Restoration of Rights Series/ Arizona

ArizonaI.  Restoration of Civil/Firearms Rights
A.  Civil Rights

Conviction of a felony suspends the right to vote, to hold office, and to sit on a jury. Ariz. Const. art. VII, § 2(C); Ariz. Rev. Stat. §§ 13-904(A)(1)-(3); 16-101(A)(5); 21-201(3). See also Ariz. Rev. Stat. § 14-5651(C)(3) (fiduciary, including court-appointed guardians and personal representatives unrelated to a decedent,).  For a first felony offender (state or federal), civil rights, other than those pertaining to firearms, are automatically restored upon completion of the term of probation, or upon an unconditional discharge from imprisonment and upon completion of payment of any fine or restitution. Ariz. Rev. Stat. § 13-912.1 Repeat offenders, including federal offenders, must apply for judicial restoration or pardon (see II A and B, below). Out-of-state recidivists apparently must seek restoration in the jurisdiction of their conviction. See Flynn Patrick Carey, Extending the Home Court Advantage: A Call to Update the Arizona Civil Rights Restoration Scheme, 48 Az. L. Rev. 1129 (2006); see also State v. Prince, 226 Ariz. 516, 530, 250 P.3d 1145, 1159 (2011) (“a juror convicted of an out-of-state felony whose civil rights have not been restored is disqualified from jury service by § 21-201(3)”).

B.  Firearms

Conviction of a felony suspends “[t]he right to possess a gun or firearm.” Ariz. Rev. Stat. § 13-904(A)(5).2  Firearms rights may be regained by application to court, on a timetable that depends on the nature of the offense, or by pardon. See Ariz. Rev. Stat. § 13-904(C); Ariz. Admin. Code § R5-4-101(6) (2008).3 Persons convicted of a “dangerous offense” may regain firearms rights only through a pardon. See id.; see also Part II B infra. Out-of-state and federal offenders must seek relief from firearms disabilities in the jurisdiction of their conviction. See Carey, Extending the Home Court Advantage: A Call to Update the Arizona Civil Rights Restoration Scheme, supra, 48 Az. L. Rev. at 1148-49.

C.  Other Collateral Consequences

Many of the collateral consequences of conviction applicable under Arizona law have been collected by the Law, Criminal Justice and Security Program of the University of Arizona Law School.  See Kate Adamson et al., Collateral Consequences of Criminal Conviction in Arizona, The Law, Criminal Justice and Security Program, University of Arizona (2007), available at http://www.reentry.net/public2/library/attachment.139610. See also Part III, infra.

II.  Discretionary Restoration Mechanisms
A.  Pardon
Authority

The governor has the authority to grant pardons “after conviction,” except in cases of treason or impeachment, “upon such conditions and with such restrictions and limitations as may be provided by law.” See Ariz. Const. art. V, § 5. The governor may not act except upon a favorable recommendation from the Board of Executive Clemency. See Ariz. Rev. Stat. § 31-402(A) (“no reprieve, commutation or pardon may be granted by the governor unless it has first been recommended by the [Board of Executive Clemency]”). The governor is required to publish reasons for each grant, and must report to legislature at the beginning of every regular session.  Ariz. Rev. Stat. §§ 31-445, -446.

Administration

Board of Executive Clemency consists of five persons appointed by the Governor to five-year terms. Ariz. Rev. Stat. § 31-401 (effective September 28, 2012, governor will not be required to appoint a selection committee to develop candidate lists for vacancies on the Board).  Chairperson selected by Governor. Id. § 31-401(F). Board members serve on a full-time basis, and must meet at least once a month. Id. § 31-401(B), (H). Three members constitute a quorum, except that the chairperson may designate two as a quorum. Id. § 31-401(I). The powers and duties of the Board are set forth in § 31-402. The Board’s website is at https://boec.az.gov/.

Eligibility

“Unless prohibited by law, an individual who was convicted of an Arizona felony offense may apply for a pardon.” Ariz. Admin. Code § R5-4-201(A). Persons convicted under federal law or convicted under the law of another state are ineligible for a Governor’s pardon. See id.

Effect

A state pardon “absolves an individual of the legal consequences of a crime for which the individual was convicted.” Ariz. Admin. Code § R5-4-101(6); 68 Ariz. Op. Att’y Gen. 17 (Aug. 19, 1968). In addition, a pardon is “an honor and a privilege that is reserved for those that have demonstrated crime free behavior for a period following a criminal conviction.” A pardon relieves most remaining legal disabilities and “sends a very powerful message to society that you have led a useful, productive, and law-abiding life following your conviction.”  68 Ariz. Op. Att’y Gen. 17.  Pardon restores firearms rights only if specified in the pardon document (but firearms rights may be restored by the court, see Part I).

Process

Board is required to meet at least once a month. Ariz. Rev. Stat § 31-401(H). An eligible individual “shall submit to the Board a completed application form obtained from the Board.” Ariz. Admin. Code § R5-4-201(B). The application form can be downloaded at https://boec.az.gov/sites/default/files/documents/files/Completed%20Pardon%20Application%20fillable%20rev.%20Jan.%209%202015.pdf. The Board, at its discretion, may require the applicant to submit additional information and documents. Id. § R5-4- 201(C). Prisoners may also apply for a pardon, and for such applications the Board will request that Arizona’s Department of Corrections review the application and verify whether the prisoner is eligible to apply. Id. § R5-4-201(D). Ariz. Rev. Stat. § 31-442 requires applicant to give notice of intention to apply for pardon to county attorney ten days before Board is to act, and (“unless dispensed with by the governor”) publication of that notice in a paper for a 30-day period in county of conviction.  An earlier version of the Board’s website set forth the standards considered by the Board (including reasons for applying, efforts toward rehabilitation, and whether a person has been granted a set-aside by the court). It also stated that the pardon process “can be a lengthy process that takes effort on your part.”

Hearing

“After receiving a complete application from an eligible applicant, the Board shall schedule a hearing and provide advanced written notice to the applicant of the date and location of the hearing.” Ariz. Admin. Code § R5-4-201(E). Board may require court of conviction and county attorney to provide facts proved at trial and any other facts that bear on propriety of granting or refusing pardon. Ariz. Rev. Stat § 31-441.

Under its regulations, Board is required to notify applicant within 10 work days of decision to deny or affirm recommendation for pardon to Governor.  Ariz. Admin. Code § R5-4-201(E).  “If the Board votes to recommend a pardon, the Presiding Officer shall designate a Board member to prepare and send to the governor a letter of recommendation.  The letter of recommendation may include a statement of individual Board members’ reasons for voting to recommend a pardon. Board members who voted not to recommend a pardon may prepare and send letters of dissent to the governor.” Id. § R5-4-201(G). If denied by Board or governor, applicant may not reapply for three years. Id. § R5-4-201(I).

Frequency of Grants

There were very few pardon applications through mid-1980s, but those recommended by Board were generally granted. From 1988 through 2009, Arizona governors issued 55 pardons. Governor Jan Brewer (2009-2014) granted 12 pardons during her six year tenure, all during her final month in office. Source: Arizona Board of Executive Clemency; see also Bob Ortega, Arizona Prisoners Rarely Granted Clemency, The Republic, May 12, 2012, available at http://www.azcentral.com/news/articles/2012/04/12/20120412arizona-prison-clemency.html.4 Current Governor Doug Ducey has granted no pardons since taking office in 2015.  During that year, the Board recommended just 3 pardons on 21 hearings.  Annual Report 2015, Arizona Board of Executive Clemency, https://boec.az.gov/sites/default/files/documents/files/Annual%20Report%20PDF%202015.pdf.

Contact

Executive Director
Arizona Board of Executive Clemency
1645 West Jefferson, Suite 101
Phoenix, AZ 85007
Tel: (602) 542-5656
Fax: (602) 542-5680
http://www.azboec.gov/

B.  Judicial restoration and set-aside
Judicial restoration of civil rights to repeat offenders

A person convicted under Arizona law of two or more felonies and sentenced to a term of imprisonment for the most recent offense may apply to have his civil rights restored by the sentencing judge two years after unconditional discharge from imprisonment. Ariz. Rev. Stat. §§ 13-906, 13-908. A repeat offender completing a term of probation may have his rights restored by the court that discharged him from probation. § 13-905(A). See also Ariz. R. Crim. P. 29.1. (“Prior to his or her absolute discharge, a probationer shall receive from his or her probation officer, or the court if there is no probation officer, a written notice of the opportunity to have his or her civil rights restored, to withdraw his or her plea of guilty or no contest, or to vacate his or her conviction.”). A person whose civil rights were lost by virtue of a federal felony conviction may apply for restoration of civil rights to the presiding judge of the superior court of his county of residence, but those sentenced to a term of imprisonment must first wait two years. Id. §§ 13-909(A), 13-910(A)-(B). There are no explicit provisions in Arizona law for restoration of any rights under Arizona law that may have been lost as a result of a felony conviction in another state. See id. §§ 13-904 et seq.; see also Carey, Extending the Home Court Advantage:  A Call to Update the Arizona Civil Rights Restoration Scheme, supra, 48 Az. L. Rev. at 1148-49

Judicial set-aside

Arizona law also permits all state offenders except those convicted of serious violent offenses, to have their convictions “set aside” or “vacated” by the sentencing court, and the charges against them dismissed, upon successful completion of probation or sentence and discharge. Ariz. Rev. Stat. § 13-907(A). Convicted persons are entitled to be informed of their “right” to a set-aside at the time of discharge.  Id. See also Ariz. R. Crim. P. 29.1, supra, requiring notice to probationers at time of discharge of right to have conviction “vacated.” This relief restores all rights and generally releases the person “from all penalties and disabilities resulting from the conviction.” See Ariz. Rev. Stat. § 13-907(C). However, it does not eliminate the conviction, and thus does not relieve the offender from having to report the conviction if asked. Id. § 13-907; see also Russell v. Royal Maccabees Life Ins. Co., 974 P.2d 443, 449 (Ariz. Ct. App. 1999) (finding expungement does not obliterate the fact of conviction and offender must report conviction in application for insurance). The fact that a conviction is set aside or vacated does not release the person from certain motor vehicle restrictions, if applicable, and the conviction may still be used as a predicate offense in any subsequent prosecution. Ariz. Rev. Stat. § 13-907(C). Set-aside is unavailable to anyone convicted of a criminal offense involving the infliction of serious physical injury, the use of a deadly weapon or dangerous instrument, a victim less than 15 years old, certain traffic laws, or a violation of the state’s laws defining sexual offenses. Id. § 13-907(D). Set-aside does not relieve duty to register as sex-offender. See Ariz. Rev. Stat. § 13-3821; Ariz. Op. Atty. Gen. No. I00- 0300, 2000 WL 33156113 (Ariz. A.G. Dec. 18, 2000).

Restoration of firearms rights

The automatic restoration of civil rights provision for first offenders “does not apply to a person’s right to possess weapons as defined in Ariz. Rev. Stat. § 13-3101,” Ariz. Rev. Stat. § 13-912(B); instead, the first offender must make an application to the court pursuant to Ariz. Rev. Stat. §§ 13-905 (following discharge from probation) or 13-906 (at least two years following discharge from prison). Persons convicted of a “serious offense” (generally common law felonies, crimes against children, and sexual offenses) must wait ten years for restoration. § 13-906(C).  Persons convicted of a “dangerous offense” (namely the discharge or use of a deadly weapon or the intentional infliction of serious physical injury upon another) are ineligible for judicial restoration, id., and may regain firearm rights only by pardon.  See also Ariz. Const. art. V, § 5; Ariz. Rev. Stat. § 31-443; Ariz. Op. Atty. Gen. No. I79-305 (R79-155), 1979 WL 23372, *1 n.4 (Ariz. Atty Gen. Dec. 31,1979) (noting that governor’s pardon power is “in addition” to a restoration of rights under § 13-905). See also Ariz. Rev. Stat. § 13-912.01 (restoration for persons adjudicated delinquent upon completion of probation). For juveniles adjudicated delinquent, if the person’s adjudication was for a dangerous or serious offense, the person may not file for the restoration of the right to possess or carry a gun or firearm until the person attains thirty years of age. Id. § 13-912.01(C). If the person’s adjudication was for any other felony offense, the person may not file for the restoration of the right to possess or carry a gun or firearm for two years from the date of discharge. Id.

Non-conviction records

Non-conviction records may not be sealed or expunged, but may be amended to notate that a person has been cleared of any arrests or indictments that did not lead to conviction. Ariz. Rev. Stat. § 13-4051; State v. Mohajerin, 226 Ariz. 103, 108, 244 P.3d 107, 112 (Ariz. Ct. App. 2010) (noting § 13-4051 does “not authorize a person’s criminal records to be expunged or hidden from law enforcement officials”). To obtain relief, “a petitioner must demonstrate both that his arrest or charge was ‘wrongful’ and that justice requires the entry of a notation of clearance . . . .” Mohajerin, 226 Ariz. At One of the ways to meet this standard is to show the allegations against petitioner are false. Id.

Juvenile adjudications

Individuals 18 years of age and older may apply to have many juvenile delinquency or incorrigibility adjudications set aside upon discharge from probation or absolute discharge unless the individual has a subsequent criminal conviction, criminal proceedings pending, has not successfully completed terms of probation, has not been discharged from department of juvenile corrections upon completion of individual treatment plan, or has not paid all restitution or assessments. Ariz. Rev. Stat. § 8-348 (A), (C). This does not apply if the adjudication involved any of the following:

(1) infliction of serious injury; (2) the use or exhibition of a deadly weapon or dangerous instrument; (3) sexual offenses; (4) driving under the influence or with a suspended license; or (5) a civil traffic violation. Id. § 8-348 (D). May be used as a predicate in subsequent criminal proceeding.  Id. §§ 8-207, 13-501.

Set-aside “relieves all penalties and disabilities from the adjudication,” with exceptions for those imposed by the Department of Transportation.

C.  Administrative certificate: N/A
III.  Nondiscrimination in licensing and employment

A person may not be disqualified from public employment “solely because of a prior conviction for a felony or misdemeanor,” nor may a person “whose civil rights have been restored” be disqualified from an occupation for which a license is required “solely because of” a prior conviction. Ariz. Rev. Stat. § 13-904(E). A person may be disqualified from public employment or denied a license by reason of conviction only if “the offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.” Id.5 Subsection (E) does not apply to positions in law enforcement. Id. § 13-904(F). Any complaints concerning a violation of this subsection shall be adjudicated in accordance with the Arizona administrative procedures act, including judicial review. Id. § 13-904(G).  See also Rehabilitating the Ex-felon: Impact of Arizona’s pardons and civil rights restoration statutes, Law & Soc. Ord., 1971, p. 793. No provisions governing private employment.

Licensing schemes have been interpreted to incorporate the standards of Ariz. Rev. Stat. § 13-904(E). See, e.g., Curtis v. Richardson, 212 Ariz. 308, 131 P. 3d 480 (Ariz. Ct. App. 2006) (felony conviction for possession of illegal drugs was “reasonably related” to the functions of a real estate salesperson, since the real estate industry places heavy reliance not only on an agent’s competence, honesty, and financial integrity, but also on how the person represents the industry).

Statutes governing the operation of licensing boards are variously worded. See, e.g., Cosmetology, Ariz. Rev. Stat. § 32-572(B) (“conviction of a crime or act shall not be a cause of refusal to issue or renew a license unless the crime or act is substantially related to the qualifications, functions or duties of the license for which application is made”); Nursing, id. § 32-1632(2) (“absolute discharge from the sentences for all felony convictions five or more years before the date of filing an application”); Physician’s Assistant, id. § 32- 2507(A)(1), (2) (requiring public profile describing conviction of a felony or a misdemeanor, or charges to which licensee pled no contest, involving moral turpitude within the last five years); Real Estate, id. § 32-2153(B) (denial of license for “a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense”); Pest Control, id. § 32-2312(D) (“felony conviction may demonstrate a lack of good moral character”); Funeral Services, id. § 32-1301(27)(a), (b) (“Good moral character” means that a person has not been convicted of a class 1 or 2 felony, or “has not, within five years of application for licensure or registration, been convicted of a felony or misdemeanor if the offense has a reasonable relationship to the person’s proposed area of licensure or registration”). See also Pharmacists, Ariz. Rev. Stat. § 32-1927(A)(1) (under 2005 amendment, specific reference to conviction was replaced by “unprofessional conduct” as basis for discipline; however, § 32-1901.01(B)(8) defines “unprofessional conduct” to include “[c]omitting a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude or any drug related offense”).


  1. The ACLU challenged the obligation to satisfy financial obligations before re-enfranchisement under the 14th and 24th Amendments in Coronado v. Napolitano, No. 08-17567 (9th Cir.). Coronado was consolidated with Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010). In Harvey, the Ninth Circuit upheld the statute finding it neither violated the U.S. Constitution’s Equal Protection Clause, the bar against poll taxes in the 24th Amendment, or the Privileges or Immunities Clause nor the Arizona Constitution’s Privileges or Immunities and Free and Equal Elections Clauses.  Id. at 1078-80. For an analysis of the impact of fees, fines, and restitution on felony disenfranchisement see Erika Wood & Neema Trevedi, The Modern Day Poll Tax: How Economic Sanctions Block Access to the Polls, 41 Clearinghouse Rev., 30 (May-June 2007), available at http://brennan.3cdn.net/c82128f55efee5440d_g8m6btpex.pdf.
  2. Prior to 1994, Arizona law suspended firearms rights only for persons “convicted . . . of a felony involving violence or possession and use of a deadly weapon or dangerous instrument and whose civil rights have not been restored.” See Ariz. Rev. Stat. §§ 13-904, 13-3101 (1991). In 1994, Section 13-904 was amended to add “the right to possess a gun or firearm” to the list of civil rights automatically suspended by a felony conviction. The stricter 1994 law, which did not specifically address the issue of retroactivity, has been held by Arizona state courts to apply to persons who were convicted before its passage but whose right to restoration vested after its passage.  See State v. Olvera, 191 Ariz. 75, 952 P.2d 313 (Ariz. Ct.App. 1997) (finding amendment to Ariz. Rev. Stat. § 13-904 merely changed defendant’s status to a “prohibited possessor felon” under Ariz. Rev. Stat. § 13-3101 and did not amount to punishment for earlier convictions, therefore defendant’s right to be free from ex post facto laws was not violated); State v. Gallegos, No. 1 CA-CR 07-0633, 2008 WL 3892039 (Ariz. Ct. App. May 13, 2008) (finding that amendments to Ariz. Rev. Stat. §§ 13-904, 13-3101 applied to defendant because his right to apply for restoration did not vest until he completed his probation, which occurred after the 1994 amendments). Federal courts in Arizona do not necessarily disagree, although when a defendant’s rights have vested and been restored (i.e., pre- or post-1994) appears to be a key factor. In both United States v. Simpson, 442 F.3d 737, 740-41 (9th Cir. 2006) and U.S. v. Meza-Corrales, 183 F.3d 1116, 1129-30 (9th Cir. 1999), the Ninth Circuit found that where a felon’s right to restoration had vested and rights had already been restored prior to the 1994 amendments, Ariz. Rev. Stat. §§ 13-904 and 13-3101 did not restrict a past felon’s right to possess firearms and, therefore, the defendant could not be convicted as a felon in possession under 18 U.S.C. § 922(g). Indeed, the Meza-Corrales court, relying on Olvera, opined that Arizona courts had not interpreted Ariz. Rev. Stat. § 13-904 to restrict a past felon’s right to possess firearms where his civil rights had otherwise been fully restored.  See Meza-Corrales, 183 F.3d at 1129-30, n.6.
  3. Defining “pardon” as “an action by the governor that absolves an individual of the legal consequences of a crime for which the individual was convicted.”
  4. The governor approves even fewer commutation applications. Under Board requirements, prison inmates can apply for commutation once they have served two years of their sentence and are not within one year of their parole eligibility/mandatory release date for sentences more than three years. Exceptions are special orders of the court under § 13- 603L requesting the Board entertain an inmate petition within 90 days of admission, sentences of three years or less, and imminent danger of death petitions. See https://boec.az.gov/sites/default/files/documents/files/Revised%20Commutation%20App%20May%2025%202016_1.pdf. In 2003 and 2004, the Board reviewed over 400 commutation applications each year, and forwarded 40 and 32 petitions respectively to the Governor’s Office with favorable recommendations. The Governor approved three commutations in 2003 and one in 2004.  See generally Amanda J. Crawford and Ryan Konig, Clemency voice goes unheeded: Board’s advice on sentences largely ignored by governor, The Arizona Republic, May 22, 2005. Since 1988, no Arizona governor has commuted a death sentence. In the 31 executions since 1992, the Board has never recommended a commutation. Bob Ortega, Arizona Prisoners Rarely Granted Clemency, supra, at http://www.azcentral.com/news/articles/2012/04/12/20120412arizona-prison-clemency.html. Up until 1993, fewer than 60 inmates a year, on average, applied for commutation. See id.  In 1993, Arizona adopted so-called “truth in sentencing” laws, which more or less abolished parole. Under these laws, offenders must serve at least 85% of their sentence before becoming eligible for community supervision. Some felonies require 100% of the sentence be served. Along with mandatory sentencing minimums, these laws have made commutation the only avenue for most offenders to seek a reduced sentence. See id. As a result, in recent years commutation applications have skyrocketed—applications soared to more than 1,200 in 2005.  Id.  From April 1988 to May 2012, only 104 commutations were granted by Arizona governors.  Id.  Of the 24 commutations granted by Governor Brewer, 19 were “imminent danger or death” cases. Id. Board continues to recommend between 6% and 12% favorably despite the governor’s continued declination to grant more than a handful. Source: Arizona Board of Executive Clemency. Note that “any recommendation for commutation that is made unanimously by the members present and voting and that is not acted on by the governor within ninety days after the board submits its recommendation to the governor automatically becomes effective.” Ariz. Rev. Stat. § 31-402(D).
  5. Section 13-904(E) provides:

    A person shall not be disqualified from employment by this state or any of its agencies or political subdivisions, nor shall a person whose civil rights have been restored be disqualified to engage in any occupation for which a license, permit or certificate is required to be issued by this state solely because of a prior conviction for a felony or misdemeanor within or without this state. A person may be denied employment by this state or any of its agencies or political subdivisions or a person who has had his civil rights restored may be denied a license, permit or certificate to engage in an occupation by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.

Copyright © 2017

Restoration of Rights Series/Alaska

Alaska flagI.  Restoration of Civil/Firearms Rights
A.  Civil Rights
Vote/Jury

The rights to vote and to serve on a jury are lost upon conviction of a felony and automatically restored upon completion of sentence (“unconditional discharge”).  Alaska Stat. §§ 09.20.020; 15.05.030(a); 33.30.241.  See also 12.55.185.18 (defining unconditional discharge as release “from all disability arising under a sentence, including probation and parole”). The commissioner of corrections must establish procedures for notifying those unconditionally discharged about the voter registration requirements and procedures.  § 15.05.030(b).

Office

Restoration of vote also restores right to hold office.  Alaska law contains several general prohibitions against holding public office by a person who is not a qualified voter:  Alaska Stat. §§ 15.25.030(10) (candidacy for public office); § 39.05.100 (appointment to a board or commission of state government must be “registered voter”).  See the more specific provisions relating to service on school board (§ 14.08.045(a)(4) (conviction of felony involving moral turpitude or offense involving violation of oath of office) and as judge (§ 22.30.070(b) (on recommendation of commission, supreme court may reprimand, censure, or suspend judge convicted of crime punishable as a felony under state or federal law, or of crime involving moral turpitude).

B.  Firearms

A felony offender may not possess a concealable weapon for 10 years following discharge (privilege is lost permanently if offense is one against the person), unless conviction set aside or pardoned. Alaska Stat. §11.61.200(a)(1),(b)(1).  During the period of disability a convicted person may not live in a building where concealable firearms are kept without permission of court or law enforcement. § 11.61.200(a)(10). Once 10-year period has expired, state offender is relieved of federal firearms bar since all civil rights restored. See 18 U.S.C. § 921(a)(20).

C.  Licensing

A professional license may be denied or revoked upon conviction.  See, e.g., § 21.27.410(a)(7)(insurance agent); § 08.04.450(5), (6)(accountant); § 08.68.270(2)(nurse); § 08.88.171(a)(real estate broker). See also Deborah Periman, The Hidden Impact of a Criminal Conviction: A Brief Overview of Collateral Consequences in Alaska 6 – 27 (Dec 2007), http://justice.uaa.alaska.edu/occasionalpapers/op01.collateral.pdf.

D. Other collateral consequences

For a review of collateral consequences in Alaska, see Alaska Prisoner Reentry Task Force, “Alaska’s 5-Year Prisoner Reentry Strategic Plan, 2011–2016,” http://www.correct.state.ak.us/TskForce/documents/Five-Year%20Prisoner%20Reentry%20Plan.pdf, discussed in Part III,  See also Periman, The Hidden Impact of a Criminal Conviction: A Brief Overview of Collateral Consequences in Alaska 6 (Dec 2007), http://justice.uaa.alaska.edu/occasionalpapers/op01.collateral.pdf.

E.  State Policy on Rehabilitation

Rehabilitation and reintegration of the convicted have been components of public policy in Alaska since statehood; the principle of reformation is one of the five considerations on which the Alaska Constitution requires that administration of the criminal justice system be based. (The others are public safety, community condemnation of the offender, rights of victims, and restitution from the offender. See Alaska Constitution art. I, § 12.)

II.  Discretionary Restoration Mechanisms
A.  Pardon
Authority

The pardon power, except in cases of impeachment, is vested in the Governor alone, “subject to procedure prescribed by law.”  Alaska Const. art. III, § 21; Alaska Stat. § 33.20.070.  By statute, the governor “may not grant executive clemency to a person” unless the case has first been referred for investigation to the Board of Parole and at least 120 days have passed.  § 33.20.080(a).  The Board is required to investigate each case so referred and report to governor within 120 days.   Id.  It must also, within five days of receipt of notice from governor, notify the Department of Law, the office of victim’s rights, and the victim if a crime of violence or arson. § 33.20.080(b).1  Non-statutory Governor’s Executive Clemency Advisory Committee (“ECAC”) (composed of a member of the governor’s staff, a representative from the Department of Law, and a public member) reviews investigative reports and advises the governor.  The governor is not bound by the Committee’s advice.

For a thorough review of the history and practice of pardoning in Alaska, see Ronald S. Everett & Deborah Periman, “The Governor’s Court of Last Resort:” An Introduction to Executive Clemency in Alaska, 28 Alaska L. Rev. 58 (2011). The records of the Parole Board indicate that there have been only 188 grants of clemency since statehood in 1959, of which more than half (96) were granted between 1959 and 1966 by Alaska’s first governor.  There have been no grants at all since 2006.  See id. at 83.

Eligibility

A person may not apply for pardon unless and until he or she has been found eligible to apply by Parole Board staff.  The application process begins with filing an Eligibility Determination form.  See http://www.correct.state.ak.us/Parole/documents/Clemency%20Eligibility%20Determination%20Form.pdf.  The Parole Board website states that the clemency process is presently undergoing review, so that the previously applicable handbook describing standards for pardon has been withdrawn.   Persons convicted under federal law or convicted under the law of another state are ineligible for a Governor’s pardon.

Effect

Pardon is the only way to regain lost rights and remove disabilities under Alaska law.  Pardon has the effect of “setting aside” the conviction, so that individual is deemed not to have been convicted (though conviction remains on the record).  A pardoned conviction may not be taken into account in subsequent sentencing, or by licensing board, though conduct underlying the conviction may be.  Conviction is no longer a bar, but offense conduct may be considered in context of determining good moral character.  A pardon will restore gun rights. Alaska Stat. § 11.61.200(b) & (g).

Process

Aside from the notice requirements described above, no formal regulations govern process.  Alaska Stat. § 33.20.080(b).   Applicants are warned on Parole Board website that “The clemency policies of the State of Alaska are very strict, the process is lengthy, and clemency is rarely granted.” See Alaska Board of Parole, Executive Clemency Eligibility Determination, http://www.correct.state.ak.us/corrections/Parole/documents/Clemency%20Eligibility%20Determination%20Form.doc.  Initial determination of eligibility takes 30 days. Applicants for clemency are informed that “virtually their entire history is considered,” and they are required to sign waivers permitting an investigation of their employment and personal history.  Applications are investigated by staff of the Board of Parole, including comments from DA and sentencing court and victim if relevant, and a summary of the case with recommendation is prepared and submitted to the Governor’s Executive Clemency Advisory Committee (“ECAC”), which meets as often as necessary to review pending applications.

Restructuring of the Clemency Process

In 2009, concerned about the paucity and irregularity of grants in 2005 and 2006, a process was put in place by the then-Lieutenant Governor to completely restructure the Alaska clemency process, and to make formal the criteria for clemency. All applications for clemency were put on hold at that time.  In June 2011, the Executive Secretary of the ECAC sent specific recommendations to the Governor.   Six years later, in May 2017, there had been no movement on the restructuring of the program, although Parole Board website indicated that it was still accepting applications.  http://www.correct.state.ak.us/parole-board/clemency-update.

Frequency of Grants

In recent years, Executive Clemency Advisory Committee has met on the average two or three times a year.  There are few pardon applications, and there have been only three pardon grants since 1995.  Source: Alaska Parole Board.2

Contact

Carrie Belden
Alaska Parole Board
907-269-4642
carrie.belden@alaska.gov

B.  Judicial sealing or expungement
Set-aside after deferred imposition of sentence

Court may suspend imposition of sentence and, after successful completion of a period of probation, “set aside the conviction and issue to the person a certificate to that effect.”  Alaska Stat. § 12.55.085(e).  Serious violent offenses, stalking, removing a child from the state, human trafficking, sex offenses, and offenses involving use of firearm do not qualify. Id. at (f).   No affirmative showing or finding of rehabilitation need be made before a set-aside is granted; rather, a set-aside should be granted as a matter of right unless some specific reason for denial is established. Wickham v. State, 770 P.2d 757 (Alaska Ct. App. 1989).  Before a sentencing court may refuse to set aside a conviction under subsection (e), the defendant must be given notice that there is reason to believe a set-aside should not be granted, with a precise statement of the reason or reasons, and must be afforded an opportunity for a hearing on the set-aside issue. Mekiana v. State, 707 P.2d 918, 921-22 (Alaska Ct. App. 1985), rev’d on other grounds, 726 P.2d 189 (Alaska 1986):

By enacting the set-aside language of subsection (e), the legislature clearly intended to provide probationers who received a suspended imposition of sentence with the prospect of a clean slate and the promise of a new beginning upon successful completion of probation; a sentencing court cannot thwart this legislative goal — or, for that matter, hinder appellate review — by denying such relief without explanation.

See also Wickham, supra at 1143:

[Statute] does not abandon the requirement of showing rehabilitation as a prerequisite to a set-aside; rather, the statute merely shifts the burden of proof on the issue. In practical effect, the statute deems successful completion of probation to be the equivalent of a prima facie showing of rehabilitation. This implicit showing of rehabilitation imposes on the state the duty of rebuttal, that is, the burden of presenting the court with evidence showing “good cause” to deny set-aside, despite the offender’s apparent rehabilitation.

A conviction that has been set aside may not be relied on for impeachment purposes, and does not qualify as “a ‘conviction’ in situations in which a sentence is increased or a crime is defined by a prior conviction.”  See Doe v. State, Dep’t of Pub. Safety, 92 P. 3d 398, 406 (Alaska 2004).  See also Larson v. State, 688 P.2d 592, 597 (Alaska 1984) (set-aside conviction not counted in determining status as repeat offender).  “In other words, the act of setting a conviction aside creates ‘a settled expectation that the state [will] not subsequently use the conviction … as a basis for imposing brand-new affirmative burdens on [the defendant].’”   Alaska Board of Nursing v. Platt, 169 P.3d 595, 599 (Alaska 2007) (citing Doe, supra, at 408).   For example, it is an affirmative defense to a felon-in possession prosecution under § 11.61.200 that the person has had her conviction set aside pursuant to § 12.55.085.  See Alaska Stat. § 11.61.200(b)(1)(B), (b)(2)(B), (g)(1)(B).  On the other hand, set-aside does not eradicate the fact of conviction, and a defendant’s prior criminal history of repeated instances of assaultive behavior or cruelty to animals may be considered as an aggravating sentencing factor, see Alaska Stat. § 12.55.155(c)(8).  Larson, supra, at 597-98; Krasovich v. State, 731 P.2d 598 (Alaska 1987), or used to deny licensure where convicted conduct is substantially related to opportunity.  See Platt, supra at 599.

Suspended entry of judgment

Under legislation enacted in 2016, courts may, for certain offenses, place a defendant on probation without an entering a judgement of guilt. Alaska Stat. § 12.55.078. Upon successful completion of probation, the defendant is discharged, charges are dismissed, and no conviction results.  The courts may not publish records of dismissal under this authority on a public website.  See also “Nonconviction records,” infra.

Sealing and expungement

Courts have no authority to order the criminal record expunged after set-aside, Journey v. State, 895 P.2d 955, 962 (Alaska 1995).  Moreover, a conviction that has been set aside remains a conviction for purposes of denying a license.  See Board of Nursing v. Platt, supraSee also Spenard Action Comm. v. Lot 3, Block 1, Evergreen Subdiv., 902 P.2d 766, 779 (1995) (explaining that a conviction that has been set aside is nevertheless evidence that a crime occurred;“[T]he dismissal of a charge following the period of stayed imposition of sentence is in the nature of a pardon, not a declaration of innocence.”) (quoting City of St. Paul v. Froysland, 310 Minn. 268, 246 N.W.2d 435, 438 (1976)).

Alaska courts can limit access to otherwise public court records on request if a “legitimate interest in confidentiality” outweighs other interests, see Rules Gov. Administration of All Courts 37.6.  Court may grant access to these records upon petition.  Rule 37.7.  In general, in Alaska there exists “a clear preference for public records to remain accessible.” Johnson v. State, 50 P.3d 404, 406 (Alaska App. 2002).  Alaska court system provides court records online. See http://orca.courts.state.ak.us/names/.

Nonconviction records

Nonconviction records are generally unavailable to the public without the consent of the subject of the record.  Alaska Stat. § 12.62.160(b)(8); 13 AAC 68.310.  Additional sealing further restricting access to nonconviction records is authorized only in cases of mistaken identity or false accusation, if proved beyond a reasonable doubt to the head of the criminal justice agency responsible for maintaining the records. Alaska Stat. § 12.62.180(b).3  On appeal, the defendant must show that the decision below was “clearly mistaken.”  § 12.62.180(c).  After sealing, the person may deny the existence of the information and of an arrest, charge, conviction, or sentence shown in the information.  Alaska Stat. § 12.62.180(d).  Under this authority, access is permitted by government agencies and employers who work with minor or dependent adults. § 12.62.160(b)(9).

Online publication of cases resulting in acquittal or dismissal, including following suspended entry of judgment:

The Alaska Court System may not publish a court record of a criminal case on a publicly available website if 60 days have elapsed from the date of acquittal or dismissal and

(1) the defendant was acquitted of all charges filed in the case;

(2) all criminal charges against the defendant in the case have been dismissed and were not dismissed as part of a plea agreement in another criminal case
under Rule 11, Alaska Rules of Criminal Procedure;

(3) the defendant was acquitted of some of the criminal charges in the case and the remaining charges were dismissed; or

(4) all criminal charges against the defendant in the case have been dismissed after a suspended entry of judgment under AS 12.55.078.

Alaska Stat. § 22.35.030.

Juvenile records

Records of juvenile adjudications are generally confidential and unavailable to the public. Alaska Stat. § 47.12.300 (c), (e).  Additionally, the court shall seal most juvenile records (except for traffic offenses, class A & B felonies against the person or first degree arson, Alaska Stat. § 47.12.030) within 30 days of a minor’s 18th birthday or within 30 days of the court’s release of jurisdiction, whichever is later. If a juvenile was charged as an adult, most juvenile records (except for traffic offenses and certain serious felonies) may be sealed five years after completion of the sentence or five years after the records are made public. §§ 47.12.300(d) and (f).  “A person may not use these sealed records for any purpose except that the court may order their use for good cause shown or may order their use by an officer of the court in making a presentencing report for the court.” Id.4

III.  Nondiscrimination in occupational licensing and employment

Alaska has no general law regulating consideration of conviction in employment or licensure.  It does apply a direct relationship test in connection with disciplinary action for medical and nursing licensees.  See Alaska Stat. § 08.68.270 (“The board [of nursing] may [discipline] a person who . . . (2) has been convicted of a felony or other crime if the felony or other crime is substantially related to the qualifications, functions or duties of the licensee”); § 08.64.326 (board of medical licensing may impose a disciplinary sanction on a licensee who has been convicted of a Class A felony, or a class B or C felony “that is substantially related to the qualifications, functions, or duties of the licensee,” or of a crime involving the unlawful procurement, sale, prescription, or dispensing of drugs).

Alaska Prisoner Reentry Task Force

In 2007, then-Chief Justice Fabe of the Alaska Supreme Court established the Criminal Justice Working Group, an organization comprising representatives from justice agencies across the state as well as representatives of the legislature.  See http://justice.uaa.alaska.edu/a-z/c/criminal_justice_working_group.html.  One of the group’s key objectives is reducing recidivism.  One of its subcommittees is the Alaska Prisoner Reentry Task Force.   The subcommittee on employment restrictions is working to “identify laws that are barriers to housing, employment, and other needs of persons with felony convictions,” and to “consider what changes might be possible, in the context of public safety, and rehabilitation of the offender.”  See http://justice.uaa.alaska.edu/forum/27/1spring2010/d_reentry.html.   In February 2011 the Task Force released “Alaska’s 5-Year Prisoner Reentry Strategic Plan, 2011–2016,” which includes a lengthy chapter on collateral consequences and recommendations to address this issue.  See http://www.correct.state.ak.us/TskForce/documents/Five-Year%20Prisoner%20Reentry%20Plan.pdf.  See also Alaska Prisoner Reentry Task Force Update, http://justice.uaa.alaska.edu/forum/29/3-4fall2012winter2013/e_reentry.html.


  1. The Governor’s clemency authority was made subject to these limits by a statute passed in February 2007, in response to public outcry over a pardon granted by outgoing Governor Frank Murkowski to a construction company held criminally liable for the death of one of its employees in a landslide.  See Pat Forgey, “Governor Signs Bill Restricting Executive Clemency,” Juneau Empire, February 21, 2007, http://www.juneauempire.com/stories/022107/loc_20070221002.shtml.
  2. See note 1 for a controversial grant in 2007 at the end of Governor Murkowski’s term.
  3. In August 2014 Governor Parnell vetoed SB 108, which would have permitted the sealing of records of criminal cases in which a person was acquitted or had charges dismissed.
  4. Certain records (petitions for declaration of delinquency, to revoke or modify probation, to find a child not amenable to treatment, and court orders disposing of these petitions) are available to those with a “legitimate interest,” defined to include (but not limited) to foster parents and victims of a crime seeking to support a civil action against the minor or his/her guardians.  Alaska Stat. §§ 47.12.300(e).

Restoration of Rights Series/Alabama

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

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

Expedited restoration of voting rights

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

B. Office/Jury

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

C. Firearms

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

II.  Discretionary restoration mechanisms
A. Pardon
Authority

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

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

Eligibility

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

Effect

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

Process

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

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

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

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

Frequency of grants

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

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

15

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

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

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

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

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

Contact

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

B.  Judicial sealing or expungement
Conviction records

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

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

Nonconviction records

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

Effect of expungement

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

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

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

Juvenile delinquency adjudications

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

Administrative certificate

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

III.   Nondiscrimination in occupational licensing and employment

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


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

Restoration Rights Series/Federal

I.  Restoration of Civil/Firearms Rights
A.  Vote

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

B.  Jury

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

C.  Office-holding

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

D.  Firearms

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

E.  Capacity to testify

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

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

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

II.  Discretionary Restoration Mechanisms
A.  Executive pardon
Authority

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

Eligibility

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

Effect

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

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

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

Process

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

Criteria

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

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

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

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

Contact

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

B.  Judicial sealing or expungement
Inherent expungement authority

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

Federal First Offender Act (Misdemeanor Drug Possession)

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

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

18 U.S.C. § 3607(c).6

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

Juvenile Records

No provision for expungement or sealing.7

C.  Administrative certificate

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

State Relief Mechanisms

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

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

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

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

B.  Fair Credit Reporting Act

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

C.  Federally Regulated Occupations and Employments

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

Security Regulation of the Transportation Industry

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

Airport Employment

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

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

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

Hazmat Licenses for Commercial Drivers

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

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

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

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

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

Maritime Employees

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

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

What constitutes a “conviction”?

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

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

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

Banking

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

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

Care Providers for Vulnerable Populations

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

Labor organizations

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

Federal defense contractors

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

Union Office

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

Healthcare

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

Childcare

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

Prisoner Transportation

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

D.  Additional Note on Federal Criminal Background Checks

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

 

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