of the court for good cause shown. The central repository shall request the Federal Bureau of Investigation to expunge the records from its files.

§ 610.140(6).  Records in the possession of any entity named in the petition shall be “destroyed,” except for court records. 

“The order shall not limit any of the petitioner’s rights that were restricted as a collateral consequence of such person’s criminal record, and such rights shall be restored upon issuance of the order of expungement.”  Except as provided below, expungement restores a person “to the status he or she occupied prior to [conviction] as if such events had never taken place.”  A person whose record has been expunged may deny the conviction in response to an inquiry, and “no such inquiry shall be made for information relating to an expungement, except the petitioner shall disclose the expunged offense to any court when asked or upon being charged with any subsequent offense.”  Expunged convictions may be used to enhance subsequent sentence, and are given predicate effect.  § 610.140(7). 

A person must disclose any expunged offense in an application for a professional license, any license or employment relating to alcoholic beverages, or employment with any state-operated lottery, or any emergency services provider, including any law enforcement agency.  “Notwithstanding any provision of law to the contrary, an expunged offense shall not be grounds for automatic disqualification of an applicant, but may be a factor for denying employment, or a professional license, certificate, or permit.”  § 610.140(8). 

Effective January 2018, expunged records, including court records, will be “closed.” Mo. Rev. Stat. § 610.140(7) (as amended by SB-588 (2016)).  Closed records are generally not available to the public, but will remain available to criminal justice agencies and to a number of public entities for use in screening out applicants for licenses or employment in sensitive areas such as private security, law enforcement, and care of children, the elderly, and the disabled.  § 610.120.  While the new law retains the provision stating that conviction shall not be grounds for automatic disqualification, it does not apply in connection with employment with banks, insurers, and any employer that is required by state or federal law to exclude applicants with certain convictions. § 610.140(9), subsections (4) through (6). 

Closed records will also be available to law enforcement for use in issuing firearm purchase and possession permits.  § 610.120.  However, per both the old and new laws, “[t]he [expungement] order shall not limit any of the petitioner’s rights that were restricted as a collateral consequence of such person’s criminal record, and such rights shall be restored upon issuance of the order of expungement.”  § 610.140(8). So, notwithstanding the fact that expunged records may be accessed for firearm permitting purposes, it appears that expungement remains effective at restoring firearm rights lost as a result of conviction. 

2.  Non-conviction records, including deferred sentencing

Mo. Rev. Stat. § 610.105 authorizes automatic “closure” of records in all cases disposed of favorably to the defendant (nolle prossed, acquitted, dismissed), or where imposition of sentence is suspended pursuant to § 557.011.2(3), upon conclusion of the case.  Any felony or misdemeanor for which probation may be imposed is eligible for suspended imposition of sentence.  See § 557.011.2(3).  If sentence and judgment are suspended after a guilty plea, there is no conviction for purposes of collateral consequences.  Upon successful completion of probation, the record becomes a “non-conviction record” and need not be reported as a conviction.  § 610.110.  See also Yale v. City of Independence, 846 S.W.2d 193, 195 (Mo. 1993):

The obvious legislative purpose of the sentencing alternative of suspended imposition of sentence is to allow a defendant to avoid the stigma of a lifetime conviction and the punitive collateral consequences that follow. That legislative purpose is further evidenced in statutes concerning closed records. . . . [I]f imposition of sentence is suspended, the official records are closed following successful completion of probation and termination of the case.  Closed records are made available only in limited circumstances and are largely inaccessible to the general public. . . . Thus, with suspended imposition of sentence, trial judges have a tool for handling offenders worthy of the most lenient treatment.  Worthy offenders have a chance to clear their records by demonstrating their value to society through compliance with conditions of probation under the guidance of the court.

However § 610.105 does not require or authorize expungement, and “the court’s judgment or order or the final action taken by the prosecutor . . . may be accessed.”  § 610.105(1).  See also Mo. Op. Att’y Gen. No. 101 (Sept. 28, 1977), available at https://www.ago.mo.gov/docs/default-source/opinions/1977/101_1977.pdf?sfvrsn=2.   In addition, the complete record remains available to law enforcement and other governmental entities (e.g., department of revenue for driver license administration and the department of health and senior services facilities for licensing decisions).  Mo. Rev. Stat. § 610.120.5

Effective January 1, 2018, SB-588 (2016) (discussed above) non-conviction records are subject to the same eligibility rules and procedures as convictions, and to the same three-year waiting period as misdemeanors. 

[A] petition to expunge records related to an arrest for an eligible offense, violation, or infraction may be made in accordance with the provisions of this section to a court of competent jurisdiction in the county where the petitioner was arrested no earlier than three years from the date of arrest; provided that, during such time, the petitioner has not been charged and the petitioner has not been found guilty of any misdemeanor or felony offense. (§ 610.140(6).)

For effect of expungement, see § 610.140(6), discussed above.  Arrest records not eligible for expungement under the new law may be “closed” under the old authority in Mo. Rev. Stat. § 610.105. 

3.  Arrests based on false information; motor vehicle cases

An arrest record may be expunged pursuant to Mo. Rev. Stat. § 610.122 if (1) the court determines that the arrest was based on false information and there is no probable cause, at the time of the action to expunge, to believe the individual committed the offense; no charges will be pursued as a result of the arrest; and the subject of the arrest did not receive a suspended imposition of sentence for the offense for which the arrest was made or for any offense related to the arrest; or (2) The court determines the person was arrested for, or was subsequently charged with, a misdemeanor driving offense (except for DUI), and each such charge was subsequently nol prossed or dismissed, or the person was found not guilty.  Expungement under this section results in the destruction of the record and removal from state electronic databases and FBI files. § 610.124. This relief is not available to a person holding a commercial driver’s license.  A record of arrest shall only be eligible for expungement under this section if the person has no prior or subsequent misdemeanor or felony convictions, and no civil action is pending relating to the arrest or the records sought to be expunged. 

4.  Sealing of Juvenile Court Records

Records of juvenile court proceedings are generally not open to inspection or disclosure except by order of the court to persons having a legitimate interest therein, unless a child charged with class A felony or murder.  Mo. Rev. Stat. § 211.321.1.  The court may, on its own motion or upon application, order destruction of records and seal the official court file and peace officers’ records at any time after the child has reached his seventeenth birthday if the court finds that it is in the best interest of the child (or at any time after the closing of the child’s case if court’s jurisdiction extends beyond the child’s age 17).  § 211.321.5.  Records of suspension or revocation of a juvenile’s driving privileges may be expunged two years after suspension/revocation or when the person reaches age 21 under certain circumstances (e.g., first-time offense, blood alcohol content of 0.02%, not driving commercial motor vehicle).  § 302.545.

III.  Nondiscrimination in Licensing and Employment
A.  Collateral consequences in licensure and public employment

Mo. Rev. Stat. § 561.016.1 generally adopts the approach of the Model Penal Code in limiting the collateral consequences of a conviction to those imposed by the constitution or statute, embodied in the judgment of the court, or (in the case of discretionary consequences) those “reasonably related to the competency of the individual to exercise the right or privilege of which he is deprived:”

No person shall suffer any legal disqualification or disability because of a finding of guilt or conviction of a crime or the sentence on his conviction, unless the disqualification or disability involves the deprivation of a right or privilege which is: (1)  Necessarily incident to execution of the sentence of the court; or (2) Provided by the constitution or the code; or (3) Provided by the statute other than the code, when the conviction is of a crime defined by such statute; or (4) Provided by the judgment, order or regulation of a court, agency or official exercising a jurisdiction conferred by law, or by the statute defining such jurisdiction, when the commission of the crime or the conviction or the sentence is reasonably related to the competency of the individual to exercise the right or privilege of which he is deprived.6

This provision applies to public employment. See, e.g., Hardy v. Fire Standards Comm’n of St. Louis Cnty., 992 S.W.2d 330 (Mo. App. 1999) (county rules denying employment as a firefighter to any person convicted of a felony or misdemeanor involving moral turpitude conflicted with statute limiting the disqualifications of convicted felons to those where the crimes convicted of reasonably relate to the felon’s competency to do the job at issue, and thus, rules were void unless they could be enforced in such a way as to be in compliance with the statute); Mager v. City of St. Louis, 699 S.W.2d 68 (Mo. App. 1985) (municipal ordinance prohibition against employment of convicted felons by liquor licensees was contrary to limitations in § 561.016 insofar as it sought to disqualify convicted felons from employment when their crimes, convictions, or sentences were not reasonably related to their competency to be employed by liquor licensees).  The Statute is intended to remove much of the stigma of conviction, and increase the legitimate discretion of licensing boards by eliminating arbitrary or inflexible barriers imposed by criminal conviction.  See Chandler v. Allen, 108 S.W.3d 756 (Mo. App. 2003) (sex offender properly dismissed from job in deli on public safety grounds; Section 561.016 only relates to employment in certain regulated areas where license is required, which was not applicable to employment in deli).

B. Ban-the-box in public employment

In April 2016, Governor Nixon signed an executive order directing “all departments, agencies and boards and commissions in the Executive Branch subject to the authority of the Governor” to remove from all initial employment applications “questions relating to an individual’s criminal history unless a criminal history would render an applicant ineligible for the position.” See Executive Order 16-04 (April 11, 2016), available at https://governor.mo.gov/news/executive-orders/executive-order-16-04.  It would appear that this order limits initial inquiries about criminal history to situations where it would disqualify an applicant from employment under statute or regulation. 

C.  Licensing boards and other state agencies

“Except as otherwise specifically provided by law, no license for any occupation or profession shall be denied solely on the grounds that an applicant has been previously convicted of a felony.”  Mo. Rev. Stat. § 324.029.  Per Mo. Rev. Stat. § 314.200, no governmental board or other agency may deny an occupational or professional license to an applicant primarily on the basis that an applicant’s felony or misdemeanor conviction precludes the applicant from demonstrating good moral character, where the conviction resulted in the applicant’s incarceration and the applicant has been released by pardon, parole, or on probation and there is no evidence that the applicant has violated the conditions of his probation.  Conviction may be considered as “some evidence of an absence of good moral character,” but an entity should also consider the nature of the crime committed in relation to the license sought, the date of the conviction, the conduct of the applicant since the date of the conviction, and other evidence as to the applicant’s character.  Id.  See also United States v. Brown, 408 F.3d at 1019 (citing Mo. Rev. Stat. § 314.200 and stating “good moral character’ determination may not be primarily based on felony conviction”).  See also Section IIB (1) on the effect of expungement on licensing. 


  1. Prior to 2008, only persons convicted of a “dangerous felony” were prohibited from possessing a firearm; only “concealable” weapons were banned; and only for five years after conviction or release from confinement.  See L. 2008, H.B. No. 2034, § A.  A bill was introduced in the Missouri legislature in January 2012 (HB 1482) that would create an exception to the unlawful possession law for those in possession of a rifle or shotgun who were not convicted of a “violent felony” (ie, one that involved a weapon, use of force, or arson), but there does not appear to be much support for this bill.  
  2.   The Missouri court of appeals has held that a guilty plea separately bars an individual from possessing a concealed weapon, even if pardoned.  See Stallsworth v. Sheriff of Jackson County, Ct. App. W. Dist. May 31, 2016, http://www.courts.mo.gov/file.jsp?id=101635.
  3. A copy of the Application for Executive Clemency (which includes pardons) can be found online at: http://doc.mo.gov/Documents/prob/CLEMENCY_APPLICATION.pdf.  The application should be mailed to the Missouri Board of Probation and Parole, P.O. Box 236, Jefferson City, MO, 65102.
  4. Earlier governors’ pardoning records are also available from the Board:  Holden (2001-2005) issued 45 pardons, denied 840; Wilson (2000-01) granted 46 pardons and denied 347; Carnahan (1993-2000) granted 42 pardons and denied 607; Ashcroft (1985-1993) granted 34, denied 985; and Bond (1981-85) granted 73, denied 436.
  5. See also Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262 (11th Cir. 2004) (misdemeanor drug possession conviction rendered non-citizen subject to deportation even though the conviction had been expunged pursuant to Mo. Rev. Stat. § 610.105).
  6. Comments to the 1973 Proposed Code, included in § 561.016, explain that “reasonable relationship” test is the “most important provision” in the section:

    The present law sometimes contains blanket restrictions against employment in certain regulated areas of persons convicted of crimes. Sometimes conviction is relevant to the public safety interests underlying the regulation, but often it is not. By eliminating irrational barriers to employment, we assist offenders in reintegrating themselves into the community.  Thus, instead of providing that no liquor license shall be issued to any [convicted] person . . .  the Code provides a reasonable rule which would authorize a licensing agency to refuse to grant a license to an applicant whose criminal record and other circumstances indicate that he would endanger the particular group or industry protected by the agency’s licensing power.

    The Commentary goes on to opine that “there should be very few of these statutes containing special penalties [referred to in subsection (3)] if the Code is enacted and the present disqualification and disability statutes are repealed and replaced by the Code provisions.”

Copyright © 2017

Restoration of Rights Series/Mississippi

I.  Restoration of Civil/Firearms Rights
A.  Voting

Disenfranchisement occurs only upon conviction of one of the crimes listed in the Mississippi Constitution as disqualifying.  See Miss. Const. art. 12, § 241 (murder, rape, bribery, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy).  Most statutory offenses involving an unlawful taking of property are disqualifying. See Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998).1  The right to vote, if lost, may be regained only by pardon, or by a two-thirds vote of legislature.  Miss. Const. art. 5, § 124 (executive’s power to pardon limited in cases of treason and impeachment); art. 12, § 253.2

Only convictions obtained in Mississippi state courts are disqualifying.  See Middleton v. Evers, 515 So.2d 940, 944 (Miss. 1987) (disqualification not applicable if person was convicted in another state); Op. Miss. Atty.Gen. No. 2005-0193 (Wiggins, April 26, 2005).  The Mississippi Attorney General’s office advises that only felony convictions are disqualifying.  See McLaughlin v. City of Canton, 947 F.Supp. 954 (S.D. Miss. 1995) (misdemeanor “false pretenses” conviction does not constitute a conviction for fraud within the constitution, and is thereby not disqualifying; equal protection issues discussed in dicta).3

B.  Jury and Office

Persons convicted of an “infamous crime,” defined as an offense “punished with death or confinement in penitentiary,” are ineligible for jury service.  See Miss. Code Ann. §§ 13-5-1; 1-3-19.  Jury eligibility is restored five years after conviction, provided the person is a qualified elector.  § 13-5-1.

The right to hold office is lost upon conviction of certain felonies, and restored only by pardon.  Miss. Const. art. 4, § 44(1)-(3); Miss. Code Ann. § 99-19-35 (“A person convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement, or bigamy, shall not be allowed to practice medicine or dentistry, or be appointed to hold or perform the duties of any office of profit, trust, or honor, unless after full pardon for the same.”).  A person convicted in another state, or in federal court would not fall within the scope of this prohibition.  State ex rel. Mitchell v. McDonald, 145 So. 508 (Miss. 1933); Op. Miss. Att’y Gen., 1990 WL 547896 (Harris, Aug. 29, 1990).

C.  Firearms

Persons convicted of a felony may not possess a firearm unless pardoned, granted federal relief under 18 U.S.C. § 925(c), or granted a “certificate of rehabilitation” by a court.  See Miss. Code Ann. § 97-37-5(1), discussed in Part II, infra.

II.  Discretionary Restoration Mechanisms:
A.  Executive pardon
Authority

The governor has full clemency authority in all criminal cases (except treason and impeachment), subject to rules and regulations prescribed by law.  Miss. Const. art. 5, § 124.  Mississippi law gives the Parole Board “exclusive responsibility” for investigating pardon cases at the governor’s request.  Miss. Code Ann. § 47-7-5(3).  See also § 47-7-31.  The Board is composed of five full-time salaried members appointed by the governor, who also appoints the chair.  § 47-7-5(1).  The Board reports annually to the governor and legislature.  § 47-7-15.

Eligibility

According to the Governor’s Office, informal policy requires applicants to wait seven years after the completion of sentence.  Federal and out-of-state offenders are not eligible for a state pardon.

Effect

Pardon restores civil rights and removes employment disabilities, including gun rights.  Legislative relief does not restore gun rights.  Statutes barring convicted people from jobs in education and health care give specific effect to pardon.  See, e.g., Miss. Code Ann. §§ 37-9-17(3) (teachers and school administrators); 37-29-232(3) (admission to health care professional training program).  See also 45-33-47(4) (pardon relieves obligation to register as sex offender).  A pardon does not expunge a conviction. See Hentz v. Mississippi, 152 So. 3d 1139 (Miss. 2014), http://law.justia.com/cases/mississippi/supreme-court/2014/2013-ca-01217-sct.html.

Process

Under the Mississippi Constitution, all applicants for executive clemency must post notice in a newspaper in the county of conviction 30 days prior to making application to governor, setting forth the reasons why clemency should be granted.  Miss. Const. art. 5, § 124.4  Facially meritorious cases filed with the governor’s office are sent to the Parole Board for investigation.  The Board generally requires letters of recommendation from the community and family, and a statement of unusual circumstances.  The application form is available at http://www.cjpf.org/clemency/MississippiApp.pdf.  The Board holds a hearing on meritorious applications at which the victim (if any) may be present.  See Miss. Code Ann. § 99-45-1.

Frequency of Grants

Governor Bryant indicated at the outset of his administration, doubtless influenced by the scandal connected with the irregular pardons issued by Governor Haley Barbour at the end of his term, that he intended to use the pardon power sparingly and only in cases of wrongful conviction.  See Huma Khan, Pardon No More? Mississippi’s New Governor Eyes Tougher Rules for Clemency, ABCNEWS.com ( 16, 2012), http://abcnews.go.com/blogs/politics/2012/01/pardon-no-more-mississippis-new-governor-eyes-tougher-rules-for-clemency.   He has not modified this position.  Governor Barbour granted no more than a handful of pardons until the very end of his tenure in 2012, when he issued 215 clemency grants.  Of these final grants, 189 were full pardons granted to persons no longer in prison, most (though not all) of whom had completed their sentences.  According to the Parole Board, it received more than 500 applications during Governor Barbour’s eight-year tenure.  Of those, just over 250 met the required standards for consideration and were sent on to the governor’s office.  At the end of his term, Barbour granted clemency to 185 applicants, apparently not all of whom had applied for pardon through the established procedure, and denied it to 69 others. http://www.reuters.com/article/2012/01/20/us-usa-mississippi-pardons-idUSTRE80J25K20120121.  According to the Mississippi Attorney General’s office, there are several dozen legislative pardons granted pursuant to Bills of Suffrage each year, and some of those granted end-of-term pardons by Governor Barbour had previously received such restorations.5  Source:  Mississippi Attorney General’s Office.

Contact

Mississippi Parole Board (601) 576-3520; also Paul Hirst, Governor’s Office at (601) 350-3150; Phil Carter, Attorney General’s Office, (601) 359-3680, pcart@ago.state.ms.us

 

B.  Judicial sealing or expungement
1.  Expungement

Any first misdemeanor conviction other than a traffic offense may be expunged by petitioning the convicting court. Miss. Code Ann. § 99-19-71(1).  A person may also expunge a single enumerated minor felony conviction in the same manner.  § 99-19-71(2)(a).6  § 99-19-71(2)(a).  Effective July 2013, a person may also expunge a single more serious felony conviction committed before the age of 21.  § 99-19-71(2)(b) (as amended by  Laws, 2013, Ch. 557, § 1).  Certain serious felonies including rape, murder, armed robbery, and child pornography are not eligible for underage expungement under section 99-19-17(2)(b), however.  Additionally, the court may deny an underage felony expungement for “any felony that, in the determination of the circuit court, is a violent crime or a felony that is related to the distribution of a controlled substance and in the court’s discretion it should not be expunged.”  Expungement is not available for public officials convicted of offenses related to official duties.  § 99-19-71(5).

For both types of felony expungement there is a five year waiting period after completion of sentence.  §§ 99-19-71(2)(a), (b).  The District Attorney must be given 10 days’ notice before any hearing.  § 99-19-71(2)(c).  The court may grant such a petition if it determines the applicant is rehabilitated.  Id.  “Upon entering an order of expunction under this section, a nonpublic record thereof shall be retained by the Mississippi Criminal Information Center solely for the purpose of determining whether, in subsequent proceedings, the person is a first offender.”  § 99-19-71(3).  Expunged records are retained for law enforcement purposes.  Id.

Effect

Miss. Code Ann. § 99-19-71(3):

The effect of the expunction order shall be to restore the person, in the contemplation of the law, to the status he occupied before any arrest or indictment for which convicted. No person as to whom an expunction order has been entered shall be held thereafter under any provision of law to be guilty of perjury or to have otherwise given a false statement by reason of his failure to recite or acknowledge such arrest, indictment or conviction in response to any inquiry made of him for any purpose other than the purpose of determining, in any subsequent proceedings under this section, whether the person is a first offender.

At the same time, “[t]he existence of an order of expunction shall not preclude an employer from asking a prospective employee if the employee has had an order of expunction entered on his behalf.”  Id.   A person as to whom an order has been entered, upon request, shall be required to advise the court, in camera, of the previous conviction and expunction in any legal proceeding wherein the person has been called as a prospective juror.   The court shall thereafter and before the selection of the jury advise the attorneys representing the parties of the previous conviction and expunction.  Id.

2.  Nonconviction records

Records of misdemeanor cases in which no charges were brought or charges were dismissed may be expunged.  Miss. Code Ann. §§ 99-15-59 (misdemeanor).  See also 99-15-26(5) (deferred adjudication, below).

3.  Deferred adjudication

Deferred adjudication is authorized for felonies and misdemeanors, except crimes against the person and drug trafficking crimes. Miss. Code Ann. § 99-15-26(1)-(5)(“Dismissal of action upon successful completion of certain court-imposed conditions”). Expungement required upon successful completion.  § 99-15-26(5)(“upon petition therefore, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case”)

4.  Juvenile adjudications

A youth may apply to a court to initiate sealing of records if the youth qualifies.  Miss. Code Ann. § 43-21-263(2).  A youth qualifies upon reaching age 20 if the case was dismissed or the court set aside the adjudication.  § 43-21-263(1).  A judge has complete discretion over whether to seal and unseal records.  Only a judge can initiate the record destruction process, which is distinct from sealing.  §§ 43-21-263(2), 265.

5.  Judicial certificate of rehabilitation

Miss. Code Ann. § 97-37-5(1) provides that a felony offender will no longer be subject to prosecution as a felon in possession if he has received a certificate of rehabilitation from the court of conviction.  Section 97-37-5(3) authorizes the court to issue a certificate of rehabilitation, “upon a showing to the satisfaction of the court that the applicant has been rehabilitated and has led a useful, productive and law-abiding life since the completion of his sentence and upon the finding of the court that he will not be likely to act in a manner dangerous to public safety.”  Certificates are referred to in Miss. R. Evid. 609(c) as sufficient to rehabilitate a testimonial witness, indicating that it may be issued under a common law authority not exclusively created for firearms restoration.

III.  Nondiscrimination in Licensing and Employment

While Mississippi has no general law regulating consideration of conviction in connection with licensing and employment, it does apply a direct relationship test in connection with some licenses.  See, e.g., Miss. Code Ann. § 73-67-27(1)(e) (massage therapy license may be denied or revoked if person has conviction or charges “that directly relates to the practice of massage therapy or to the ability to practice massage therapy”).

 


 

  1. Until the Fifth Circuit’s 1998 decision in Cotton v. Fordice, the constitutional list of crimes was given a narrow literal reading by the state Attorney General.  Since that decision, the Attorney General has expanded the list of statutory theft-related crimes that are disqualifying.  See Op. Miss. Att’y Gen. No. 2001-0278 (Scott, May 11, 2001) (car-jacking); Op. Miss. Atty.Gen. No. 99-0186 (Vowell, April 30, 1999) (timber larceny).   Similarly, since 1998 the category of “false pretenses” offenses has also been more expansively interpreted to include statutory offenses.  However, the Attorney General has made clear that crimes involving drugs or other controlled substances generally do not “fall under one of the twenty-one (21) crimes listed above and therefore would not be disqualifying,” though “we caution that an independent determination would have to be made on each specific crime.”  See Op. Miss. Att’y Gen. No. 2004-0171 (Karrem, April 23, 2004).  Other distinctions are explained in Op. Miss. Att’y Gen. Nos. 2000-0454 (Scott, August 18, 2000) (conviction for receiving stolen property or felony shoplifting results in disenfranchisement, but conviction for burglary does not);  2000-0169 (Salazar, April 7, 2000) (forgery does, prescription forgery does not); 2001-0278, supra (rape does, sexual battery does not).
  2. Miss. Code Ann. § 99-19-37(11) establishes administrative procedures for restoring the vote automatically to any convicted person who served honorably in World War I or World War II, referring to legislative authority in section 253 of the Mississippi constitution.
  3. Prior to 1995, the Mississippi Attorney General had historically opined that misdemeanor offenses falling within the constitutional list of crimes were disqualifying.  See, e.g., Op. Miss. Att’y Gen Nos. 1992-0153 (March 3, 1992); 1985-744 (Pittman, November 22, 1992).
  4. On March 8, 2012, the Mississippi Supreme Court upheld the validity of certain pardons issued by outgoing Governor Barbour despite the beneficiaries’ failure to comply with the notice requirement in the Mississippi constitution, holding that compliance with constitutional provisions that were procedural in nature and committed solely to another branch of government was not justiciable.  See In re Hooker, 87 So. 3d 401 (Miss. 2012).
  5. See Marc Mauer & Tushar Kansal, Barred for Life: Voting Rights Restoration in Permanent Disenfranchisement States, Sentencing Project (Feb. 2005) at 16,available at http://www.sentencingproject.org/pdfs/barredforlife.pdf (reporting that  between 2001 and 2004, 55 “bills of suffrage” passed while 57 were defeated).
  6. Prior to 2010, expungement was available only for misdemeanor convictions.  See Laws, 2010, ch. 460, § 1.  In 2010, the legislature added felony bad check offenses, possession of a controlled substance or paraphernalia, false pretense, larceny, malicious mischief, and shoplifting.  Earlier, in 2003, § 99-19-71 was amended to eliminate a requirement that a misdemeanor conviction must have occurred before the person reached age 23.  See Laws 2003, Ch. 557, § 4.

 

 

 

 

Copyright © 2017

 

Restoration of Rights Series/Minnesota

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

Person convicted of “treason or felony” may not vote “unless restored to civil rights.”  Minn. Const. art. VII, § 1.  By statute, civil rights (including right to sit on jury) restored upon discharge from sentence.  Minn. Stat. § 609.165, subd. 1 (“When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.”).  Two exceptions: firearms rights following a “crime of violence,” § 609.165, subd. 1a; and forfeiture of and disqualification from public office following a conviction of bribery under Minn. Stat. § 609.42, subd. 2.   Juvenile adjudications do not give rise to any of the “civil disabilities” that may be imposed as a consequence of an adult conviction, except that a person adjudicated delinquent for a crime of violence as defined in Minn. Stat.  § 624.712(5) “is not entitled to ship, transport, possess, or receive a firearm for the remainder of the person’s lifetime.” Minn. Stat. § 260B.245 subd. 1.

B.  Firearms

Individuals convicted of a “crime of violence,” as defined in Minn. Stat. § 624.712, subd. 5, are barred from possessing “a pistol or semiautomatic military-style assault weapon or, except for juveniles in specified monitored circumstances], any other firearm.” 624.712 subd. 1.  Firearms rights are not restored automatically upon completion of sentence along with other civil rights, but may be regained by petitioning a court for restoration.  § 609.165, subdsubd. 1a.  Court “may grant the relief sought if the person shows good cause to do so and the person has been released from physical confinement.”  § 609.165, subdsubd. 1d.1  “Crime of violence” is defined broadly in § 624.712(5) to include drug crimes and a variety of theft and burglary offenses (in addition to violent offenses).2

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

Chapter 638 of the Minnesota Statutes sets forth the authority and procedures governing the Board of Pardons.  https://www.revisor.mn.gov/statutes/?id=638&view=chapter.   “The governor, the attorney general and the chief justice of the supreme court constitute a board of pardons. Its powers and duties shall be defined and regulated by law. The governor in conjunction with the board of pardons has power to grant reprieves and pardons after conviction for an offense against the state except in cases of impeachment.”  Minn. Const. art. V, § 7; Minn. Stat. § 638.01-.08.  “The Board has the power to grant an absolute or conditional pardon,” to people currently serving a sentence.  Minn. Stat. § 638.02, subd. 1.  The Board also has the power to grant a “pardon extraordinary,” to people who have completed their sentences.  § 638.02, subd. 2.  The commissioner of corrections, or his or her designee, is the Secretary of the Board and conducts investigations and makes recommendations to the Board.  § 638.07.  The Board is required to report to legislature by February 15 each year.  § 638.075. 

Eligibility

For pardon extraordinary, five crime-free years from final discharge for nonviolent crimes, or ten crime-free years for “violent” offenses as broadly defined under Minn. Stat. § 624.712, subd. 5.  Stat § 638.02, subd. 2.  The Board may set aside this waiting period by “expressly provid[ing] otherwise in writing by unanimous vote.”  Id.  (But see Minn. R. 6600.0600, providing that application for pardon extraordinary is premature if filed less than 18 months after discharge from sentence.)  Federal felony offenders and persons convicted under the law of another state are not eligible for a state pardon.  See Minn. Const. art. V, § 7; Minn. Stat. § 638.01.  Once a pardon has been denied, reconsideration is possible only with the consent of two members of the Board.  Minn. Stat. § 638.06.  Individuals re-imprisoned for violation of parole or other supervision are barred from application for 12 months following their return.  Minn. R. 6600.1000.

Standard

To qualify for a “pardon extraordinary,” applicant must be found to be of “good character and reputation.”   Minn. Stat. § 638.02, subd. 2(2).

Effect

A “pardon extraordinary” restores all rights not otherwise regained upon completion of sentence, including firearms rights, and in addition has “the effect of setting aside and nullifying the conviction and of purging the person of it, and the person shall never after that be required to disclose the conviction at any time or place other than in a judicial proceeding or as part of the licensing process for peace officers.”  Minn. Stat. § 638.02, subd. 2.  However, a pardon extraordinary does not seal or expunge the record.3  After a pardon extraordinary is granted, a copy of the pardon is filed with the district court in the county of conviction; and the court is “directed” to issue an order “setting aside” the conviction, and to include a copy of the pardon in the court file. § 638.02, subd. 3.

Deportation

The 2005 report of the Board describes a “unique case” presented to it that year, in which a foreign national whose conviction for a minor drug offense had been set-aside under Minn. Stat. § 152.18 sought pardon to avoid deportation by federal immigration authorities. The Board was presented with the problem that its constitutional and statutory authority is limited to granting clemency for “convictions.”  The Office of the Attorney General issued an opinion that the Board did have the authority under these unique circumstances to grant the applicant a pardon extraordinary to avoid deportation.4

Process

For general pardons and commutations, Secretary of Board screens applications to determine eligibility, and makes recommendations to the Board.  Minn. R. 6600.0500.  Application forms must be obtained directly from the Secretary’s Office by mail after eligibility requirements have been reviewed.  Minn. R. 6600.0300 (“Applications for relief shall be made on forms approved by the board and supplied by the secretary to the applicant.”).  Application forms typically are sent only to those deemed eligible by the Secretary.  See http://www.doc.state.mn.us/pages/files/8214/1114/1010/BOP_2011_report.pdf  (Board of Pardons’ 2011 annual report indicating that “[a]s in the past, when an inquiry for application is made, the staff makes every effort to determine whether the potential applicant meets the eligibility requirements before an application is sent”).  In 2010, 178 applications were sent out by the Board, and 32 applications were sent in 2011.5 See http://www.doc.state.mn.us/pages/files/9614/1114/1009/BOP_2010_report.pdf  (2010 annual report); http://www.doc.state.mn.us/pages/files/8214/1114/1010/BOP_2011_report.pdf (2011 annual report).  Applications the Secretary deems “undeserving” on the merits may also be excluded from consideration, with a report to the Board summarizing the application and basis for the exclusion.  Minn. R. 6600.0500.

Hearings

“The board of pardons shall hold meetings at least twice each year and shall hold a meeting whenever it takes formal action on an application for a pardon or commutation of sentence. All board meetings shall be open to the public. . . .”  Minn. Stat. § 638.04.  For pardons extraordinary, except for less serious offenders discharged more than five years before, applicant must attend a hearing at which application is considered.  Minn. R. 6600.0900.  Persons seeking a waiver of the eligibility waiting period must also attend in person.  Judge and DA are asked their views, and victims notified.  Decision of Board usually announced at the conclusion of the hearing.  See generally Minn. R. 6600.0200-.1100, available at https://www.revisor.mn.gov/rules/?id=6600.  “Every pardon or commutation of sentence shall be in writing and shall have no force or effect unless granted by a unanimous vote of the board duly convened.”  Minn. Stat. § 638.02, subd. 1.

Frequency of grants

The following data is derived from the Annual Reports to the Legislature of the Board of Pardons, available back to 2009 at https://mn.gov/doc/data-publications/legislative-reports/In the past decade, between 10 and 25 pardons extraordinary have been granted each year, about half of those that are docketed (deemed eligible, according to the statutory criteria).  In recent years the percentage of applications granted has increased significantly. In 2015 and 2016, 33 of 83 individuals who applied for a pardon extraordinary were granted relief.  According to the 2008 report of the Board, applications for waiver have increased as collateral consequences have become more onerous: “Over the years as the collateral consequences of criminal conviction appear to have increased, there has also been an increase in the number of applicants seeking waiver of the waiting period, which the statute permits upon the unanimous written consent of the Board.” 

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

Applications Sent (all forms relief)
95
56
98
163
169
175
178
32
117
125
118
No data
53

Applications for Relief
Pardon Extraordinary (considered/granted)
19/9
18/14
27/12
23/17
41/24
28/10
45/17
45/17
20 Granted
32/10
22/7
39/18
44/15

Pardon Extraordinary + Waiver of Waiting Period
0/0
0/0
3/0
13/1
11/2
6/0
11/1
11/0
1 Granted
16/1
6/0
5/0

Commutation/ Pardon
12/0
10/0
6/0
3/0
10/0
7/0
6/0
9/0
0 Granted
7/0
8/0
10/1
9/0

Leave to Reapply
3/1
0/0
2/0
1/1
1/0
4/0
1/0
4/1
0 Granted
5/0
7/2
3/0

Contact

Randolph Hartnett, Secretary of the Board
(651) 642-0284
rhartnett@co.doc.state.mn.us

B.  Judicial sealing or expungement
Expungement/sealing

Under legislation signed into law in April 2014, the courts are now authorized to expunge judicial and executive branch records in a broad range of criminal matters: juvenile delinquency adjudications, cases resolved in an individual’s favor, cases resulting in diversion or a stay of adjudication after a one-year waiting period, and misdemeanor and minor non-violent felony convictions after waiting periods ranging from two to five years after completion of sentence.  In a case involving a conviction, a person must be able to establish that the need to expunge the record outweighs any risk to public safety.  The law protects employers from liability where a record has been expunged, and requires background screening companies to delete expunged records.  The law is effective January 1, 2015, except for domestic violence convictions which are expungeable effective July 1, 2015.  For a survey of the provisions of this comprehensive new law, see Emily Baxter, Minnesota’s sweeping new expungement law takes effect, http://ccresourcecenter.org/2015/01/01/minnesotas-sweeping-new-expungement-law-takes-effect/.

Minnesota has two types of expungement, common law and statutory.

Statutory expungement

Effective January 1, 2015, Minnesota law specifically authorizes its courts to expunge (or seal, a term used interchangeably) court and executive branch records where all pending actions or proceedings are resolved in favor of the petitioner, and in cases involving misdemeanor convictions and a long list of non-violent felonies.  See Minn. Stat. § 609A.02, subd. 3.  For a more detailed overview of the statutory expungement scheme, see Emily Baxter, Minnesota’s sweeping new expungement law takes effect, Collateral Consequences Resource Center, http://ccresourcecenter.org/2015/01/01/minnesotas-sweeping-new-expungement-law-takes-effect (January 1, 2015).

Eligibility: Those convicted of or who received a stayed sentence for a misdemeanor must wait two years after completion of sentence; those convicted of a gross misdemeanor must wait four years; and those convicted of 50 eligible felonies listed in subd. 3(b) must wait five years. The records of a conviction for which registration is required may not be expunged. § 609A.02 subd. 4. Minn. Stat. §§ 609A.01, 609A.02, subds. 1, 3. Note that a felony-to-misdemeanor reduction following deferred sentencing does not reduce the offense for purposes of expungement eligibility. See “Deferred sentencing,” infra.

Non-conviction records: Sealing may also be sought under § 609A.02 where all pending actions or proceedings were “resolved in favor of the petitioner.” § 609A.02, subd. 3(a)(1).  Individuals who have completed a deferred adjudication or other diversion program may have the related arrest, indictment, trial, or other records sealed after remaining crime-free for a one-year waiting period. § 609A.02, subd. 3(a)(2). Juveniles prosecuted as adults may have their records sealed under this authority upon discharge. § 609A.02, subd. 2. Sealing under § 609A.02 may not be sought where destruction of the records available under Minn. Stat. § 299C.105 (see below).

Procedures and Standards: Procedures for filing a petition for expungement are set forth in Minn. Stat. § 609A.03, subd. 5(a). (Under a new provision effective in January 2015, no petition is necessary with the agreement of the prosecutor. See § 609A.025.)  In all cases involving conviction records, a balancing test applies. Expungement of conviction records is

an extraordinary remedy to be granted only upon clear and convincing evidence that it would yield a benefit to the petitioner commensurate with the disadvantages to the public and public safety of:  (1) sealing the record; and  (2) burdening the court and public authorities to issue, enforce, and monitor an expungement order.

§ 609A.03, subd. 5(a). A balancing test also applies to expungement of non-conviction records, but there is a presumption in favor of relief. See discussion below.

Common law expungement

For convictions that do not fall within the list of statutorily eligible offenses, common law expungement may still be available, though the procedures set forth in § 609A.03 apply. Minnesota courts have inherent authority to expunge records generated by the judicial branch in two situations: 1) when a convicted offender’s constitutional rights may be seriously infringed by not expunging the record; and 2) even if no constitutional infringement, when expungement will yield a benefit to the offender commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing, enforcing, and monitoring an expungement order.   See State v. S.L.H., 755 N.W.2d 271, 274 (Minn. 2008); State v. Ambaye, 616 N.W.2d 256, 258 (Minn. 2000); see generally Lindsay W. Davis, An Amicus Perspective on Recent Minnesota Criminal Expungement, 2 Wm. Mitchell J. L. & Prac. 4 (2009); Jon Geffen & Stephanie Letze, Chained to the Past: An Overview of Criminal Expungement Law in Minnesota – State v. Schultz, 31 Wm. Mitchell L. Rev. 1331 (2005). 

It is not clear to what extent the standards developed and applied in common law expungement cases will be supplanted by the new statutory factors in § 609A.03.  See Ambaye, 616 N.W.2d at 258; see also State v. H.A., 716 N.W.2d 360, 364 (Minn. Ct. App. 2006).  The seriousness of the offense has been regarded as an important consideration in determining whether records should be expunged.  Compare Ambaye, 616 N.W.2d at 261 (agreeing with district court determination of “compelling interest” in maintaining record of violence, in part due to underlying charge of first degree murder) with State v. Schultz, 676 N.W.2d 337, 341 (Minn. Ct. App. 2004) (listing mitigating circumstances following plea to charge of felony assault supporting trial court exercise of discretion to expunge).6

The Minnesota Supreme Court held in May 2013 that courts’ inherent authority to expunge records created by the judicial branch does not extend to records maintained by the executive branch.  State v. M.D.T., — N.W.2d —-, 2013 WL 2220826 (Minn. 2013) at *14 (“expungement of M.D.T.’s records held in the executive branch is not necessary to the performance of a unique judicial function”).  The court reasoned that because the Minnesota Government Data Practices Act “establishes a presumption that government data are public” for 15 years, see Minn. Stat. § 13.87, subd. 1(b) (see above), “[r]ecognition of inherent judicial authority to expunge M.D.T.’s criminal records held in the executive branch would effectively override the legislative policy judgments expressed in both of these statutes.” 2013 WL 2220826 * 12.

Effect of expungement

Minn. Stat. § 609A.01: “The remedy available is limited to a court order sealing the records and prohibiting the disclosure of their existence or their opening except under court order or statutory authority. Nothing in this chapter authorizes the destruction of records or their return to the subject of the records.”  Expungement seals the record, which remains available for law enforcement purposes, for purposes of evaluating a candidate for a law enforcement position, or for purposes of background checks by the Department of Human Services.  See § 609A.03 subd. 7.  In addition, “upon request by law enforcement, prosecution, or corrections authorities, an agency or jurisdiction subject to an expungement order shall inform the requester of the existence of a sealed record and of the right to obtain access to it as provided by this paragraph.  For purposes of this section, a “‘criminal justice agency’ means courts or a government agency that performs the administration of criminal justice under statutory authority.”  Id.

Consideration in employment and licensing:  Records of arrest not leading to conviction, convictions that have been expunged, or misdemeanors for which a prison sentence could not be imposed, may not be considered in connection with public employment or licensing decision.  Minn. Stat. § 364.04.

Negligent hiring standard: “Information relating to a criminal history record of an employee, former employee, or tenant that has been expunged before the occurrence of the act giving rise to the civil action may not be introduced as evidence in a civil action against a private employer or landlord or its employees or agents that is based on the conduct of the employee, former employee, or tenant.”  Minn. Stat. § 609A.03, subd. 5(e).

Background screening companies:  The new bill closes the gap on private data mining records: if a business screening service knows that a criminal record has been sealed, expunged, or is the subject of a pardon, the screening service shall promptly delete the record. Minn. Stat. 332.70 subd 3a.7

Frequency

Expungement has been a frequently sought remedy in Minnesota.  According to press accounts prior to enactment of the new law, more than 100 applications for expungement are filed annually in Hennepin County alone.  See Nick Coleman, This Diva Changed her Tune and her Life, Minneapolis Star Tribune, Sept. 18, 2005, at 1B.

Juvenile records

Unless expunged, juvenile records are retained and made available to certain government agencies, schools, and victims only until the person reaches age 28, with certain exceptions.  If the person commits a felony as an adult, or the court convicts a child as an “extended jurisdiction juvenile,” the court “shall retain the juvenile records for as long as the records would have been retained if the offender had been an adult at the time of the juvenile offense.”  See Minn. Stat. § 260B.171, subd. 1.  Juvenile records may be used to enhance subsequent adult criminal charges and sentences; disqualify adults from working at jobs or volunteer opportunities involving vulnerable adults, patients, or children; restrict access to firearms; and prevent access to public housing.

Under Minn. Stat. § 260B.198, subd. 6, as amended in April 2014 and effective January 1, 2015, the district court is authorized to expunge from executive branch and court files all records relating to a delinquency adjudication, after determining that “expungement of the record would yield a benefit to the subject of the record that outweighs the detriment to the public and public safety in sealing the record and the burden on the court and public agencies or jurisdictions in issuing, enforcing and monitoring the order.” In making this determination the court must consider a variety of factors set forth in subd. 6(b), including the age, education, experience, and background, including mental and emotional development, of the subject of the record at the time of commission of the offense; the nature and severity of the offense, including any aggravating or mitigating factors; victim and community impact; and the overall background and history of the subject of the record.  This legislation effectively over-rules the holding of the Minnesota Supreme Court in In re Welfare of J.J. P., — N.W.2d —-, 2013 WL 2220283 (Minn. 2013).

A new report from the Center for Crime and Justice outlines how juvenile records are created, maintained, and accessed; it describes when juvenile records are public and when they are private; and it both identifies and defines the many collateral consequences – legal disabilities and practice barriers – that an individual with a juvenile record may face as they grow into adulthood.  These collateral consequences often severely limit a youth’s ability to access employment, higher education, and housing, sometimes long after an individual’s time in juvenile court is complete. See “Juvenile Records in Minnesota,” http://www.crimeandjustice.org/pdffiles/Juvenile%20Records%20in%20Minnesota.pdf.

Effect of a pardon

A pardon extraordinary “nullifies” and “sets aside” the conviction, but it does not expunge or seal the record.

Deferred sentencing

A felony conviction will be “deemed to be” a gross misdemeanor or misdemeanor if 1) the sentence imposed was no greater than that authorized for a misdemeanor; or 2) the imposition of the prison sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a prison sentence.  Minn. Stat. § 609.13, subd. 1.  The purpose and effect of this statute is to avoid imposition of most legal disabilities that accompany a felony conviction, including those in administrative licensing proceedings.  See id., advisory committee cmt., quoted in Matter of Woollett, 540 N.W.2d 829, 831 (Minn. 1995) (“It is believed desirable not to impose the consequences of a felony if the judge decides that the punishment to be imposed will be no more than that provided for misdemeanors or gross misdemeanors”). 

However, in recent years courts have chipped away at the effect of the deferred sentencing reduction.  The conviction will still be counted as a felony for purposes of prosecution as a felon in possession, and for subsequent sentencing.  See Woollett.  Also, in Woollett, the Supreme Court of Minnesota held that a stay of sentencing did not convert a felony conviction for third-degree assault into a misdemeanor for purposes of peace officer licensing, because the Board of Peace Officer Standards and Training had specific statutory authority to disqualify an individual based on a felony conviction.  The court compared the Minnesota statute with the California statute on which it was modeled (see Cal. Penal § 17(b)(1) and (b)(3), described in the California profile), and found its coverage less comprehensive.  See Woollett, 540 N.W.2d at 832, n. 3. 

Individuals who have completed a deferred adjudication or other diversion program may have the related arrest, indictment, trial, or other records sealed after remaining crime-free for a one-year waiting period. § 609A.02, subd. 3(a)(2).  (See below). In March 2017, the Minnesota Supreme Court held that felony-to-misdemeanor deferred sentencing reduction did not reduce the offense level for the purpose of expungement eligibility under Minn. Stat. § 609A.02.  See State v. S.A.M., A15-0950 (Minn. 2017); see also Mike Mosedale, Supreme Court Limits Expungement Eligibility, Minnesota Lawyer, http://minnlawyer.com/2017/03/20/supreme-court-limits-expungement-eligibility (March 20, 2017),

Non-conviction records

Expungement may be sought for non-conviction records (cases “resolved in favor of the petitioner”) under Minn. Stat. § 609A.02, subd. 3(a)(1), and for deferred sentencing/adjudication cases under subd. 3(a)(2). (Expungement authority under this statute discussed above as applied to conviction records.)  Sealing under § 609A.02 may not be sought where relief available under Minn. Stat. § 299C.105, which provides for mandatory destruction of arrest record and certain identifying information by the Minnesota Bureau of Criminal Apprehension (BCA) and other state agencies (police departments, county attorneys) in cases where no charges filed or all changes dismissed prior to a determination of probable cause. Section 299C.105 applies only if the individual has not been convicted of a felony or gross misdemeanor for the 10 years prior.

A balancing test applies to consideration of sealing as authorized under § 609A.02(a)(1) and (a)(2), but unlike the test that applies to conviction records, there is a presumption in favor of sealing. See § 609A.03, subd. 5(b): “the court shall grant the petition to seal the record unless the agency or jurisdiction whose records would be affected establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record.” In applying the balancing test, the court is directed to consider a number of factors, including the nature and severity of the underlying crime, the risk the petitioner poses to individuals or society, the length of time since the crime occurred, the steps taken by the petitioner toward rehabilitation, aggravating or mitigating factors relating to the underlying crime, the reasons expungement is sought, the petitioner’s overall criminal record, official recommendations and the recommendations of victims, and payment of restitution. § 609A.03, Subd. 5(c).
See also Minn. Stat. § 152.18 (deferred prosecution and expungement for minor drug offenses); § 609A.03, subd. 6 (“If the court orders the sealing of the record of proceedings under [Minn. Stat. § 152.18], the effect of the order shall be to restore the person, in the contemplation of the law, to the status the person occupied before the arrest, indictment, or information.”).

Minn. Stat. § 299C.11. The Minnesota Bureau of Criminal Apprehension (BCA) and other state agencies (police departments, county attorneys) must destroy an individual’s arrest record and certain identifying information upon request if the individual has not been convicted of a felony or gross misdemeanor within 10 years before the determination of all pending criminal actions in favor of the arrested person; and either no charges were filed or all changes were dismissed prior to a determination of probable cause.  See State v. Bragg, 577 N.W.2d 516 (Minn. Ct. App. 1998).  The balancing test under Minn. Stat. § 609A.03, subd. 5 applies even to sealing of nonconviction records.  See Bragg, supra, 577 N.W. 2d at 521 (noting that petitioner in that case could have proceeded under § 299C.11 but chose instead to proceed under § 609A.03).   See also Minn. Stat. § 152.18 (deferred prosecution and expungement for minor drug offenses); § 609A.03, subd. 6 (“If the court orders the sealing of the record of proceedings under [Minn. Stat. § 152.18], the effect of the order shall be to restore the person, in the contemplation of the law, to the status the person occupied before the arrest, indictment, or information.”).

Helpful information about how to apply for expungement is available on the Minnesota courts website at http://www.mncourts.gov/selfhelp/?page=276.  Forms are available at http://www.mncourts.gov/selfhelp/?page=332See also Geffen & Letze, supra.

Administrative sealing

Conviction information maintained by the Bureau of Criminal Apprehension will not be publicly disseminated 15 years after discharge of sentence, Minn. Stat. § 13.87, subd. 1(b), except that information “created or collected by law enforcement agencies which document any actions taken by them to cite, arrest, incarcerate or otherwise substantially deprive an adult individual of liberty shall be public at all times in the originating agency.” § 13.82, subd. 2.

Firearms restoration

A person convicted of a crime of violence and thus deprived of firearms rights under Minn. Stat. § 609.165, subd. 1a, may petition a court for restoration, and “the court may grant the relief sought if the person shows good cause to do so and the person has been released from physical confinement.”  § 609.165, subd. 1d.

III.  Nondiscrimination in Licensing and Employment:
A.  Minnesota Criminal Rehabilitation Act

The Minnesota Criminal Rehabilitation Act (1974), Minn. Stat § 364.01 et seq., prohibits discrimination in public employment and licensing:

The legislature declares that it is the policy of the state of Minnesota to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the resumption of the responsibilities of citizenship. The opportunity to secure employment or to pursue, practice, or engage in a meaningful and profitable trade, occupation, vocation, profession or business is essential to rehabilitation and the resumption of the responsibilities of citizenship.

Public employers and licensing agencies may not disqualify a person “solely or in part” based on criminal conviction unless 1) there is a “direct relationship” between occupation or license and conviction history, measured by the purposes of the occupation’s regulation and the relationship of the crime to the individual’s fitness to perform the duties of the position; and 2) the individual has not shown “sufficient rehabilitation and present fitness to perform” the duties of the public employment or licensed occupation.  § 364.03, subd. 1.

Direct relationship test

In determining if a conviction directly relates to the position of public employment sought or the occupation for which the license is sought, the hiring or licensing authority shall consider: (a) the nature and seriousness of the crime or crimes for which the individual was convicted; (b) the relationship of the crime or crimes to the purposes of regulating the position of public employment sought or the occupation for which the license is sought; (c) the relationship of the crime or crimes to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position of employment or occupation.   Minn. Stat § 364.03, subd. 2.

Judicial Interpretation of Direct Relationship Test:  The Minnesota courts have interpreted the direct relationship test broadly. See, e.g., Peterson   v. Minneapolis City Council, 274 N.W.2d 918 (Minn. 1979) (conviction for attempted theft by trick directly related to the operation of a massage parlor); In re Shelton, 408 N.W.2d 594 (Minn. Ct. App. 1987) (embezzlement directly related to fitness to teach; teacher with 20 years of service terminated in spite of efforts to make restitution).

Rehabilitation

Even where a crime is found to be directly related to the public employment or license sought, person shall not be disqualified if the person can show “competent evidence of sufficient rehabilitation and present fitness to perform the duties of the public employment sought or the occupation for which the license is sought.” § 364.03, subd. 3.  Rehabilitation may be established by a record of law-abiding conduct for one year after release from confinement, and compliance with all terms of probation or parole.  Licensing or hiring authority shall also consider evidence regarding nature and seriousness of crime, mitigating circumstances, age at time of conviction, time elapsed since conviction, and other evidence of rehabilitation such as letters of reference.  Id. A public employee may demonstrate sufficient rehabilitation if one year has elapsed since release from incarceration without subsequent conviction of another crime.  In re Shelton, 408 N.W.2d 594 (Minn. Ct. App. 1987).

Various bills have from time to time been introduced into the Minnesota legislature that would add to or clarify the test of rehabilitation.  Readers are encouraged to check recent enactments for the most up-to-date information, or to consult with Emily Baxter, Council on Crime and Justice, baxtere@crimeandjustice.org.

Certain records may not be considered

Records of arrest not leading to conviction, convictions that have been expunged, or misdemeanors for which a prison sentence could not be imposed, may not be considered in connection with public employment or licensing decision.  Minn. Stat. § 364.04.

Notification of reasons for denial

“If a hiring or licensing authority denies an individual a position of public employment or disqualifies the individual from pursuing, practicing, or engaging in any occupation for which a license is required, solely or in part because of the individual’s prior conviction of a crime, the hiring or licensing authority shall notify the individual in writing of the following: (1) the grounds and reasons for the denial or disqualification; (2) the applicable complaint and grievance procedure; (3) the earliest date the person may reapply for a position of public employment or a license; and (4) that all competent evidence of rehabilitation presented will be considered upon reapplication.”  Minn. Stat. § 364.05.

Enforcement through administrative procedure act

Minn. Stat. § 364.06.  See Commers v. Spartz, 294 N.W.2d 321, 322 (Minn. 1980) (county school board required to invoke mechanisms of the Administrative Procedure Act upon an aggrieved party’s assertion of alleged violation of Minnesota Criminal Rehabilitation Act).  Conviction may be considered as an element in good character inquiry.  Minn. Stat. § 364.07.  Law enforcement and fire protection agencies are specifically excluded from a requirement of compliance with this statute.  Minn. Stat. § 364.09.  See Woollett, 540 N.W.2d at 834.

Exceptions

Since 1974, list of excepted professions and employments has been enlarged gradually.  Chapter does not apply to the practice of law (Minn. Stat. § 364.08); or to “peace officers” and law enforcement agencies, fire protection agencies, private detectives, certain transportation licenses (including school bus drivers, EMT personnel and taxi drivers if convicted of certain serious offenses and discharged from sentence within the past ten years) (Minn. Stat. § 364.09(a)).  Chapter does not apply to juvenile corrections employment if crime involved sexual misconduct.  Id.  Chapter does not apply to school districts or teaching licenses.  Minn. Stat. § 364.09(b).  See also § 364.09(c) (“Nothing in this section precludes the Minnesota police and peace officers training board or the state fire marshal from recommending policies set forth in this chapter to the attorney general for adoption in the attorney general’s discretion to apply to law enforcement or fire protection agencies.”)  Chapter also does not apply to a license to practice medicine that has been denied or revoked.  § 364.09(d).

B.  Recent Legislative Measures to Regulate Hiring/Licensing of People with Criminal Records
Expunged records

Employers and licensing agencies are not permitted to consider records that have been expunged, misdemeanors not leading to a prison term, or records of arrest not leading to conviction.  Minn. Stat. § 364.04.  As of 2014, the number of records eligible for statutory expungement was greatly expanded.  See Part IIB, above.  Employers and landlords also enjoy a measure of protection for negligence claims based on expunged records.  Minn. Stat. § 609A.03, subd. 5(e).  Background screening companies are also subject to regulations relating to the reporting of expunged records. Minn. Stat. 332.70 subd 3a.  See Part II B, above.

Ban-the-Box initiative

In 2009 the Minnesota legislature enacted a state-wide “ban-the-box” law applicable to public employment prohibiting inquiry into criminal history until the applicant has been selected for an interview, or if no interview offered employment.  Minn. Stat. § 364.021.  Effective January 1, 2014, the law was extended to cover private employment as well.  See 2013 Minn. Sess. Law Serv. Ch. 61 (S.F. 523) (WEST).

The law does not apply to the Department of Corrections or to employers who have a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee’s criminal history during the hiring process. It also does not prevent an employer from notifying applicants that “law or the employer’s policy will disqualify an individual with a particular criminal history background from employment in particular positions.”  § 364.021.  Specific additional exceptions are set forth in § 364.09 (includes fire and emergency personnel, taxicab drivers, school district personnel).

Enforcement of § 364.021 is governed by Minn. Stat. § 364.06.  Complaints against public employers are handled under the state administrative procedures act.  Complaints against private employers are investigated by the state human rights commissions, and violations may result in fines.

A number of municipal directives have implemented Section 364.  In 2006 the City of St. Paul passed an ordinance prohibiting municipal employers from making inquiry about an applicant’s criminal record on an application for employment for positions covered by Section 364.  See http://stpaul.granicus.com/MetaViewer.php?view_id=37&clip_id=308&meta_id=14447; see also http://www.nelp.org/page/-/SCLP/2010/BantheBoxCurrent.pdf?nocdn=1.   A criminal records check may be made only for certain positions deemed of “sufficient sensitivity and responsibility” to require one, and then only after a conditional offer of employment has been made.8  The City of Minneapolis followed suit.  See id.; see also http://www.ci.minneapolis.mn.us/www/groups/public/@council/documents/proceedings/wcms1q-070097.pdf (containing copy of Resolution 2006R-642).9

Negligent hiring

Minnesota is one of 36 states that will hold employers liable for the negligent hiring of individuals with violent backgrounds.  See Ponticas v. K.M.S. Investments, 331 N.W. 2d 907 (Minn. 1983).  Many employers assume this liability exposure is greater than it actually is and therefore do not hire individuals who, in fact, could be hired safely.  In 2009 the Minnesota Legislature enacted Minn. Stat. § 181.981 to clarify the liability of employers for hiring someone with a criminal record and limit liability regarding certain records.  Minn. Stat. § 181.981:

Subdivision 1. Limitation on admissibility of criminal history. Information regarding a criminal history record of an employee or former employee may not be introduced as evidence in a civil action against a private employer or its employees or agents that is based on the conduct of the employee or former employee, if:

(1) the duties of the position of employment did not expose others to a greater degree of risk than that created by the employee or former employee interacting with the public outside of the duties of the position or that might be created by being employed in general;
(2) before the occurrence of the act giving rise to the civil action, a court order sealed any record of the criminal case or the employee or former employee received a pardon; or
(3) the record is of an arrest or charge that did not result in a criminal conviction.

Subdivision 2. Relation to other law. This section does not supersede a statutory requirement to conduct a criminal history background investigation or consider criminal history records in hiring for particular types of employment.

A 2013 amendment that goes into effect January 2014 will also limit liability based on compliance with the ban-the-box provisions in Minn. Stat. § 364.021.  See 2013 Minn. Sess. Law Serv. Ch. 61 (S.F. 523) (WEST).

Notice to college students

Minn. Stat. § 135A.157 requires all public and private postsecondary educational institutions within the State of Minnesota to give notice of the potential effects of criminal convictions on future employment.  By giving future students the notice required by this law, such students will know that their options may be limited in certain fields before they invest time and money in a particular area of study.  Ideally, it will also make the general public more aware of some of the onerous and often unreasonable statutory employment restrictions and lead to the change of these policies.

Juvenile adjudications

Juvenile adjudications may not “disqualify the child in any future civil service examination, appointment, or application.” Minn. Stat. § 260B.245 subd. 1.


  1. Until 2003, the right to possess firearms was automatically restored to persons convicted of a crime of violence (with the exception of persons convicted of domestic assault involving the use of a firearm) 10 years after restoration of rights or expiration of sentence, whichever occurs first, provided the person had not been convicted of another crime of violence in that 10 year period.  Minn. Stat. § 624.713, subdiv. 1(b) (2002).  The 2003 Minnesota Citizen’s Personal Protection Act, 2003 Minn. Sess. Law Serv. Ch. 28 (S.F. 842), modified the ban against possession of firearms to a lifetime ban for all persons discharged from sentence of court supervision on or after August 1, 1993, unless and until rights are restored by a court.  See Minn. Stat. § 624.713, subdiv. 1(11).
  2. Because Minnesota offenders regain all three basic civil rights upon discharge from sentence, their federal firearms rights are restored along with their state firearms rights.  See 18 U.S.C. § 921(a)(20) (“Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”).
  3. In 1992, language in Minn. Stat. § 638.02 that provided for “sealing” of records after pardon was repealed, so that even though the conviction is “nullified” the record is not expunged or sealed.  See Minn. Stat. § 638.02 (historical and statutory notes); 1992 Minn. Sess. Law Serv. Ch. 569 (H.F. 2181).  Rather, the fact of the pardon is added to the record.  Where there is a request from a member of the public for public criminal records, only the fact of the pardon is disseminated. When there is a background check for private data (authorized by the subject), both the conviction and the pardon are disseminated. See also State v. Stern, 297 N.W. 321 (Minn. 1941) (pardon granted defendant for previous conviction in California was not bar to imposition of enhanced punishment under Minnesota’s habitual criminal statute following conviction of crime of performing illegal operation).
  4. See http://www.doc.state.mn.us/pages/files/5514/1114/1008/BOP_2005_report.pdf.
  5. In 2011, the Board considered 45 applications for pardons extraordinary and granted 17.  28 applications for pardons extraordinary were denied, two additional applicants withdrew or were deferred prior to consideration, and 11 additional applications were not considered because the Board declined to set aside the waiting period.  Nine applications for pardon/commutation were reviewed under Minn. R. 6600.0500, eight of which were deemed ineligible for review.  See http://www.doc.state.mn.us/pages/files/8214/1114/1010/BOP_2011_report.pdf.
  6. In Ambaye, the Minnesota Supreme Court held that the district court did not abuse its discretion by refusing to expunge a violent offense:

    [T]he court stated that the benefit respondent stood to gain from expungement, if granted, would override the very purpose of the background check. Employers, sometimes pursuant to law and sometimes voluntarily, have required background checks in order to ‘assess any potential risk involved with hiring certain individuals.’ Further, the district court reasoned that the public had a ‘compelling interest in maintaining [respondent’s] record of violence, particularly because the underlying offense [respondent] was charged with was murder in the first degree.’ Finally, the district court noted that respondent is ‘currently gainfully employed, thus his [criminal record] is not preventing him from obtaining employment.’

    Ambaye, 616 N.W.2d at 261.  In Schultz, the petitioner granted expungement had been convicted of second degree assault shortly after his 18th birthday, at a time when he was experiencing mental health difficulties that had subsequently been controlled through medication.  Shultz, 676 N.W.2d at 340.   In M.D.T., the court of appeals granted expungement, noting that “appellant’s offense, aggravated forgery, was a ‘non-violent misdemeanor’ and that ‘the facts surrounding the offense’ also showed that ‘the nature and seriousness’ of the offense were ‘minimal.’”  State v. M.D.T., 815 N.W.2d 628, 633 (Minn. App. 2012), rev’d on other grounds by 2013 WL 2220826 (Minn. 2013).

  7. Subd. 3a.Deletion of expunged records:  “If a business screening service knows that a criminal record has been sealed, expunged, or is the subject of a pardon, the screening service shall promptly delete the record.”  See also Subd. 4 (“A business screening service that disseminates a criminal record that was collected on or after July 1, 2010, must include the date when the record was collected by the business screening service and a notice that the information may include criminal records that have been expunged, sealed, or otherwise have become inaccessible to the public since that date.”); Subd. 5.Remedies; relationship to FCRA (“A business screening service that violates this section is liable to the individual who is the subject of the record for a penalty of $1,000 or actual damages caused by the violation, whichever is greater, plus costs and disbursements and reasonable attorney fees.”
  8. The St. Paul resolution provides that “the City will make a good faith determination as to which specific positions of employment are of such sensitivity and responsibility that a background check is warranted. Further, certain positions of employment with the City of Saint Paul are exempted from Chapter 364 including, but not limited to, police and fire, positions working with children, and positions that handle money or sensitive information. If it has been established that a position requires a background check, the City will not conduct that check until after the applicant is determined to be otherwise qualified for that position.”  Seehttp://stpaul.granicus.com/MetaViewer.php?view_id=37&clip_id=308&meta_id=14447.    Moreover, the City will not conduct, request, or accept any background checks which contain information relating to (i) records of arrests not followed by a valid conviction; (ii) convictions which have been, pursuant to law, annulled or expunged; and (iii) misdemeanor convictions where no jail sentence can be imposed.  Id.  If the background check uncovers a prior conviction, the employee shall not be disqualified “unless the crime directly relates to the employment sought.”  Id.  Additionally, if a determination is made that an applicant has been convicted of a crime or crimes directly relating to the position sought, the City will comply with the notification requirements set forth in Minn. Stat. § 364.05. Id.
  9. The resolution of the Minneapolis City Council, approved on December 22, 2006, requires the City’s Department of Human Resources to periodically review all positions of employment with the City and “make a good faith determination as to which specific positions are of such sensitivity and responsibility that a background check is warranted.”  Minneapolis City Counsel, Resolution 2006R-642, available at http://www.ci.minneapolis.mn.us/www/groups/public/@council/documents/proceedings/wcms1q-070097.pdf.  Even as to those jobs, the City “will not conduct that check until after the job applicant is determined to be otherwise qualified for that position.” Id.  If a determination is made that an applicant has been convicted of a crime or crimes directly relating to the position sought, the City’s Human Resources Department will comply with the notification requirements set forth in Minn. Stat. § 364.05. Id.

Copyright © 2017

Restoration of Rights Series/Michigan

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

A person who has been convicted and sentenced “for a crime for which the penalty imposed is confinement in jail or prison” is disqualified from voting “while confined.”  Mich. Comp. Laws § 168.758b.  See also Mich. Const. art. 2, § 2.  Disqualification while confined also applies to misdemeanants.  See U.S. v. Wegrzyn, 305 F.3d 593 (6th Cir. 2002).  A person on probation or parole is not considered “confined.”

A person convicted of a felony is permanently disqualified from jury service unless the conviction is pardoned or expunged.  Mich. Comp. Laws § 600.1307a(1)(e).1 Some disqualifications from office expire after a certain period, see, e.g., Mich. Const. Art. 4, § 7 (person convicted of breach of public trust within last 20 years ineligible for either house of legislature), and some are permanent, see, e.g., Mich. Comp. Laws § 750.118 (public officer who accepts a bribe is forever disqualified from public office).

B.  Firearms

Under Mich. Comp. Laws § 750.224f(1), a person convicted of a felony may not possess firearms until three years after completion of all the terms of the sentence, including probation or parole, except that persons convicted of a “specified felony” (generally involving the use of force, explosive or firearm, controlled substances, burglary) remain subject to the disability until 1) five years after the completion of the sentence and 2) their firearm privileges have been restored pursuant to the administrative procedure set forth in Mich. Comp. Laws § 28.424 (see Part IIC).This section “does not apply to a conviction that has been expunged or set aside, or for which the person has been pardoned, unless the expunction, order, or pardon expressly provides that the person shall not possess a firearm.”  § 750.224f(4).

C.  Collateral consequences

See Miriam Aukerman, Collateral Consequences of Criminal Convictions, A Legal Outline for Michigan, Dec. 5, 2008, available at http://www.sado.org/content/guides/collateral.pdf.  Other Michigan-specific reentry resources are collected at Michigan Reentry Law Wiki, Michigan Poverty Law Program, at http://reentry.mplp.org/reentry/index.php/Main_Page.

II.  Discretionary Restoration Mechanisms:
A.  Executive pardon
Authority

The pardon power, except in cases of impeachment, is vested in the governor, “subject to procedures and regulations prescribed by law.”  The governor is required to inform the legislature annually of each pardon granted, “stating reasons therefor.”  Mich. Const. Art. 5, § 14.

Administration

The governor is required to obtain a recommendation from the Parole Board prior to deciding each case, but is not bound by it.  See Mich. Comp. Laws §§ 791.243, 791.244.  See also Rich v. Chamberlain, 62 N.W. 584 (Mich. 1895) (statute providing that a board of pardons will investigate petitions for pardons and report to the governor with such recommendations as they deemed fit, and that the governor, on receipt of such report, might, as he deemed fit, grant or refuse the pardon, did not violate constitution).  In 2011, Governor Snyder signed a new executive order that abolished the Michigan Parole and Commutation Board (a 15-member board which had been established by his predecessor), and established a 10 member Michigan Parole Board, consisting of non-Civil Service employees who are appointed by the Director of the Michigan Department of Corrections.  See Executive Order 2011-03 (effective April 15, 2011), available at http://www.legislature.mi.gov/documents/2011-2012/executiveorder/pdf/2011-EO-03.pdfSee also http://www.michigan.gov/corrections/0,4551,7-119-1435_11601-61290–,00.html (giving history of Parole Board).

Eligibility

No eligibility requirements for Michigan offenders.  A person convicted under federal law or the law of another state is ineligible for a gubernatorial pardon.

Effect

The Parole Board website provides that

a pardon erases a conviction from an individual’s record. The Michigan Supreme Court has held that the effect of a pardon by the Governor is such that it “releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.” People v. Van Heck, 252 Mich.App. 207, 216; 651 N.W.2d 174, 179 (2002). A pardon is an extraordinary form of relief for someone convicted of a crime and is extremely rare.

http://www.michigan.gov/corrections/0,4551,7-119-1435_11601-223452–,00.html                                     (explaining the clemency process).

Process

Mich. Comp. Laws § 791.243 provides that all applications for executive clemency must be filed with the Parole Board.  Procedures governing clemency hearings are set forth in § 791.244.2  The contents of the pardon application are specified at Mich. Admin. Code r. 791.7760, which also specifies the procedures for applying for pardon. 

The Parole Board website provides an application form, which explains that in certain cases judicial set-aside relief may be available (see Part II.B below) and that the board “will not process [a pardon application] where expungement is available to the petitioner as an appropriate remedy.”  See paragraph 5 of the “Application for Pardon after Probation, Parole or Discharge,” https://www.michigan.gov/documents/corrections/application_for_pardon_after_probation_parole_ordischarge_330607_7.pdf.  The form seeks detailed information on the applicant’s crime, his employment history, his contributions to the community, and his need for pardon.  

Mich. Comp. Laws § 791.244 describes the procedure for investigating pardon applications, setting time limits on each stage.  One member of Board must interview any person convicted of murder in the first degree or serving a life sentence without parole at the conclusion of ten years.  Mich.Comp. Laws § 791.244(1).  Unless upon the initiation of the Board, the Board must initiate a review within 60 days of receiving an application for clemency to determine whether an application has merit, and must make a full investigation and determination on whether or not to proceed to a public hearing within 270 days of initiation by the Board or receipt of a meritorious application.  §§ 791.244(2)(a), (e).

A hearing must be held within 90 days.  At least 30 days before conducting the public hearing, the Board must provide written notice of the public hearing by mail to the attorney general, the sentencing trial judge, and the prosecuting attorney, or their successors in office, and each victim who requests notice pursuant to the crime victim’s rights act.  One member of the Board may conduct the hearing, and the public shall be represented by the Attorney General or a member of the attorney general’s staff.  If the parole board recommends executive clemency, it shall make all data in its files available to the governor.  Except for medical records protected by the doctor-patient privilege of confidentiality, the files of the parole board in cases under this section shall be matters of public record.  The recommendation of the Board is a matter of public record.  See generally §§ 791.244(2)(f)-(j), (3).

Frequency of Grants

Post-sentence pardons have been infrequent in Michigan in recent years.  Between 1969 and 2006, only 34 pardon applications were approved by the governor.  As collateral consequences have grown more severe in recent years, the number of applications for pardon filed has steadily increased.  While former-Governor Granholm was aggressive in her use of the pardon power to shorten prison sentences,3 she granted fewer than twenty pardons during her eight years in office (2003-2011).  Source:  Michigan Parole & Commutation Board.

Her successor Rick Snyder granted no pardons until the end of his first four-year term, when he issued 11 grants out of 750 applications considered.  Most of the grants went to individuals convicted long ago of minor crimes:  See http://www.freep.com/story/news/local/michigan/2015/02/06/gov-snyder-pardons-michigan/22972283/ (“Most of them were people who made mistakes early in their lives and have been good citizens for decades,” Snyder spokesman Dave Murray said Thursday. “The earlier mistake they made was holding them back from a job, a passport.”)  However, one of the eleven pardons went to well-connected businessman Alan Gocha whose case created a firestorm of controversy.  See http://www.freep.com/story/opinion/columnists/brian-dickerson/2015/04/18/snyder-pardon/25964847/.

Contact

Michigan Department of Corrections
Office of the Parole Board
Pardons and Commutations Coordinator
Post Office Box 30003
Lansing, Michigan 48909
517-373-0270.

B.  Judicial sealing or expungement
1.  Set-aside

A person convicted of a felony offense under Michigan law may seek a court order “setting aside” the conviction five years after either imposition of sentence or completion of any term of imprisonment imposed, whichever is later, as long as the applicant has no more than two “misdemeanors.”4  Mich. Comp. Laws § 780.621(1)(a).   (A traffic offense does not constitute a misdemeanor, unless it has been for operating while intoxicated). In addition, under a provision signed into law on January 12, 2015, persons convicted of not more than two misdemeanor offenses and no other felony or misdemeanor offenses may apply to have either or both of the misdemeanor convictions set aside. Id. § 780.621(1)(b). A person convicted of any felony or attempt to commit any felony punishable by life in prison is ineligible for a set aside, as are certain traffic offenses and sex offenses.  Id. at § 780.621(2).  Victims of human trafficking are also eligible for set-aside, as a result of amendments to the law in the fall of 2014.  See House Bill 5025, Mich. Comp. Laws §§ 780.621(3) (as amended by 2014 Mich. Pub. Acts 64). See People v. Blachura, 440 N.W.2d 1, 2 (Mich. Ct. App. 1989) (person convicted of five counts of perjury ineligible since each count deemed a separate conviction).

A conviction that has been previously set aside is counted for purposes of determining eligibility for later set-aside, but a conviction that has been the subject of a full and unconditional pardon does not count.  See Van Heck, 651 N.W.2d at 178-79 (contrasting limited effect of Michigan set-aside with Connecticut pardon, which wipes out all legal disabilities, “erases” conviction).

Effect

Upon entry of an order, an individual “shall be considered not to have been previously convicted.” Mich. Comp. Laws § 780.622(1), (3).  This statute is commonly referred to as the “general expungement statute,” and the record of the arrest is no longer generally accessible to the public.  However, a conviction that has been set-aside remains accessible to law enforcement and the judicial branch for a variety of purposes, including professional licensure by the judicial branch, and enhancement of a sentence in subsequent prosecution.   Mich. Comp. Laws § 780.623(2).  Sex offenders must continue to register even if a conviction is set aside.  Id. See also Mich. Op. Att’y Gen. No. 7133 (2003) (person convicted of a felony whose conviction has been set aside by order of a Michigan court may not be denied a concealed pistol license based on conviction alone, but the conduct may be taken into account).  A person who knows that a conviction was set aside under this section and who divulges, uses, or publishes information concerning such a conviction is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both.  Mich. Comp. Laws § 780.623(5).  However, the effect of a set-aside under Michigan law is not considered to be as broad as pardon in some other states.

Procedure

The procedure applicable to set-aside is set forth in full, including notification to the prosecuting attorney and, if an assaultive crime, to the victim, in Mich. Comp. Laws §§ 780.621-624.  Set-aside is discretionary with the court, which must consider the “circumstances and behavior of the applicant” and whether “setting aside the conviction is consistent with the public welfare.”   780.621(9). Only one conviction may be expunged.  § 780.624.

2.  Probation before Judgment for Drug First Offenders

Mich. Comp. Laws § 333.7411 – Discharge and dismissal under this section for a drug offender with no previous drug conviction shall be without adjudication of guilt and, except as provided in subsection (2)(b), is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under section 333.7413.  See § 333.7411(1).  See also § 769.4a (domestic violence deferred adjudication).  Nonpublic records are kept by the state police and are available to law enforcement and court.  See §§ 333.7411(2), (3).

3.  Juvenile Adjudications

One year after adjudication or release from detention, or upon attaining the age of 18, whichever is later, a person may apply to the adjudicating court to set aside up to three delinquency adjudications, one of which may qualify as a felony if committed by an adult.   Mich. Comp. Laws § 712A.18e, as amended by H.B. 5600 (effective December 28, 2012).5  Certain adjudications are ineligible (felony-level adjudications punishable by life imprisonment, designated violent and traffic offenses).   § 712A.18e(2).  A person is ineligible for set-aside if he has a subsequent adult felony conviction.   § 712A.18e(1).  Before granting a set-aside, the court will consider the applicant’s behavior and circumstances since the adjudication and whether set-aside is consistent with public welfare. § 712A.18e(9).  If an adjudication is set aside, a person may deny the existence of a juvenile record, § 712A.18e(11), and the record  may not be disclosed or used except for law enforcement purposes, for law enforcement employment, or for licensing by an agency of the judicial branch.  § 712A.18e(13).  Disclosure of an adjudication that has been set aside is punishable as a misdemeanor.  § 712A.18e(16).

4.  Non-conviction Records

No statutory process for sealing or expunging non-conviction court records.   However, where a person has been found not guilty or where charges were dismissed or not prosecuted, biometric evidence and arrest card “shall be destroyed by the official holding those items and the clerk of the court entering the disposition shall notify the [State Police] of any finding. . . .”  Mich. Comp. Laws § 28.243(8).

C.  Administrative certificate
Firearms

A person whose firearms privileges were lost because of conviction may regain them by applying to the “concealed weapons licensing board” for the county of his residence.   The board “shall, by written order” restore the person’s firearms privileges if it finds by clear and convincing evidence that five years have passed since the person completed his sentence, and that “the person’s record and reputation are such that the person is not likely to act in a manner dangerous to the safety of other persons.”  Mich. Comp. Laws § 28.424(3)(c). If the concealed weapons licensing board refuses to restore a right under this section, the aggrieved person may petition the circuit court for review of that decision. Id. at § 28.424(3)(d).

III.  Nondiscrimination in Licensing and Employment:
A.  Licensing

Mich. Comp. Laws § 338.42 (2):

A judgment of guilt in a criminal prosecution . . . shall not be used, in and of itself, by a licensing board or agency as proof of a person’s lack of good moral character. It may be used as evidence in the determination, and when so used the person shall be notified and shall be permitted to rebut the evidence by showing that at the current time he or she has the ability to, and is likely to, serve the public in a fair, honest, and open manner, that he or she is rehabilitated, or that the substance of the former offense is not reasonably related to the occupation or profession for which he or she seeks to be licensed.

This 1974 statute was intended “to encourage and contribute to the rehabilitation of former offenders and to assist them in the assumption of the responsibilities of citizenship; to proscribe the use of the term ‘good moral character’ or similar term as a requirement for an occupational or professional license or when used as a requirement to establish or operate an organization or facility regulated by this state; and to provide administrative and judicial procedures to contest licensing board or agency rulings thereon.”  1974 Mich. Pub. Acts 381 (in Mich. Comp. Laws Ch. 338 (Occupational License for Former Offenders), preceding Mich. Comp. Laws § 338.41).  Under § 338.41(1),“the phrase ‘good moral character’, or words of similar import, when used as a requirement for an occupational or professional license or when used as a requirement to establish or operate an organization or facility regulated by this state  . . . shall be construed to mean the propensity on the part of the person to serve the public in the licensed area in a fair, honest, and open manner.”

In addition, the following types of records “shall not be used, examined, or requested by a licensing board or agency in a determination of good moral character when used as a requirement to establish or operate an organization or facility regulated by this state, or pursuant to occupational or professional licensure”:

(a) Records of an arrest not followed by a conviction.

(b) Records of a conviction which has been reversed or vacated, including the arrest records relevant to that conviction.

(c) Records of an arrest or conviction for a misdemeanor or a felony unrelated to the person’s likelihood to serve the public in a fair, honest, and open manner.

(d) Records of an arrest or conviction for a misdemeanor for the conviction of which a person may not be incarcerated in a jail or prison.

Mich. Comp. Laws § 338.43(1).  See Miriam J. Aukerman, Barriers to Reentry: Legal Strategies to Reduce Recidivism and Promote the Success of Ex-offenders, 2 Mich. Crim. L. Ann. J. 4 (2003).   A criminal record “shall not be furnished to a licensing board or agency except by the principal department, and shall be furnished only after the director of the principal department or a person designated by the director has determined that the information to be provided to the board or agency meets the criteria set forth in this section.”  § 338.43(2).

Each licensing board or agency is required to promulgate rules prescribing “the offenses or categories of offenses which the department considers indicate a person is not likely to serve the public as a licensee in a fair, honest, and open manner.”  Mich. Comp. Laws § 338.43(3).  The statute provides for a statement of reasons in the event of denial on grounds of good moral character, including a complete record of the evidence upon which the determination was based, and it provides a right to administrative “rehearing if he or she has relevant evidence not previously considered, regarding his or her qualifications.”  § 338.45.  Judicial review is also provided: “If, in the opinion of the circuit court, the record does not disclose a lack of good moral character, as defined in this act, the court shall so state and shall order the board to issue the license. . . .”  § 338.46.

B.  Employment
Misdemeanor arrest records

Employers, employment agencies, and labor organizations are prohibited from requesting or “making record of” misdemeanor arrests not leading to conviction in connection with employment application, Mich. Comp. Laws § 37.2205a(1), but they are not prohibited from considering arrest in connection with termination of employment.  See Aho v. Mich. Dep’t of Corrs., 688 N.W.2d 104 (2004).

Certificate of Employability

Under a 2014 law, Michigan prisoners who complete certain programs and have a reasonably clear conduct record may qualify for a “Certificate of Employability.” See Mich. Comp. Laws § 791.234d.  Under this provision, an employer or other person may introduce a “Certificate of Employability” as evidence of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with someone who has the certificate, if the employer knew of the certificate when hiring or otherwise engaging in activity with that person.  The Michigan Department of Corrections is authorized to issue Certificates only to incarcerated people no more than 30 days before release if the prisoner successfully completed a career and technical education course, received no major misconducts during the two years preceding his or her release, and qualifies for a national work-readiness certificate.  The Certificate is only valid for 4 years after issuance.  Considering that nearly 80% of felony offenders since 1999 have been sentenced to community-based sanctions, the vast majority of those with a felony record will not be eligible for a Certificate. Also ineligible are those who are no longer incarcerated. Finally, people currently at MDOC will be eligible only if they have access to education and training programs, which vary by facility throughout the state.


  1. In 2002 conviction was made a permanent bar to jury service; previously a person was ineligible only while “under sentence for a felony at the time of jury selection.”  See Mich. Comp. Laws § 600.1307a(1)(e) (2002), amended by 2002 Mich. Pub. Acts 739.  Court rules provided that a convicted person could be challenged for cause based on his conviction.  Mich. Ct. R. 2.511(D)(2), 6.412(D).  See United States v. Driscoll, 970 F.2d 1472 (6th Cir. 1992), cert. denied, 506 U.S. 1083 (1993) (upholding challenge for cause under Mich. Ct. R. 2.511(D)(2)).  But see Froede v. Holland Ladder & Mfg. Co., 523 N.W.2d 849, 851-52 (Mich. Ct. App. 1994) (disagreeing with Sixth Circuit’s conclusion in Driscoll that right to serve on a jury is not automatically restored upon completion of sentence); People v. LeGrone, 517 N.W.2d 270, 272 n.1 (Mich. Ct. App. 1994), appeal denied, 527 N.W.2d 520 (Mich. 1994) (raising question whether Mich. Comp. Laws § 600.1307a(1)(e) takes precedence over Mich. Ct. R. 2.511).
  2. In Lewis-El v. Sampson, 649 F.3d 423 (6th Cir. 2011), the court of appeals held that a change to Michigan’s commutation procedures did not implicate ex post facto concerns because the petitioner did not show prejudice:  “In fact, [prejudice] would be almost impossible to demonstrate considering that the decision to commute a prisoner’s sentence is so tied to the personal predilections of the person occupying the governor’s office.”
  3. Between 2007 and 2010, Governor Granholm commuted more than one hundred prison sentences.  See, Gov. Jennifer Granholm OKs Clemency for 100 Inmates in 2 years, Assoc. Press (Jan. 17, 2010), available at http://www.mlive.com/news/index.ssf/2010/01/gov_jennifer_granholm_oks_clem.html (describing over 100 commutations granted by Michigan Governor Granholm to ease prison budget crisis). In one of her last acts as Governor, she attempted to retract a commutation granted to Matthew Makowski, an action later invalidated by the Michigan Supreme Court. See Makowski v. Governor, 495 Mich. 465; 852 N.W.2d 61 (2014).
  4. Previously, the only permissible priors were “minor offenses,” defined as a misdemeanor or ordinance violation for which the maximum permissible imprisonment does not exceed 90 days, for which the maximum permissible fine does not exceed $1,000.00, and that is committed by a person who is not more than 21 years of age. § 780.621(10).
  5. Prior to passage of the 2012 amendments to § 712A.18e, only one misdemeanor-level conviction was eligible for set-aside.  To be eligible, the applicant must have attained the age of 24 or have waited at least five years following the disposition of the adjudication or completion of detention.

Copyright © 2017

Restoration of Rights Series/Massachusetts

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

“Persons who are incarcerated in a correctional facility due to a felony conviction” may not vote.  Mass. Const. Amend. Art. 3 (as amended in 2000).  A person sentenced to imprisonment for a federal or state felony forfeits any public office he currently holds.  Mass. Gen. Laws ch. 279, § 30.  Otherwise, conviction presumably does not affect the right to run for and hold future public office.

B.  Jury service

Persons are disqualified if convicted of a felony within the past seven years, or in the custody of a correctional institution (including misdemeanants).  Mass. Gen. Laws ch. 234A, § 4(7).  The right to serve on a jury is automatically restored seven years after completion of sentence for felony offenders, and upon release for misdemeanants.  However, a person convicted of a felony may still be challenged on voir dire.

C.  Firearms

Anyone convicted in any jurisdiction of a felony or serious misdemeanor, or of a violation of any drug law, may not obtain a license to carry a firearm, or a rifle or shotgun.  Mass. Gen. Laws ch. 140, § 131(d)(i) (prohibition applies to anyone “convicted or adjudicated a youthful offender or delinquent child for the commission of (a) a felony; (b) a misdemeanor punishable by imprisonment for more than two years; (c) a violent crime as defined in section 121; (d) a violation of any law regulating the use, possession, ownership, transfer, purchase, sale, lease, rental, receipt or transportation of weapons or ammunition for which a term of imprisonment may be imposed; or (e) a violation of any law regulating the use, possession or sale of controlled substances . . .”)  Any person prohibited from obtaining a license under § 131(d)(i), except someone convicted of trafficking in a controlled substance or a violent offense,  may be issued a Firearm Identification Card necessary to possess a rifle or shotgun five years after conviction or release from confinement, whichever is later. ch. 140, § 129B(1).  Sealing does not remove state firearm disabilities.  ch. 140, § 122; Rzeznik v. Chief of Police of Southampton 373 N.E.2d 1128, 1132 (Mass. 1978).  Partial restoration of state firearms rights is insufficient to relieve the federal bar in 18 U.S.C. §922(g).  See Caron v. United States, 524 U.S. 308 (1998).

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

The pardon power, except in cases of impeachment, is vested in the governor, who may grant a pardon only with the advice and consent of the Governor’s Council.  Mass. Const. pt. 2, ch. II, sec. I, art. VIII. The Massachusetts Governor’s Council, also known as the Executive Council, is composed of eight individuals elected from districts statewide, and the lieutenant governor who serves ex officio.  Mass. Const. pt. 2, ch. II, sec. III, art. I, amended by Mass. Const Amend. Art. 16.  If the offense is a felony, “the general court [i.e., legislature] shall have power to prescribe the terms and conditions upon which a pardon may be granted.”  Art. VIII, supra.  Public reporting:

The governor shall, at the end of each calendar year, transmit to the general court [legislature] . . . a list of pardons granted with the advice and consent of the council during such calendar year, together with action of the advisory board of pardons concerning each such pardon, and together with a list of any revocations of pardons made under this section.

Administration

Every petition must be filed with the Parole Board, acting as the Advisory Board of Pardons, which makes recommendation to the governor and Council.  Mass. Gen. Laws ch. 127, § 152.  The Advisory Board sends all favorable recommendations to the governor, who may accept them only if the Council approves.  Id.  See also Ladetto v. Comm’r of Correction 369 N.E.2d 967 (1977) (requiring “concurrent exercise” of pardon power by both governor and Council).  The Advisory Board functions as “gatekeeper,” and effectively also has a veto over pardon cases insofar as it does not send the governor ones it disapproves.  ch. 127, § 154.  The Parole Board is composed of seven members appointed by the governor to five-year terms.  The Board is composed of full-time salaried employees; the chair is chosen by the governor.  ch. 27, § 4.  An overview of the pardon process is available at http://www.mass.gov/eopss/law-enforce-and-cj/parole/exec-clemency-unit/executive-clemency-overview.html.

Eligibility

Shortly after assuming office in 2015, Governor Charlie Baker rescinded all clemency guidelines put in place by his predecessor, Governor Deval Patrick, including those implementing special procedures for “particularly meritorious clemency petitions.” 1 Under Governor Baker’s new guidelines, the waiting period remains the same (5 years for misdemeanors; 10 for felonies), but the standards for consideration have changed significantly.  See Office of the Governor, Executive Clemency Guidelines 4 (Dec. 10, 2015), available at http://www.mass.gov/eopss/law-enforce-and-cj/parole/exec-clemency-unit/executive-clemency-overview.html; “Standards for consideration,” infra

The Baker clemency guidelines are analyzed in this article:   William Cosmas, Jr., A Clear View of a Narrower Path: Examining the Baker Pardon Guidelines, Boston Bar Journal, May 11, 2017, https://bostonbarjournal.com/2017/05/11/a-clear-view-of-a-narrower-path-examining-the-baker-pardon-guidelines/

Effect

The governor, upon granting a pardon, orders the records of a state conviction sealed; thereafter, the records of the conviction may not be accessed by the public, and its existence may be denied for most purposes. Mass. Gen. Laws ch. 127, § 152.

Such sealed records shall not disqualify a person in any examination, appointment or application for employment or other benefit, public or private, including, but not limited to, licenses, credit or housing, nor shall such sealed record be admissible in evidence or used in any way in any court proceeding or hearing before any board, commission or other agency except in imposing sentence in subsequent criminal proceedings and when a person has subsequently been charged with certain crimes against the person.

Id.  An applicant may deny the existence of the conviction on an application for employment, or in any other circumstance, and licensing authorities are prohibited from disqualifying the application based on his record. “The attorney general and the person so pardoned may enforce the provisions of this paragraph by an action commenced in the superior court department of the trial court.”  Id.

Standards for consideration

The Advisory Board of Pardons considers favorably where a petitioner establishes, by clear and convincing evidence:

  1. a specific compelling need for such pardon relief;
  2. a substantial period of good citizenship subsequent to the criminal offense for which such pardon relief is requested, and
  3. that the ends of justice will be served by the granting of such pardon relief.

120 Mass. Code Regs. 902.01. The Clemency Guidelines, supra at 2, describe pardon as an “extraordinary remedy … mainly intended to remove barriers that are sometimes associated with a criminal record, thereby facilitating the reintegration of the petitioner into his or her community.”

“Absent compelling circumstances, a petitioner seeking a pardon should demonstrate both good citizenship and a verified, compelling need.”  Clemency Guidelines, supra at 3. “Good citizenship means living a responsible and productive life and contributing to one’s community in a positive manner.” Id. at 4.  In determining good citizenship, the Board “should make all reasonable efforts to investigate and verify, among other things:”

  1. Whether the petitioner has been the subject of any civil lawsuit, including any restraining order, during the period of claimed good citizenship;
  2. the circumstances surrounding any criminal charge that resulted in a noll prosequi, dismissal, or finding of not guilty.

Id. at 4.  Denial of employment or licensure based on conviction may suffice to demonstrate a “compelling need” with appropriate documentation (including evidence that a pardon would likely result in issuance of a license and/or an explanation as to why sealing is not an adequate remedy for employment denial).  Id. Denial of a firearms license may also demonstrate a compelling need if certain conditions are met, including 15 years without certain violent/civil rights convictions. Id. Petitions based on firearms licenses must also include a letter from licensing authority stating that a pardon would result in issuance. Id. Where a petitioner has other adequate administrative or judicial remedies, such as sealing, the need for a pardon will not generally meet the “compelling” standard.”  Id

The Clemency Guidelines list and explain the following general factors to be considered in executive clemency determinations:

  1. Nature and circumstances of the offense
  2. Character and behavior of the petitioner
  3. Acceptance of responsibility
  4. Pending appeals and other litigation
  5. Restitution to victims
  6. Substantial assistance to law enforcement
  7. Military, public, or charitable service
  8. Prior petitions

The Board “shall not review the proceedings of the trial court, and shall not consider any questions regarding the correctness, regularity or legality of such proceedings, but shall confine itself solely to matters which properly bear upon the propriety of the extension of clemency to the petitioner.”  Mass. Gen. Laws ch. 127, § 154.

Process

The regulations provide for a public hearing that is a matter of public record, and decision by a majority of the Board.  120 Mass. Code Regs. § 902.02-.12.  The application form can be found at http://www.mass.gov/eopss/docs/pb/2016pardonpetition-finalwithforms.pdf.   The Parole Board must process applications in accordance with procedures set out in Mass. Gen. Laws ch. 127, § 154, which include referral to concerned officials (including the attorney general, district attorney, and the sentencing court) for recommendation, and notice to the victim.  120 Mass. Code Regs. §§ 902.05, 400.04. See also Clemency Guidelines, supra at 2 (Board required to solicit input from victim, DA, and law enforcement).  If an application has merit under statute and Clemency Guidelines, a hearing will be scheduled.   120 Mass. Code Regs. § 902.06.  (Proposed denials also go to governor.)  Hearing procedures are the same as in a parole hearing under tit. 120 Mass. Code Regs. § 301.06.  Id. at § 902.08.  Hearings may be conducted by a panel of the Advisory Board or by a single member.  Id. at § 902.09(1).  The panel reports to the full Board, which in turn sends its recommendations to the governor and Governor’s Council.  Id. at § 902.10.  The majority gives reasons, as does any dissenting minority. Id.

The Board must make its recommendation to the governor within 10 weeks of original submission, unless a hearing is deemed by the Board to be required, and in no case more than six months.  Mass. Gen. Laws ch. 127, § 154.  Sensitive parts of a recommendation may be kept confidential, but “in all cases a statement containing the facts of the crime or crimes for which a pardon or commutation is sought, the sentence or sentences received, together with all conclusions and recommendations shall be made public when the report is submitted.”  Id.  A second level of review is in the Council.  If no action is taken within a year, the application will be deemed denied.  120 Mass. Code Regs. 902.12(2).   See also Clemency Guidelines, supra, at 6 (if governor takes no action on a recommended denial within 90 days, the application is deemed denied).

Under Mass. Gen. Laws ch. 127, § 152, once a petition is filed with Parole Board it becomes a public record. 

Representation

Payment for assistance in obtaining a pardon is prohibited, except for proper legal services.  Mass. Gen. Laws ch. 127, § 166.  Representatives must register with the state secretary, stating that services are only legal, and detailing those services.  ch. 127, § 167.  Violation is a criminal offense.  ch. 127, § 168.

Revocation

The governor may revoke a pardon if there is a misstatement of fact in the application, or if it was procured by fraud or misrepresentation.  Mass. Gen. Laws ch. 127, § 152.

Frequency of Grants

Pardons in Massachusetts have been rare in recent years, only 57 since 1990.  See William Cosmas, Jr., From Here to Clemency: Navigating the Massachusetts Pardon Process, Boston Bar Journal, April 22, 2015,  https://bostonbarjournal.com/2015/04/22/from-here-to-clemency-navigating-the-massachusetts-pardon-process/.  Governor Baker has issued no pardons since taking office in 2015.  Governor Patrick approved four pardons on November 10, 2014, the first grants during his tenure, and the first since 2002. All of the recipients had been out of prison for a number of years.2 Patrick also approved one commutation, for a woman serving a 7 ½ year sentence for drug distribution.  Two more pardons followed just before Patrick left office in 2015, including one to True-See Allah, who was convicted of armed assault with attempt to murder for his participation in a 1989 shooting that left the victim paralyzed for life. See Maria Cramer, As 2 felons earn pardons, time for others runs short, Boston Globe, https://www.bostonglobe.com/metro/2015/01/02/true-see-allah-granted-pardon-vote-governor-council/yO6t9mXHlGwIfNGgKA70AK/story.html (Jan. 2, 2015). The trend toward fewer grants in Massachusetts started in the 1990s under Governor William Weld.   Governor Mitt Romney issued no pardons during his tenure, Governor Swift granted seven pardons, and Governor Cellucci granted 20.

Contact

Julie Ching Pease
Executive Clemency Unit, Massachusetts Board of Parole
12 Mercer Road
Natick, MA 01760
phone: 508-650-4542
email:
pease@state.ma.us

B.  Judicial sealing and expungement
1.  Sealing of misdemeanors and felonies

With certain exceptions, including firearms offenses, crimes by public officials, and crimes “against public justice” such as perjury and resisting arrest convicted persons are entitled to have their records sealed upon application to the department of probation if they can demonstrate a period of law-abiding conduct:  5 years for a misdemeanor and 10 years for a felony.  Mass. Gen. Law ch. 276, § 100A.3 Records of conviction for decriminalized offenses may be sealed immediately “except in cases where the elements of the offense continue to be a crime under a different designation.” Id.4  Sex offenses are subject to a 15-year eligibility period.  Firearms offenses, crimes by public officials and employees, and crimes “against public justice” such as perjury, witness tampering and resisting arrest, are never eligible for sealing.  

Effect of sealing

Mass. Gen. Laws ch. 276, § 100A describes the effect of sealing:

Such sealed records shall not operate to disqualify a person in any examination, appointment or application for public service in the service of the commonwealth or of any political subdivision thereof; nor shall such sealed records be admissible in evidence or used in any way in any court proceedings or hearings before any boards or commissions, except in imposing sentence in subsequent criminal proceedings . . . .5

Sealing does not expunge a record, however, and it remains available to law enforcement authorities.  Sealing does not restore state firearm disabilities.  ch. 140, § 122; Rzeznik v. Chief of Police, 373 N.E.2d 1128 (Mass. 1978).   The purpose of the statute is rehabilitative, to ensure privacy after a period of time, not to defeat law enforcement interests.  See Com. v. Doe 648 N.E.2d 1255, 1258 (Mass. 1995) (statutes “protect individuals from unnecessary and overbroad dissemination of criminal record information”).  The records of conviction of public officials and employees may not be sealed.  ch. 276, § 100A.

Standard for sealing

In 1995, relying on precedent upholding a First Amendment right to access court records, Massachusetts Supreme Court held that records of closed criminal cases may be sealed by a court only if there has been an individualized finding that sealing is necessary to effectuate a compelling state interest. Com. v. Doe, 420 Mass. 142, 648 N.E.2d 1255 (1995).  Some two decades later, the Massachusetts high court held that a lower standard of “good cause” was more appropriate in light of the concerns expressed by the legislature in intervening years about “the negative impact of criminal records on the ability of former criminal defendants to reintegrate into society.”   See Com. v. Pon, 469 Mass. 296, 297 (2014).  The Pon court noted several legislative developments in the intervening years that weighed against adhering to the strict standard announced in Doe:  

Since our Doe decision in 1995, there have been significant changes in the availability of CORI records. These changes indicate a strong legislative policy of providing the public, and particularly employers and housing providers, with access to certain criminal records in order to make sound decisions while also enabling the sealing of criminal records where so doing would not present public safety concerns. . . .  First, the Legislature extended access to official CORI records to a broader group, creating several tiers of access.  Second, the Legislature implemented procedural protections for defendants seeking employment by limiting when employers may ask about criminal history and requiring employers to share criminal history information with applicants. . . . Third, the Legislature made changes to the sealing provisions by enabling earlier automatic sealing under G.L. c. 276, § 100A, and expanding discretionary sealing to a broader class of nonconvictions.

Given these clearly expressed legislative concerns regarding the deleterious effects of criminal records on employment opportunities for former criminal defendants, and the explicit expansion of opportunities for sealing to minimize the adverse impact of criminal records, it is apparent that the test articulated in Doe, 420 Mass. at 151, serves to frustrate rather than further the Legislature’s purpose by imposing too high a burden of proof on the defendant and articulating unhelpful factors for the defendant to determine how to meet his or her burden. Consequently, it is proper for us to revisit the meaning of “substantial justice” to ensure that we are interpreting the statute so as to give effect to present legislative intent.

469 Mass. at 303-305.  In assessing whether good cause has been established, a court must balance the public’s “general right to know” with the interests of the defendant and the state in keeping the information private. The Pon Court established factors relevant to this good cause balancing test:

At a minimum, judges should evaluate the particular disadvantages identified by the defendant arising from the availability of the criminal record; evidence of rehabilitation suggesting that the defendant could overcome these disadvantages if the record were sealed; any other evidence that sealing would alleviate the identified disadvantages; relevant circumstances of the defendant at the time of the offense that suggest a likelihood of recidivism or of success; the passage of time since the offense and since the dismissal or nolle prosequi; and the nature of and reasons for the particular disposition.

Id. at 316.

Effect in Employment

Mass. Gen. Laws ch. 276, § 100A:

An application for employment used by an employer which seeks information concerning prior arrests or convictions of the applicant shall include the following statement: “An applicant for employment with a sealed record on file with the commissioner of probation may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a sealed record on file with the commissioner of probation may answer ‘no record’ to an inquiry herein relative to prior arrests or criminal court appearances. In addition, any applicant for employment may answer ‘no record’ with respect to any inquiry relative to prior arrests, court appearances and adjudications in all cases of delinquency or as a child in need of services which did not result in a complaint transferred to the superior court for criminal prosecution.” The attorney general may enforce the provisions of this paragraph by a suit in equity commenced in the superior court.

2.  Deferred adjudication (“Continuance without a Finding”)

Mass. Gen. Laws ch. 278, § 18.  Relevant procedure is explained in detail in Commonwealth v. Powell, 453 Mass. 320 (Mass. 2009).  Courts (including municipal and juvenile courts) may dismiss a valid indictment, in certain circumstances, after accepting a guilty plea, even over the government’s objections, by continuing the case without a finding, and imposing conditions.  This disposition avoids prejudice to the Commonwealth by accepting the defendant’s guilty plea before placing him on probation, so that a violation of the terms of probation would result in an adjudication of guilt and imposition of sentence.  See also Commonwealth v. Cheney, 440 Mass. 568, 571 (2003) (explaining the CWOF procedure).

Eligibility

General “in the interests of justice” standard, but certain offenses are ineligible.  See Powell, 453 Mass. at 326, n. 7, 8.  In addition, CWOF is not available after trial.  See Commonwealth v. Norrell, 423 Mass. 725, 727 (1996).

Sealing

Information about pending CWOF charges may be obtained on the same basis as final convictions.  See Mass. Gen. Laws ch. 6, § 172(a)(3).  However, under the 2010 changes to the sealing laws, immediate sealing is allowed in CWOF cases once probation has been successfully completed.  See 2010 Mass. Acts ch. 256, § 131 (amending Mass. Gen. Laws ch. 276, § 100C), available at http://www.mass.gov/legis/laws/seslaw10/sl100256.htm.

3.  Pretrial Diversion

Mass. Gen. Laws ch. 276A, § 2 et seq. authorizes pretrial diversion for first offenders between the ages of 17 and 21.

4.  Juvenile records

Mass. Gen. Laws ch. 120, § 21:

Whenever a person committed to the department by a court upon conviction of a crime is discharged from its control such discharge shall, when so ordered by the department, restore such person to all civil rights and shall have the effect of setting aside the conviction. The conviction of such a person shall not operate to disqualify him for any future examination, appointment or application for public service under the government either of the commonwealth or of any political subdivision thereof . . . . A commitment to the department shall not be received in evidence or used in any way in any proceeding in any court except in subsequent proceedings for waywardness or delinquency against the same child, and except in imposing sentence in any criminal proceeding against the same person.

Sealing

Records on file with the office of the commissioner of probation must be sealed upon request if 3 years have elapsed since any court appearance or disposition in the case (including commitment supervision, probation and parole), and the person has not been adjudicated delinquent, found guilty of a crime (with exception for some motor vehicle offenses), nor been imprisoned or committed to custody in the preceding 3 years.  Mass. Gen. Laws ch. 276, § 100B.  Upon sealing by the commissioner, court records are also sealed:

When records of delinquency appearances and delinquency dispositions are sealed by the commissioner in his files, the commissioner shall notify forthwith the clerk and the probation officer of the courts in which the adjudications or dispositions have occurred, or other entries have been made, and the department of youth services of such sealing, and said clerks, probation officers, and department of youth services likewise shall seal records of the same proceedings in their files. ….

Such sealed records of a person shall not operate to disqualify a person in any future examination, appointment or application for public service under the government of the commonwealth or of any political subdivision thereof; nor shall such sealed records be admissible in evidence or used in any way in any court proceedings or hearings before any boards of commissioners, except in imposing sentence for subsequent offenses in delinquency or criminal proceedings.

§ 100B.

5.  Non-conviction records

Records that do not result in conviction may be sealed if the defendant is found not guilty, or a no bill has been returned by the grand jury, or a finding of no probable cause has been made by the court.  Mass. Gen. Laws ch. 276, § 100C.6   Sealing is also available by court order where a case is nol prossed or dismissed if “it appears to the court that substantial justice would best be served.”  Id.7 See Comm. v. Gavin G, 772 N.E. 2d 1067, 1073-74 (Mass. 2002) (citing Commonwealth v. Doe, 648 N.E. 2d 1255, 1260 (Mass. 1995)) (court may order immediate sealing only if it appears that substantial justice would best be served, and the interests of confidentiality and avoiding harm have specific application to the defendant; otherwise, a defendant denied request for immediate sealing may still request sealing after requisite waiting period specified in § 100A).

Effect

Sealed non-conviction records shall not operate to disqualify a person in any examination, appointment or application for public employment in the service of the commonwealth or of any political subdivision thereof.  Mass. Gen. Laws ch. 276, § 100C.  An application for employment used by an employer which seeks information concerning prior arrests or convictions of the applicant shall include the following statement:  “An applicant for employment with a sealed record on file with the commissioner of probation may answer ‘no record’ with respect to an inquiry herein relative to prior arrests or criminal court appearances.”  Id.

6.  Effect of pardon

Conviction is automatically sealed by pardon.  Mass. Gen. Laws ch. 127, § 152; see Section IIA, supra.

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

Massachusetts’ general fair employment practices law makes it unlawful for any covered employer, public or private, to request any information from an employee or applicant for employment about:  (1) an arrest without conviction; (2) a first conviction for misdemeanors such as simple assault or minor traffic violations; and (3) any conviction of a misdemeanor that occurred five or more years before the application date.  See Mass. Gen. Laws ch. 151B, § 4(9) (It shall be an unlawful practice for an employer “to request any information . . . regarding: (i) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted, or (ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or (iii) any conviction of a misdemeanor where the date of such conviction or the completion of any period of incarceration resulting therefrom, whichever date is later, occurred five or more years prior to the date of such application for employment or such request for information, unless such person has been convicted of any offense within five years immediately preceding the date of such application for employment or such request for information”).  The law is enforced by the Massachusetts Commission against Discrimination, and procedures are set forth in Mass. Gen. Laws ch. 151B, § 5.

While Massachusetts’ general nondiscrimination law applies only to misdemeanors, a “direct relationship” test applies to consideration of felony convictions in some licensing schemes.  See, e.g., Mass. Gen. Laws ch. 112 § 52D (“The board . . . may [discipline] any dentist convicted . . . of a felony related to the practice of dentistry”); ch.112, § 61 (board may discipline holder of medical license for “a criminal offense which is reasonably related to the practice of the profession”); ch. 112,  § 189 (real estate appraisers may be disciplined based upon conviction of “a crime which is substantially related to the qualifications, functions, and duties of a person developing appraisals and communicating appraisals to others, or convicted of any felony”).

The only general limitation on consideration of a felony conviction by employers and licensing boards is where a person has received a pardon and their record has been sealed. Mass. Gen. Laws ch. 127, § 152.

B.  Limitation on Access to Records

Rather than directly limiting consideration of conviction in employment and licensing decisions, Massachusetts limits the availability of conviction-related information through the Criminal Offender Record Information System (CORI).  Mass. Gen. Laws ch. 6, §§ 168, 172.  The CORI system was reformed in 2010 to increase employer access to records but at the same time to limit the extent to which the employer may inquire into an applicant’s criminal record, to change the procedure by which employers may obtain and rely on criminal records, and to give employers who rely on CORI records protection against negligent hiring.  See 2010 Mass. Acts, ch. 256, § 21, available at http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter256.   See also Com. v. Pon, discussed supra; Massing, CORI Reform—Providing Ex–Offenders with Increased Opportunities Without Compromising Employers’ Needs, 55 Boston B.J. 21, 22, 24 (2011).In general, employers and licensing agencies will not have access to sealed records: five years in the case of misdemeanors and ten years for felonies.  See above.8  Section 172 sets both a tiered system of access, with law enforcement and the subject of records given full access; requesters authorized or required by law to obtain criminal history information have access necessary to comply with their obligations; requesters seeking records for employment or licensing purposes (including volunteers) have access to pending charges, felony convictions for 10 years and misdemeanors for five years if there have been no intervening convictions; and members of the general public somewhat more limited access.  See § 172 (a)(1)_through (5).  Other entities are specifically authorized to obtain records, such as housing authorities and schools, and facilities caring for vulnerable populations.  See § 172(a)(6) through (30). Employers and others will still be able to access indefinitely information on certain convictions, including those for murder, voluntary and involuntary manslaughter, and certain sex offenses, unless sealed.  § 172(b).   Employers who wish to question an applicant about the results of a CORI records check must first provide the applicant with a copy of any criminal record that it has obtained.  § 172(c). If the employer decides not to hire an applicant in part or in whole because of the applicant’s criminal history record, the employer must, if it has not already done so, provide the applicant with a copy of the record. Id.

C.  Protection against Negligent Hiring Liability and Exposure to Discrimination Claims

No employer or person relying on volunteers shall be liable for negligent hiring practices by reason of relying solely on criminal offender record information received from the department and not performing additional criminal history background checks, unless required to do so by law; provided, however, that the employer made an employment decision within 90 days of obtaining the criminal offender record information and maintained and followed policies and procedures for verification of the subject’s identifying information consistent with the requirements set forth in this section and in the department’s regulations.

Mass. Gen. Laws ch. 6, § 172(e).  This provision also protects an employer who relies on CORI records from being sued under the nondiscrimination laws based upon erroneous information. Id.9

D.  Prohibition on Employer Inquiry into Non-conviction and Misdemeanor records

Under Mass. Gen. Laws ch. 151B, § 4 (9) it is unlawful for an employer to inquire into arrest not resulting in conviction, a first conviction for a variety of misdemeanors (“drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace”) or any other misdemeanor conviction after five years, unless there are intervening convictions

E.  State-wide “Ban-the-Box” Policy

In 2010, public and private employers were made subject to a “ban-the-box policy” that prohibits inquiry into criminal records on an initial job application, unless the particular job is one for which a convicted person is at least presumptively disqualified by law, or the employer “is subject to an obligation imposed by any federal or state law or regulation not to employ persons, in either 1 or more positions, who have been convicted of 1 or more types of criminal offenses.” See Mass. Gen. Laws ch. 151B, § 4(9 ½).  Even when no exception applies, employers will still have the right to inquire into an applicant’s criminal history at any time after the initial application, such as in a job interview.

The City of Boston and several other Massachusetts jurisdictions have adopted even more stringent policies for their vendors and other private contractors, requiring them to determine whether particular positions are sufficiently sensitive to warrant a background check, and obligating them to give reasons to people who are turned down for employment because of their conviction record.  Of special significance, Boston’s City Council ordinance, effective July 1, 2006, applies not only to hiring in city jobs, but also to the hiring decisions of an estimated 50,000 private vendors who do business with the City.  See Ord. 2005 c. 7 (codified at 4-7), available at http://www.amlegal.com/nxt/gateway.dll/Massachusetts/boston/chapterivcontracts?f=templates$fn=default.htm$3.0$vid=amlegal:boston_ma$anc=JD_4-7.  The successful campaign to reform Boston’s hiring policy was backed by a broad community coalition called the Massachusetts Alliance to Reform CORI (MARC).  See Michelle Rodriguez, Beth Avery, National Employment Law Project, Ban the Box 16 (April 2016) available at http://www.nelp.org/content/uploads/Ban-the-Box-Fair-Chance-State-and-Local-Guide.pdf.  According to the ordinance, the City of Boston and its vendors cannot conduct a criminal background check as part of their hiring process until the job applicant is found to be “otherwise qualified” for the position.  Ord. 2005 c. 7, supra.  This critical protection ensures that everyone is first considered for employment based on their actual skills and experience before the employer takes into account the presence or absence of a criminal record.  The ordinance also requires that the final employment decision, which includes information about the individual’s criminal record, also considers the age and seriousness of the crime and the “occurrences in the life of the Applicant since the crime(s).”  Id.  In addition, the Boston ordinance creates important appeals rights for those denied employment based on a criminal record and the right to present information related to the “accuracy and/or relevancy” of the criminal record.  Id.

F.  State Employment Bars

A sweeping bar on employment of people with convictions in state and state-funded human service jobs, issued by Governor Weld in 1996, disqualified certain offenders for life (violent and drug offenders), and others for periods of 10 and 5 years.  The bar was modified by Governor Swift in 2001, and further limited by Cronin v. O’Leary, 13 Mass. L. Rptr. 405, 2001 WL 919969 (2001) (striking down lifetime bar on constitutional grounds, and requiring a hearing to determine fitness).


  1. See Steve LeBlanc, Associated Press, Baker Rescinds Ex-Gov. Patrick’s Clemency Guidelines, CBS Boston, http://boston.cbslocal.com/2015/01/15/baker-rescinds-ex-gov-patricks-clemency-guidelines (Jan. 15, 2015). Governor Patrick’s guidelines made it easier to obtain a pardon by lowering waiting periods and by fast-tracking petitions where a person made “extraordinary contributions to society.”   See Executive Guidelines for Particularly Meritorious Clemency Petitions (July 17, 2014), available at http://www.mass.gov/eopss/docs/pb/executive-guidelines-for-particularly-meritorious-clemency-petitions-7-17-14.pdf; Maria Cramer, Governor Patrick may grant his first pardons, Boston Globe, https://www.bostonglobe.com/metro/2014/10/09/gov-patrick-says-ready-grant-pardons/bdC51zgZf7QqxAGmiMf4QO/story.html (Oct. 9, 2014). The fast-track guidelines were primarily created to expand consideration for persons unable to demonstrate a “compelling need.”  See Colleen Quinn, “Board recommends three pardons, Wall sees more coming,” WWLP.com (October 3, 2014), http://wwlp.com/2014/10/03/board-recommends-three-pardons-wall-sees-more-coming. Petitioners facing “deportation that is unnecessary for public safety [and] especially harsh or unfair consequences” were also considered for a gubernatorial pardon under those guidelines. See Guidelines for Particularly Meritorious Clemency Petitions, supra.
  2. The grants are described at http://www.bostonglobe.com/metro/2014/11/10/closer-look-governor-deval-patrick-commutation-and-pardons/cIZTlJtROBaMTGiUJZmiZI/story.html?p1=Article_Related_Box_ArticleSee Karen Young, Clemency for Criminals Increasingly Rare in Mass., Portland Press Herald, July 7, 2012, http://www.pressherald.com/news/Clemency-for-criminals-increasingly-rare-in-Mass.html?pagenum=full
  3. Prior to May 2012, these time periods were 10 and 15 years.  See 2010 Mass. Acts ch. 256, § 128, available at http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter256.
  4. Recent low-level marijuana possession convictions are now eligible for sealing with no waiting as a result of decriminalization legislation enacted at the end of 2016.  See ch. 94G, § 13(e).
  5. Exceptions for certain civil family law cases were added to the law in 2010 when the waiting periods to seal convictions were last reduced, including abuse prevention, divorce, paternity, separate support, guardianship, termination of parental rights, and care and protection cases related to a child.
  6. The automatic sealing provisions of § 100C were held unconstitutional in Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 506-07) (1st Cir., 1989) (sealed records must be made available to media unless there has been an individualized finding that sealing necessary to effectuate compelling governmental interest).  In Comm. v. Doe, 420 Mass. 142 (Mass. 1995), the Massachusetts Supreme Court extended the holding of the Pokaski case to judicial sealing of closed criminal cases.
  7. 2010 amendments to § 100C struck the parenthetical phrase (“except in cases in which an order of probation has been terminated”) after “dismissed,” to the effect that cases “continued without a finding” may now be sealed immediately upon completion of probation.  See 2010 Mass. Acts ch. 256, § 131, available athttp://www.mass.gov/legis/laws/seslaw10/sl100256.htm.
  8. Prior to the 2010 reforms, criminal justice agencies could see that a sealed record existed, but they needed to petition a court in order to view its contents. See Quirion & Russo, Sealing Criminal Records 8 (Mass. Cont. Legal Educ. 2009).
  9. See National Employment Law Project, States Adopt Fair Hiring Standards Reducing Barriers to Employment of People with Criminal Records 3 (August 2012), available at http://www.nelp.org/page/-/SCLP/ModelStateHiringInitiatives.pdf?nocdn=1 (“The bill uniquely tackles the issue of inaccurate commercial background screeners by creating an incentive for employers to use the state’s criminal history database, which then limits the length of time that criminal history information is available. It also ensures that a denied applicant receives a copy of his or her record, paralleling one component of the federal consumer protection law, the Fair Credit Reporting Act, which applies to commercially-prepared background checks.”).

Copyright © 2017

Restoration of Rights Series/Maryland

Maryland FlagI.  Restoration of Civil/Firearms Rights
A.  Vote/Office

The Maryland Constitution authorizes the General Assembly to disqualify persons from voting who are convicted of “infamous or other serious crime.”  Md. Const. art. I, § 4.  With one exception, disenfranchisement is limited to persons convicted of a felony who are “currently serving a court-ordered sentence of imprisonment for the conviction,”  Md. Code Ann., Election Law § 3-102(b)(1), and the vote is restored automatically upon release.1  The exception is for persons convicted of buying or selling votes, who are not qualified to vote even after fulfilling their court-ordered sentence.  § 3-102(b)(3).

A person is ineligible to hold an elective office if at any time after election/appointment and prior to completion of their term, the person ceases to be a registered voter.  Md. Const. art. I, § 12.  Once restored to the franchise, convicted persons also regain the right to hold office.

 
B.  Jury
Persons are disqualified from jury service if convicted of a crime punishable by imprisonment exceeding 6 months, and sentenced to more than 6 months’ imprisonment.  Md. Code Ann., Courts and Judicial Proceedings § 8-103(b)(4).  Jury rights are restored by pardon.  § 8-103(c).
C.  Firearms

Md. Code Ann., Criminal Law § 5-622 prohibits anyone convicted of a felony from possessing any firearm, including an antique firearm as defined in § 4-201, subject to a penalty not to exceed five years’ imprisonment.  Relief is available only through pardon.

Regulated Firearms

In addition, a person convicted of a “disqualifying crime” who possesses a “regulated firearm” is subject to a mandatory minimum sentence of five years.  Md. Code Ann., Public Safety § 5-133(b)(1).  A disqualifying crime includes a crime of violence, a felony, and “a violation classified as a misdemeanor in the State that carries a statutory penalty of more than 2 years.”  Id., § 5-101(c), (g).  A “regulated firearm” includes handguns and certain specified assault weapons as defined in Md. Code Ann., Public Safety, §§ 5-101(h), (n), and (p).  Persons “convicted of a violation classified as a common law crime and [who] received a term of imprisonment of more than 2 years” also may not possess a “regulated firearm.”  § 5-133(b)(2).  Prosecutors have broad authority to choose which statute to charge.   See State v. Lee, 178 Md. App. 478, 943 A.2d 14 (Ct. Spec. App. 2008)(trial court exceeded its authority in substituting less serious charge in plea context).

Firearms dealers

Persons who may not possess a “regulated firearm” cannot be a firearms “dealer.”  § 5-101(d); 5-107(b)(4)(iii)-(iv).

Rifles and shotguns

Under Md. Code Ann., Public Safety §§ 5-206(b), a person may not possess a rifle or shotgun if he was previously convicted of a “crime of violence” or certain drug offenses.  See §§ 5-101(c) (defining crime of violence); 5-206(a).

Handgun permit

A person may not be issued a handgun permit if he has been convicted of “a felony or of a misdemeanor for which a sentence of imprisonment for more than 1 year has been imposed,” or a crime involving possession or use of a controlled substance; or, if under 30 years of age, adjudicated delinquent for an offense that would be a felony, a crime of violence, or an act that would be a misdemeanor in this State that carries a statutory penalty of more than 2 years if committed by an adult.”  See Code Ann., Public Safety §§ 5-306(a), (b).

D.  Other Collateral Consequences

A partial catalogue of collateral consequences for Maryland offenders is contained in the study produced by the University of Maryland School of Law Reentry of Ex-Offenders Clinic, “A Report on Collateral Consequences of Criminal Convictions in Maryland” (rev. Spring 2007), available at http://www.sentencingproject.org/doc/publications/cc_report2007.pdfSee also Homeless Persons Representation Project, “Ex-Offenders and Employment: A Review of Maryland’s Public Policy and a Look at Other States” (December 2001, rev. June 2002), available at http://www.hprplaw.org/index.php?option=com_k2&view=item&layout=item&id=20&Itemid=73, documenting a number of situations in which people with convictions are barred by law from certain jobs and occupations.

II.  Discretionary Restoration Mechanisms
A.  Pardon
Authority

The pardon power is vested in the governor, except in cases of impeachment.  Md. Const. art. II, § 20; see also Md. Code Ann., Correctional Services § 7-601.   The Constitution requires the governor to publish notice in one or more newspapers of earliest date he will grant pardon, and to report to the legislature each grant and reasons there for.  Md. Const. art. II, § 20.

Administration

The Maryland Parole Commission is responsible for reviewing and making recommendations on pardon applications if requested by the governor, but its advice is not binding.  Md. Code Ann., Correctional Services § 7-206(3)(ii).2  The Parole Commission consists of 10 members appointed to six-year terms by the Secretary of Public Safety and Correctional Services.  § 7-202.  Full-time salaried employees are subject to removal only for cause by the secretary (with concurrence of governor).  § 7-203.

Eligibility

Md. Code Regs. tit. 12, § 08.01.16(C) provides that “[p]roof of successful completion of any parole or probation, or both, which may have been imposed, plus a reasonable length of satisfactory adjustment in the community beyond the maximum expiration date of sentence, is preferred for a favorable pardon recommendation.”  Under informal Parole Commission rules, applicants with felony convictions must have ten crime-free years to be eligible (seven if a Parole Commission waiver is granted); misdemeanants must have five crime-free years.  There is a twenty-year wait for crimes of violence and for controlled substances violations (or fifteen if waiver granted).  See Parole Commission “Frequently Asked Questions” about pardons, Question #6, http://www.dpscs.state.md.us/about/FAQmpc.shtml.  A person convicted under federal law or the law of another state is ineligible for a gubernatorial pardon.  See general description on http://www.dpscs.state.md.us/publicservs/pardons.shtml.

Eligibility II

A pardon may be available where an individual has been charged with a crime but has not yet been convicted:

The decision to pardon certain individuals has arisen when an individual is charged and a nolle prosequi is entered or the charge is stetted.  This has proven especially helpful for individuals who wish to obtain security clearance (and, thus, maintain their jobs) under the new Homeland Security/TSA rules that govern airport employees (apparently, a nolle prosequi under those guidelines is tantamount to a ‘conviction’).

E-mail from Chrysovalantis “Chrys” P. Kefalas, Deputy Counsel, Governor’s Office, June 10, 2005 (on file with author).  In such cases there is no eligibility period.  Id.

Effect

Pardon lifts all disabilities and penalties imposed because of the conviction.  Firearms rights must be separately restored in pardon document.  

A court may expunge the record if the person has been convicted of only one criminal act, and that act is not a crime of violence; and is granted a full and unconditional pardon by the Governor.  Md. Code Crim. Proc. § 10-105(8).

Process

The form for applying for pardon can be downloaded from the website of the Maryland Parole Commission, which Commission determines if the applicant is eligible according to Maryland guidelines. See https://www.dpscs.state.md.us/publicservs/pdfs/Application-for-Pardon-Revised.pdf.  If eligible, the Commission directs the Division of Parole and Probation to conduct an Executive Clemency investigation of the petitioner.  Md. Code Regs. tit. 12, § 08.01.16(B).  Upon the victim’s request, the victim most be notified.  See Md. Code Ann., Correctional Services § 7-805.   There is no formal hearing, and a case is reviewed on a paper record.  Once the pardon investigation is completed, the case returns to the Commission for its review and recommendation.  The application, the Division of Parole and Probation investigation report, and the Commission’s recommendation are then submitted to the governor’s legal counsel for review.  The governor may choose to accept, modify, or reject the Commission’s recommendation.  For purposes of effectuating a pardon, the governor must issue a written executive order under the great seal.  Md. Code Ann., Correctional Services § 7-601(b)(1).  In addition, the Maryland Constitution requires the governor to “give notice, in one or more newspapers, of the application made for [pardon], and of the day on, or after which, his decision will be given.”  Md. Const. art. II, § 20.  If pardon is denied, an applicant may reapply after a “reasonable time.”  Md. Code Regs. tit. 12, § 08.01.16(B).

Standards

The Commission considers the following factors in connection with a petitioner’s request for a pardon: (1) the nature and circumstances of the crime; (2) effect of a pardon on the victim and community; (3) the sentence given; (4) the other anti-social behavior of the petitioner; (5) the subsequent rehabilitation of the petitioner; (6) the age and health of the petitioner; and (6) the reason the pardon is needed.  Parole Commission “Frequently Asked Questions” about pardons, Question #7, http://www.dpscs.state.md.us/about/FAQmpc.shtml. 3

Frequency of Grants

Governor Larry Hogan issued no pardons in his first three years in office, despite having indicated an interest in increasing the number of pardons during his campaign for election. See The power to pardon, The Baltimore Sun (Jan. 23, 2015), http://www.baltimoresun.com/news/opinion/editorial/bs-ed-parole-20150125-story.html.  Governor Martin O’Malley (2008-2015) granted 146 pardons in eight years in office, all but thirteen in his final three years in office, and rejected about 1300 applications.  See Justin Fenton, O’Malley increases pardons, but remains stingy overall, Baltimore Sun., Dec. 18, 2014, http://www.baltimoresun.com/news/maryland/politics/bs-md-omalley-pardons-20141213-story.html#page=1. See also John Wagner, O’Malley Puts the Brakes on Clemency in Md., The Washington Post, June 21, 2009, at C1, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/06/20/AR2009062001629.html.  Governor Ehrlich granted 228 pardons out of a total of 439 applications considered.  (Also, he granted fifteen commutations, including five life sentences, and in addition six medical paroles during his tenure.)  Governor Ehrlich considered pardon applications on a regular basis, reviewing about 20 cases each month, issuing pardons every two or three months.  Source: Office of the Governor.

Contacts

David R. Blumberg
Chair, Maryland Parole Commission
dblumberg@dpscs.state.md.us

Linda L. Dodge
Administrative Officer, Executive Clemencies & Pardons
(410) 585-3211
linda.dodge@maryland.gov

Pardon applications available at:

https://www.dpscs.state.md.us/publicservs/pdfs/Application-for-Pardon-Revised.pdf

Additional information can be found by contacting the Pardon Application Coordinator at (410) 585-3200 or toll-free (877) 241-5428.  See Parole Commission, “Frequently Asked Questions,” supra, Questions # 10-11.

B.  Judicial sealing or expungement
1.  Conviction records
a.  Expungement of misdemeanor convictions

In May of 2016, Maryland enacted the Justice Reinvestment Act, authorizing expungement of police, conviction, and other official records for enumerated misdemeanor offenses.  See SB-1005 (2016), available at http://mgaleg.maryland.gov/2016RS/Chapters_noln/CH_515_sb1005e.pdf (Md. Code Ann., Crim. Proc. § 10-110).  The law will take effect October 1, 2017. Expungement confers greater benefits than shielding (discussed below) and is available for more offenses, but the waiting period for expungement is far longer (10/15 years vs. 3 years). 4

Eligibility

Over 100 enumerated misdemeanors are eligible, including second degree assault, drug possession, prostitution, theft, disorderly conduct, various fraud offenses, and various regulatory offenses.  Md. Code Ann., Crim. Proc. § 10-110(A). A waiting period of 10 years from completion of sentence (including any period of probation, parole, or mandatory supervision) applies for all offenses except for second degree assault under Md. Crim. Law Code § 3-203 and offenses classified as “domestically related crimes” under Md. Crim. Proc. Code § 6-233, for which a 15-year waiting period applies.  Md. Code Ann., Crim. Proc. § 10-110(C). “If the person is convicted of a new crime during [the waiting period], the original conviction or convictions are not eligible for expungement unless the new conviction becomes eligible for expungement.” § 10-110(D)(1).  Individuals with pending criminal charges are not eligible. § 10-110(D)(2).  If one offense stemming from a single incident is ineligible for expungement, then all offenses stemming from the incident are ineligible. §§ 10-110(D)(3), 10-107 (this is known as the “unit rule”).

Procedure and criteria

Petition is filed in court in which proceedings began, with exceptions for cases that were transferred or appealed.  Md. Code Ann., Crim. Proc. § 10-110(B).  The court serves notice to the State’s Attorney and victims, who have 30 days to object to the petition. § 10-110(E).  Court must order expungement if no objection is filed after 30 days. § 10-110(E)(3).  If either the State’s Attorney or victim object, the court must hold a hearing, and the court’s determination is guided by § 10-110(F)(2).  If the person meets the statutory eligibility requirements, the court must grant expungement upon finding:

  • that giving due regard to the nature of the crime, the history and character of the person, and the person’s success at rehabilitation, the person is not a risk to public safety; and
  • that an expungement would be in the best interest of justice.

§ 10-110(F)(2)(II), (III). Petitioner and State’s Attorney are entitled to appellate review of the court’s decision. § 10-110(I). Unless an order is appealed, every custodian of police and court records subject to the order must notify the court and petitioner of compliance with the expungement order.

Effect

A record that has been expunged may be opened only upon court order, with notice to the person concerned and a hearing, or upon ex parte application by the State’s attorney and a showing of good cause (including that the record is needed by law enforcement).  Md. Code Ann., Crim. Proc. §§ 10-108(a) through (c).  Violation of this is a misdemeanor.  § 10-108(d).  Expunged records are kept separately for three years, then destroyed.  See §§ 4-511, 4-512.  A person may not be required to disclose information about expunged records to an employer, educational institution, or government licensing agency.  §§ 10-109(a)(1)-(2). Refusal by a person to disclose information about criminal records that have been expunged may not be the sole reason for an employer to discharge or refuse to hire the person, or for a government licensing agency to deny the person’s application.  § 10-109(a)(3). Violation is a misdemeanor, and a government official who violates may be dismissed from public service.  § 10-109(b).  Applicants for positions that require the carrying of firearms should be asked for information about past criminal activity for purposes of the federal firearms statute even if records have been expunged.  71 Md. Op. Att’y Gen. 242 (1986).

b. “Shielding” (sealing) of misdemeanor convictions

Under the Maryland Second Chance Act of 2015, Md. Code Ann., Crim. Proc. § 10-301 et seq., a handful of minor misdemeanor convictions are eligible for “shielding” (the functional equivalent of sealing in other jurisdictions).  Shielding is distinct from “expungement,” which is also available for certain misdemeanor convictions after a much longer waiting period, as described in the preceding section.

Eligibility

Shielding is available only for twelve enumerated non-violent misdemeanors, ranging from malicious destruction of property to prostitution and possession of a controlled dangerous substance.  Md. Code Ann., Crim. Proc. § 10-301(f). Any offense sentenced as a “domestically related crime” is ineligible. § 10-302(a). A person may only petition for shielding once in their lifetime, though a single petition may seek sealing of multiple convictions so long as the convictions are from the same county. § 10-303(e)(4), (a).  A waiting period of three years following satisfaction of sentence, including any period of community supervision, applies. § 10-303(a). If a person is convicted of an additional offense before filing a petition to shield, then the prior conviction may only be shielded when the intervening conviction becomes eligible for shielding. § 10-303(b)(1).

Process

No hearing is necessary unless the State’s Attorney objects to the petition. Md. Code Ann., Crim. Proc. § 10-303(d).  Prior to granting a shielding petition, the court must notify victims of the relevant offenses and allow them to submit relevant information to the court.  Id.  The court may grant a petition without a hearing “after taking into consideration any objections or additional information provided by the State’s Attorney or the victim.” § 10-303(d)(2).  Upon a hearing, the court may grant the petition “for good cause” if otherwise eligible.  § 10-303(e)(3).

Effect

Shielding has the effect of rendering “a court record and police record relating to a conviction of a crime inaccessible by members of the public,” and such records are not accessible on the Maryland Judiciary Case Search (which provides public access to state court records). Md. Code Ann., Crim. Proc. §§ 10-302, -304. Sealing does not restore rights lost as a result of a conviction and does not make the conviction “disappear.” However, a shielded conviction does not count as a conviction for the purpose of determining eligibility for PBJ expungement or expungement of decriminalized offenses.  § 10-305.  In general, employers, educational institutions, and government licensing and services agencies may not require a person to disclose shielded convictions on an application or in an interview and may not take adverse action against a person for refusing to disclose such convictions.  § 10-306.  There are some major exceptions that threaten to swallow this rule, however. Notably, any employer or licensing agency that is required or authorized by law to inquire into a person’s criminal record may access a person’s shielded record.  § 10-302(B)(2).  Exceptions also apply to health occupations boards, child care facilities, and the medical marijuana commission, among others.

2.  Additional expungement authorities, including non-conviction records

In addition to expungement of the record in certain misdemeanor cases (see above), the court has authority to expunge the record in the following situations:

  • Non-violent first offenders who have been granted a full and unconditional pardon. Md. Code Ann., Crim. Proc. § 10-105(a)(8). Application must be filed no later than ten years after pardon granted.   § 10-105(c)(4).
  • Certain minor nuisance crimes (public urination, drinking in public, panhandling, loitering, vagrancy, etc.), three years after completion of sentence. § 10-105(a)(9), (c)(6).
  • Non-conviction records (acquittals, nolle prosequis, dismissed charges, probation before judgment (“PBJ”)) after a three-year waiting period (after final action on charges, or completion of treatment), as long as no pending charges (or, additionally, any intervening convictions for a PBJ). Records may be opened only upon court order.  10-105(a)(1)-(4) and (c)(1)-(2).  See below for discussion of PBJ procedure.  
  • Charges transferred to juvenile court. § 10-105(a)(7); 10-106.
  • Police records of arrests not leading to charges. § 10-103; 10-103.1.5
  • Conviction records for decriminalized offenses. § 10-105(a)(11).
  • Conviction records for possession of marijuana. § 10-105(a)(12)
Procedure

The petition form is available at http://www.courts.state.md.us/courtforms/joint/ccdccr072.pdf.  A $30 fee is required.  See http://www.courts.state.md.us/circuit/feesummaryschedule.pdfThe State’s attorney receives a copy of the petition for expungement and is a mandatory party to the proceeding.  Md. Code Ann., Crim. Proc. §§ 10-105(d), (e), (g).  The State’s attorney has 30 days to respond to the petition, and if State’s attorney objects, a hearing is held to determine whether the person is entitled to expungement.  Id.   An expungement order may be appealed.  § 10-105(g).  See also State v. Nelson, 847 A.2d 1184, 1189 (Md. App. 2004) (State entitled to 30-day period to file objection and court cannot proceed to hearing prior to expiration of that period absent an articulated waiver by the State).

Limitations

Per Md. Code Ann., Crim. Proc. § 10-107, if any single charge in arising from the same incident is ineligible, then every charge arising from that incident is ineligible (this is known as “the unit rule”).

Effect

The effect of expungement is the same as that described for misdemeanor convictions in the preceding sections.  For non-conviction dispositions, an expunged record may not be used as predicate, or to enhance sentence.  See Jones v. Baltimore City Police Dep’t, 606 A.2d 214, 218 (Md. 1992). 

3.  Probation before Judgment (“PBJ”) and expungement

Subject to the provisions of the Maryland sentencing guidelines, the court may defer judgment and place a defendant on probation subject to reasonable conditions, if (i) the court finds that the best interests of the defendant and the public welfare would be served; and (ii) if the defendant gives written consent after determination of guilt or acceptance of a nolo contendere plea.  Md. Code Ann., Crim. Proc. § 6-220(b)(1).  Terms of probation may include payment of fine or restitution, or participation in a treatment program.  § 6-220(b)(2).  Upon successful completion of probation, the court shall discharge the defendant from probation without judgment of conviction, and such discharge “is not a conviction for the purpose of any disqualification or disability imposed by law because of conviction of a crime.”  § 6-220(g).  A person discharged from probation may petition the court for expungement of police and court records relating to the charges after a three-year waiting period, as long as the petitioner has not been convicted of any crime other than a minor traffic violation, and is not a defendant in a pending criminal proceeding.  §§ 10-105(a)(3), (c)(2)(ii), (e)(4).

A PBJ plea that has been expunged may not be used to enhance a subsequent sentence.  See Jones, 606 A.2d at 218 (“A disposition of probation before judgment cannot be considered a predicate offense for imposition of certain recidivist penalties imposed by law; there is no assessment of points when probation before judgment is granted after a finding of guilt on a motor vehicle charge; and a sentence of probation before judgment is not entered upon a defendant’s public driving record.”).  Cf. United States v. Bagheri, 999 F.2d 80 (4th Cir. 1993) (noting distinction between PBJ disposition, which may be considered if not expunged, and expunged record, which may not).  See also “Effect of expungement” at Part II, B(2)(c), supra.

Motion for Modification

Under Md. Rule 4-345, upon motion filed within 90 days after imposition of a sentence, the court has revisory power over a sentence for five years from the date the sentence originally was imposed, and may upon motion reduce a sentence to probation before judgment, so as to make a defendant eligible for expungement under Md. Code Ann., Crim. Proc. § 10-105(a)(3).

4.  Judicial sealing of juvenile court records

Police and courts records concerning a child are confidential and may not be divulged except by court order for good cause or to certain school officials for certain reportable offenses. Md. Code Ann., Courts and Judicial Proceedings § 3-8A-27.  Access and use is permitted by the Department of Juvenile Services, law enforcement agencies, and certain governmental bodies in certain circumstances.  Id.  If good cause is shown, the court may order court records of a child sealed at any time, and must order sealing upon motion or petition when the child reaches 21 years of age.  If sealed, court records cannot be opened for any purpose except by court order for good cause shown.  § 3-8A-27(c).  See also § 3-827(c) (confidentiality of juvenile court records for children “in need of assistance” who require court intervention).

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

Effective October 2013, state government employers may not inquire about an applicant’s criminal history until an applicant has had an opportunity for an interview.  Md. Code Ann., State Pers. & Pens. § 2-203 (enacted by 2013 Maryland Laws Ch. 160, § 1 (S.B. 4).  Certain positions are exempt, including law enforcement-related positions and positions where a criminal records check is mandated by statute.  See id.

Since 2007, the city of Baltimore has had its own ban-the-box policy for public employment.  The criminal history of potential administrative hires in “positions of trust” are not investigated or inquired about until the final stages of the hiring process.  See Policy AM-237-1 at http://www.nelp.org/page/-/SCLP/BaltimorePolicyonPositionsofTrust.pdf?nocdn=1; see also National Employment Law Project, Ban the Box Resource Guide 7 (2013), available at http://www.nelp.org/page/-/SCLP/2011/CityandCountyHiringInitiatives.pdf?nocdn=1.  Additionally, a conviction may only be disqualifying after “fair consideration of the relationship between an conviction and the applicant’s suitability for a particular position.”  AM-237-1 at 4.

Under state law, a consumer reporting agency cannot report conviction information that is older than seven years for purposes of employment, if the job about which information sought is expected to pay an annual salary less than $20,000.  Md. Code Ann., Com. Law § 14-1203(a)(5).  See also Part II B, supra, regarding disclosure of arrest or conviction that has been expunged in context of application for employment, education, or government license.  Md. Code Ann., Crim. Proc. § 10-109.

B.  Licensing

Md. Crim. Proc. Code § 1-209(d):

A department may not deny an occupational license or certificate to an applicant solely on the basis that the applicant has previously been convicted of a crime, unless the department determines that:

(1) there is a direct relationship between the applicant’s previous conviction and the specific occupational license or certificate sought; or
(2) the issuance of the license or certificate would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

Standards for making these determinations are set forth at § 1-209(e), and restated at COMAR (Code of Md Reg) 09.01.10.02:

The following standards shall be considered in the grant, denial, renewal, or revocation of a license, when an applicant or licensee has been convicted of a crime:

  1. The nature of the crime;
  2. The relationship of the crime to the activities authorized by the license;
  3. The relevance of the conviction to the fitness and qualification of the applicant or licensee to perform the occupation authorized by the license;
  4. Other crimes of which the applicant or licensee has been convicted;
  5. The length of time since the conviction;
  6. The behavior and activities of the applicant or licensee before, and subsequent to, the conviction.

Drug convictions are specifically subject to a similar analysis under statute.  See Md. State Gov’t Code § 10-1405.

Certificate of Rehabilitation

Beginning October 2017, the Department of Corrections “shall issue” a Certificate of Rehabilitation to individuals convicted of non-violent and non-sexual felonies and misdemeanors who were supervised by the Division of Parole and Probation under conditions of parole, probation, or mandatory release supervision, and who have completed all such conditions.  Md. Code Ann., Corr. Servs.  § 7-104 (enacted by the 2016 Justice Reinvestment Act, SB-1005).  Notwithstanding the law’s mandatory language, the Department is required to promulgate rules establishing an application and review process that allows the state’s attorney and victim to object to issuance. § 7-104(G)Only one certificate may be issued in a person’s lifetime.  § 7-104(E).

Effect:

A licensing board may not deny an occupational license or certificate to an applicant who has been issued a certificate of rehabilitation solely on the basis that the applicant has previously been convicted of the crime that is the subject of the certificate of rehabilitation, unless the licensing board determines that:

  1. There is a direct relationship between the applicant’s previous conviction and the specific occupational license or certificate sought; or
  2. The issuance of the license or certificate would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

§ 7-104(C).  When determining whether a conviction is directly related to a license or involves a risk to property or the public a board must consider a list of factors similar to those in COMAR 09.01.10.02, described in the previous section.  § 7-104(D)


  1. Prior to February 2016, felony offenders did not regain the right to vote until the completion of any period of probation or parole. The 2015 bill that limited disenfranchisement to those serving a prison term was enacted over the veto of Governor Larry Hogan. See Erin Cox, Released felons gain right to vote in Maryland after veto override, Balt. Sun, Feb. 10, 2015, available at http://www.baltimoresun.com/news/maryland/politics/bs-md-felons-voting-20160209-story.html.  Eight years earlier, the 2007 Voting Registration Protection Act restored the vote to most after completion of sentence.  Prior to that time, recidivists were required to wait three years after completion of sentence, and people convicted of two or more crimes of violence were permanently disenfranchised unless pardoned.  Persons convicted of bribery, attempted bribery, or buying or selling votes, whether felony or misdemeanor, were permanently disenfranchised and disqualified from holding office, unless pardoned.  Passage of the 2007 Act also obviated the confusion historically surrounding the constitutional term “infamous or other serious crime,” which had been held to include some misdemeanors that were regarded as crimes of moral turpitude under the common law, such as perjury.  See, e.g., Brennan Center for Justice,Maryland Voter Registration Protection Act of 2007, available at http://www.brennancenter.org/page/-/d/download_file_48254.pdf.  Prior to the passage of the 2007 Act, the most recent list of disqualifying offenses issued by the Office of the Attorney General, dated July 2004, was 21 pages long and included as “infamous crimes” a large number of offenses that appear at least potentially to be misdemeanors.  See also Theiss v. State Admin. Bd. of Elec. Laws, 387 F. Supp. 1038, 1040 n. 3 (D. Md. 1974) (1973 “laundry list” includes shoplifting, “child abuse,” and “various offenses relative to prostitution).
  2. The governor also has authority to issue partial and conditional pardons.  Md. Code Ann., Correctional Services §§ 7-601(a)(2), (b)(2).  The governor is the sole judge of whether a condition of a conditional pardon is violated, but the Parole Commission may hear cases of alleged violations of conditional pardons if so delegated by the governor. §§ 7-602; 7-205(a)(8).
  3. “No one convicted of first-degree murder in Maryland has ever been pardoned.”  Don Markus, Columbia Man, 18, Pleads Guilty to Assault, Armed Robbery, The Baltimore Sun, July 28, 2009, at 5A, available at http://articles.baltimoresun.com/2009-07-28/news/0907270070_1_murder-sentence-fleming-columbia-man.
  4. Note, however, that four of the twelve offenses that are eligible for shielding are not also eligible for expungement.
  5. Police investigative files are not subject to expungement.  Md. Code Ann., Crim. Proc. § 10-102(c)(5)-(6).  See also Gigeous v. Eastern Correctional Institution, 752 A.2d 1238 (Md. App. 2000), aff’d, 769 A.2d 912 (Md. 2001) (investigatory files not subject to expungement and can be used for police investigative purposes).

Copyright © 2017

Restoration of Rights Series/Maine

MaineI.  Restoration of Civil/Firearms Rights
A.  Civil rights

The right to vote is not lost even upon incarceration.   The right to serve on a jury is also not lost.  See Me. Rev. Stat. Ann. Tit. 14, § 1211 (providing disqualifications for jury service, none of which refer to criminal history).1  The right to hold office is also not lost, although a judgment of conviction may include an order disqualifying the defendant from office.  Me. Rev Stat. Ann tit. 17-A, 1152(4).

B.  Firearms

Firearm privileges are lost upon conviction of a crime punishable by a term of one year or more, or a juvenile adjudication involving violence or a firearm.  Me. Rev. Stat. Ann. tit. 15, § 393(1), paragraphs (A-1) and (C).  The Commissioner of Public Safety has the authority, five years from the date of discharge, to grant a permit to carry a “black powder weapon.”  tit. 15, § 393(2).2 A juvenile with a non-violent disqualifying conviction under paragraph A-1 is disqualified only for a period of 3 years following completion of any disposition imposed or until that person reaches 18 years of age.  A person subject to the provisions of paragraphs A-1 or C as may apply for a permit to carry a firearm, but may not be issued a permit to carry a concealed handgun.

C.  Sex Offender Registration

The lifetime registration and quarterly verification requirements of the 1999 sex offender registration act may not be retroactively imposed upon offenders sentenced under the 1991 and 1995 acts. See State v. Letalien, 985 A.2d 4 (Maine 2009) (holding that retroactive application of requirements violates ex post facto provision of Maine Constitution since the effect of requirements is essentially punitive).

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

The governor has authority to pardon, except in cases of impeachment, subject to regulation “relative to the manner of applying.” Me. Const. art. V, pt. 1, § 11.1  The governor is assisted by the non-statutory Governor’s Board on Executive Clemency, composed of three members appointed by the governor.  Me. Exec. Order 25 FY 11/12 (Nov. 1, 2011), available at http://www.maine.gov/tools/whatsnew/index.php?topic=Gov_Executive_Orders&id=321981&v=article2011.  The Board is tasked with making recommendations to the governor on each pardon petition, and has the power to hold public hearings on such petitions.  Id.  The final decision on clemency petitions rests solely with the governor.2 Id.

The Board shall consist of three persons appointed by the Governor to serve at his pleasure.  The Chair of the Board shall be designated by the Governor.  All members of the Board will be Maine citizens who have demonstrated humanitarian concern as well as thorough knowledge of the criminal justice system, and who have demonstrated such qualities in their private and professional lives that would assist them in evaluating the rehabilitation of persons convicted under our criminal justice laws.

Administration

The Department of Corrections (DOC) administers the governor’s pardon power.  Frequently asked questions about eligibility, the application process, and the effect of pardons are available at http://www.maine.gov/corrections/adult/pardon/.  The Parole Board is authorized, “when requested by the Governor,” to investigate pardon cases, and to make recommendations to the Governor.  Me. Rev. Stat. Ann. tit. 34-A, § 5210(4).  All information gathered by the Parole Board is confidential.  Id.  In practice, the Governor’s Board on Executive Clemency holds pardon hearings and makes the recommendations to the governor while the Parole Board assists with investigations.  See Governor’s Board of on Executive Clemency, General Information Regarding Executive Clemency (2008), available at http://www.maine.gov/corrections/adult/pardon/pardon%20application%20final.pdf;  Exec. Order 25 FY 11/12, supra.

Eligibility

Petitions will not be considered until five years after the completion of the petitioner’s sentence.  Adult Community Corrections, Maine Department of Corrections,  http://www.maine.gov/corrections/adult/pardon.  Petitions to pardon DUI offenses will not be considered,  nor will petitions seeking a pardon solely to regain gun rights, to be removed from the state’s sex offender registry,3 or to enter Canada.  Further, petitions “seeking a pardon for one criminal conviction when the Petitioner has one or more additional serious criminal convictions that are not included in the Petitioner’s application for a pardon will not be heard.”  Id.

Criteria

The pardon application form requires a description of “exceptional” circumstances warranting a pardon. Petition for Executive Clemency (2008), available at http://www.maine.gov/corrections/adult/pardon/pardon%20application%20final.pdf.

Effect

A pardon lifts automatic legal barriers and evidences rehabilitation.  Because Maine has no expungement law, criminal records are not “wiped clean” by a pardon.  Instead, information concerning the pardoned conviction is considered “non-conviction” data and is available only under the conditions or circumstances set forth in Me. Rev. Stat. Ann. tit. 16, §§ 611-622.  Ten years after the final discharge of their sentence, a pardoned person may apply to the State Bureau of Identification  to have all references to the pardoned crime deleted from the Federal Bureau of Investigation’s identification record.  15, § 2167 (2011).  See also tit. 34-A, § 1125-A(6)(c) (sex offender registration no longer required after pardon).

Process

Pardon application forms and instructions are available at http://www.maine.gov/corrections/adult/pardon.  Petitions are sent to the Department of Corrections, which initiates a preliminary background check on the petitioner by the State Bureau of Identification.  General Information Regarding Executive Clemency, The Governor’s Board on Executive Clemency then reviews the petitions and decides whether to grant a hearing before the Board.  Id.  If a hearing is granted, the Parole Board conducts a more thorough background investigation which includes an interview with the petitioner, and may also include interviews with third parties including the petitioner’s family, friends, and co-workers.  Id.   The only statutory regulation of the pardon process is that, prior to the hearing, written notice of the petition for pardon must be given “to the Attorney General and the district attorney for the county where the case was tried at least 4 weeks before the time of the hearing.”  Me. Rev. Stat. Ann. tit. 15, § 2161 (2011). Petitioners must post a notice of the hearing in a newspaper in the county where the conviction occurred at least four weeks before the hearing.  Id. See also General Information Regarding Executive Clemency, supra.

The hearing on the petition is public, and allows the Board to ask the petitioner “about matters involving the Petitioner’s application for clemency, including the reason why clemency is being sought and the circumstances surrounding the crime(s) for which a pardon or commutation is being requested.”  See General Information Regarding Executive Clemency, supra.  After the hearing, the Board meets in Executive Session to discuss the petitioner’s case, and then transmits its recommendation to the governor. The Board meets at least three times each year.  Id. The entire process, from the time the application is received until a final decision is issued, usually takes a minimum of six months, and “could take as much as a year or longer.”  Id.  If the petition is denied, the petitioner must wait one year to reapply.  Id.

Frequency of Grants

As of January 2018, Governor Lepage had reportedly granted pardons to only 30 individuals since taking office in 2011, all grants coming in his first two years in office.  The website of the Maine Board on Executive Clemency contains no information on the number of pardon applications granted and denied, though newspaper reports indicate that hundreds have applied for relief.4  In 2012, the Board received nearly 160 pardon petitions, and granted hearings on just over a quarter of those petitions.  Of the petitions heard, the Board recommended 18 to the Governor, 11 of which were granted.  During his eight years in office (2002-2011), Governor Baldacci granted 131 pardons, 51 in his final year in office.  About 50 people are granted hearings each year, and of them about 25% are granted pardon.  Governor Baldacci regarded pardons as exceptional, primarily useful for “working people,” for whom pardons make a significant difference in their life (employment, particularly nurses and teachers; immigration cases).  Two of his final pardons went to individuals seeking pardon to avoid deportation.5  Angus King pardoned about the same number during the preceding eight years, with some individuals receiving multiple pardons, according to information supplied by the Secretary of State’s Office.  Gov. Joseph Brennan approved about 300 requests for pardons and commutations, according to Bangor Daily News articles from the 1994 campaign.

Contact

Questions regarding pardons may be directed to:

Department of Corrections
Division of Adult Community Services
111 State House Station
Augusta, Maine 04333
(207) 287-4340

B.  Judicial sealing or expungement

State law makes no provision for sealing or expungement of adult convictions, other than conviction for class E crimes committed while a person was 18 years old or older but younger than 21.

Sealing of youthful Class E convictions

Under a new 2015 law, courts may seal the records of convictions for Class E crimes (misdemeanors) that were committed while a person was 18 years old or older but younger than 21 if the person has not been convicted of any other offenses and has no charges pending.  Me. Rev. Stat. Ann. tit. 15, §§ 2251, 2255. Sexual assault offenses are ineligible.  § 2251. A 4-year waiting period applies from the time of completion of sentence.  § 2252. Sealing is mandatory if the court finds that the person meets all eligibility criteria. § 2254(5).  If a person is convicted of an offense subsequent to sealing, then the sealed records must be unsealed.  § 2254(7).  Sealed records may not be disseminated to anyone except other than criminal justice agencies.  § 2255. A person whose record is sealed “may respond to inquiries from other than criminal justice agencies by not disclosing its existence without being subject to any sanctions.” § 2256. A sunset provision in the law is set to repeal this sealing authority on Oct. 1, 2019.  See § 2259.

Deferred adjudication

“A person who has pled guilty to a Class C, Class D or Class E crime and who consents to a deferred disposition in writing is eligible for a deferred disposition.” Me. Rev. Stat. Ann. tit. 17-A, § 1348. “Following the acceptance of a plea of guilty for a crime for which a person is eligible for a deferred disposition under section 1348, the court may order sentencing deferred to a date certain or determinable and impose requirements upon the person, to be in effect during the period of deferment, considered by the court to be reasonable and appropriate to assist the person to lead a law-abiding life.” § 1348-A.  Upon successful completion of the period of deferment, the prosecutor may file a motion permitting the defendant to withdraw the plea, and dismiss the charges. § 1348-B.  Other dispositional options may be available, such as knocking down a felony to a misdemeanor.  No provision for expungement, except that the record then becomes a non-conviction record not available to the public except upon specific request.

Sealing of juvenile records

See Me. Rev. Stat. Ann. tit. 15, § 3308.  An individual may petition the court to seal all juvenile adjudication records at least three years have passed since the end of the juvenile’s disposition, there have been no subsequent adjudications or convictions since the disposition, and there are no pending charges.  tit. 15, §§ 3308(8)(A)(1)–(3).  The court may rule against sealing if it determines that the public’s right to information substantially outweighs the juvenile’s privacy interest.  tit. 15, § 3308(8)(B).  Once sealed, a juvenile may deny existence of the record.  tit. 15, § 3308(8)(D).

Dissemination of non-conviction records

Substantial changes were made to Maine’s Criminal History Record Information Act in June 2013.  See 2013 Me. Legis. Serv. Ch. 267 (H.P. 1070) (L.D. 1493) (effective Oct.  9, 2013).  As under the prior version of the Act, non-conviction records are not generally available to the public after one year, so long as no prosecution is pending and a person is not a fugitive from justice.  See Me. Rev. Stat. Ann. tit. 16, §§ 703(2), 705; see also tit. 16, §§ 611, 613 (2012) (prior version).   However, under the new law, disclosure of such information may be made to “[a]ny person who makes a specific inquiry . . .  as to whether a named individual was summonsed, arrested or detained or had formal criminal charges initiated on a specific date.”  tit. 16, § 705(1)(E).

III. Nondiscrimination in Licensing and Employment 

Maine limits consideration of conviction in determining eligibility for the granting of any occupational license, registration or permit issued by the State, placing stricter limits on less serious offenses and generally barring consideration of dated convictions.  Under Me. Rev. Stat. Ann. tit. 5, § 5301(1), licensing agencies may take into consideration criminal history record information from Maine or elsewhere relating to certain convictions that have not been set aside or for which a full and free pardon has not been granted, but “the existence of such information shall not operate as an automatic bar to being licensed, registered or permitted to practice any profession, trade or occupation.”

Section 5301(2) further limits consideration of certain minor convictions: convictions for which incarceration for less than a year is authorized may be considered only if the offense “directly relates” to the license, or if the offense involves dishonesty or false statement.  Convictions of a sexual nature may be considered in connection with certain types of health care licenses.  However, under § 5302 convictions specified in § 5301(2) may be taken into account if the licensing agency determines that the individual “has not been sufficiently rehabilitated to warrant the public trust.”  In such event, the licensing agency “shall explicitly state in writing the reasons for a decision which prohibits the applicant, licensee, registrant or permit holder from practicing the profession, trade or occupation if that decision is based in whole or in part on conviction of any crime described in section 5301, subsection 2.”

Section 5303 provides that licensing authorities may consider only recent convictions (within the last three or ten years, depending on the type of license sought, with a longer period for health care and law enforcement licenses).6 “Beyond the [3-year][10-year] period, ex-offender applicants or licensees with no additional convictions are to be considered in the same manner as applicants or licensees possessing no prior criminal record for the purposes of licensing decisions.” § 5303(1), (2)(A).  There is no time limitation for consideration of an applicant’s or licensee’s conduct that gave rise to the criminal conviction if that conduct is otherwise a ground for disciplinary action.  §5303(1)(, (2)(B).

No similar limitations on public or private employment.


  1. The Maine Supreme Court has held statutes purporting to reduce prison terms through good time or judicial resentencing to be an unconstitutional usurpation of governor’s clemency authority.  See Chestnut v. State, 524 A.2d 1216, 1219-20 (Me. 1987); State v. Hunter, 447 A.2d 797, 801-803 (Me. 1982).
  2. In 1977, Amendment 129 to the Maine constitution eliminated the requirement that the governor obtain the advice of the quasi-legislative Executive Council before issuing a pardon.  Me. Con. Res. 1975, c.4   See also In re Pardoning Power of Governor & Council, 27 A. 463 (Me. 1892) (governor not required to seek concurrence of the justices of the supreme court, noting separation of powers concerns) In 1995, freed of these venerable limits on his pardon power, Governor Angus King created the Board on Executive Clemency.  See E.O, 8-94/95, January 27, 1995 (on file with author).
  3. Cf.  Me. Rev. Stat. Ann. tit. 34-A, § 1125-A(6)(c) (2011) (registration no longer required after pardon).
  4.   According to a 2013 article in the Bangor Daily News, “the [Department of Corrections] has not yet received any signed paperwork from the governor’s office.  So, while the pardons are signed, an employment or criminal background check would not yet indicate that any [of the pardons] exist.”  Judy Meyer, Hundreds seek pardons of criminal conviction in Maine each year, but few are granted, Bangor Daily News, June 2, 2013, available at http://bangordailynews.com/2013/06/02/news/state/hundreds-seek-pardons-of-criminal-convictions-in-maine-each-year-but-few-are-granted.
  5. See Kevin Miller, As clock runs out on his term, Baldacci grants final pardons,  Bangor Daily News, Jan. 5, 2011, available at http://new.bangordailynews.com/2011/01/05/politics/as-clock-runs-out-on-his-term-baldacci-grants-final-pardons/
  6. E.g., § 5303(1): “THREE-YEAR LIMITS. Except as set forth in this subsection and subsection 2, the procedures outlined in sections 5301 and 5302 for the consideration of prior criminal conviction as an element of fitness to practice a licensed profession, trade or occupation shall apply within 3 years of the applicant’s or licensee’s final discharge, if any, from the correctional system. Beyond the 3-year period, ex-offender applicants or licensees with no additional convictions are to be considered in the same manner as applicants or licensees possessing no prior criminal record for the purposes of licensing decisions. There is no time limitation for consideration of an applicant’s or licensee’s conduct which gave rise to the criminal conviction if that conduct is otherwise a ground for disciplinary action against a licensee.”

Copyright © 2017

Restoration of Right Series/ Louisiana

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

The right to vote “may be suspended” while a person is “under an order of imprisonment for conviction of a felony.” La. Const. art. I, § 10.   This does not require actual imprisonment; disenfranchisement applies to people on parole, and also to probationers whose prison sentence was suspended.  See Rosamond v. Alexander, 846 So. 2d 829 (La. App. 3d Cir. 2003).  The Administrative Office for the U.S. Courts has taken the position that federal offenders on supervised release are entitled to register and vote.1

B.  Office and Jury

As of January 2016, those with felony convictions are now eligible to run for elective office.2 Public officers are automatically removed following a felony conviction while holding office.  La. R.S. § 42:1411. Under La. Code Crim. Proc. Ann. art. 401(A)(5), those convicted of or “under indictment” for a felony may not serve on a jury.  See also State v. Baxter, 357 So. 2d 271 (La. 1978) (includes federal convictions).

C.  Automatic Restoration of Rights

La. Const. art. I, § 20 provides that “[f]ull rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.”  This provision restores the “basic rights” of citizenship (voting, holding office).  See State v. Adams, 355 So. 2d 917, 921-22 (La. 1978) (“the ultimate language, ‘rights of citizenship,’ was adopted to make it clear that the drafters’ intent was to restore the customary rights a citizen may exercise (the rights to vote, work, hold public office, etc.) and not to erase automatically the fact of the conviction”).  However, it does not restore firearms rights or other privileges.  See, e.g., State v. Williams, 358 So. 2d 943 (La. 1978) (firearms rights not restored automatically upon completion of sentence); Williams v. Louisiana Bd. (Comm’n) of Alcoholic Beverages, 317 So. 2d 247 (La. App. 3d Cir. 1975) (same for liquor license).  There is also caselaw holding that the general restoration authority in § 20 does not extend to jury service, e.g., State v. Haynes, 514 So. 2d 1206 (La. App. 2d Cir. 1987), but the reasoning of these cases does not account for § 20. See generally Helen Ginger Berrigan, Executive Clemency, First-Offender Pardons, Automatic Restoration of Rights, 62 La. L. Rev. 49 (2001).

D.  First offender pardon

A first offender (defined in La. Rev. Stat. Ann. § 15:572(C) as a person “convicted within this state of a felony but never previously convicted of a felony” under federal law or the law of any state or country) “shall be pardoned automatically upon completion of his sentence without a recommendation of the Board of Pardons and without action by the governor.”  La. Const. art. IV, § 5(E)(1); La. Rev. Stat. Ann. § 15:572(B)(1).  Entitlement to first offender pardon for those eligible is guaranteed by the constitution and may not be infringed by statute.  Op. La. Att’y Gen. No. 04-0080 (2005).  Payment of court costs is not required. Id.

Eligibility

Applies to state convictions on or after January 1, 1975.  Since a 1999 amendment to the Louisiana Constitution, first offender pardon is available only to persons convicted of “non-violent crime, or convicted of aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities.” La. Const. art. IV, § 5(E)(1) as amended by Acts 1999, No. 1398, § 1, approved Oct. 23, 1999, eff. Nov. 25, 1999.  All others must apply for full pardon.

Effect

First offender pardon restores “all rights of citizenship and franchise,” La. Rev. Stat. Ann. § 15:572(D), but not the right to run for office, Touchet v. Broussard, 31 So.3d 986 (La. 2010), or privileges such as liquor license.  See State v. Adams, 355 So. 2d 917 (La. 1978).  Unlike a gubernatorial pardon, a first offender pardon does not preclude use of a conviction in subsequent prosecution or sentencing, see Touchet v. Broussard, 31 So. 3d at 993–94, or to disqualify for occupational licensing.   Rev. Stat. Ann. § 15:572(E).  It does not restore firearms rights.  State v. Wiggins, 432 So. 2d 234 (La. 1983).  Nor does it relieve of obligation to register as sex offender.  La. Rev. Stat. Ann. § 15:572(B)(2). 

A first offender pardon is not regarded as “full and unconditional” under federal immigration law for purposes of avoiding deportation, or demonstrating good moral character for naturalization.  See Hang Thuy Nguyen v. USCIS, No. 16-30904 (5th Cir. Feb. 9, 2017) (in contrast to unconditional gubernatorial pardon, Louisiana’s automatic first offender pardon does not qualify as “full and unconditional” so as to enable petitioner to demonstrate good moral character for naturalization), http://www.ca5.uscourts.gov/opinions/pub/16/16-30904-CV0.pdf).) 

E.  Firearms

Restriction on possessing firearms or carrying concealed weapons applies to any person convicted of a crime of violence, felony weapons or drug offense, or sex offense, and terminates ten years after completion of sentence so long as no other felony conviction occurs during that period.  La. Rev. Stat. Ann. § 14:95.1(C).  A governor’s pardon will restore firearms rights prior to the ten years, but a first offender pardon will not.  Wiggins, supra, 432 So. 2d 234.  The federal government takes the position, based on the holding in Caron v. United States, 524 U.S. 308 (1998), that a person who is ineligible for a concealed carry permit, as described in the paragraph below, is prohibited from possessing firearms under 18 U.S.C. § 922(g)(1).  See Complaint filed in Lynch v. Lee, No. 3:16-cv-00089-BAJ-EWJ (M.D. La.)    

Concealed carry permits:  In addition, persons who have been convicted of, or pled guilty or nolo contendere to, a crime of violence or any crime punishable by a term of one year or more may not obtain a concealed carry permit.  La. Rev. Stat. Ann. § 40:1379.3(C)(10).  “A conviction, plea of guilty, or plea of nolo contendere under this Paragraph shall include an expungement of such conviction or a dismissal and conviction set-aside under the provisions of Code of Criminal Procedure Article 893.”  Conviction of or plea to a misdemeanor crime of violence (as defined in R.S. 14:2) will result in loss of concealed carry privileges for five years after completion of sentence, unless the conviction was set aside and the prosecution dismissed.  Persons convicted of federal counterfeiting or forgery charges under may obtain such a permit 15 years after completion of sentence.  Id.   However, a person who has been convicted of a violation of 18 U.S.C. § 491(a) shall be permitted to qualify for a concealed handgun permit if fifteen or more years has elapsed between the date of application and the successful completion or service of any sentence, deferred adjudication, or period of probation or parole. Id.     

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

“Upon favorable recommendation of the Board of Pardons,” the Governor may pardon “those convicted of offenses against the state.” La. Const. art. IV, § 5(E)(1); La. Rev. Stat. Ann. § 15:572(A).  In 2012, Act 714 merged the functions and duties of the Board of Pardons and the Parole Board.

The Board consists of five appointees of the governor confirmed by the Senate, whose terms run concurrent with Governor’s, and one of which shall be chosen from a victims group. See http://doc.la.gov/quicklinks/pardon-board/ (providing general information on the Board of Pardons). The governor chooses the chair.  Const. art. IV, § 5(E)(2);  La. Rev. Stat. Ann. § 15:572.1.  Any board action requires four favorable votes.  La. Rev. Stat. Ann. § 15:572.1(e).

Eligibility

An applicant for pardon must have completed their sentence, including court costs.  La. Rev. Stat. Ann. § 15:572(A); see Op. La. Att’y Gen. No. 04-0080 (2005).  The Rules of the Louisiana Board are posted at http://doc.la.gov/quicklinks/pardon-board/rules.  The Louisiana Supreme Court held in 2006 that a pardon issued by the governor of the state of Louisiana was sufficient to restore the right to hold a municipal or state office to one convicted of a federal felony offense. Malone v. Shyne, 937 So. 2d 343 (La. 2006). 3 See also 1978-79 Op. Att’y Gen. 103 (No. 79-787)(1980).

Effect

Where a convicted person receives a full executive pardon by the governor upon recommendation of the Board of Pardons (“Gold Seal” Pardon), he is restored to “status of innocence.”  State v. Riser, 704 So. 2d 946  (La. App. 2 Cir. 1997).  After a pardon, the conviction cannot be used to enhance punishment for a subsequent crime, though it may be used at trial to impeach.   (By contrast, an automatic first offender pardon does not preclude use of the conviction in subsequent prosecution, or to disqualify for occupational licensing.  See cases cited in Part I D.)  A full pardon also is effective under federal immigration law to avoid deportation and to lift the bar to establishing good moral character for purposes of naturalization.  See Hang Thuy Nguyen v. USCIS, supra.

Process

See La. Rev. Stat. Ann. § 15:572.4.   The Board meets at regularly scheduled dates, see Rule 1(A) of Board Rules at http://www.doc.la.gov/rules/.   All applications must be made on the official form, posted at http://www.doc.la.gov/wp-content/uploads/2013/02/Clemency-Application-Feb-2013.pdf.  “Before considering the application for pardon of any person, the board shall give written notice of the date and time at which the application will be heard and considered, at least thirty days prior to the hearing,” to the district attorney, the victim (if any), and any other person who has indicted an interest and has a legal right to present testimony.  La. Rev. Stat. Ann. § 15:572.4(B)(1).  In addition, the applicant must notify the district attorney and victims of his application, and place public notice in a newspaper on three separate days in a 30-day period.  La. Rev. Stat. Ann. § 15:572.4(C).  Information relating to a pardon request must be made available to the public.  The district attorney, injured victim, spouse or next of kin, and any other persons who desire to do so shall be given a reasonable opportunity to attend the hearing, and both the district attorney and victim must be given an opportunity to respond to the application, either telephonically or in person.  La. Rev. Stat. Ann. § 15:572.4(B)(2) and (3).  See also Rule 6(C) of the Board Rules.  No more than three persons may speak in favor of an application, and no more than three against.  All actions of the Board require the favorable vote of at least four members of the Board.  See Rule 1(C).

In recent years the legislature has erected more and more procedural barriers to pardon, generally permitting greater public scrutiny of the process, and making formal provisions for input by officials and victims.  Because a favorable Board recommendation is necessary for the governor to act, recent amendments create obstacles to pardon.  See generally Berrigan, supra.

Frequency of Grants

In addition to First Offender Pardons, the Board hears 20-25 cases of full pardon every two months, or about 120 cases annually, and historically has recommended favorably in about 40% of these.  Dockets and decisions can be viewed at http://www.doc.la.gov/dockets-and-decisions/l. Governor Jindal issued 83 pardons during his 8 years in office, acting favorably on only 11% of the Board’s recommendations. Kevin Litten, Bobby Jindal grants pardon to 21 offenders, Times-Picayune, http://www.nola.com/politics/index.ssf/2016/01/bobby_jindal_grants_clemency_t.html (Jan. 6, 2016). Previous governors Blanco and Foster issued few pardons early in their terms, but ended by pardoning over 331 individuals (in four years) and 476 individuals (in eight years), respectively.  Governor Edwin Edwards approved more than 3000 clemency recommendations in 16 years in office.  See Michelle Milhollon, Governor Spurns Most Pardon Bids, The Advocate, Sept. 11, 2011, http://theadvocate.com/home/666536-79/governor-spurns-most-pardon-bids.html.  If past is prologue in Louisiana, Governor Jindal should pick up the pace of his pardoning in his second term.

Contact

Board of Pardons
504 Mayflower St.
Baton Rouge, LA 70802
Phone: (225)342-5421
Fax: (225)342-2289
paroleboard@corrections.state.la.us

B.  Judicial expungement or sealing
1.  Expungement

Until 2014, there was no provision for expungement or sealing of adult felony convictions in Louisiana.  In May 2014, a comprehensive set of provisions for expunging criminal records was enacted as Chapter 34 of the Code of Criminal Procedure, and previous provisions for expunging nonconviction records (La. Rev. Stat. Ann. § 44:9) were repealed.   See La. Code Crim. Proc. Ann. Ch. 34. Art. 971. The purpose of the new chapter is “to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.”  Id.

    a. Eligibility
Felony conviction records:

Article 978 La. C. Cr. Proc. provides for expungement of felony conviction records 10 years from completion of sentence so long as no convictions (either misdemeanor or felony) in intervening years and no pending charges. 978(A). Non-eligible offenses: violent offenses, crimes against minors, drug trafficking offenses (though mere possession with intent to distribute is eligible), and sex offenses (though expungement is available for conviction under pre-2001 statutory rape law if the offense would be a misdemeanor today). Certain controlled substance offenses are also ineligible. 978(B).  May be granted only once every 15 years. 978(D).

Misdemeanor conviction records:

Article 977 provides that misdemeanors may be expunged at any time if set aside pursuant to deferred sentencing options provided under La. C. Cr. Proc. Arts. 893 and 894. They may also be expunged 5 years from the completion of sentence so long as the person has no felony convictions in the intervening years and no pending felony charges.  Domestic abuse offenses (if not dismissed following set-aside) and sex offenses are not eligible for expungement. 977(C).  Expungement of misdemeanor conviction records may be granted only once every five years, and only once every ten years in the case of a DUI conviction. 977(D).

Non-conviction records:

Article 976 La. C. Cr. Proc. provides that a person may at any time file a motion to expunge records if the person was not prosecuted and prosecution is barred, if the DA declined to prosecute, or if the proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.

     b. Effect

Article 973 provides that persons with expunged records are not required to disclose the expunged arrest or conviction, or the fact that a record has been expunged. 973(C).  Expunged records are not available to the public, but are available to law enforcement/prosecutors and to a number of licensing boards (mostly medical-related, but also the bar, social work, insurance, and other boards).  973(A), (B).  Expunged records may be used as a predicate offense in recidivist schemes. 973(E).  Expungement of a record does not relieve sex offender registration/reporting obligations. 973(H). Nor does expungement relieve handgun permit restrictions, though it does relieve firearm disabilities imposed as a result of a domestic battery abuse conviction. La. R.S. § 40:1379.3, 14:95.10.

c. Procedure

Article 980 calls for “contradictory hearing” if the district attorney, Bureau of Criminal Identification and Information, or arresting agency object to a motion to expunge within 60 days after receiving notice from the clerk (though court may grant another 60 day extension).  980(A)(B).  If there is an objection, a contradictory hearing is held at which the entity must show cause for denial by a preponderance standard. 980(E).  Otherwise the court will grant if requirements are met.

Fees

Article 983 – Fees are capped at $550.  983(A)(B).4

No cost for expungement following acquittal, wrongful conviction, dismissal/non-charge (so long as district attorney consents), or in cases where juvenile has completed drug court.

Third party dissemination

Article 974 provides that a private entity “that compiles and disseminates criminal history information for compensation,” excluding news-gathering organizations, may not disseminate information on expunged records once they have received notice of the expungement from the affected person.  974(A).  An action for damages is available against entities that violate this provision.  974(C). The provisions of this paragraph do not apply to private third-party credit reporting companies regulated by the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) or financial institutions regulated by Graham-Leach-Bliley Act (15 U.S.C. §6801 et seq.).  La. Code Crim. Proc. Ann. Art. 974.

Expungement by redaction

Art 985 – If a record includes the name of more than one individual and one or more of the individuals is entitled to an expungement of an arrest or conviction, any individual entitled to an expungement may petition the court to have records related to the arrest or conviction of the individual expunged by redaction.

Interim expungement of felony arrest records resulting in misdemeanor conviction: Article 985.1 – Apart from the other expungement provisions, a felony arrest record can be expunged at any time if the arrest resulted in a misdemeanor conviction.  Only the felony arrest record is expunged; the misdemeanor conviction record remains.  There is no limit on the number of times this may be done.

2.  Deferred Adjudication

Under Art. 893(A):  “When it appears that the best interest of the public and of the defendant will be served,” the court may place certain offenders on probation, at the successful conclusion of which charges are dismissed.  Expungement may then be sought under Section 44:9(A) or (B).  See Art. 893(E)(3)(c) (“Dismissal under this Paragraph shall have the same effect as an acquittal for purposes of expungement under the provisions of [Art. 976] and may occur only once with respect to any person.”).  Eligibility criteria are complex, but in general no more than one prior felony unless the prosecutor consents.  The offense may still be used as a predicate offense.  See also State v. Jones, 539 So. 2d 866 (La. App. 1989) (conviction expunged after completion of deferred adjudication probation could be considered for the purposes of the felon in possession charge).  Sex offenses involving children, violent offenses, and serious drug trafficking offenses are not eligible for deferred sentencing.  No expungement is available in the case of a suspended sentence.  See State v. Oliver, 874 So.2d 365, 367-68 (La. App. 2004).

3.  Juvenile Records

Immediately upon turning age 17, a person may apply to expunge non-adjudication records. Child Code Ann. art. 918(A).  Upon a person’s motion to the court, misdemeanor adjudication records may be expunged only if two or more years have passed since satisfaction of the most recent judgment.  Id. at (B).  Felony adjudication records may only be expunged if the offense was not murder, a sex crime, kidnapping, or armed robbery; five or more years have elapsed since the satisfaction of the most recent judgment against the person; there are no subsequent convictions for a felony or misdemeanor involving a weapon; and there are no pending charges against the person.  Id. at (C).  If the court finds that grounds for expungement exist, it may order expungement.  Id. at (F).  Expungement results in destruction of records and prohibition against release of non-destroyable items; the person may deny any existence of the record, with certain exceptions.  La. Child Code Ann. arts. 920–22.

C.  Administrative Restoration

The Louisiana Bureau of Criminal Identification may purge records of individuals over 60 who have not been arrested for 15 years.  La. Rev. Stat. Ann. § 15:586.

III.  Nondiscrimination in Licensing and Employment
A. Licensing

The Licensing for Ex-Offenders Act of 2017, La. Rev. Stat. § 37:31 through 36, is intended to facilitate licensing for convicted individuals. Originally enacted in 2014 to regulate only “provisional” licenses, it was amended in 2017 to remove the term “provisional” and apply to permanent licenses.  It provides that a covered licensing entity “shall issue” a license to an “otherwise qualified” convicted individual. § 37:325, and specifies that a license issued to a covered individual may be revoked if the individual commits “a new felony” or violates the rules of the profession for which the license was issued.  § 37:34.  It does not require issuance of a license to any person convicted of a crime of violence or sex offense, or fraud if the licensed field of work is one in which the licensee owes a fiduciary duty to a client.   § 37:36(A), (B).  In addition, a licensing entity shall not be required to issue a license to an applicant whose conviction “directly relates” to the specific field or profession.  § 37:36(C).  “A license holder who supervises children or individuals who lack mental capacity shall not do so without another licensee in the room at all times.”   § 37:36(D).  A number of regulatory and employing agencies are exempted, including law enforcement, medical and nursing licensing boards, state bar association, financial regulation, education, state racing and athletic commissions, pharmacists, architects, embalmers and funeral directors, and state board of elementary and secondary education.  § 37:36(E)(1).  However, exempt licensing entities are required to record and report on the number of licenses issued or denied to an otherwise qualified convicted applicant, including all reasons for any such issuance or denial.  “The entity shall provide the report annually to the House Committee on Commerce no later than February first of each year.”  § 37:36(E)(3).

A more specific older provision dealing with “Criminal record effect on trade, occupational, and professional licensing,” provides that “a person may not be disqualified, or held ineligible to practice or engage in any licensed trade, occupation, or profession “solely because of” a prior criminal record unless it involves a conviction that “directly relates to the position of employment sought, or to the specific occupation, trade or profession for which the license, permit or certificate is sought.”  La. Rev. Stat. Ann. § 37:2950(A).6  “Any decision which prohibits an applicant from engaging in the occupation, trade or profession for which the license, permit or certificate is sought, which is based in whole or in part on conviction of any crime . . . shall explicitly state in writing the reasons for the decision.”  § 37:2950(B).  Any complaints concerning violations of this section “shall be adjudicated in accordance with generally applicable procedures for administrative and judicial review.”  § 37:2950(C).  It exempts the same professions as the Licensing for Ex-Offenders Act, supra. See § 37:2950(D).  Section 37:2950 does not overrule specific restrictions on certificates of employment such as those applicable to employees in the gaming industry under La. Rev. Stat. Ann. § 27:28.  Eicher v. Louisiana State Police, Riverboat Gaming Enforcement Division, 710 So. 2d 799 (La. App. 1 Cir. 1998).

B. Negligent hiring protection

In 2014, La. Rev. Stat. Ann. § 23:291(E) was enacted, protecting employers from negligent hiring and supervision liability in many claims based solely on an employee’s past criminal convictions.  However, that protection does not extend to acts that are “substantially related to the nature of the crime for which the employee was convicted and the employer, general contractor, premises owner, or other third party knew or should have known of the conviction.”  § 23:291(E)(2)(a).  It also does not extend to a past conviction for enumerated crimes of violence or sex offenses of which the employer “knew or should have known.”  § 23:291(E)(2)(b).    

C. Ban-the-box in public employment and college admission

Ban-the-box in public employment:  Effective August 1, 2016, state employers may not inquire into the criminal history of applicants for “unclassified” state service positions until after the applicant has been interviewed for the position, or, if no interview is conducted, until the applicant is extended a conditional offer of employment.  See La. Rev. Stat. Ann. § 42:1701 (added by Act No. 398 (2016)). The law does not apply to law enforcement or corrections positions or to positions “for which a criminal background check is required by law.” § 42:1701(D). 

The law permits the consideration of an applicant’s criminal history once it is disclosed and provides that:

In considering the criminal history of the prospective employee, the state employer may consider the following:

1) The nature and gravity of the criminal conduct.

2) The time that has passed since the occurrence of the criminal conduct.

3) The specific duties and essential functions of the position and the bearing, if any, that the criminal conduct will have on the ability of the prospective employee to perform one or more of those duties or functions.

§ 42:1701(B).  Effective July 2017, “classified” state service positions will also be covered by ban-the-box provisions adopted by the the State Civil Service Commission.  See Civil Service Rule 22.4.1, available at http://www.civilservice.louisiana.gov/files/general_circulars/2017/GC2017-009.pdf; see also http://www.civilservice.louisiana.gov/files/commission_actions/2017/commact17-05.pdf (adopting proposed rule).  Rule 22.4.1 provides as follows:

No state employer, when filling a position in the classified service, may inquire on an initial application form about a prospective employee’s felony criminal history unless it is for a position that has a legal restriction that prohibits employment due to a criminal conviction. However, during the candidate’s interview or after the candidate has been given a conditional offer of employment, the appointing authority or his or her designee may inquire about the candidate’s criminal history.

Ban-the-box in public college admissions:  Effective July 2017, admission forms to public colleges in Louisiana will no longer require information about an applicant’s criminal history, with the exception of certain violent sexual offenses.  See La. Rev. Stat. Ann. § 17:3152.  Inquiries may be made after admission for specified educational purposes, but students may not be excluded from programs designed to prepare for occupational license or certification as teacher.  Applications to Health Sciences Center and School of Veterinary Medicine excepted.


  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.   See Memorandum from Joe Gergits, Assistant General Counsel, AOUSC, October 31, 2008 (on file with authors).
  2. On January 27, 2016, the Louisiana Supreme Court overturned a 1997 amendment to the state constitution, La. Const. art. I § 10 (B) that barred those with felony convictions from holding elective office until 15 years after completion of sentence.  The court held that the amendment had not been constitutionally adopted because, due to an error, the version of the amendment that was voted on by the public omitted provisions that had been approved by the legislature.  See Shepherd v. Schedler, 209 So. 3d 752 (La. 2016), available at http://www.lasc.org/opinions/2016/15CA1750.opn.pdf; see also Janet McConnaughey, Associated Press, State high court overturns bar to felons running for office, The Advertiser, http://www.theadvertiser.com/story/news/local/louisiana/2016/01/28/state-high-court-overturns-bar-felons-running-office/79451184/ (Jan. 28, 2016).
  3. In holding that the phrase “offenses against the state” in art. IV, § 5 includes federal offenses, the court referred to “the historical practice of Louisiana governors to issue pardons to federal offenders. See La. Atty. Gen. Op. 103, 97-878 (3/13/80), which recites the fact that Louisiana governors issued 87 pardons to persons convicted of federal felonies in the 15 years preceding 1980.”  937 So. 2d at 351.  Prior to the Shyne decision, the Board of Pardons had announced in 1996 and again in 2005 that it would no longer accept applications from federal offenders.  See http://www.insurancejournal.com/magazines/editorsnote/2005/08/22/59579.htm.
  4. Art. 983.  Costs of expungement of a record; fees; collection; exemptions; disbursements

    A.  Except as provided for in Articles 894 and 984 of this Code, the total cost to obtain a court order expunging a record shall not exceed five hundred fifty dollars.

    B.  The nonrefundable processing fees for a court order expunging a record shall be as follows:

    (1)  The Louisiana Bureau of Criminal Identification and Information may charge a processing fee of two hundred fifty dollars for the expungement of any record of arrest when ordered to do so by the court in compliance with the provisions of this Title.

    (2)  The sheriff may charge a processing fee of fifty dollars for the expungement of any record of arrest when ordered to do so by the court in compliance with the provisions of this Title.

    (3)  The district attorney may charge a processing fee of fifty dollars for the expungement of any record of arrest when ordered to do so by the court in compliance with the provisions of this Title.

    (4)  The clerk of court may charge a processing fee not to exceed two hundred dollars to cover the clerk’s costs of the expungement.

    C.  The clerk of court shall collect all processing fees at the time the motion for expungement is filed.

  5. The law also specifies that the law should not be interpreted to limit the licensing entity’s discretion vis a vis individuals “not covered” by the law. § 37:33.
  6. Prior to 2012 amendment, only a felony could be disqualifying.

Copyright © 2017

Restoration of Rights/Kentucky

Kentucky flagI.  Restoration of Civil/Firearms Rights
A.  Vote/office

Persons convicted of a felony lose the right to vote and it is restored only by expungement (available only for certain low-level felonies, see Part II-B, below) or personal action of the governor.  See Ky. Const. § 145(1) (“Persons convicted in any court of competent jurisdiction of treason, or felony, or bribery in an election, or of such high misdemeanor as the General Assembly may declare shall operate as an exclusion from the right of suffrage, but persons hereby excluded may be restored to their civil rights by executive pardon.”); see also Ky. Rev. Stat. Ann. § 27A.070 (court shall send notice of a felony conviction to the state board of elections when conviction is final).  In addition, people who are “in confinement under the judgment of a court for some penal offense” at the time of the election, whether convicted of felony or misdemeanor, are not allowed to vote.  Ky. Const. § 145(2).  The legislature has chosen not to extend disenfranchisement to those convicted of “high misdemeanors,” except those “in confinement under the judgment of a court” at the time of an election.  Id.  Federal offenders and out-of-state offenders may have voting rights restored by the governor, Arnett v. Stumbo, 153 S.W.2d 889 (Ky. 1941), except that those with out-of-state convictions may vote in Kentucky if their rights were restored in the jurisdiction of conviction.  Source: Office of the Governor.1 As of April 2016, set-aside and expungement of Class D felonies also restores the right to vote.  See Ky. Rev. Stat. Ann. § 431.078. 

Except as provided below, a person convicted of a felony “or of such high misdemeanor as may be prescribed by law” loses the right to hold office, unless pardoned.  Ky. Const. § 150.

B.  Jury

A person who has “been previously convicted of a felony and has not been pardoned or received a restoration of civil rights by the Governor or other authorized person of the jurisdiction in which the person was convicted” is disqualified from jury service.  See Ky. Rev. Stat. Ann. § 29A.080(2)(e).

C.  Firearms

A person convicted after January 1, 1975 is prohibited from possessing a handgun, and a person convicted after July 15, 1994 is prohibited from possessing any firearm, unless pardoned.  Ky. Rev. Stat. Ann. § 527.040(1).  See Posey v. Commonwealth, 185 S.W.3d 170, 181 (Ky. 2006) (state constitutional right to bear arms did not limit legislature’s authority to prohibit possession of firearms by convicted felon).

D.  Collateral consequences

Kentucky’s collateral consequences have been compiled and analyzed in two law review articles:  Troy B. Daniels, Dawn L. Danley-Nichols, Kate R. Morgan and Bryce C. Roades, Kentucky’s Statutory Collateral Consequences from Felony Convictions: A Practitioner’s Guide, 35 N. Ky. L. Rev. 413 (2008), available at http://chaselaw.nku.edu/content/dam/chaselaw/docs/academics/lawreview/v35/nklr_v35n4.pdf;   Sara M. Caudill and Ashley England-Huff, Collateral Consequences of Felony Convictions Established in the Kentucky Administrative Regulations, 35 N. Ky. L. Rev. 453 (2008).

II.  Discretionary Restoration Mechanisms
A. Executive pardon
Authority

The power to pardon is vested in the governor.  Ky. Const. § 77.  The governor may also act to restore certain rights of citizenship to a person, including the right to vote or to hold office.  §§ 145 (right to vote), 150 (eligibility to hold office).  For pardons, the governor must file with the legislature a statement of reasons with each pardon grant, which must be available to the public.  § 77.  The governor may ask the Kentucky Parole Board to investigate and make recommendations on pardon cases, but he is not bound by its advice.  Ky. Rev. Stat. Ann. § 439.450 (“On request of the Governor the board shall investigate and report to him with respect to any case of pardon…”).

Administration

The Kentucky Parole Board is composed of nine full-time members appointed by the governor to four-year terms. Ky. Rev. Stat. Ann. § 439.320.  The governor must make each appointment from a list of three names provided by the Kentucky State Corrections Commission.  §439.320(1).  No more than six Board members may be of the same political party.  Id.  Full-time members are salaried employees.  The governor designates one Board member to serve as chair.  § 439.320(2).2

Eligibility

For restoration of rights, expiration of sentence or discharge, with no pending charges.  For pardon, governor requires seven-year waiting period.  Federal and out-of-state offenders are eligible only for a partial pardon (restoration of citizenship).  See Stumbo, 153 S.W.2d at 891-92.

Effect

Restoration of citizenship restores a person’s right to vote and eligibility for jury service.  A full pardon relieves additional legal disabilities.  See Leonard v. Corrections Cabinet, 828 S.W.2d 668, 672-73 (Ky. Ct. App. 1992) (Governor’s pardon would at least open the door for convicted person’s consideration as peace officer, but restoration of rights does not).  The governor’s pardon document may limit rights being restored.  See Anderson v. Commonwealth, 107 S.W.3d 193 (Ky. 2003) (Governor’s order restoring a convicted person’s civil rights did not restore felon’s “right” or eligibility to serve as a juror, where order specifically limited the restoration to felon’s rights to vote and to hold office).  With the enactment of HB40 in 2016, a full pardon is now grounds for vacatur and expungement.  See Ky. Rev. Stat. Ann. § 431.078; Part II-B-1, infra.

Process
Restoration of rights

Simplified process for restoration of rights: In 2001, legislature directed Department of Corrections to implement “simplified” process for restoration of civil rights, including informing all eligible offenders of their right to apply, generating a monthly list of all eligible offenders who have asked for their rights back, conducting investigations, giving notice to prosecutor in county of conviction and county of residence, and forwarding to Governor’s office on a monthly basis a list of all eligible offenders for consideration for partial pardon.  See Ky. Rev. Stat. Ann. § 196.045.  Application form on DOC website is available at http://corrections.ky.gov/depts/Probation%20and%20Parole/Documents/Restoration%20of%20Civil%20Rights.pdf.

Full pardon

Pardon applications are sent directly to the Governor’s Office, along with a statement of the reasons for seeking relief and three letters of recommendation.  An application form may be obtained by inquiring with the office of the governor (Phone:  502-564-2611).  Each completed application is sent to prosecutor for recommendation (if no response within 30 days, assumes no objection).

Frequency of grants
Restoration of rights

Shortly after taking office in December 2015, Governor Matt Bevin suspended an executive order of predecessor Governor Steve Beshear that automatically restored civil rights to all those who have completed their sentences.  See David Weigel, Kentucky’s new governor reverses executive order that restored voting rights for felons, Washington Post, https://www.washingtonpost.com/news/post-politics/wp/2015/12/23/kentuckys-new-governor-reverses-executive-order-that-restored-voting-rights-for-felons (Dec. 23, 2015); see also Part I-A, supra.  According to the Office of the Secretary of State, Beshear had restored rights to more than 4200 individuals in his first 21/2 years alone.  (Phone:  502-564-3490).  Governor Fletcher, Beshear’s predecessor, imposed strict limits on restoration, including payment of an application fee and requirement of a written essay from applicants.3

Full pardon

On July 3, 2017, Governor Matt Bevin issued the first ten pardons of his term.   The most controversial of these grants went to a woman convicted in 2016 of child abuse in connection with the death of her 5-year old child.  See http://www.courier-journal.com/story/news/crime/2017/07/04/gov-bevin-pardons-10-including-3-louisville-men/448989001/.  In his statement accompanying the grants, Governor Bevin stated that “There will be additional pardons granted, as warranted, in the months and years ahead,” id., which suggests that he intends to depart from the custom of Kentucky governors in recent years of reserving pardons until the end of their terms.  For example, Governor Steve Beshear (2007-2015) issued all 201 of his pardons and commuted six prison sentences on December 8, 2015, his last day in office.  Ten of the grants went to women convicted of violent acts stemming from domestic violence.  The grants are listed at http://www.kentucky.com/news/politics-government/article48539005.html.   Beshear received approximately 3400 applications during his eight years in office.  Governor Fletcher issued about 100 pardons on his last day in office.  He also caused a sensation in August of 2005 by issuing blanket pardons to nine of his aides who were being investigated by a grand jury for merit system personnel violations, but had not been convicted.  See Associated Press, “Kentucky Governor Issues Pardons in Hiring Probe,” August 29, 2005, available at http://www.msnbc.msn.com/id/9121273/ns/politics/t/ky-governor-issues-pardons-hiring-probe/.

Contact

Office of the Governor, State Capitol, 700 Capitol Avenue, Frankfurt, Kentucky, 40601.  502-564-2611.

B.  Judicial expungement or sealing
1. Set-aside and expungement of minor felonies, pardoned convictions

On April 1, 2016 the Kentucky legislature passed HB40, adding new sections to KRS Chapter 431 that authorize courts upon petition to vacate specified Class D felony convictions and pardoned convictions, dismiss the charges, and expunge the record.  See Ky. Rev. Stat. Ann. § 431.073 (added by HB40 (2016)).  Until the passage of HR 40 in 2016, the only felony cases eligible for expungement were Class D felonies in which adjudication was deferred.  See §§ 533.250-533.262, discussed infra.

Eligibility

Eligible Class D felonies include third-degree burglary, drug possession, prescription forgery, theft by unlawful taking, theft by deception, stealing credit card information, stealing computer data, filing falsified financial records, conspiracy to promote gambling, bigamy and selling real estate without a license, among several others.  A person can only apply for vacatur under this authority once in their lifetime, but multiple eligible Class D felonies stemming from a single incident may be vacated in a single application.  A 5-year waiting period from completion of sentence (including any period of probation and parole) applies, during which time a person must remain conviction-free.  A person with pending criminal charges may not apply.

Procedure

The vacatur application shall be filed as a motion in the original criminal case, and defendants “shall be informed of the right at the time of adjudication.”  The court must hold a hearing within 120 days of filing.  Prosecutors have 60 days to respond, and no hearing is required if the prosecutor either indicates no objection or does not respond within the 120 days.  There is a filing fee of $500 (a floor amendment to reduce this to $250 was defeated).

If all eligibility requirements are met, the court may order the conviction vacated, upon which

the court shall dismiss with prejudice any charges which are eligible for expungement . . . and order expunged all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records ….

HB 40 (2016), § 1(4). The law does not provide any standards guiding the court’s exercise of discretion in deciding whether to issue a vacatur order.

Effect 

Upon entry of an  order  vacating  and  expunging  a  conviction,  the  original conviction  shall  be  vacated  and  the  record  shall  be  expunged.  The court  and other agencies shall cause records to be deleted or removed from their computer systems  so  that  the  matter  shall  not  appear  on  official  state-performed background checks. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to  disclose  the  fact  of  the  record  or  any  matter  relating  thereto  on an application for employment, credit, or other type of application. If the person is not prohibited from voting for any other reason, the person’s ability to vote shall be restored and the person may register to vote.

Ky. Rev. Stat. Ann. § 431.078(6).

Index of expungement orders

The Administrative Office of the Courts shall retain an index of expungement orders entered under Section 1 of this Act. The index shall only be accessible to persons preparing a certification of eligibility for expungement pursuant to Section 4 of this Act. If the index indicates that the person applying for expungement has had a prior felony expunged under Section 1 of this Act, the person preparing the report may, notwithstanding the provisions of Section 1 of this Act, access the expunged record and include information from the expunged record in the certification.

§ 431.078(5).

Additional information

A guide to felony expungement created by the The Kentucky Courts is available at http://courts.ky.gov/Expungement/Pages/felonyexpungement.aspx.

2. Expungement of misdemeanors

Most misdemeanors and violations are eligible for expungement, upon petition to the court of conviction, five years after completion of sentence or probation, whichever is later.4  Ky. Rev. Stat. Ann. § 431.078(2). Expungement is mandatory if the individual has no other convictions for a misdemeanor or violation (a series of misdemeanors or violations arising out of the same incident counts as single offense), § 431.078(1)(a), and discretionary if the individual has been convicted of multiple misdemeanors or violations not arising from the same incident, § 431.078(1)(b). In either case, the individual must not have been convicted of a felony or misdemeanor within the preceding five years and must have no pending charges. § 431.078(4) – (5). Sex offenses or offenses against a child are ineligible. Id.

Upon receiving the petition, the court must notify the prosecutor, identified victims, and “any other person whom the person filing the petition has reason to believe may have relevant information related to the expungement of the record.” § 431.078(3). A hearing is required for both mandatory and discretionary expungement. No standards for consideration of discretionary expungement are set forth in the law. Individual must be informed of right to expunge conviction at time of conviction. § 431.078(1). The section is retroactive to offenses committed prior to July 14, 1992. § 431.078(8).

All petitions for expungement must include a certificate of eligibility for expungement, in which the Kentucky State Police certify an individual’s eligibility. Ky. Rev. Stat. Ann. § 431.079.5

Effect

Upon the entry of an order to expunge the records the proceedings in the case shall be deemed never to have occurred; the court and other agencies shall cause records to be deleted or removed from their computer systems so that the matter shall not appear on official state-performed background checks; the persons and the court may properly reply that no record exists with respect to the persons upon any inquiry in the matter; and the person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.

Ky. Rev. Stat. § 431.078(6).

3.  Pretrial diversion/deferred adjudication

Ky. Rev. Stat. Ann. §§ 533.250-533.262.  Pretrial diversion is available to a person charged with a Class D felony offense who has had no prior felony convictions within a ten-year period, who has not been under felony sentence within the ten year period immediately preceding the commission of the offense, and whose offense is not one for which probation or parole is prohibited.  § 533.250(1)(a).  Persons must demonstrate treatment compliance as a precondition of participation in the pretrial diversion program, if indicated, though this requirement may be waived.  §§ 533.251(1)-(2).  The court may permit Class C felony offenders to participate.  § 533.251(4).  Prosecutor must make a recommendation on each request for admission to diversion, and the court cannot grant diversion without the prosecutor’s approval.  § 533.250(6).  See also Flynt v. Commonwealth, 105 S.W.3d 415 (Ky. 2003).6 A guilty plea is a precondition for participation, but upon successful completion of the probationary period the charges are listed as “dismissed-diverted” and “shall not constitute a criminal conviction.”  § 533.258(1).  Expungement is available under Ky. Rev. Stat. Ann. § 431.076 (see supra).  The defendant shall not be required to list this disposition on any application for employment, licensure, or otherwise unless required to do so by federal law.  § 533.258(2).

4.  Juvenile expungement

Kentucky significantly revised its juvenile expungement authority in 2017.  See SB-195 (2017) amending Ky. Rev. Stat. Ann. § 610.330.  Under the amended law, expungement is now available for all juvenile offenses, excluding sex crimes and those that would result in “violent offender” classification.   § 610.330(1)(a), (c). Previously, those that would have been felonies if committed by an adult were ineligible.  Only a single felony (or “a serious of felonies arising from a single incident”) may be expunged, while there is no limitation of the number of misdemeanors, violations, or status offenses that may be expunged.   § 610.330(2).  Individuals with proceedings pending are ineligible.  § 610.330(1(c). Expungement proceedings may be initiated by motion from “any interested person,” a probation officer, a representative of the Department of Juvenile Justice, or upon the court’s own motion.   § 610.330(1)(b). The petition must be filed no sooner than two years after the ending of the court’s jurisdiction over the juvenile or two years after the juvenile’s unconditional release from commitment, with waiver of the waiting period available in extraordinary circumstances.  § 610.330(2). Under the new amendments, expungement is discretionary, and a juvenile’s record may be vacated and expunged so long as the eligibility requirements described above are met.  § 610.330(5). Upon expungement, “the case shall be deemed never to have occurred and all index references shall be deleted and the person and court may properly reply that no record exists with respect to such person.” § 610.330(6). Only the person or those named in the sealing order may inspect the records, and the juvenile may deny the existence of any record, and may not be required to disclose the record on “an application for employment, credit, or other type of application.”  § 610.330(6), (9). The court must inform the juvenile of the right to expungement at the time of adjudication.  § 610.330(1)(a).

Under the new amendment, expungement is now automatic if a juvenile petition is dismissed, or results in a finding of not-delinquent. § 610.330(7).

5.  Expungement of non-conviction records

Courts are authorized to expunge records of misdemeanor or felony cases that result in dismissals or acquittals.  Ky. Rev. Stat. Ann. § 431.076(1).  In spousal abuse cases judges “shall” expunge if the charges are dismissed or end in acquittal.  Id. § 510.300.  If the court finds after a hearing that there are no current charges or proceedings pending relating to the matter for which the expungement is sought, the court “may” grant the motion and order the expunging of all records in the custody of the court and any records in the custody of any other agency, including law enforcement records. § 431.076(1).  See also § 17.142 (segregation of records).

In 2016 expungement authority under § 431.076 was extended to cases in which filed charges have not resulted in indictment after 12 months. 

Comment

In 2005, an investigative article from the Louisville Courier-Journal reports that 12,000 expungements were granted in Kentucky in the two-year period prior to May 2005.  Jason Riley & Kay Stewart, Confusing laws allow abuse and inequality: Filing errors also leave some sealed cases open, Courier-Journal, May 15, 2005.  The Courier-Journal article also documents confusion among judges as to whether they have discretion to deny expungement under these statutes.  Uncertainty expressed about court authority to expunge records in diversion cases.  When a case is expunged, several agencies—including Metro Corrections, the commonwealth’s attorney’s office, metro police and sometimes the state police and the FBI—are ordered to seal their records.  They are supposed to certify to the court within 60 days that they have done so.  The FBI, which runs the National Crime Information Center, is not bound by the state order but routinely erases the requested records. 

III.  Nondiscrimination in Licensing and Employment:
A.  Public employment and licensing, generally

Ky. Rev. Stat. Ann. §§ 335B.020-.070.  Under § 335B.020(1),

No person shall be disqualified from public employment, [or from] . . . any occupation for which a license is required, solely because of a prior conviction of a crime, unless the crime for which convicted is directly relates to the position of employment sought or the occupation for which the license is sought.

§ 335B.020(1) (as amended by SB-120 (2017)).

In determining if a conviction directly relates to the position of public employment sought or the occupation for which the license is sought, the hiring or licensing authority shall consider:

(a) The nature and seriousness of the crime for which the individual was convicted and the passage of time since its commission.

(b) The relationship of the crime to the purposes of regulating the position of public employment sought or the occupation for which the license is sought;

(c) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position of employment or occupation.

§ 335B.020(2) (as amended by SB-120 (2017)).

See also 1980 Ky. Op. Atty Gen. 80-388 (1980), 1980 WL 102528 (Ky.A.G) (explaining that a felony conviction is not an absolute bar to an occupational license, Ky. Rev. Stat. Ann. Ch. 335B supersedes all other statutes and regulations as to licensing convicted persons, and the licensing board should consider if an applicant has been rehabilitated).

In 2017, SB-120, § 31 made significant amendments to § 335B.030, further defining the scope of discretion granted to public employers and licensing boards. The amendments prohibit disqualification based solely on conviction unless the employer or board provides the individual with written notice that it “has determined that the prior conviction may disqualify the person, demonstrates the connection between the prior conviction and the license being sought, and affords the individual an opportunity to be personally heard before the board prior to the board making a decision on whether to disqualify the individual.” § 335B.030(2)(a). The amendment also provides,

If an individual’s prior conviction was for a Class A felony, a Class B felony, or any felony offense that would qualify the individual as a registrant pursuant to KRS 17.500, there shall be a rebuttable presumption that a connection exists between the prior conviction and the license being sought.

§ 335B.030(2)(b).

B.  Ban-the-box in public hiring

On February 1, 2017, Governor Matt Bevin signed Executive Order 2017-064, removing questions about criminal history and convictions from state job applications.  The Order also prohibits agencies from inquiring “into an applicant’s criminal history until the applicant has been contacted to interview for a position, unless required by law to do so.”


  1. Efforts have been made in the Kentucky legislature to restore the vote automatically upon completion of sentence; The Democratic-led House repeatedly has approved a proposed constitutional amendment to that effect, but it has been blocked in the Republican-led Senate.  On November 24, 2015, just prior to leaving office, Governor Steve Beshear issued an executive order restoring the right to vote and hold office to persons convicted of non-violent felonies upon completion of their sentence, as long as they had paid restitution and have no charges pending.  The order did not restore rights to those convicted of specified violent crimes, sex offenses, bribery or treason, who will still have to apply for discretionary restoration. Upon assuming office, his successor Governor Bevin suspended this order.  See David Weigel, Kentucky’s new governor reverses executive order that restored voting rights for felons, Washington Post, https://www.washingtonpost.com/news/post-politics/wp/2015/12/23/kentuckys-new-governor-reverses-executive-order-that-restored-voting-rights-for-felons (Dec. 23, 2015).  This action did not affect those whose voting rights had been recognized in the intervening two weeks.
  2. Note that prior to 2010, the Parole Board consisted of 9 full-time and 2 part-time members, and each of the part-time members had to be from a different political party.  In 2010, legislation was passed that deleted reference to part-time Board members.  See 2010 Ky. Laws Ch. 107 (H.B. 564).
  3. See Elizabeth A. Wahler, Losing the Right to Vote: Perceptions of Permanent Disenfranchisement and the Civil Rights Restoration Application Process in the State of Kentucky, The Sentencing Project (Apr. 2006), available at http://www.sentencingproject.org/publications/losing-the-right-to-vote-perceptions-of-permanent-disenfranchisement-and-the-civil-rights-restoration-application-process-in-the-state-of-kentucky/; Marc Mauer & Tushar Kansal, Barred For Life: Voting Rights Restoration in Permanent Disenfranchisement States, Sentencing Project (Feb. 2005) at 14, available at http://www.sentencingproject.org/publications/barred-for-life-voting-rights-restoration-in-permanent-disenfranchisement-states/.
  4. The petition form is available at http://courts.ky.gov/resources/legalforms/LegalForms/4962.pdf.
  5. The website of the Kentucky courts describes certification procedures and allows petitioners to begin the certification process of line.  See http://courts.ky.gov/expungement/Pages/default.aspx. As of February 2016, a $40 fee is required for certification — this is in addition to the $100 fee required to file the petition itself.
  6. In Gibson v. Commonwealth, 291 S.W.3d 686, 690 (Ky. 2009), the Kentucky Supreme Court explained its reasoning in Flynt as follows:

    The issue presented in Flynt, was whether a trial court could place a criminal defendant on a pretrial diversion program without the consent of the prosecuting attorney. Id. at 426. A criminal defendant who successfully completes a Pretrial Diversion Program is entitled to dismissal of his charges under circumstances that  ‘shall not constitute a criminal conviction.’ KRS 533.258(1). Upon completion of the program, RCr 8.04(5) provides for the charges to be ’dismissed with prejudice.’ In holding that the prosecuting attorney’s consent was required, we said:

    ‘[t]o interpret KRS 533.250(2) as permitting a trial court to approve pretrial diversion applications over the Commonwealth’s objection – and thus conferring upon circuit courts the discretionary authority that we have previously held to be within the exclusive province of the executive branch – would construe it in a manner inconsistent with Kentucky’s constitutional separation of powers provisions …. (W)here the Commonwealth objects to pretrial diversion, circuit courts cannot unilaterally approve a defendant’s diversion application.’

    Id. at 426. Critical to our holding in the Flynt case is the fact that, unlike other ‘pretrial diversion’ schemes, the program established by the General Assembly enables a criminal defendant to avoid a felony conviction entirely, and potentially, if the Program is satisfactorily completed, results in a dismissal of the case  ‘with prejudice,’ barring future prosecution for that offense. Thus, we held that our Constitution’s provision for separation of powers requires the agreement of the executive branch (‘the Commonwealth’) before entry into the Program may be ordered by the court.

Copyright © 2017

Restoration of Rights Series/Iowa

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

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

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

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

B.  Jury

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

C.  Firearms

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

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

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

Restoration of Citizenship, including firearms rights

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

Pardon

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

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

Eligibility
Restoration of Citizenship (Vote and Office)

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

Special Restoration of Citizenship (Firearms)

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

Pardon

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

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

Effect

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

Process
Role of Board

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

Restoration of Citizenship

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

Pardon

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

Frequency of Grants

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

Year
Pardon Applications
reviewed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Contact

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

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

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

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

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

2.  Juvenile records
Confidentiality

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

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

Sealing

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

Status of records at age 21

Iowa Code Ann. § 692.17(1):

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

3.  Non-conviction records

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

C.  Administrative certificate
“Certificate of Employability”

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

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

III.  Nondiscrimination in Licensing and Employment:

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


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

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