Collateral Consequences Resource Center, 50-State Report on Laws Restoring Rights and Opportunities After Arrest or Conviction, 2020

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The Many Roads to Reintegration
A 50-State Report on Laws Restoring Rights and
Opportunities After Arrest or Conviction
By Margaret Love & David Schlussel
September 2020

•

COLLATE
CONSEQU
RESOURCE
CENTER

COLLATERAL CONSEQUENCES RESOURCE CENTER

The Collateral Consequences Resource Center (CCRC) is a non-profit
organization established in 2014 to promote public engagement on the
myriad issues raised by the collateral consequences of arrest or
conviction. Collateral consequences are the legal restrictions and societal
stigma that burden people with a criminal record long after their criminal
case is closed. The Center provides news and commentary about this
dynamic area of the law, and a variety of research and practice materials
aimed at legal and policy advocates, courts, scholars, lawmakers, and
those most directly affected by criminal justice involvement.
Through our flagship resource, the Restoration of Rights Project (RRP),
we describe and analyze the various laws and practices relating to
restoration of rights and criminal record relief in each U.S. jurisdiction. In
addition to these state-by-state profiles, a series of 50-state comparison
charts and periodic reports on new enactments make it possible to see
national patterns and emerging trends in formal efforts to mitigate the
adverse impact of a criminal record. We consult in support of state law
reform efforts, and in 2019 organized a successful effort to develop a
model law on access to and use of non-conviction records. In addition, we
participate in court cases challenging specific collateral consequences,
and engage with social media and journalists on these issues. For more
information, visit the CCRC website at http://ccresourcecenter.org.

Citation: Margaret Love & David Schlussel, Collateral Consequences Res. Ctr, The
Many Roads to Reintegration: A 50-State Report on Laws Restoring Rights and
Opportunities after Arrest or Conviction (2020)

COLLATERAL CONSEQUENCES RESOURCE CENTER

The Many Roads to Reintegration: A 50-State Report on Laws
Restoring Rights and Opportunities after Arrest or Conviction
By Margaret Love & David Schlussel
Introduction by Gabriel J. Chin ............................................................................................ 1
Executive Summary ................................................................................................................. 5
I.

II.

III.

Loss and Restoration of Voting and Firearms Rights ....................................... 8
A.

Voting Rights ...................................................................................................................... 8

Firearms Rights ............................................................................................................. 18

Record Relief ............................................................................................................... 23
A.

Pardon ................................................................................................................................ 26

Expungement, Sealing & Set-Aside of Convictions ........................................ 36

Judicial Certificates of Relief .................................................................................... 53

Diversion and Deferred Adjudication .................................................................. 62

Non-Conviction Records ............................................................................................ 71

Fair Employment & Occupational Licensing .................................................... 79
A.

Employment .................................................................................................................... 81

Occupational Licensing .............................................................................................. 91

Appendix: Overall Report Card & State Rankings ....................................................103

COLLATERAL CONSEQUENCES RESOURCE CENTER

INTRODUCTION BY GABRIEL J. CHIN
The problem of reform and relief of collateral consequences calls to mind Supreme
Court Justice Oliver Wendell Holmes Jr.’s famous line: “The life of the law has not been
logic: it has been experience.” U.S. criminal law itself is not theoretically pure. In the
area of civil law, in particular commercial law, dozens of uniform laws are on the
books, drafted by experts, many of which, such as the Uniform Commercial Code, have
been widely or universally adopted. But in a country where scholars, lawyers,
policymakers, and citizens evaluate criminal justice polices based on retributivist,
utilitarian, economic, religious, pragmatic, intuitive, and emotional principles, or a
mélange of them, there is and could be no Uniform Penal Code.1 Criminal law is often
inconsistent across states, and even within states, in terms of its underlying
justification or rationale, or the reasons that particular rules or provisions exist.
Disagreement about collateral consequences is, if anything, even more intense.
Collateral consequences may be divided into four main types: Loss of civil rights,
limits on personal freedom (such as registration or deportation), dissemination of
damaging information, and loss of opportunities and benefits, each of which may be
justified and criticized for different reasons. Accordingly, defense attorneys,
prosecutors, judges, policymakers and legal scholars disagree about the fundamental
nature and purpose of collateral consequences; to
the extent that the public at large ever thinks
There is intense
about them, they also likely hold a range of views.
disagreement about the
here is no consensus about whether collateral
fundamental nature and
consequences in general or particular ones
purpose of collateral
constitute further punishment for crime, are
consequences.
mere civil regulation, unconstitutionally or
immorally carry forward Jim Crow, or, perhaps,
should be understood in some other way.
Advocates, analysts, and lawmakers will never be in a position to argue persuasively
“because collateral consequences rest on Principle X, it follows that they should apply
in and only in Condition Y, and must be relieved under Circumstance Z.”
Yet, the practical problem of collateral consequences looms large. With the massive
expansion of collateral consequences in recent decades, those who experience these

The Model Penal Code has been widely influential, but—as designed—states adopted only
the pieces they liked, and heavily modified them.
1

COLLATERAL CONSEQUENCES RESOURCE CENTER

INTRODUCTION BY GABRIEL J. CHIN

barriers firsthand know that they cannot become fully functioning, equal members of
the community without finding a way to overcome them.
Fortunately, agreement on underlying fundamental principles is not required to
reach agreement on particular policies.2 Most Americans agree, for a range and
combination of reasons, that people convicted of crime should have second chances,
rather than being permanently excluded from society regardless of the passage of
time, successful efforts at rehabilitation and restitution, and lack of current risk to
fellow Americans. This is a compelling necessity, given the array of collateral
consequences, the tens of millions of Americans with criminal records, and the
consequences for those individuals, their families and communities, the economy,
and public safety itself, if so many people are relegated to a permanent subordinate
status. To adapt a line from Justice Anthony Kennedy’s 2003 speech on criminal
justice to the ABA, too many people are subject to too many collateral consequences
for too long. At the same time, even acknowledging
the wide range of philosophical and political views
A relief system should
Americans hold on these issues, substantial
be accessible, effective,
majorities likely agree that public safety requires
coordinated, fair, and
excluding those convicted of recent criminal conduct
administrable.
from situations where they present a clear and
present danger of serious harm.
Even if it is impossible to identify a single, unadulterated principle explaining why a
relief policy is desirable, some characteristics of that policy can be mapped out,
particularly in light of experience with various systems over the years.
First, the system should be accessible. Every state has pardon or some other
restoration policy on the books now, but there is wide variation on whether they are
practically available to deserving individuals. In some states, groups of high officials
meet to evaluate relief requests, but they have other important duties. Some
mechanisms require applicants to have lawyers, a fatal defect in a system aimed at
helping people who are often struggling just to support themselves and their families.
The system should ordinarily be part of the probation or parole process, and not
require a lawyer (or should be part of the public defender’s assigned responsibility in
every case), should be automatic with regard to as many categories of offenses and

Cass Sunstein’s classic exposition remains worth reading. Cass R. Sunstein, Incompletely
Theorized Agreements, 108 HARV. L. REV. 1733 (1995).
2

COLLATERAL CONSEQUENCES RESOURCE CENTER

INTRODUCTION BY GABRIEL J. CHIN

offenders as is sensible, should ordinarily use existing
criminal and correctional records rather than
The relief system
requiring new investigations, and should require an
should ordinarily be
in-person hearing only in the most serious or
part of the probation
exceptional cases. The particular form of relief must
or parole process
be tailored to the nature of the consequence. Thus,
restoring the vote may employ a simpler and more
routinized mechanism than relief aimed at avoiding deportation or terminating
criminal registration.
The system should be effective. Of course, restoration of rights provisions must not
create new ways to entangle people in the legal system when they are designed to do
the opposite. Relief should not be merely advisory, leaving decisionmakers in doubt
about its legal effect or feeling free to ignore the law. Through the statutory text and
education of decisionmakers, the consequences of a particular form of relief should
be clear. Perhaps the piece of paper evidencing the relief should itself have a section
of text addressed to public officials and private actors who control access to
employment, licensing, voter registration, and housing, informing them of their
responsibilities under the law. In the event of persistent non-compliance, there
should be a mechanism for enforcement.
In a mobile, federal society, relief must be coordinated across jurisdictions, including
within a single state. Most jurisdictions impose collateral consequences based on outof-jurisdiction convictions, but it is not so clear that
they give effect to out-of-jurisdiction relief or open
In a mobile, federal
their own relief systems to outsiders. People
society, relief must be
should not, ideally, be required to seek relief from
coordinated across
multiple jurisdictions to avoid collateral
jurisdictions, including
consequences flowing from a single conviction.
within a single state.
The relief should be fair in the broadest sense,
striking a balance between the interests of those
who seek relief and their families, and those who transact with them. Consumers of
relief, people such as landlords and employers, should not fear being subject to
liability for discrimination if they do not transact with a person who has received
relief, and fear tort liability if they do. The legitimate interests of victims should be
considered, as well as the interests of community members—both those who fear
being put at risk, and those who want their fellows to be able to live without
unreasonable legal impairment.
3

COLLATERAL CONSEQUENCES RESOURCE CENTER

INTRODUCTION BY GABRIEL J. CHIN

Finally, the system should be administrable. It should not create unmanageable new
responsibilities for government employees or officials. This means it must be
designed with input from various creators, maintainers, and users of criminal justice
records as well as people with criminal records. A cautionary tale comes from another
massive dataset: racially restrictive covenants in property deeds. Notwithstanding
their invalidity for decades, policymakers still struggle to expunge them from
government records. In the criminal justice area as with property records, even in the
face of legal mandates, judges will not jail clerks for failing to do what is physically
impossible, or what could be achieved only by setting aside all other tasks.
A system might be creative, imaginative, elegant. But it is hard to imagine that a
perfect system will make it through the crucible of politics. A workable, effective
system, giving relief to a large number of people with a wide range of convictions,
while still being attentive to public safety concerns, is likely to be one with the fairest,
wisest and most reasonable compromises with the ideal.
Gabriel J. Chin is a law professor at UC Davis and chairs CCRC’s Board of Directors.

COLLATERAL CONSEQUENCES RESOURCE CENTER

EXECUTIVE SUMMARY
This report sets out to describe the present landscape of laws in the United States
aimed at restoring rights and opportunities after an arrest or conviction. This is an
update and refresh of our previous national survey, Forgiving and Forgetting in
American Justice, last revised in 2018.3 Much of the material in this report is drawn
from our flagship resource, the Restoration of Rights Project. We are heartened by the
progress that has been made toward neutralizing the effect of a criminal record since
the present reform era got underway in a serious fashion less than a decade ago,
especially in the last two years.
This report considers remedies for three of the four main types of collateral
consequences: loss of civil rights, dissemination of damaging record information, and
loss of opportunities and benefits, notably in the workplace.4
Its first chapter finds that the trend toward
restoring the vote to those living in the
community—a long-time goal of national
reform organizations and advocates—has
accelerated in recent years. Further reforms
may be inspired by the high-profile litigation
over Florida’s “pay-to-vote” system, which
shines a national spotlight on financial barriers to

The trend toward restoring
the vote to those living in
the community has
accelerated in recent years.
the franchise. This chapter also

MARGARET LOVE, JOSH GAINES & JENNY OSBORNE, COLLATERAL CONSEQUENCES RES. CTR, FORGIVING
FORGETTING IN AMERICAN JUSTICE: A 50-STATE GUIDE TO EXPUNGEMENT AND RESTORATION OF
RIGHTS,
(rev.
Aug.
2018)
https://ccresourcecenter.org/wpcontent/uploads/2017/10/Forgiving-Forgetting-CCRC-Aug-2018.pdf.
3

AND

This report does not cover the fourth main type of consequence: limits on personal
freedom—including sex offender registration, civil commitment, and immigration
consequences. Relief mechanisms for these are quite complex and built into the law of each
issue. We offer a 50-state comparison chart for relief from sex offender registration on our
website,
https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonrelief-from-sex-offender-registration-obligations/. For resources on immigration
consequences, see https://www.ilrc.org/crimes. With respect to the third type of
consequence: loss of opportunities and benefits, this report covers laws providing relief for
employment and occupational licensing (the two areas most subject to relief under state
law), but does not cover housing, government benefits, or other opportunities.
4

COLLATERAL CONSEQUENCES RESOURCE CENTER

EXECUTIVE SUMMARY

finds that systems for restoring firearms rights are considerably more varied, with
many states providing relief through the courts but others requiring a full pardon.
The second chapter deals with laws intended to revise or supplement criminal
records, an issue that has attracted the most attention in legislatures but that has
benefited the least from national guidance. It is divided into several parts, based on
the type of record affected (conviction or nonconviction) and the type of relief offered (e.g.
Laws regulating the
pardon, expungement, set-aside, certificates,
dissemination of damaging
diversion, etc.). The wide variety in eligibility,
criminal record information
process, and effect of these record relief laws
have benefitted the least
speaks volumes about how far the Nation is
from national guidance.
from common ground.
The third chapter concerns the area in which
perhaps the most dramatic progress has been made just since 2018: the regulation of
how criminal record is considered by public employers and occupational licensing
agencies. Legislatures have been guided and encouraged by helpful model laws and
policies proposed by two national organizations with differing regulatory
philosophies: The Institute for Justice, a libertarian public interest law firm, and the
National Employment Law Project, a workers’ rights research and advocacy group.
Regulation of private employment has also been influenced by national models,
although to a lesser extent and more needs to be done in this area.
This report makes clear that substantial
progress has been made in the past several
The greatest headway has
years toward devising and implementing an
been made in restoring rights
effective and functional system for
of citizenship and broadening
restoring rights and status after arrest or
workplace opportunities
conviction. The greatest headway has been
controlled by the state.
made in restoring rights of citizenship and
broadening
workplace
opportunities
controlled by the state. The area where there is least consensus, and that remains
most challenging to reformers, is managing dissemination of damaging criminal
record information. Time will tell how the goal of a workable and effective relief
system is achieved in our laboratories of democracy.

COLLATERAL CONSEQUENCES RESOURCE CENTER

EXECUTIVE SUMMARY

Grading and ranking the states
In each section of the report, after our discussion of the type of relief, we assign a
grade to each state, D.C., and federal law. In an appendix, we collate these grades to
produce a ranking of states and D.C. on the nine categories that we graded.5 That
ranking is reproduced below. Our grading judgments deserve a comment. Gabriel
Chin’s introduction described the operational features of a desirable relief system:
accessible, effective, coordinated, fair, and administrable. Because we have not studied
how the relief systems described in this report actually operate, we cannot say for
certain whether or to what extent any of them deliver on these five features. Our
grades are based solely on the text of each state’s law, leaving more nuanced
judgments to practitioners, researchers, and the law’s intended beneficiaries.
Hopefully, these grades will challenge, encourage, and inspire additional reforms in
the months and years ahead.

National Ranking of Restoration Laws
1

Illinois

12 New Hampshire

Arkansas

Mississippi

Kansas

California

12 New Jersey

Kentucky

N. Carolina

W. Virginia

Utah

12 Oklahoma

Ohio

Tennessee

S. Dakota

Minnesota

15 Massachusetts

Rhode Isl.

Arizona

Iowa

Connecticut

15 Nebraska

Wisconsin

Montana

Virginia

Nevada

15 New Mexico

Michigan

Oregon

Wyoming

Colorado

18 Indiana

Missouri

Maryland

Texas

Delaware

19 Louisiana

Georgia

Maine

Alabama

New York

19 Vermont

Hawaii

D.C.

Alaska

Idaho

Florida

S. Carolina

10 North Dakota

19 Washington

10 Pennsylvania

The nine categories graded are: loss and restoration of the vote, pardon, conviction relief
(felony and misdemeanor graded separately), judicial certificates, deferred adjudication,
non-conviction records, employment, and occupational licensing. In determining these
rankings, each of the nine categories was assigned equal weight, except that deferred
adjudication and certificates of relief were each assigned 50% weight. We did not grade
restoration of firearms rights because the laws were too varied to helpfully compare.
5

COLLATERAL CONSEQUENCES RESOURCE CENTER

LOSS AND RESTORATION OF VOTING AND FIREARMS RIGHTS
A. Voting Rights

The loss and restoration of the right to vote after a conviction depends upon state law,
including for people with federal convictions.6 The Supreme Court has ruled that the
Fourteenth Amendment to the Constitution permits states to permanently deny the
vote based on a felony conviction.7
That said, most states do not go so far. In two states (Vermont and Maine) conviction
never results in loss of the right to vote, and the District of Columbia recently repealed
its felony disenfranchisement on a temporary basis.8 In 22 states the vote is lost only
if a conviction (usually a felony) results in incarceration.9 In all but five of those 22
states, the period of disenfranchisement coincides with the period of actual
incarceration.10 In one of the five (Louisiana), reenfranchisement is delayed for a

In states where the right to vote is lost and regained by operation of law, federal and outof-state convictions are generally subject to the same rules as in-state convictions.
Connecticut is a notable exception. See Conn. Gen. Stat. Ann. § 9-46a. The handful of states
that only provide for discretionary reenfranchisement typically allow those with federal
convictions to regain the vote on the same terms as those with in-state convictions. See infra
note 19.
6

See Richardson v. Ramirez, 418 U.S. 24, 54 (1974); see also Harvey v. Brewer, 605 F.3d 1067,
1079 (9th Cir. 2010) (O’Connor, J.) (provisions restoring voting rights lost due to conviction
are subject to constitutional challenges).
7

The District of Columbia enacted emergency legislation effective July 22, 2020, which
remains in effect for 90 days, repealing the District of Columbia’s felony disenfranchisement
law. See D.C. Council Bill 23-0825 (July 22, 2020).
8

In a few of these jurisdictions, people incarcerated for a misdemeanor or election-related
misdemeanor may not vote. See, e.g., DC. Code § 1-1001.02(7); Mich. Comp. Laws § 168.758b;
Utah Code Ann. § 20A-2-101(2)(b); see also S.C. Code Ann. § 7-5-120(B); Ky. Const. § 145(2).
9

See CCRC’s report, “Who Must Pay to Regain the Vote? A 50-State Survey” (July 2020),
https://ccresourcecenter.org/wp-content/uploads/2020/07/Who-Must-Pay-to-Regainthe-Vote-A-50-State-Survey.pdf, and our amicus brief in Jones v. DeSantis (11th Cir.),
https://ccresourcecenter.org/wp-content/uploads/2020/07/2020.08.03-Exhibit-A.pdf.
10

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LOSS AND RESTORATION OF VOTING AND FIREARMS RIGHTS

period after release.11 In the remaining four states (California, Connecticut, Idaho, and
New York) disenfranchisement continues through parole—except that parolees in
New York have since 2018 been allowed to vote by virtue of executive pardon. 12
Another 22 states provide for loss of vote for a range of felonies and certain
misdemeanors; and restore the vote automatically either upon completion of
sentence or discharge from supervision.13 Nine of these 22 states require a person to
pay some or all conviction-related “legal
financial obligations” (LFOs) (fines, fees, and
The wealth-based
restitution) before regaining the franchise.14
discrimination inherent in
In 12 of the remaining 13 states in this group,
conditioning voting on
discharge from supervision restores the vote,
payment of LFOs has been
and LFOs may result in a scenario of delayed
challenged on constitutional
restoration of rights, depending on a person’s
grounds in several states
ability to pay.15 The wealth-based

11 Louisiana restores the franchise automatically for a person who has not

been incarcerated
in the last five years pursuant to any “order of imprisonment,” for a felony, or upon earlier
completion of such an order. La. Const. art. I, § 10; La. Stat. Ann. §§ 18:102(A)(1), 18:2(8).
See
N.Y.
Exec.
Order
181
(April
18,
2018)
(A.
Cuomo),
https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_181.pdf.
In
June 2020, the California legislature approved a constitutional amendment restoring the
vote to parolees for consideration by California voters in November 2020. See 2019 Cal.
A.C.A. No. 6, chaptered June 25, 2020.
12

Most of these 22 states explicitly provide for the situation of people with federal and outof-state convictions. Some states except from automatic re-enfranchisement specific crimes
involving serious violence or sexual offenses, others except public corruption or election law
crimes, and still others except both. See, e.g., Article V § 2 of the Delaware constitution
(excepting from automatic restoration those convicted of murder, bribery or similar public
corruption, or a sexual offense).
13

14 In

addition, Connecticut requires payment of LFOs for out-of-state and federal convictions
(but only discharge from prison and parole for in-state convictions). See supra note 7.
These 12 states allow nonpayment of LFOs to delay reenfranchisement in certain
circumstances, via early discharge for payment, delayed discharge for nonpayment, or both.
Oklahoma is the one state in this group of 13 that reenfranchises after a fixed sentence
period, regardless of payment of LFOs. See supra note 10. Added to this group of 12 “delay”
states are four that disenfranchise only upon a sentence of imprisonment and any parole,
15

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LOSS AND RESTORATION OF VOTING AND FIREARMS RIGHTS

discrimination inherent in conditioning voting on payment of LFOs has been
challenged on constitutional grounds in several states, notably including Florida.16
Since Florida amended its constitution in 2018 to restore the vote automatically upon
completion of sentence,17 only four states (Iowa, Kentucky, Mississippi, Virginia) now
rely exclusively on the discretionary exercise of a constitutional power to restore the
vote. These states have pursued differing restoration policies in recent years, with
three (Iowa, Kentucky, Virginia) restoring rights on an automatic or quasi-automatic
basis, and the fourth (Mississippi) disenfranchising fewer people but showing no
interest in restoring them to the franchise.18 All four of these “discretionary” states
make provision for restoring the vote to people with federal or out-of-state
convictions.19

because of the potential for early discharge from parole upon payment of LFOs (Idaho,
California, New York, and Louisiana). Id.
16

See infra notes 30 and 31.

This provision excludes murder and sex offenses. See Fla. Const. art. VI, § 4.

Recent governors of Virginia, Kentucky, and Iowa have issued executive orders making
restoration routine for most people in those states who have been discharged from
supervision. See infra note 28. In May 2020, with gubernatorial encouragement, the Iowa
legislature initiated the process of amending the state constitution to make restoration
automatic upon completion of sentence, including payment of court debt. See Iowa Code §§
48A.6, 48A.6(A). Mississippi disenfranchises based on state convictions only, and largely for
common law crimes. However, Mississippi’s governors and legislatures, both of which have
authority under the state constitution to restore civil rights, have evidenced no interest in
recent years in restoring voting rights to those who lost them. Miss. Const. art. 5, § 124
(executive’s power to pardon limited in cases of treason and impeachment); art. 12, § 253
(restoration of civil rights by vote of 2/3 of the legislature).
18

Iowa, Kentucky, and Virginia give people with federal and out-of-state convictions access
to their restoration process, or recognize restoration in the jurisdiction of conviction, while
Mississippi allows those with federal and out-of-state convictions to vote without condition.
See Middleton v. Evers, 515 So.2d 940, 944 (Miss. 1987) (disqualification not applicable if
person was convicted in another state); Op. Miss. Atty. Gen. No. 2005-0193 (Wiggins, April
26, 2005). A few states rely on discretionary restoration in cases excluded from automatic
restoration. See, e.g., Ariz. Rev. Stat. §13-908 (discretionary judicial restoration for people
with more than one felony conviction and people with first felony offenses who have not paid
restitution); Wyo. Stat. Ann. §§ 7-13-105(a) (people who are ineligible for automatic
19

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This national landscape reflects a growing consensus that restoration of the vote is
an important aspect of criminal justice reform.20 Since 2015, there has been a national
trend toward expanding the franchise through changes in law and policy. During this
five-year period, 17 states and the District of Columbia have enacted a total of 26 laws
either limiting disenfranchisement or encouraging the newly enfranchised to vote.

restoration must seek restoration from the governor); and the states that except certain
offenses from automatic restoration mentioned in note 13.
For a general overview of reenfranchisement trends prior to 2015, see Morgan
McLeod, Expanding the Vote: Two Decades of Felony Disenfranchisement Reform, The
Sentencing Project (2018); see also Nick Harpster and Michael S. Vaughn, Felon
Disenfranchisement Laws: A Review of Current Policies, Challenges of Disenfranchisement
Laws, and Recent Trends in Legislative and Legal Change, 52 CRIM. L. BULL. 5 (2016).
20

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Of the 17, eight states revised their restoration laws to remove barriers related to
supervision: Colorado, Maryland, Nevada and New Jersey limited disenfranchisement
to a period of actual incarceration,21 Louisiana restored the franchise to anyone who
has not been incarcerated in the last five years pursuant to an “order of
imprisonment” for a felony,22 and three additional states (Delaware, Washington, and
Arizona) removed an explicit financial payment condition from their restoration
laws.23 Two more states (California and Oklahoma) and the District of Columbia
removed barriers to voting related to incarceration or waiting periods, 24 and three
additional states (Arkansas, Florida, and Wyoming) ended indefinite

Colo. Rev. Stat. § 1-2-103, amended by 2019 Colo. Legis. Serv. Ch. 283 (H.B. 19-1266); Md.
Code Ann., Elec. Law § 3‑102, amended by 2016 Md. Laws Ch. 6 (H.B. 980 (2015)); N.J. Stat.
Ann. §19:4-1, amended by 2019 NJ Sess. Law Serv. Ch. 270 (A. 5823). Nevada legislated twice
during this period, replacing a complex re-enfranchisement system that required people
with non-violent first offenses to pay restitution to regain their rights, and all others to seek
restoration through discretionary action of a court or pardon board, with the end result that
disenfranchisement is now limited to the period of actual incarceration. Nev. Rev. Stat. §
213.157, amended by 2017 Nev. Laws Ch. 362 (A.B. 181) (eliminating restitution
requirement), 2019 Nev. Laws Ch. 255 (A.B. 431) (limiting disenfranchisement to
imprisonment).
21

La. Stat. Ann. § 18:102, amended by 2018 La. Sess. Law Serv. Act 636 (H.B. 265).

Delaware eliminated its requirement to pay LFOs to regain the vote. Del. Code Ann. tit. 15,
§ 6102, amended by 2016 Del. Laws Ch. 311 (S.B. 242). Washington eliminated its
requirement that LFOs be paid in order be fully restored to the franchise, if five years have
elapsed following completion of all non-financial requirements of the sentence. Wash. Rev.
Code § 29A.08.520; id. § 9.94A.637, amended by 2019 Wash. Legis. Serv. Ch. 331 (S.H.B.
1041). Arizona eliminated its requirement to pay LFOs (other than restitution) to obtain
automatic restoration of the vote following discharge for a first felony offense, leaving unpaid
restitution a potential source of wealth discrimination. Ariz. Rev. Stat. Ann. § 13-907,
amended by 2019 Ariz. Legis. Serv. Ch. 149 (H.B. 2080).
23

California allowed those serving felony sentences in county jail to vote. Cal. Elec. Code §
2101, amended by 2016 Cal. Legis. Serv. Ch. 757 (A.B. 2466). Oklahoma clarified that those
convicted of a felony may register to vote when they have “fully served their sentence of
court-mandated calendar days” with no further waiting period. 26 Okla. Stat. Ann. § 4-101,
amended by 2019 Okla. Sess. Law Serv. Ch. 112 (H.B. 2253). For D.C.’s recent enactment, see
note 8.
24

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disenfranchisement for at least some individuals.25 Finally, two states passed laws
initiating the process of constitutional amendment to enact (Iowa) or expand
(California) automatic re-enfranchisement.26 In addition to measures expanding
voter eligibility, five states passed laws requiring corrections officials to educate and
inform people in prison or on supervision about their voting rights.27 More than half
of the these new laws were enacted after January 1, 2019, so the trend toward making
more convicted individuals eligible to vote appears to be accelerating.
The move to limit penal disenfranchisement is also evident in clemency policy. Since
2015, four governors have used their pardon power systematically to restore the vote
and remove financial or supervision requirements.28
During this same five-year period only one state acted to extend penal
disenfranchisement. Florida’s June 2019 passage of SB7066, conditioning voting

Arkansas closed a loophole that had prevented juveniles charged as adults from regaining
the vote; Florida amended its constitution to restore the vote to all who have completed their
sentences (excluding those with murder and sex offenses); and, Wyoming restored the vote
automatically to those convicted of a single nonviolent felony upon “discharge” of sentence,
broadening this relief on three different occasions between 2015 and 2018. See Ark. Code
Ann. § 16-93-622 (2019); Fla. Const. art. VI, §4(a) (2018); Wyo. Stat. Ann. § 7-13-105
(amended in 2015, 2017, and 2018).
25

See Iowa Code §§ 48A.6, 48A.6(A); 2019 Cal. ACA-6, supra note 12.

See, e.g., Cal. Elec. Code § 2105.5; Colo. Rev. Stat. § 17-2-102; 730 Ill. Comp. Stat. Ann. 5/314-1(a-3); Ill. Pub. Act 101-0441; N.H. Rev. Stat. Ann. § 504-A:12-a; Wash. Rev. Code §
72.09.275.
27

Since 2016, Virginia’s governor has regularly restored the vote upon completion of a term
of supervision and currently does not require payment of LFOs. See Restoration of Rights,
Secretary of the Commonwealth of Virginia (last accessed June 23, 2020 at 7:28pm),
https://www.restore.virginia.gov/. Kentucky’s governor issued an Executive Order in
December 2019 automatically restoring the vote to all those with Kentucky convictions,
excluding specified violent offenses, if they have completed probation and parole (“final
discharge”), regardless of payment of restitution, fines, or other monetary conditions; those
with pending felony charges or arrests are excluded. Ky. Exec. Order No. 2019-003 (Dec. 12,
2019). Iowa’s governor issued an executive order in August 2020 restoring the cote
automatically upon completion of sentence. Iowa Exec. Order No. 2020-7 (Aug. 5, 2020). New
York’s governor issued an Executive Order directing that individuals being released onto
parole, or currently on parole “will be given consideration for a conditional pardon that will
restore voting rights without undue delay.” N.Y. Exec. Order No. 181 (2018).
28

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rights on full payment of LFOs, even if they have been converted to a civil lien,
severely curtailed the ballot initiative by which 65% of state voters had approved
automatic re-enfranchisement of most Floridians with a felony record just six months
earlier.29 SB7066 has been challenged on federal constitutional grounds, along with
the ballot initiative, which was later interpreted by the Florida Supreme Court to itself
require payment of LFOs.30
The Collateral Consequences Resource Center filed a friend of the court brief in the
Florida litigation documenting the nationwide frequency with which unpaid LFOs
may delay restoration of the vote or deny it indefinitely.31 The brief documented that
in twenty states and the District of Columbia, LFOs have no bearing on eligibility to

SB7066, signed into law by Governor DeSantis in June 2019 and codified at Fla. Stat. §
98.0751(2)(a)(5), defined “completion of sentence to mean “full payment of fines or fees
ordered by the court as part of the sentence or that are ordered by the court as a condition
of any form of supervision . . . .” The law explicitly requires that the payment requirement “is
not deemed completed upon conversion to a civil lien.” Id.
29

The governor’s signature on SB7066 triggered a legal challenge in federal district court
based upon several constitutional theories, including that the new law, as well as the ballot
initiative, violate Equal Protection to the extent that they discriminate between those who
are able to pay and those who are not. The United States Court of Appeals for the Eleventh
Circuit ruled, in affirming the district court’s preliminary injunction, that Florida cannot
condition voting on payment of an amount a person is genuinely unable to pay. See Jones v.
Governor of Fla., 950 F.3d 795 (11th Cir. 2020). While the appeal of the preliminary
injunction was pending, the Florida Supreme Court issued an advisory opinion that the ballot
initiative requires payment of legal financial obligations to regain the vote. See Advisory Op.
to the Governor Re: Implementation of Amendment 4, the Voting Restoration Amendment, 288
So. 3d 1070 (Fla. 2020). After trial on the merits, the federal district court held that the State
may condition voting on payment of fines and restitution imposed by the court at sentencing
that a person is able to pay, but may not, consistent with the Equal Protection Clause,
condition voting on payment of amounts a person is unable to pay. Further, the court held
that at least some of the financial obligations are taxes that cannot block access to voting
consistent with the Twenty-fourth Amendment, whether a person is able to pay or
not. See Jones v. DeSantis, 2020 WL 2618062 (N.D. Fla., May 24, 2020). On July 2, 2020, the
11th Circuit granted Florida’s request for en banc review of the district court’s decision and
stayed its order; on July 16, the Supreme Court declined to lift the stay. Argument in the court
of appeals was held on August 18, 2020.
30

See supra note 10.
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vote, and in 16 states LFOs potentially affect only the timing of re-enfranchisement.32
In some of these 16 states courts are required to consider ability to pay in setting and
enforcing terms of supervision, and in others they have discretion to do so. Of the four
states that handle restoration of rights exclusively through the discretionary exercise
of constitutional clemency, three currently have governors who evidently do not
regard unpaid LFOs as disqualifying.33 Accordingly, there are at present only ten
states whose laws mandate permanent disenfranchisement based on some or all
outstanding court debt, regardless of ability to pay. And only three of these states
including Florida require payment of all LFOs associated with a disqualifying
conviction; the remaining seven states require payment of certain financial
obligations.34
Challenges have also been brought against laws mandating payment of LFOs as a
condition of regaining the vote in North Carolina and Alabama. Just before this
report was published, a North Carolina three-judge panel held in a 2-1 ruling that
conditioning the vote on payment of money violates the state constitution’s
guarantee of equal protection and ban on property qualifications in voting.35
In summary, at mid-2020 the trend in state legislatures to expand opportunities for
reenfranchisement rivals the trend toward expanding opportunities for people with
a criminal record in the workplace. Excluding Florida’s SB 7066, it has been almost a
decade since any state passed a law narrowing access to the ballot box based on

In these 16 states the vote is tied to completion of supervision, which may result in a
temporary delay in reenfranchisement if a court or supervisory official determines that
supervision should be extended to give a defendant some additional incentive to pay, e.g. to
make a victim whole. Officials in some of these states must consider a person’s ability to pay
in connection with fulfilling conditions of supervision, and officials may consider it in others.
32

See supra note 28.

See supra note 10. In addition to Florida, Alabama and Arkansas require all convicted
individuals to pay all court debt. South Dakota requires those convicted after June 30, 2012
to pay all court debt, and Connecticut requires those with federal and out-of-state
convictions to pay all court debt.
34

See Community Success Initiative v. Moore, No. 19-CVS-15941 (N.C. Gen. Ct. Just., Sept. 4,
2020) (summary judgement and preliminary injunction orders); see also Thompson v.
Merrill, No. 2:16-cv-783 (M.D. Ala., filed Sept. 26, 2016).
35

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conviction.36 The law in almost half the states now reflects an appreciation of the
social and economic value of allowing all those who are living in the community to
participate in its governance. Restoring the vote “may facilitate reintegration efforts
and perhaps even improve public safety,” providing benefits both to individuals with
a record and more broadly to their communities.37 A system linking penal
disenfranchisement to actual incarceration is both easier to justify and easier to
administer than a system that links the vote to other aspects of the sentence, much
less one that makes voting depend upon a person’s ability to pay.
Recognition of the real and symbolic
A system linking penal
importance of making voting rights part of
disenfranchisement to actual
a reintegration agenda is nothing new.
incarceration is both easier to
Forty years ago, national law reform
justify and easier to administer
organizations like the Uniform Law
Commission and the American Bar
Association advocated for limiting and
even abolishing felony disenfranchisement.38 Perhaps the country is slowly coming
to that view. We agree with those who see no legal rationale or social justification for
felony disenfranchisement, and few if any practical obstacles to allowing even

See 2012 South Dakota Laws Ch. 82 (HB 1247), amending S.D. Codified Laws § 12-4-18 to
disenfranchise individuals convicted after June 30, 2012, and sentenced to probation.
Individuals convicted prior to July 1, 2012, remain disenfranchised only if sentenced to a
term of imprisonment. In February 2020, the South Dakota legislature voted against limiting
disenfranchisement
to
the
term
of
supervision.
See
HB1247,
https://legiscan.com/SD/bill/HB1245/2020.
36

Christina Beeler, Article, Felony Disenfranchisement Laws: Paying and Re-Paying a Debt to
Society, 21 U. Pa. J. Const. L. 1071, 1088 (2019) (internal quotation marks omitted).
37

38 See

American Bar Association, Standards on the Legal Status of Prisoners, Standard 23-8.4
(1983) (hereinafter ABA Standards); National Conference of Commissioners of Uniform
State Laws, Model Sentencing and Corrections Act, §§ 4-112, 4-1003 (1979). The
commentary to the ABA Standards noted that “little is gained by society” in disenfranchising
prisoners while “much is accomplished by retaining and strengthening the ties of offenders
with the free community.”
16

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prisoners to vote.39 This remnant of ancient civil death and Jim Crow should have no
place in the modern American polity.
The Restoration of Rights Project contains a 50-state summary of loss and restoration
of voting, jury service, public offices and firearms rights in each state, with links to
specific state profiles that may be consulted for additional detail.
Report Card: Voting Rights
The following report card grades each state and D.C. on their laws that disenfranchise
and reenfranchise individuals based on conviction, including the extent to which
unpaid legal financial obligations may delay or deny restoration of the vote.
AL
AK
AZ
AR
CA
CO
CT
DE
DC
FL
GA
HI
ID

F
C
D
F
B
B
D
C
A
F
D
A
C

IL
IN
IA
KS
KY
LA
ME
MD
MA
MI
MN
MS
MO

MT
NE
NV
NH
NJ
NM
NY
NC
ND
OH
OK
OR
PA

B
B
D
D
D
C
A
B
B
B
D
D
C

B
C
B
B
B
D
B
D
B
B
B
B
B

RI
SC
SD
TN
TX
UT
VT
VA
WA
WV
WI
WY
Fed

C
C
D
D
D
B
A
B
C
C
C
C
n/a

See, e.g., The American Law Institute, Model Penal Code: Sentencing § 7.03; see also id. at
comment b (“Although disenfranchisement has been justified as a fitting punishment for
transgressing the rules of civil society, the legal justification for collateral consequences is
that they serve regulatory functions, not punitive ones.”)
39

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B. Firearms Rights
In every state except Vermont, the right to possess at least some firearms is lost after
conviction of at least some felonies. Even in Vermont, a court may prohibit firearm
possession as a condition of granting probation.
The 50-state chart from the Restoration of Rights Project attempts to chart a way
through legal terrain that is even more complex and potentially treacherous than the
one that governs penal disenfranchisement.40 It is more complex because federal law
superimposes another layer of regulation on firearms possession after conviction,
and because the right to possess firearms has a degree of constitutional protection
even for people who are dispossessed by virtue of a conviction. It is more treacherous
because the risk of criminal prosecution by one
or both sovereigns is very real, while
Each state is entitled to
prosecutions for mistaken voting are
enforce its own law on
considerably rarer (though even these have
firearms dispossession
increased in recent years). Furthermore, while
within its borders, but it is
each state is entitled to enforce its own law on
uncertain what effect relief
firearms dispossession within its borders, it is
granted in one jurisdiction
uncertain what effect relief granted in one
will be given in another
41
jurisdiction will be given in another.
Just to sketch the general state law picture, in 28 states a person convicted of any
felony loses the right to possess any firearm. A few of these 28 states extend

Restoration of Rights Project, “50-State Comparison: Loss & Restoration of Civil/Firearms
Rights,”
https://ccresourcecenter.org/state-restoration-profiles/chart-1-loss-andrestoration-of-civil-rights-and-firearms-privileges/.
40

See, e.g., Schoenherr v. Department of State, Div. of Licensing, 743 So. 2d 536, 537 (Fla. 2d
DCA 1998) (deferring to Connecticut’s restoration of right to possess firearm); Blackwell v.
Haslam, 2013 WL 3379364 (Tenn. Ct. App. 2013) (remanding for consideration whether
giving effect in Tennessee to a Georgia pardon restoring firearms rights to a person with a
drug offenses violates Tennessee’s public policy against restoring firearms rights to “violent
drug offenders”). See generally Wayne A. Logan, “When Mercy Seasons Justice”: Interstate
Recognition of Ex-Offender Rights, 49 U. C. Davis L. Rev. 1 (2015) (surveying caselaw
regarding interstate recognition); LOVE, ROBERTS & LOGAN, COLLATERAL CONSEQUENCES OF
CRIMINAL CONVICTION: LAW, POLICY AND PRACTICE §§ 2:35, 3:22 and 7:24 (WEST/NACDL, 3d ed.,
2018-2019).
41

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dispossession to violent misdemeanors or domestic violence convictions. In 12 other
states and the District of Columbia, only people convicted of specific crimes (usually
violent, drug or sex crimes) lose any firearms rights. In six states (Alabama, Alaska,
Connecticut, Indiana, Oklahoma, and South Carolina) only handgun rights are ever
lost. In three states (Louisiana, New Jersey, and Tennessee) there are different rules
for dispossession of long guns and handguns. In Vermont conviction does not affect
the right to possess a firearm, but a court may prohibit a person from having a firearm
as a condition of granting probation.42
Provisions for regaining lost firearms rights vary widely, ranging from automatic
restoration upon completion of sentence to the requirement of a full pardon. In a
minority of states dispossession is time-limited and restoration is automatic for at
least some types of convictions. In 11 states,
including Kansas, Michigan, Minnesota and
Provisions for regaining lost
Rhode Island, restoration is automatic for
firearms rights range from
many convicted of nonviolent crimes as early
automatic restoration upon
as completion of sentence, or after a brief
completion of sentence to the
waiting period. In Montana, the only people
requirement of a full pardon
not allowed to have firearms when they
complete their sentences are those who used
a dangerous weapon in their crime. In North
Dakota, even people whose offense involved “violence or intimidation” automatically
regain their firearms rights 10 years after completion of sentence.
But in most states, firearms dispossession is indefinite, and everyone who lost rights
must petition a court for discretionary relief or ask for a pardon. Some states mix and
match the two approaches depending either upon the type of conviction or upon the
type of firearm. In 11 of the 26 states in which all firearms rights are permanently lost
upon conviction of any felony, a pardon is the exclusive restoration mechanism. In the
other 15 states judicial relief is also authorized for at least some types of convictions,
though expungement has a role in only a few (Arkansas, Missouri, Oregon, and Utah).

See State v. Kasper, 566 A.2d 982, 984 (Vt. 1989); see also Jay Buckeye, Note, Firearms for
Felons? A Proposal to Prohibit Felons from Possessing Firearms in Vermont, 35 VT. L. REV. 957
(2011). Persons convicted of a felony under Vermont law who have not been pardoned, or
whose convictions have not been sealed or expunged, remain subject to federal firearms
restrictions by virtue of the state’s failure to restore all three civil rights.
42

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Arizona reorganized its restoration scheme in 2019 so that courts may now grant
relief for most felonies subject to differing waiting periods, but only the governor may
restore rights to those convicted of “dangerous felonies.” In Tennessee, a pardon may
restore rights to those who lost only handgun rights, but expungement is the only
remedy available to those convicted of a violent or drug crime who lost all firearms
rights. A few states (California, New York, Oklahoma) make no provision at all for
restoring firearms rights to those convicted of violent crimes or offenses involving a
dangerous weapon.
According to a 2011 study by the New York Times of firearms restoration
mechanisms across the country, courts in many jurisdictions restored rights with
little consideration of an individual’s
circumstances, while pardon boards and
Courts in many jurisdictions
governors were more cautious.43 Even so,
restored firearms rights with
the Georgia Board of Pardons and Parole
little consideration of an
grants between 200 and 300 pardons every
individual’s circumstances,
year specifically restoring gun rights, and
while pardon boards and
the Nebraska pardon board has reported
governors were more cautious
dozens of firearms pardons granted each
year.44
Separate and apart from state dispossession laws, federal criminal law also restricts
firearm rights and privileges based on conviction in any U.S. jurisdiction. Under
federal law, no one may possess any firearm (other than an antique) after conviction
of a felony punishable by more than one year’s imprisonment, a misdemeanor
punishable by more than two years’ imprisonment, or a domestic violence
misdemeanor.45 For people with state-court convictions, the federal prohibition may
be lifted by various state law relief mechanisms, including pardon, expungement, and
general civil rights restoration (as long as the person is not barred from possessing

Michael Luo, Felons Finding It Easy to Regain Gun Rights, N.Y. Times, Nov. 13, 2011,
https://www.nytimes.com/2011/11/14/us/felons-finding-it-easy-to-regain-gunrights.html.
43

See Georgia and Nebraska profiles,
https://restoration.ccresourcecenter.org/.
44

Restoration

Rights

Project,

See 18 U.S.C. § 922(g).
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firearms under state law), but the effect of specific state relief mechanisms on federal
firearms rights is varied and complex.46 In contrast, after a conviction in federal court,
the federal ban can only be lifted by a presidential pardon.47
The Supreme Court’s landmark 2008 decision in District of Columbia v. Heller, which
recognized a federal constitutional right to
possess a firearm “in defense of home and
The Supreme Court’s
hearth,”48 opened a new avenue of challenge to
landmark 2008 decision
the application of dispossession statutes. Heller
in District of Columbia v.
itself anticipated and sought to deflect such
Heller opened a new
challenges by declaring them to be
avenue of challenge to
“longstanding” and “presumptively lawful,” 49 but
the application of
some lower courts have characterized this
dispossession statutes
statement as dictum, and scholars have
questioned its historical accuracy.50 One federal
court of appeals has upheld an “as applied” challenge to the categorical firearm ban
by two individuals with dated state misdemeanors, but another federal appeals court
reached the opposite conclusion in the case of a man convicted of felony credit card
fraud.51 At least one state court has relied upon a “right to bear arms” provision of its

See 18 U.S.C. § 921(a)(20); see also Caron v. United States, 524 U.S. 308 (1998); Love et al.,
supra note 41, § 2:35 (“Restoration of firearms privileges; relationship between state and
federal dispossession laws”). See Restoration of Rights Project, 50-state comparison chart,
supra note 40, Chart #2 (“Firearms Rights Under Federal Law”). There has been some
disagreement in the federal courts about whether state restoration instruments must
address firearms rights to remove the federal firearms bar, a subject that is too complex for
treatment in this report.
46

See Beecham v. United States, 511 U.S. 368 (1994), discussed in Love et al., supra note 41,
§ 2:35.
47

District of Columbia v. Heller, 554 U.S. 570, 637 (2008).

Id. at 626-27.

See Love et al., supra note 41, § 2:36 (“Second Amendment challenges to felony
dispossession laws”), notes 4 through 6.
50

Compare Binderup v. Attorney General, 836 F.3d 336, 353, 357 (3d Cir. 2016), cert. denied,
137 S. Ct. 2323 (2017) (government could not justify applying the bar to persons who had
“distinguish[ed their] circumstances from those of persons in the historically barred class,”
and that the petitioners’ crimes were “not serious enough to strip them of their Second
51

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state constitution in refusing to apply a newly enacted categorical dispossession
statute to an individual whose conviction was decades old, when his firearm rights
had been restored under an earlier law, and he had long since demonstrated
rehabilitation.52
In summary, in all but the six states that limit dispossession to handguns, conviction
of some or all felonies results in loss of all firearms rights for varying periods of time,
but usually indefinitely. At the same time,
relief appears to be available in most states
To the extent dispossession
from the courts. However, in a substantial
is permanent or relief hard
minority of states, and for all those convicted
to obtain, this collateral
in federal court, the only way to regain
consequence looks more like
firearms rights is through a pardon. To the
punishment than regulation
extent dispossession is permanent or relief
hard to obtain though this political channel,
this collateral consequence looks more like
punishment than regulation, and should be subject to constitutional challenges on
this ground, particularly in light of recent Second Amendment jurisprudence. That
courts are reluctant to go there is understandable, however, so it will be up to
legislatures to devise acceptable and less complex forms of relief.

Amendment rights”) with Hamilton v. Pallozzi, 848 F.3d 614, 626 (4th Cir. 2017), cert. denied,
138 S. Ct. 500 (2017) (holding that a Maryland resident convicted of a felony in Virginia,
whose firearms rights had been restored in Virginia and under federal law, remained subject
to Maryland’s dispossession statute without a Virginia pardon).
See Britt v. State, 681 S.E.2d 320 (N.C. 2009). Following the Britt decision, North Carolina
amended its firearms law to permit individuals who have lived in North Carolina for at least
one year, who have a single non-violent felony conviction and no violent misdemeanors, to
petition the court in their county of residence twenty years after their civil rights were
restored for restoration of firearms rights. N.C. Gen Stat. § 14-415.4.
52

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RECORD RELIEF
Introduction

The following sections describe the various legal authorities that revise or
supplement a person’s criminal record to reduce or eliminate barriers to opportunity
in civil society. These remedies include executive pardon, judicial orders and
certificates, and legislative mandates.
Pardon is the oldest form of record relief, with deep historical roots. Enshrined in the
federal constitution and the constitution of almost every state, it is the ultimate
expression of forgiveness and reconciliation from the sovereign that obtained the
conviction. Over time, beginning in the early 20th century, analogous judicial and
legislative remedies emerged to supplement the institutionally less reliable pardon:
expungement, sealing, and set-aside revised a person’s criminal record, while
certificates of relief removed or mitigated specific barriers to reintegration. In a few
states, regular administration allowed pardon to perform this same function.
Procedures were devised to divert cases from the system without a conviction.
The spirit of reform that produced many record relief laws in the 1970s was dormant
for 30 years until reawakened a decade into the 21st century by a dramatic increase
in the severity of collateral consequences and the number of people potentially
affected by them. The advent of digitized records systems
and a heightened public appetite for access to information
about individuals encountered in various settings produced
Since 2013 a
a new commerce in background screening and data
revival of earlier
53
aggregation that is virtually unregulated. A digitized
reforms has
criminal record became a sorting mechanism increasingly
produced a
relied upon by employers, schools, landlords, and other
torrent of record
relief legislation
authorities—and a net-widening device for law
enforcement.
CCRC has tracked restoration of rights legislation since
2013 when a revival of the earlier reforms began to produce a torrent of record relief

See Love, et al., supra note 41 at §§ 5:2 through 5:6.
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RECORD RELIEF

legislation.54 In the past seven years, some states have enacted relief schemes for the
first time while others have extended or revived laws enacted in the 1970’s. States
have tailored relief to the specific type of record, and a small but growing number
have made relief for some records automatic. Expungement, sealing, or set-aside is
now available by statute or court rule for at least some felony convictions in 38 states,
for many misdemeanor convictions in 42 states and D.C., and for most non-conviction
records in 49 states and D.C. Diversion is available in some form in almost every state,
and 12 states now offer judicial certificates of relief. Only Congress has failed to act,
leaving those with federal convictions without remedy short of a presidential pardon,
and those with federal non-conviction records with no relief at all.
The diverse approaches to record relief across the country reveal the absence of
consensus about how to manage dissemination of damaging information while at the
same time accommodating the public’s interest in maintaining access to records and
limiting public safety risks. In approaching a solution, we should start by recognizing
that not all records are created equal. At one end of the
spectrum, non-conviction arrests and charges seem most
We should start
suitable to automatic and broad-based restrictions on
by recognizing
dissemination and use, with objectors carrying the burden
that not all
of persuasion. Likewise, individuals who can convince a
records are
prosecutor or judge that it is appropriate to divert their
created equal
case should have a chance to walk away from criminal
charges without the burden of a publicly available criminal
record. Conviction records, on the other hand, may require a more nuanced approach,
with consideration given to limits on use through record-supplementing relief
(pardon and judicial certificates), as well as limits on access through record-revising
relief (expungement, sealing, and set-aside).

See CCRC’s legislative reports, available at https://ccresourcecenter.org/resources2/resources-reports-and-studies/. Trends accelerating since 2013 culminated in 2019 in an
unprecedented 67 new record relief laws enacted by 31 states and D.C.
54

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While the recent wave of state record reforms is promising, we still have a long way
to go to neutralize the malign effect of a criminal record. Blunt exclusions deny many
even the opportunity to present their case, no matter how persuasive or redemptive.
Even for those eligible, avenues to relief may be
mysterious,
burdensome,
costly,
and
Blunt exclusions deny
intimidating. As the introduction to this report
many even the
cautioned, a system of relief that is inaccessible
opportunity to present
to its intended beneficiaries and unmanageable
their case, no matter how
by those responsible for administering it is
persuasive or redemptive
inevitably ineffective and unfair. The sections
that follow describe the halting, uneven, but
determined progress toward a functional record relief system being made in many
states. They underscore the points made in the introduction to this report about the
practical importance of accessibility, effectiveness, coordination, fairness, and
manageability as essential aspects of a functional relief system.

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A. Pardon
Pardon has been described as the patriarch of restoration mechanisms, whose roots
in America are directly traceable to the power of the English crown. Just as a power
to pardon was assigned to the president in Article II of the U.S. Constitution, the
constitutions of every state save two provide for an executive pardoning power. 55
Both in theory and practice, pardon is the ultimate expression of forgiveness and
reconciliation from the sovereign that secured the conviction. For almost two
centuries, executive pardon played a routine operational role in the criminal justice
system throughout the United States, dispensing with court-imposed punishments
and restoring rights and status lost because of conviction.
Nowadays, in most U.S. jurisdictions pardon is a shadow of its once-robust self,
particularly those in which it is exercised without institutional restraint or
encouragement. Since the 1980s, governors and presidents alike have been wary of
exposing themselves to criticism from an ill-advised grant, and in many jurisdictions
pardoning has stopped being thought of as part of the chief executive’s job -- though
being labeled “soft on crime” seems thankfully no longer a political kiss of death. It is
not surprising that reformers tend to regard pardon with suspicion, dubious about its
legitimate operational role in the modern justice system.
Yet pardon fills an important gap in restoration schemes across the country,
supplementing judicial record relief mechanisms like sealing and expungement. For
example, in 20 states pardon offers the only way to regain firearms rights lost because
of conviction, including California, Colorado, Florida,
Georgia, Nebraska, Oklahoma, and Wyoming. In 12
states ineligibility for jury service is permanent
In 20 states pardon
without a pardon, including Arkansas, Delaware,
offers the only way to
Oklahoma, Pennsylvania, South Carolina, and Texas.
regain firearms rights
(By comparison, expungement restores firearms
In both Alabama and Connecticut, the power to pardon is regulated by the legislature. Ala.
Const. amend. 38 (amending art. V § 124) (since 1939, power to pardon in all but capital
cases in administrative board appointed by governor); Conn. Gen. Stat. § 54-124a(f) (since
colonial times, pardoning regulated by the legislature). For an overview of pardoning in the
United States, and additional citations, see generally Love, et al., supra note 41 § 7:6
(“Executive Pardon: Generally”) ; Margaret Colgate Love, Reinvigorating the Federal Pardon
Process: What the President Can Learn from the States, 9 ST. THOMAS L. REV. 730 (2013).
55

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rights in only five states, and jury rights in only two.) A pardon may be necessary to
enable a person to stand for elected office, or to demonstrate the requisite good
character to secure a professional or business license.
Perhaps most important for a substantial number of non-citizens, a pardon is the only
state relief mechanism recognized by federal immigration law, providing the only
way for a non-citizen convicted of an aggravated felony to avoid mandatory
deportation and remove the conviction-related bar to citizenship.56 Sometimes
pardon is sought simply as a sign of official forgiveness, not a small matter to some
people.
Of greater moment, pardon represents the only
potential source of record relief available for
Pardon represents the
only potential source of
felony convictions in the 16 states whose courts
record relief available
have no authority to expunge or set aside more
for felony convictions in
serious convictions.57 Another 14 states limit
the 16 states whose
judicial record relief to people who have been
courts have no authority
convicted of a single felony, so in these states too
to expunge them
pardon constitutes an important auxiliary remedy
for people with a lengthy felony record.58 It is easy
to see why pardon’s vitality is or ought to be of
considerable public concern to people in at least 30 states.
The good news is that the pardon power is neither dead nor fatally compromised in
most U.S. jurisdictions. In fact, in a significant number of states (18) the practice of

See 8 U.S.C. § 1227(a)(2)(A)(vi).; see also Thompson v. Barr, 959 F.3d 476, 484 (1st Cir.
2020)(“A pardon waiver has the effect of automatically canceling removal”), Love et al., supra
note 41, § 2:61(“Immigration Consequences – Pardon Waiver”), collecting cases and
executive opinions.
56

57 See

50-state chart, “Authority for Expunging or Sealing Convictions,” Restoration of Rights
Project,
https://ccresourcecenter.org/state-restoration-profiles/50-statecomparisonjudicial-expungement-sealing-and-set-aside/.
See also infra note 64, pointing out that five of the states that offer no judicial record relief
for felony convictions are ones where pardoning is frequent and leads to expungement.
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pardoning still thrives as an integral part of the justice system.59 In most of these
states, the pardon power is either shielded from politics by institutional design or
sanctioned by custom. Ordinary people who can demonstrate their rehabilitation
have a good chance of official forgiveness,
obtaining relief from legal disabilities and
In a significant number of
certification of their rehabilitation and good
states (18) the practice of
character. In more than half of these 18 states,
pardoning still thrives as
pardon now leads to expungement of the
an integral part of the
record. In four additional states, the pardon
justice system
power appears to be in the early stages of a
revival.60
Not surprisingly, in most of these 18 states, the governor either has little or no
involvement in pardoning or is required to seek (and in some cases required to
follow) the advice of other officials.61 In six of the 18 states (Alabama, Connecticut,
Georgia, Idaho, South Carolina, Utah) the pardon power is exercised in most or all
cases by an independent board of appointed officials. In five of those six states, the
power derives from the state constitution. (In Connecticut, the power to pardon has
since colonial times remained within the legislature’s control, so that pardoning is
both authorized and limited by statute.) In all six of these independent board states,
standards are clear, pardoning is frequent and regular, administered through a
transparent public process. Procedures are regular and relatively accessible, and a
high percentage of applications are granted. In Alabama, Connecticut, Georgia, and
South Carolina, hundreds of pardons are granted each year to people convicted of
garden variety crimes who are seeking to mitigate the harsh lingering consequences
of conviction. For example, in 2019 the Alabama board granted 889 pardons, or 80%
of eligible applications, and the Connecticut board granted 593, or 80% of
applications considered. Idaho gets fewer applications but grants a high percentage

The 18 states are Alabama, Arkansas, California, Connecticut, Delaware, Georgia, Idaho,
Illinois, Louisiana, Minnesota, Nebraska, Nevada, Oklahoma, Pennsylvania, South Carolina,
South Dakota, Utah, and Virginia.
59

Colorado, Ohio, Washington, Wisconsin.

For more detail about the organization and authority of the pardoning authority in these
18 states, see the individual state profiles in the Restoration of Rights Project, and Love et al.,
supra note 41, at §§ 7:8 through 7:11.
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of them. Utah for many years preferred to rely on a broad expungement remedy, but
a recent tightening of the expungement process has produced a demand for
reinforcement from the state pardon board.
In another eight of the 18 states where pardons are frequent, the governor sits on a
board with other high-level officials (Minnesota, Nebraska,62 Nevada), or shares
power with an appointed “gatekeeper” board whose affirmative recommendation is
necessary before the governor may act (Delaware, Louisiana, Oklahoma,
Pennsylvania, South Dakota). In these states pardon remains a viable form of relief,
and pardoning occurs at regular intervals through a public process: Delaware
and Pennsylvania are the stars of this category, but the governors of Oklahoma and
South Dakota have traditionally also pardoned generously, and Louisiana’s current
governor has revived pardoning in that state. The three boards that include the
governor as a member hold regular public hearings and grant a substantial
percentage of the applications they hear.
In the final four of the 18 states, the governors are less constrained by regulation, but
they have authorized advice available to them. The governors of Illinois and Arkansas
have customarily relied on a board’s recommendations produced by a formal process,
though they are not required to do so. The governors of California and Virginia have
also pardoned generously in recent years, though without the same degree of
structure and transparency in their advisory system. But since the constitutions of
both states require the governors to make a formal annual report to the legislature
on their pardons, there is at least at least a post-hoc system of accountability in place.
A regular process facilitates regular pardoning, but it does not guarantee it. For
example, interest in pardoning in California, Florida, Illinois, Louisiana, Maryland, and

Nebraska’s pardon board has in past years been among the most prolific in the country
but staffing changes in 2019 led to a reduced hearing schedule and a sharp reduction in the
number of grants that year. In early 2020 the legislature considered passing a statute that
would require the board to meet more regularly and was told that the board would shortly
return to a more regular schedule. See Paul Hammel, Nebraska Pardons Board met only twice
last year, denying people ‘a fresh start,’ senators told, Omaha World Herald (Jan. 27,
2020), https://www.omaha.com/news/state_and_regional/nebraska-pardons-board-metonly-twice-last-year-denying-people/article_1c1e0fbe-fc5a-579a-81d0af4a65f7bb02.html. At the time of this report, only a handful of pardons had been issued in
2020.
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Ohio has waxed and waned depending upon the predilections of the incumbent
governor. The current governors of California, Illinois and Louisiana have been
enthusiastic pardoners, but the power is still in a waning phase in Florida, Maryland,
and Ohio. Texas and Arizona, both of which have a well-regulated process and
“gatekeeper boards” that control who the governors may pardon, have in recent years
seen, respectively, very few pardons and no pardons at all.
Beyond the 18 states that pardon on a frequent and regular basis, there are another
three where recent efforts to revive the process are promising. Wisconsin’s governor
has re-established that state’s pardon advisory board and began issuing grants in the
fall of 2019 after a 9-year hiatus during which his processor expressed disdain for
pardons and granted none at all, Colorado’s governor has also taken some steps to
reinvigorate that state’s process, and Ohio’s current governor has enlisted two local
law schools to supplement state agencies in developing an “expedited pardon
project.”63 Washington’s recent governors have shown some interest in pardoning,
but grants have been irregular and sparing. In the other 28 states, the District of
Columbia, and the federal system pardoning takes place, if at all, in an ad hoc and
unreliable fashion.

In December 2019, Governor Mike DeWine announced the Expedited Pardon Project, a
collaboration between the Governor’s Office and the Drug Enforcement Policy Center at Ohio
State University and the Reentry Clinic at The University of Akron School of Law. This project
aspires to expedite the process by which people apply for a pardon under Ohio’s laws, and
will enlist law students to assist in preparing pardon applications. The Ohio Department of
Corrections will conduct background investigations of applicants referred by the Project, and
the Parole Board will then hold a hearing for each applicant, during which victims, judges
and prosecutors involved with his or her case can offer their thoughts. The Parole Board will
then vote the same day about whether to recommend clemency to the governor. See Jeremy
Pelzer, Gov. Mike DeWine creates streamlined pardon process to help Ohio
offenders, Cleveland.com, Dec. 3, 2019, https://www.cleveland.com/open/2019/12/govmike-dewine-creates-streamlined-pardon-process-to-help-ohio-ex-offenders.html.
63

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Until relatively recently, the relief offered by a pardon in most states added an
executive certification of rehabilitation and good conduct to a person’s record, but it
did not seal or expunge it.. In this way, pardon functioned to supplement a person’s
record, not to revise it like sealing or set-aside. But in a
growing number of states, a full pardon now entitles the
recipient to judicial expungement (either upon application
In a growing
or automatically, depending on the state). Indeed, in 10 of
number of states,
the 18 “frequent and regular” states (Arkansas,
a full pardon
Connecticut, Delaware, Georgia, Louisiana, Nebraska,
now entitles the
Oklahoma, Pennsylvania, South Dakota, and Utah) a
recipient to
pardoned conviction is either automatically sealed or is
expungement
presumptively eligible for sealing. In an eleventh state,
Illinois, the governor may specifically authorize this
additional judicial relief. Pardon is uniquely valuable to
people with felony records in five of these 10 states (Connecticut, Georgia, Nebraska,

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Pennsylvania, and South Dakota), because they otherwise offer no judicial recordsealing for felony-level convictions.64
Sealing or expunging the record of a pardoned conviction is authorized in another
nine states: Indiana, Kentucky, Maryland (non-violent first offenses), Massachusetts,
New Jersey, Oregon, Tennessee, Texas, and West Virginia (one year after pardon and
at least five years after discharge, with certain exceptions for violent crimes). In
Washington, pardons result in automatic vacatur and nondisclosure of administrative
records, but petitions to seal court records are subject to a balancing test. Maine treats
pardoned convictions like non-conviction records subject to non-disclosure rules.
In addition to providing record relief to individuals, pardon has in recent years also
been enlisted to advance criminal justice reforms on a broader basis in a number of
states. The governors of several states, including Colorado, North Dakota, and
Washington, have used their pardon power to deliver record relief to people
convicted of marijuana possession before its decriminalization, and the Colorado
legislature even passed a law authorizing class-wide pardon relief.65 The Nevada
Board of Pardons Commissioners passed a resolution at the request of that state’s
governor automatically pardoning approximately 15,000 people convicted of
possessing one ounce or less of marijuana between 1986 and 2017.66 The legislature
in Illinois also gave the governor’s pardon power a part to play in Illinois’ marijuana
sealing effort.67 The governors in Iowa, Kentucky, New York, and Virginia have used
their power to limit felony disenfranchisement on a class-wide basis.
It seems unfortunate but unsurprising that in more than half the states pardoning has
been sporadic or rare since the 1980’s. Many of these states have no formal statutory
advisory process in place, so the governor has no institutional encouragement to

See 50-state chart, “Authority for Expunging or Sealing Convictions,” supra note 57.

See Colo. Rev. Stat. § 16-17-102(2).

The form issued by the Board for grantees to apply for documentation evidencing the
pardon is at http://pardons.nv.gov/uploadedFiles/pardonsnvgov/draft%20marijuana.pdf.
66

67 Illinois established a tiered procedure to deal with marijuana arrests and convictions,

with non-conviction records sealed automatically by the State Police, “minor cannabis
offenses” made eligible for expungement through a streamlined pardon process, and
more serious marijuana offenses required to petition for relief from the court. See Ill.
Comp. Stat. Ann. 2630/5.2(i)(2).
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engage in what may seem a politically risky activity. In two of the states in this
category (Mississippi and Kentucky) the pardon power was notoriously abused when
out-going governors made hundreds of controversial grants, confirming popular
suspicions about the corruptibility of the pardon power. In a few others, notably
Rhode Island and New Hampshire, the constitutional limits on the governor’s power
almost guarantee few pardon grants. But successive governors of Alaska, Kansas,
Massachusetts, and North Carolina, who have issued almost no pardons since the
mid-1990s, do not have the same excuse. They are not among the few states whose
governors have no authority from the legislature to seek official assistance in their
pardoning (Maine, Oregon, and Wisconsin). A full thirty states require the pardoning
authority to report annually to the legislature on their grants, frequently with
reasons, including Oregon and Wisconsin.68
The governor of Maine is joined only by the
president of the United States in having no
The federal pardon
statutory support for his pardoning and no
process has steadily
declined in productivity
obligation to account for it. The federal pardon
and reputation over the
process housed in the Department of Justice has
past thirty years
steadily declined in productivity and reputation
over the past thirty years,69 though it has been
ignored almost entirely by the current president
through no apparent fault of its own. Overall, the number of presidential pardons
granted in the past twenty years is small considering the volume of applications filed
each year, and there has been only one presidential pardon granted for a D.C. Code
conviction during this period.70

See 50-state chart, “Comparison of Pardon Policies,” Restoration of Rights Project,
https://ccresourcecenter.org/state-restoration-profiles/50-statecomparisoncharacteristics-of-pardon-authorities-2/.
68

See generally Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. CRIM. L. &
CRIMINOLOGY 1169, 1193-2000 (2010). See also Love, Obama’s Clemency Legacy: An
Assessment, 29 FED. SENT. RPTR 271 (2017).
69

70 In 2018 the D.C. City Council authorized an independent pardon advisory process for those

convicted of D.C. Code offenses, in an apparent effort to avoid an advisory process at the
Justice Department that historically has been unfriendly to D.C. Code petitioners, but nothing
appears to have come of it. See D.C. Code § 24-481.01 et seq.
33

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In summary, in 18 states a person may file a pardon application with a reasonable
expectation of success. There are signs that pardoning may revive in another three
states, and hope springs eternal that future governors in other states will want to
employ this uniquely personal power to help their constituents and advance the cause
of criminal justice reform. But it seems premature to count any but the 18 as having
a fully functional and reliable pardon process for present purposes. So, there are 32
states in which pardon cannot be counted on to provide record relief for anyone
convicted of a felony.
To be sure, in 24 of these 32 states there is some
alternative individualized judicial record relief for
There are 10
felony-level offenses: nine of the 32 offer sealing or
jurisdictions in which
expungement for many felonies,71 another 12 offer
neither executive nor
relief for a single felony (usually a first felony
judicial relief is reliably
offense),72 Arizona offers set-aside for most
available to people
felonies, and New York and New Jersey restore
convicted of a felony.
rights though judicial and administrative
certificates. But still and all, that means that there
are 10 U.S. jurisdictions – eight states, the District of Columbia, and the federal system
– in which neither executive nor judicial record relief is reliably available to people
convicted of a felony.73

Colorado, Indiana, Kansas, Maryland, Massachusetts, New Mexico, North Dakota, Oregon,
and New Hampshire. See the first column of the 50-state chart, “Authority for Expunging or
Sealing Convictions,” supra note 57.
71

See id., second column (all listed states except but Delaware and Utah).

The eight states are Alaska, Florida, Hawaii, Iowa, Maine, Montana, Texas, and Wisconsin.
Note that a few of these states provide for specialized relief for, e.g., youthful first drug
offenses, prostitution convictions by victims of human trafficking.
73

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Report Card: Pardon
The following report card grades each state, D.C., and the federal government on their
pardon policy and practice.
AL
AK
AZ
AR
CA
CO
CT
DE
DC
FL
GA
HI
ID

B
F
F
A
B
C
A
A
F
F
A
F
B

IL
IN
IA
KS
KY
LA
ME
MD
MA
MI
MN
MS
MO

A
F
D
F
D
A
F
F
F
F
B
F
F

MT
NE
NV
NH
NJ
NM
NY
NC
ND
OH
OK
OR
PA

F
C
B
F
F
F
D
F
D
C
A
D
A

RI
SC
SD
TN
TX
UT
VT
VA
WA
WV
WI
WY
Fed

F
A
B
F
F
B
F
B
D
F
B
F
F

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B. Expungement, Sealing & Set-Aside of Convictions
Tens of millions of Americans have been convicted of a felony or misdemeanor. 74 This
number has grown substantially in the last four decades as a result of the policies of
“mass incarceration” and so-called “war on crime,” with disproportionate impacts on
black and brown people.75 The vast network of collateral consequences that can flow
from a conviction in the modern era has been described as a new form of “civil
death.”76 In addition to formal consequences, widespread dissemination of criminal
records online and in background checks operates as a form of “digital punishment.” 77
In the current era of restoration of rights reforms that begin in 2013, advocates and
policymakers have been most active in efforts to authorize or improve laws for
expunging, sealing, and setting-aside convictions.78 At a minimum, such remedies
promise to alleviate stigma and discrimination produced by a record in social and
economic contexts.79

See J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study,
133 HARV. L. REV. 2460, 2461-62 (2020) (estimating between 19 and 24 million Americans
have felony convictions and an unknown “but presumably larger” number have
misdemeanors), citing The Economic Impacts of the 2020 Census and Business Uses of Federal
Data: Hearing Before the J. Econ. Comm., 116th Cong. 12 (2019) (Nicholas Eberstadt); Sarah
K.S. Shannon et al., The Growth, Scope, and Spatial Distribution of People with Felony Records
in the United States, 1948–2010, 54 DEMOGRAPHY 1795, 1806 (2017); Megan Stevenson &
Sandra Mayson, The Scale of Misdemeanor Justice, 98 B.U. L. REV. 731, 746 n.81 (2018).
74

See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF
COLORBLINDNESS (2d ed. 2011); James Forman, Jr., Racial Critiques of Mass Incarceration:
Beyond the New Jim Crow, 87 N.Y.U. L. REV. 21 (2012); Heather Schoenfeld, The War on Drugs,
the Politics of Crime, and Mass Incarceration in the United States, 15 J. GENDER RACE & JUST. 315
(2012).
75

Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction,
160 U. PA. L. REV. 1789, 1811–14.
76

See Sarah Lageson, The Purgatory of Digital Punishment (Aug. 17, 2020),
https://ccresourcecenter.org/2020/08/17/the-purgatory-of-digital-punishment/.
77

See https://ccresourcecenter.org/resources-2/resources-reports-and-studies/.

It is not clear the extent to which they remove formal consequences such as firearm
dispossession and registration. See Love, et al., supra note 41 § 7:17. Federal law frequently
does not accord any legal effect to state expungement or record-sealing. See infra note 110.
79

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Expungement and sealing laws restrict access to criminal records and sometimes
even provide for their destruction.80 Set-aside laws authorize a court to “vacate” a
conviction in order to signal a person’s rehabilitation, relief that may or may not be
followed by sealing the record.81 Studies have shown that people who obtain recordsealing and set-asides experience improved employment outcomes and low
recidivism rates.82 We call these remedies “record-revising” to distinguish them from

States use various other terms to describe restrictions on access to records, including
annulment (New Hampshire) and erasure (Connecticut), but for simplicity this report settles
on the generic terms expungement and sealing and uses them interchangeably unless a more
specific meaning is indicated. The functional effect of these remedies also varies by state. In
some, records remain available only to law enforcement, which is sometimes required to
obtain a court order. In others, public employers and licensing boards may have access, or
private entities authorized by law to conduct a background check (e.g. for working with
vulnerable populations). In Indiana, an expungement does not limit access to the record of
most felonies, although expunged misdemeanors and non-conviction records are sealed. In
some states, “expungement” is indistinguishable from “sealing” (e.g., Louisiana, Kansas,
Rhode Island, Vermont), and in others they are functionally distinct remedies (e.g., Illinois,
Pennsylvania). In a few states the law directs expunged records to be destroyed (e.g.,
Connecticut, Illinois Maryland, Montana, Pennsylvania, North Carolina), but even in these
states non-public copies are ordinarily retained in a court file.
80

States have increasingly enacted laws to augment set-aside with sealing (i.e., California,
New Hampshire, Oregon, Washington), such that only two states (Arizona and Nebraska)
now retain the pure vacatur remedy contemplated by § 306.6 of the Model Penal Code.
81

See Prescott & Starr, supra note 74 at 2461, 2510-43 (large empirical study finding that
people in Michigan who have their conviction set-aside and sealed have “extremely low”
subsequent crime rates; an expungement “quite likely” reduces recidivism risk; and those
who obtain it experience higher wages and employment rates); Jeffrey Selbin, Justin
McCrary, & Joshua Epstein, Unmarked? Criminal Record Clearing and Employment Outcomes,
108 J. CRIM. L. & CRIMINOLOGY 1, 9 (2018) (finding evidence of improved employment and
earnings in a sample of clinic clients who received a California set-aside or felony reduction);
but see Jennifer Doleac & Sarah Lageson, The Problem with ‘Clean Slate’ policies: Could
broader sealing of criminal records hurt more people than it helps?, Niskanen Center (Aug. 31,
2020) (arguing that sealing official records is unlikely to truly hide criminal history because
employers can obtain it online; and if records are not available, this may lead employers to
use racial stereotypes about who may have a record, as with “ban the box”),
https://www.niskanencenter.org/the-problem-with-clean-slate-policies-could-broadersealing-of-criminal-records-hurt-more-people-than-it-helps/.
82

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the “record-supplementing” remedies of executive pardon and judicial certificates of
relief discussed in other sections of this chapter.
States in recent years have passed dozens of laws authorizing record-revising relief,
some for the first time. Other states have continued to expand existing eligibility
criteria and/or improve procedures.83 Despite the pace of
reform, the law remains uneven. In many states and for
Only a small
many types of convictions, eligibility is restrictive,
percentage of
procedures are burdensome, and effect is uncertain.84
those who are
Moreover, only a small percentage of those who are
eligible for relief
eligible for relief actually obtain it. Scholars attribute this
actually obtain it.
“second chance gap”85 to multiple factors, including lack
of information, cost and complexity of procedures,
absence of counsel, and distrust of the legal system.86 In addition, people who are
made to wait up to a decade or more after finishing their sentence to become eligible
to apply may have little or no incentive to do so. Even if people do obtain relief, they

See supra note 78. In 2019 alone, 27 states and D.C. made certain classes of convictions
newly eligible for expungement, sealing, or vacatur relief. Five of those states enacted their
first general authority for expunging or sealing convictions (North Dakota, New Mexico, West
Virginia, Delaware, Iowa), making record relief available for the first time to thousands of
people. See CCRC, Pathways to Reintegration: Criminal Record Reforms in 2019, 11 CCRC (Feb.
2020),
https://ccresourcecenter.org/wp-content/uploads/2020/02/Pathways-toReintegration_Criminal-Record-Reforms-in-2019.pdf.
83

84 See id; see also Brian Murray, Retributive Expungement, 169 Pa. Law Rev. ___ (Forthcoming

2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3617875 (arguing that
because expungement was originally conceived through a rehabilitative framework, , many
procedural hurdles in the law were intentionally designed to channel relief to those with
unusual records of achievement; and suggesting that a retributive approach would support
the case for broader eligibility, an obligation on the state to prove ineligibility, and
automated relief. )
Colleen V. Chien, America’s Paper Prisons: The Second Chance Gap, Mich. Law. Rev. ___
(Forthcoming 2020).
85

Prescott & Starr, supra note 74 at 2461, 2486-2510 (finding that among those legally
eligible for set-aside and sealing in Michigan, only 6.5% obtain it within five years of
eligibility; proposing the likely reasons for this low uptake rate).
86

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typically face daunting challenges in trying to make it effective, including trying to
have expunged records removed from the internet and commercial databases. 87
There are few best practices or model laws addressing these forms of relief. While
national law reform organizations have endorsed judicial certificates that dispense
with mandatory collateral consequences and signal rehabilitation, none has endorsed
record-sealing or set-aside.88 With the lack of national guidance, state laws differ
widely. The following discussion is an overview of
diverse approaches, with grades assigned at the
None of the national law
end of the section for misdemeanor and felony
reform organizations
sealing and set-aside provisions in each state.
has endorsed recordReaders wishing more specific information are
sealing or set-aside
invited to consult the appendices and the
Restoration of Rights Project.
We begin by describing the broad structural categories of record-revising relief
currently in effect across the country, then turn to more specific eligibility criteria,
procedural requirements (including judicial standards), and legal effect. At the end of
the section we grade each jurisdiction’s law on its scope, accessibility, and effect. We
decided to give separate grades for felonies and misdemeanors, since some states
with strong misdemeanor sealing laws did relatively little for felonies.

See, e.g., Alessandro Corda and Sarah E. Lageson, Disordered Punishment: Workaround
Technologies of Criminal Records Disclosure and the Rise of a New Penal Entrepreneurialism,
60 British Journal of Criminology 245–64 (March 2020).
87

The collateral consequence relief proposals of the American Bar Association (2003),
Uniform Law Commission (2010), and American Law Institute (2017), are discussed in the
section on judicial certificates. The 1962 Model Penal Code endorsed set-aside, and the 1983
ABA Standards endorsed expungement, but neither organization included this relief in their
more contemporary proposals. The only model policies on sealing convictions were
published in 2019 by a California nonprofit, suggesting four principles: relief should (1)
include an automatic relief mechanism; (2) come at or soon after the end of sentence; (3) be
focused to maximize safety; and (4) extend to a wide spectrum of offenses. LENORE ANDERSON
ET. AL, CREATING MODEL LEGISLATIVE RELIEF FOR PEOPLE WITH PAST CONVICTIONS, ALLIANCE FOR
SAFETY
AND
JUSTICE
(2019),
https://allianceforsafetyandjustice.org/wpcontent/uploads/2019/09/Model-Policies-Brief.pdf.
88

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Scope of relief by category
Looking at record-revising relief for convictions, the 50 states, federal system, and
District of Columbia can be divided into five categories:
(1)
(2)
(3)
(4)
(5)

broader felony and misdemeanor relief (13 states)
limited felony and misdemeanor relief (21 states)
relief for pardoned convictions and for misdemeanors (4 states)
misdemeanor relief only (4 states and D.C)
no general conviction record-revising relief (8 states, federal system)

More than two-thirds of the states (34) now have laws that extend eligibility for
record-revision to both misdemeanor and felony convictions, apart from the pardon
process. Six states have joined this list in the last two years alone: Oklahoma and
Maryland extended sealing eligibility to felonies in 2018, and four of the five states

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that enacted their first general sealing laws in 2019 extended relief to felonies (North
Dakota, New Mexico, West Virginia, Delaware).
Of this group of 34 states, 13 have broad eligibility standards that encompass a
relatively wide range of convictions.89 An additional 21 states have more limited
eligibility, typically excluding many offenses, with longer waiting periods, and other
requirements (e.g., 14 of the 21 states confine felony eligibility to a single
conviction).90 States often apply different standards for felonies and misdemeanors
so that some with restrictive felony expungement have quite generous misdemeanor
relief (e.g., Kentucky, New Jersey).
The next group of four states allows felonies to be expunged, but only if they have first
been pardoned.91 Connecticut relies exclusively on the pardon power to seal
conviction records, but the other three states (Georgia, Pennsylvania, and South
Dakota) also have misdemeanor expungement laws that do not require a pardon.
South Dakota’s 2016 law was the nation’s first automatic conviction-sealing law,
although it applies only to Class 2 misdemeanors after a 10-year waiting period.92
Pennsylvania’s more expansive Clean Slate Act of 2018 put automatic sealing on the
map, making a wide range of misdemeanor convictions eligible, also after a ten-year
waiting period, and a somewhat broader set of misdemeanors may be sealed by
petition. A 2020 Georgia law—in addition to allowing pardoned convictions to be

Arizona, Arkansas, Colorado, Illinois, Indiana, Kansas, Massachusetts, Minnesota, Nevada,
New Hampshire, New Mexico, North Dakota, and Washington. All seal convictions except
Arizona, which has a broad set-aside authority that releases the person from “all penalties
and disabilities” resulting from the conviction but does not limit public access to the record.
Ariz. Rev. Stat. § 13-90.
89

California, Delaware, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri,
Nebraska, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island,
Tennessee, Utah, Vermont, West Virginia, and Wyoming. All seal convictions except
Nebraska, which authorizes people sentenced to probation to petition for the conviction to
be set-aside, removing “all civil disabilities and disqualifications.” Neb. Rev. Stat. § 29-2264.
90

Relief for pardoned convictions is automatic in three states (Connecticut, Pennsylvania
and South Dakota) and by court petition in Georgia. As noted in the previous section on
pardon, about a dozen additional states make pardon grounds for expungement. Those
states all have separate laws allowing at least some felony and misdemeanor convictions to
be expunged or set-aside even if they have not been pardoned.
91

It also covers petty offense and municipal code violations. S.D. Codified Laws § 23A-3-34
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sealed—authorizes “record restriction” and sealing for a range of non-violent
misdemeanor offenses after four conviction-free years, allowing up to two such
convictions to be sealed in a lifetime.
The next group of jurisdictions allows some misdemeanors but no felony convictions
to be expunged (Iowa, Montana, South Carolina, Texas, and D.C.).93 Even for
misdemeanors, all but one of these authorities are relatively limited. Most restrictive
is Iowa’s 2019 law, which makes only a single misdemeanor eligible if 8 years have
passed since completion of sentence, if the person has no other convictions, and if
additional requirements are satisfied.94 D.C.’s law excludes many offenses and has a
long waiting period, and Texas and South Carolina make prior convictions or
diversion disqualifying. More favorably, Montana allows multiple misdemeanors to
be expunged, with a presumption in favor of relief for most offenses, although only
one expungement is allowed in a lifetime.95
The last group of eight states and the federal system lack any general conviction relief,
although (like other states) most have narrow, specialized laws, applicable to minor
marijuana convictions (Hawaii96 and Virginia) or to victims of human trafficking
(Alabama, Hawaii, Idaho, Florida, and Wisconsin).97
Illinois’ sealing law is most expansive in the country. It extends eligibility to all but a
few very serious felonies without regard to an applicant’s prior record, after a
uniformly brief three-year waiting period. Massachusetts, Nevada and North Dakota
also offer sealing for most felonies after slightly
longer waiting periods, and Arizona permits its
Illinois’ sealing law is
courts to “set-aside” or “vacate” most convictions
the most expansive
upon successful completion of sentence and
in the country
discharge, but it does not restrict public access to the

D.C. does make a single felony offense eligible for sealing: felony failure to appear. D.C.
Code § 16-803.
93

Iowa Code § 901C.3.

Mont. Code Ann. § 46-18-1102, et seq.

Hawaii also authorizes expungement of first or second drug possession violations. Haw.
Rev. Stat. § 706-622.5.
96

Alabama, Alaska, Florida, Hawaii, Idaho, Maine, Virginia, and Wisconsin.
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record. Among the states that extend record-revision to felonies, Maryland is at the
other end of the spectrum,98 authorizing expungement for only three specific felonies
(theft, burglary, and drug possession with intent to distribute), after a 15-year
conviction-free waiting period.99 Between these extremes, there are as many differing
approaches as there are states, with scope generally dependent on seriousness of the
offense, and eligibility often dependent on prior record and the passage of time. These
differing approaches, captured in the grading system that follows this section, can be
seen in the state-by-state summaries appended to this report. They are examined in
detail in the state profiles from the Restoration of Rights Project.
Beyond the general expungement, sealing, and set-aside laws that are the subject of
the report cards that conclude this chapter, many states have enacted specialized
authorities, often for the two categories already discussed: marijuana offenses and
convictions of victims of human trafficking, as well as for youthful offenses. A total of
18 states and D.C. have enacted relief specifically for marijuana, decriminalized, and
legalized offenses, including automatic relief in California, Illinois, New Jersey, New
York, and Virginia.100 At least 35 states have a specialized relief law for victims of
human trafficking—sometimes covering prostitution offenses only and sometimes
covering any offenses resulting from victim status.
Several states also authorize their courts to reduce certain felony convictions to a
misdemeanor, thereby avoiding the most severe consequences of conviction (e.g.,
California, Idaho, Indiana, Oklahoma, and North Dakota).

The D.C. sealing law’s coverage of one felony (failure to appear) is too unique to be an
appropriate bookend.
98

Many misdemeanors can also be expunged, but a 10- or 15-year conviction-free waiting
period applies (marijuana possession sealing has a 4-year period and certain nuisance
crimes have a 3-year period). Md. Code Ann., Crim. Proc. § 10-105. “If the person is convicted
of a new crime during [the applicable waiting period], the original conviction or convictions
are not eligible for expungement unless the new conviction becomes eligible for
expungement.” Id. § 10-110(D)(1).
99

See 50-State Comparison: Marijuana Legalization, Decriminalization, Expungement, and
Clemency, Restoration of Rights Project, https://ccresourcecenter.org/state-restorationprofiles/50-state-comparison-marijuana-legalization-expungement/.
100

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Additional eligibility requirements
In addition to basic limits on coverage, state laws impose a variety of more specific
eligibility requirements, especially for felonies. Typically, certain categories of
offenses will be excluded (i.e. higher classes of offenses, DUI, violence, sex, weapons,
etc.), or certain people will be excluded based on their past or subsequent criminal
record, including prior sealings, pending charges, probation violations, or sex
offender registration requirements. Some states make record-closing a one-bite
affair, including states with broad and sophisticated
schemes like Indiana and Illinois. A number of
Waiting periods of a
states have waiting periods of a decade or more,
decade or more would
which would seem at odds with stated legislative
seem at odds with
goals of reducing recidivism.101 We considered
legislative goals of
these and other more specific eligibility
reducing recidivism
requirements in deciding how to grade each state’s
law in the report card at the end of this section.
Most states require the satisfaction of various forms of court debt, such as fines, fees,
restitution, and costs, as a prerequisite to expungement.102 Recognizing the
unfairness of restricting relief to those with means to pay financial obligations, three

For example, by the time someone has satisfied the ten crime-free years after completion
of sentence required by both New York and Louisiana, and the 15 years required by
Maryland, they would appear to be in little jeopardy of subsequent conviction.
101

Recent advocacy has highlighted the extent to which many people lack the ability to pay
these
obligations.
See,
e.g.,
Fines
and
Fees
Justice
Center,
https://finesandfeesjusticecenter.org/. A 2018 study of California residents with
convictions found that 45% struggle to pay fines and fees. REPAIRING THE ROAD TO REDEMPTION
IN CALIFORNIA, CALIFORNIANS FOR SAFETY AND JUSTICE (2018), https://safeandjust.org/wpcontent/uploads/CSJ_SecondChances-ONLINE-May14.pdf. Earlier this year, the federal
district court in a major Florida voting rights case found that—of hundreds of thousands of
people with a felony conviction who had served all their custody and supervision time, but
still owed financial obligations—the “overwhelming majority” were “genuinely unable to
pay” the owed amounts. Jones v. DeSantis, Case No. 4:19cv300-RH/MJF, 2020 WL 2618062,
at *15 (N.D. Fla. 2020).
102

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states have enacted laws since 2018 to alleviate these requirements in the
expungement process (Illinois, New Jersey, Washington).103
In state after state, eligibility criteria are curiously complex, the evident result of
expansion and contraction through the legislative bargaining process over a period
of years.104 It is not surprising that among the cleanest and broadest sealing laws in
the country are the top-to-bottom schemes enacted in 2019 by New Mexico and North
Dakota.105
Procedural barriers
Expungement petitions are frequently difficult, time-consuming, and expensive to
prepare, especially without a lawyer. Typically, they require collection of various
criminal history records and character evidence, formal service on multiple parties,
filing fees, responses to objections, appearances at hearings, service of expungement
103 In 2018, Illinois prohibited courts from denying sealing or expungement petition because

the petitioner had not satisfied an outstanding financial obligation by a court or local
government, except that restitution to victims may be considered unless it was converted to
a civil judgment. Ill. Comp. Stat. Ann. 2630/5.2(e)(6)(C). In 2019, Washington state modified
its laws so that a person need not have satisfied financial obligations to obtain a certificate
of discharge (a prerequisite for sealing), as long as all other requirements of the sentence are
satisfied and five years have passed since completion of supervision. Wash. Rev. Code § §
9.94A.637(4). In 2019, New Jersey allowed courts, when considering expungement petitions,
to waive financial obligations or convert them to civil judgments. N.J. Stat. Ann. § 2C:522(a)(1).
For example, Minnesota limits felony sealing to a list of 50 offenses ranging from
aggravated forgery to livestock theft. Maryland has a long list of crimes eligible for
expungement, and another list eligible for “shielding” (sealing) at an earlier date.
In Oregon closure is available for many non-violent misdemeanors and less serious felonies,
but only if the individual has not been convicted in the previous 10 years (or ever, if the
record for which closure is sought is a Class B felony) nor arrested within the previous three
years. Missouri’s 2017 sealing law permits closure of a significant number of felony and
misdemeanor offenses, with seven years conviction-free waiting periods after completion of
sentence for felonies and three years for misdemeanors; only one felony and two
misdemeanors convictions are eligible for closure in a person’s lifetime. In New York and
Michigan, many felony offenses may be sealed, but each applicant may only seal one felony
conviction, and only if the person has no prior felonies (as well as less than 2 misdemeanors
in New York, or less than 3 in Michigan).
104

105

See supra note 83.
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orders on courts, agencies, and private parties, etc. These
challenges have been compounded by limits on and dangers
of physical access to courthouse and agencies during Covid19. Ironically, the governor of Washington vetoed a bill
calling for automatic relief precisely because of pandemicrelated budgetary challenges, although such a measure
would have reduced the need for in-person procedures.106

RECORD RELIEF

Expungement
petitions are
difficult, timeconsuming,
and expensive

Even aside from fees charged to obtain criminal records and run fingerprint checks,
filing fees in a number of states may be prohibitively high and unwaivable petitions
are frequently ($300 in Kentucky and Alabama), while in other states fees have been
reduced (from $450 to $280 to $100 in Tennessee) or may be waived. Some courts
and agencies have made efforts to assist persons of limited means: Illinois courts and
the Office of the State Appellate Defender, for example, publish model forms and
instructions for different types of cases and provide guidance for those seeking relief.
Once a petition is filed, the court may be required to hold a hearing in all cases (e.g.
Michigan), for felony offenses (e.g. Arkansas), if the prosecutor or victim objects (e.g.
Maryland), or at the court’s discretion (e.g. Delaware). Relief for eligible applicants
may be mandatory, presumed, dependent on the court’s discretion, or require a
strong showing of need. In some cases, the law specifies criteria to guide a court’s
decision (e.g., Georgia: “the harm otherwise resulting to the individual clearly
outweighs the public’s interest in the criminal history record information being
publicly available”). In others the court’s discretion is unlimited (e.g., New
Jersey), and in still others sealing is mandatory if statutory eligibility criteria are met
(e.g., Indiana, Kentucky, Louisiana). In Utah, where most felonies may be expunged
after a graduated waiting period, an order must issue unless the court finds that this
would be “contrary to the public interest.”
The enactment of laws requiring officials to automatically seal some convictions
would obviate the need for individuals to apply for relief and thereby avoid the many
access barriers that currently depress grant rates and produce the “second chance

106 Rachel M. Cohen, Washington Governor Vetoes Bill That Would Have Automatically Cleared

Criminal
Records,
The
Appeal
(May
19,
2020),
https://theappeal.org/politicalreport/washington-governor-vetoes-clean-slate-bill/.
46

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gap.”107 Since 2018, eight states have enacted laws providing for automatic sealing of
certain convictions (usually misdemeanors).108 Most significantly, beginning in early
2021 California will automatically seal all convictions previously granted relief under
the state’s longstanding set-aside authority for misdemeanors and certain low-level
felonies, as well as similar convictions going forward. There have been efforts in other
states to streamline the sealing process short of automation through simplified
administrative procedures. For example, Delaware mandates relief for people with
eligible misdemeanors who present themselves to the state record repository with a
set of fingerprints and a copy of their record.109
Effect of relief
The effect of sealing or expungement orders on opportunities restricted by law is
unclear in many states. Some sealing laws specify that they do not relieve firearms
dispossession or sex offender registration, but many leave a recipient in doubt about
their rights and responsibilities where mandatory
restrictions are concerned. It is also true that many
The effect of
record-closing laws purport to authorize a person
expungement orders
to deny having been convicted, but this is perilous
on opportunities
advice when dealing with entities required by law
restricted by law is
to conduct a background check or governed by
unclear in many states
federal law. A few states make clear that expunged
or sealed convictions must be disclosed for
employment requiring a background check (e.g., Illinois, Indiana, Missouri). Kansas

107

See supra notes 85 and 86.

California (certain misdemeanors and low-level felonies; marijuana offenses); Illinois
(certain marijuana offenses); New Jersey (certain misdemeanors and low-level felonies,
including for marijuana); New York (minor marijuana offenses); Pennsylvania (a range of
misdemeanors); South Dakota (minor misdemeanors); Utah (a range of misdemeanors); and
Virginia (minor marijuana offenses). See 50-State Comparison: Expungement, Sealing & Other
Record
Relief,
Collateral
Consequences
Resource
Center,
https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicialexpungement-sealing-and-set-aside/. The Clean Slate Initiative has been a leader in
advocating for automatic relief. See https://ccresourcecenter.org/2020/08/03/the-cleanslate-initiative-a-national-bipartisan-coalition/.
108

109

Del. Code tit. 11, § 4373(a).
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specifically requires disclosure of expunged convictions in certain licensing and
public employment applications (health, security, gaming, commercial driver or
guide, investment adviser, law enforcement), and Missouri has a similar disclosure
requirement for professional licenses, or any employment relating to alcoholic
beverages, the state-operated lottery, or provision of emergency services. Missouri’s
law is one of the few that makes clear that “an expunged offense shall not be grounds
for automatic disqualification of an application, but may be a factor for denying
employment, or a professional license, certificate, or permit.” Some states require that
even non-conviction records that have been expunged must be disclosed in some
contexts (e.g., Alabama, Kansas, Louisiana).
State record relief orders are given inconsistent effect in federal law. Some areas of
law give effect to one form of relief (e.g., expungement) but not to another (pardon),
and vice-versa. Further, whether a specific type of state relief is given effect may differ
depending on how the federal rule defines the requisite elements of relief, and
whether they apply a federal definition of a term like “expungement.” 110
Recipients of relief face also significant challenges with the proliferation of records
on the internet and in commercial databases.111 Certain companies, including those

For example, in the immigration context, a non-citizen may avoid deportation based on
conviction with a “full and unconditional” pardon, but state judicial relief is only recognized
if granted “because of a procedural or substantive defect in the criminal proceedings,” and
not if granted “for equitable, rehabilitation, or immigration hardship reasons.” See 8 U.S.C. §
1227(a)(2)(A)(vi); Prado v. Barr, No. 17-72914, 2020 WL 596877, at *3 (9th Cir. Feb. 3,
2020); Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262 (11th Cir. 2004). There have been
exceptions made to this non-recognition of expungement, including eliminating conviction
as an absolute bar to obtaining Deferred Action for Childhood Arrivals (DACA) status. See
https://www.ilrc.org/sites/default/files/resources/definition_conviction-kb20180307.pdf. The FDIC, in regulating banking employment, until recently only recognized
expungements that were “complete” (meaning the record can never be used for any
subsequent purpose) but new regulations effective September 21, 2020, will give effect to
any expungement or record-sealing. See https://www.govinfo.gov/content/pkg/FR-202008-20/pdf/2020-16464.pdf. On the other hand, the Small Business Administration requires
loans applicants to disclose convictions even if they have been expunged or sealed. See, e.g.,
SBA Standard Operating Procedures 50 10 5(K), pp. 110, 293 (eff. April 1, 2019).
110

See Sharon Dietrich, Ants Under the Refrigerator: Removing Expunged Cases from
Commercial
Background
Checks,
Criminal
Justice
(Winter
2016),
111

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that conduct background checks, are regulated by the federal Fair Credit Reporting
Act (FCRA), whose provisions would seem to prohibit reporting of expunged or
sealed convictions.112 Despite efforts to compel compliance, “[d]eficiencies of
enforcement mechanisms, a certain degree of ambiguity in regulatory guidance, and
practical difficulties in constantly keeping databases up to date make the problem of
inaccurate and outdated criminal records hard to eradicate.”113
Online “people search” services, which collect criminal records and make them
available for a fee, have thus far successfully argued they are “mere information
aggregators” not subject to FCRA by providing disclaimers that users are not to use
the information for decision-making but only “in an information-gathering spirit.”114
Some states have additional protections that supplement FCRA, notably including
California’s Investigative Consumer Reporting Agencies Act, which antedates the
federal statute.115 Indiana’s 2013 expungement law, which post-dates federal FCRA,
prohibits commercial record providers from reporting any expunged convictions
even if they have not also been sealed.116 The Pennsylvania Courts provide a data file
each month listing expunged cases that must be removed from private databases
under the contract for purchasing court records.117

http://ccresourcecenter.org/wp-content/uploads/2017/03/Ants-under-the-Refrigeratorpublished.pdf.
This law requires “reasonable procedures to ensure maximum possible accuracy”—and
in the employment context, unless contemporaneous notice is provide to the person being
screened, the use of “strict procedures” to ensure data is up to date. 15 U.S.C. §§ 1681e(b),
1681k.
112

Alessandro Corda, Beyond Totem and Taboo: Toward a Narrowing of American Criminal
Record Exceptionalism, 30 FED. SENT’G REP. 241, 243 (2018).
113

114

Id.

115

See Cal. Civ. C. § 1786 et seq.

In Indiana, an expungement does not limit access to the record of most felonies, although
misdemeanors and non-conviction records, as well as the records of the least serious
felonies, are sealed following expungement. See Indiana profile, Restoration of Rights
Project; see also CCRC Staff, Indiana’s new expungement law the product of “many, many
compromises,” Dec. 15, 2014, https://ccresourcecenter.org/2014/12/15/indianas-newexpungement-law-product-many-many-compromises/.
116

117

See Dietrich, supra note 111.
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The proliferation of
records on the internet
means that most
expunged convictions
will continue to appear
in Google searches

RECORD RELIEF

With little regulation, the proliferation of records on
the internet means that most sealed and expunged
convictions will continue to appear in Google
searches and persist on websites and databases.118
People lack the time and resources to track down
each place where a record appears on the internet,
or the legal skills “to negotiate with, pay off, or sue
every company” that profits from it.119

The Restoration of Rights Project contains a 50-state summary of expungement,
sealing, and other record relief in each state, with links to specific state profiles that
may be consulted for additional detail.
A note on juvenile delinquency records:
All states provide for sealing or expungement of at least some juvenile delinquency
records, applying procedures and standards that tend to be more favorable to
affected individuals than those applicable to adult records. For example, juvenile
records are more likely to be subject to destruction in many states, as opposed to just
sealing or sequestration, if relief is obtained. Many states also place general limits on
public disclosure of juvenile records apart from any expungement or sealing relief
that may be available.
As with adult conviction records, there is significant variation from state to state on
how expungement and sealing of juvenile records is handled. Some states make
expungement or sealing relief automatic or mandatory, but most make relief
discretionary with the court. Some states require a crime-free waiting period, and a
few require the court to make a finding of rehabilitation. This variation is evident even
among neighboring states. For example, while Montana and Nevada automatically
seal most juvenile records when the person reaches age 18 or 21, respectively, South
Dakota and Wyoming permit sealing/expungement only upon petition, and only after
the court makes a finding of rehabilitation. Similarly, Illinois, Maryland, Virginia, and

118

See Lageson, supra note 77.

119

Id.

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West Virginia make expungement of most juvenile records automatic, while South
Carolina and Georgia require the court to make a finding of rehabilitation.
The individual state profiles from the Restoration of Rights Project includes a brief
discussion of juvenile record relief laws. In addition, the Juvenile Law Center has
published two reports analyzing juvenile record laws in each state.120
Report Card: Expungement, Sealing, and Set-Aside of Convictions
The following report card grades each state, D.C. and the federal system on their laws
providing for sealing or set-aside of felony and misdemeanor convictions. We provide
a separate grade for each type of record, since states that provide little if any remedy
for felony convictions may be expansive toward misdemeanors. Our grades were
somewhat subjective, but in general considered the law’s scope, accessibility
(additional eligibility criteria and procedural barriers), and effect. Note that these
grades may not correspond exactly with the categories in the map earlier in this
section, which were based on structural coverage only. We stress that we have not
studied how each of these laws operates in practice, including how difficult it may be
to apply without a lawyer or how many people apply for and obtain relief, and our
grades therefore may or may not reflect whether and to what extent a particular law
actually delivers on its promise.

See Riya Saha Shah, Lauren Fine & Jamie Gullen, Juvenile Law Center, Juvenile Records: A
National Review of State Laws on Confidentiality, Sealing and Expungement (2014); Riya Saha
Shah, Lauren Fine, Juvenile Law Center, Failed Policies, Forfeited Futures: A Nationwide
Scorecard on Juvenile Records (2014). Both reports are available at
http://juvenilerecords.jlc.org/juvenilerecords/#!/map. See also Joy Radice, The Juvenile
Record Myth, 106 GEO. L. J. 365 (2018) (providing analysis and charts of state laws for sealing
juvenile records). Some recent state-specific resources are collected in Love, et al., supra note
41 §§ 2:68 through 2:77.
120

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AL
AK
AZ
AR
CA
CO
CT
DE
DC
FL
GA
HI
ID
IL
IN
IA
KS
KY
LA
ME
MD
MA
MI
MN
MS
MO

Felonies
F
F
B
C
C
C
B
C
F
F
C
F
F
A
B
F
B
D
C
F
D
A
D
C
D
C

Misdemeanors
F
F
B
A
A
B
C
B
D
F
D
F
F
A
B
D
A
B
C
F
C
A
B
A
B
B

MT
NE
NV
NH
NJ
NM
NY
NC
ND
OH
OK
OR
PA
RI
SC
SD
TN
TX
UT
VT
VA
WA
WV
WI
WY
Fed

Felonies
F
C
A
B
D
A
D
D
A
C
C
D
F
D
F
C
D
F
C
D
F
B
D
F
D
F

RECORD RELIEF

Misdemeanors
B
B
A
A
A
A
D
C
A
B
C
B
B
B
D
C
D
D
B
C
F
B
C
F
D
F

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C. Judicial Certificates of Relief
A growing number of states authorize their courts or parole boards to issue orders or
“certificates” to convicted individuals with the dual purpose of avoiding or mitigating
mandatory bars to employment, licensing, or housing, and providing some
reassurance about the person's rehabilitation to help with discretionary ones. 121
Influenced by the forgiving or dispensing tradition of executive pardon, judicial
certificates do not remove information from a person’s criminal history or limit public
access to the record.122 Rather, generally, they relieve mandatory collateral
consequences and may influence discretionary decision-making through an official
judgment about a person’s reliability and good character. They are frequently
available to individuals who may otherwise not qualify for expungement or sealing,
or at an earlier point in time.
Judicial certificates of relief have been proposed by the American Law Institute in the
revised sentencing articles of the Model Penal Code, by the Uniform Law Commission,
and by the American Bar Association.123 Under the two-step schemes advocated by
these national law reform organizations, limited relief is available at sentencing to
remove specific economic barriers to promote reentry, while more comprehensive

For ease of reference, we include under the general rubric of “judicial certificates” some
that are issued by parole or pardon boards, as in Connecticut, New York, and Rhode Island,
so long as they have some specific legal effect, including but not limited to dispensing with
legal restrictions. State laws authorizing courts to issue certificates of restoration of rights,
variously denominated, are collected and described in § 7:23 of Love, et al., supra note 41.
We have not included certificates issued by prison authorities that signify completion of
training or good behavior while incarcerated because these rarely have the force of law.
121

122 See Margaret Colgate Love, Starting Over with a Clean Slate: In Praise of a Forgotten Section

of the Model Penal Code, 30 FORDHAM URB. L.J. 1705, 1713 (2003) (judicial certificates do not
propose to “rewrite history” but aim instead to “confront history squarely with evidence of
change”).
See Model Penal Code: Sentencing, Final Draft, §§ 7.01 through 7.06 (April 2017),
available at http://ccresourcecenter.org/wp-content/uploads/2015/10/article-6x.pdf;
Uniform Collateral Consequences of Conviction Act, §§ 10 and 11 (2010),
http://www.uniformlaws.org/Act.aspx?title=Collateral%20Consequences%20of%20Convi
ction%20Act; ABA Standards for Criminal Justice, Collateral Sanctions and Discretionary
Disqualification of Convicted Persons, Standard 19-2.5 (“Waiver, Modification, Relief”) (3d
ed. 2004).
123

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relief to signify rehabilitation is available after a further waiting period. The three
model schemes do not propose to seal or otherwise limit public access to the record.
Instead, they aim to provide individuals both incentive and reward for law-abiding
conduct and might be said to satisfy the community’s need for a ritual of
reconciliation. As Jeremy Travis has observed, “[w]e need to find concrete ways to
reaccept and reembrace offenders who have
paid their debt for their offense.”124
“We need to find concrete
Some advocates and practitioners are skeptical
ways to reaccept and
about the efficacy of a judicial certificate in the
reembrace offenders who
have paid their debt for
context of discretionary hiring decisions,
their offense.”
including the vaunted New York certificates that
have provided a model for similar certificate
relief in other states.125 Yet a 2016 study of
certificates issued by courts in Ohio found that individuals who had been issued
certificates were more likely to get an invitation to interview than those without, and
at a rate not far removed from the call-back rate for those without a criminal

124 Invisible Punishment: An Instrument of Social Exclusion, in INVISIBLE PUNISHMENT: THE SOCIAL

COSTS OF MASS IMPRISONMENT 36 (Meda Chesney-Lind & Marc Mauer eds., 2002). See also Nora
V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing
Consequences, 11 STAN. L. & POL’Y REV. 153, 162 (1999) (“ex-offenders should have access
to a ceremony marking their official reintegration into the community and the end of their
exclusion and degradation.”); Bernard Kogon & Donald L. Loughery Jr., Sealing and
Expungement of Criminal Records—The Big Lie, 61 J. CRIM. L., CRIMINOLOGY & POLICE SCI.
378, 390 (1970) (“We solemnize the offender’s induction into the system. When he
successfully concludes the program, though, we fail to institutionalize his departure
correspondingly. It’s fun to catch the fish but hard to let him go.”).
See Heather Garretson, Legislating Forgiveness: A Study of Post-Conviction Certificates as
Policy to Address the Employment Consequences of a Conviction, 25 B.U.PUB. INT. L. J. 1 (2016);
Alec Ewald, Rights Restoration and the Entanglement of US Criminal and Civil Law: A Study of
New York’s “Certificates of Relief,” LAW & SOC. INQUIRY, Winter 2016. Both articles, which rely
on interviews and anecdotal evidence, are discussed in New York certificates fall short in
practice,
Collateral
Consequences
Resource
Center,
Feb.
29,
2016,
http://ccresourcecenter.org/2016/02/29/new-york-certificates-of-relief-fall-short-inpractice/#more-7753.
125

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record.126 A study of the same certificates the following year in the context of
applications for rental housing found a similar result. 127 The authors of these studies
theorized that court-issued certificates provide valuable information about workreadiness and/or reliability, and that in addition they may be perceived as protection
against lawsuits claiming negligence. Or their value might be less tangible: in a survey
of certificate programs published by The Marshall Project in 2015, the chief judge of
the Cook County Criminal Court in Illinois called his state’s certificates “a tool for
redeeming people," and a legal aid lawyer in North Carolina noted that a court’s
certification “makes what has happened since the crime a fully official part of that
person’s record, for all employers to see.” A dissenting voice about the value of
certificates came from a legal aid attorney in Pennsylvania, a state that does not
authorize judicial certificates, who considered them a “weak compromise” because
they “rely on employers to do the right thing.”128
In the recent wave of reform, legislatures have been slow to enact judicial certificate
laws, possibly because the advocacy community strongly favors relief that limits
public access to the record. But in the 12 states where they are available (California,
Colorado, Connecticut, Illinois, New Jersey, New York, North Carolina, Ohio, Rhode
Island, Vermont, Washington, and Tennessee), they extend to a broader range of
offenses than sealing or expungement, and may be obtained after a shorter waiting
period, making them potentially a more valuable aid to reentry.

Peter Leasure & Tia Stevens Andersen, The Effectiveness of Certificates of Relief as
Collateral Consequence Relief Mechanisms: An Experimental Study, YALE L. & POL’Y REV. Inter
Alia, Vol. 35 (2016).
126

Peter Leasure and Tara Martin, Criminal records and housing: an experimental study, 13 J.
of Experimental Criminology 527 (2017). A collection of social science research into
“strategies to improve reentry outcomes” judged court ordered certificates of rehabilitation
“promising and worth further study” just based on this study and the one in note 125, along
with diversion from incarceration and cognitive therapy. (Ban-the-box, intensive
supervision, and transitional jobs were judged among the least effective by researchers.) See
Jennifer Doleac, Strategies to productively reincorporate the formerly-incarcerated into
communities: A review of the literature. IZA Discussion Paper No. 11646 (2018).
127

Eli Hager, Forgiving v. Forgetting: For offenders seeking a new life, a new redemption tool,
The
Marshall
Project
(Mar.
17,
2015),
https://www.themarshallproject.org/2015/03/17/forgiving-vs-forgetting.
128

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Eligibility for and effect of certificates vary from state to state, and they should be
distinguished from more limited executive or judicial orders restoring voting and
other civil rights, including firearms rights. Unlike record-sealing, certificates are
frequently available to those with federal and out-of-state convictions who reside or
do business in the state. In some states, a variety of certificate is available from
correctional authorities when individuals complete a prison term, but these
certificates do not have the same legal effect in removing mandatory restrictions as
the certificates issued by the 12 states discussed in this section. Certificates have also
made a cameo appearance in the federal system.129
The certificate schemes in Connecticut and Vermont are the only ones that
contemplate the same sort of bifurcation between early and late-stage remedies, or
partial and complete relief, as the national law reform proposals described in the first
paragraph. Vermont law authorizes the court to issue targeted relief from mandatory
collateral consequences at sentencing (Order of Limited Relief), and more thorough
relief after five years (Certificate of Restoration of Rights), and these certificates are
available for a much greater range of convictions than record-sealing in that state. In
Connecticut, the pardon board or court supervisory agency may issue certificates of
rehabilitation in cases that do not yet qualify for a full pardon, to give relief from legal
barriers to employment and/or licensure. Late-stage relief in the form of a pardon
has the additional benefit of expunging or “erasing” the record. Both states make their
certificates available to those with federal and out-of-state convictions (though only
those with in-state offenses may qualify for a pardon).
New York's certificate scheme is the oldest, dating from the 1940s, and its
“Certificates of Relief from Disabilities” (CRD) and “Certificates of Good Conduct”
See Jane Doe v. United States, 168 F. Supp. 3d 427, 446 (E.D.N.Y. 2016) (Gleeson, J.)
(granting a “certificate of rehabilitation” in recognition of “Doe’s good conduct following
completion of her sentence”).
129

I evaluated Doe's character when I sentenced her 13 years ago. I have done so
again now, focusing not on her long-ago criminal acts but on her efforts to rebuild
herself. Considering those efforts along with her life circumstances generally, I
conclude that Doe is fit not only be hired by a nursing agency in need of a qualified
employee, but she to also be relieved of the long list of collateral consequences
she faces under state and federal law. Doe's only important conviction today is
her conviction to abstain from criminal conduct and to be a productive member
of society. That conviction is most emblematic of who she is today.

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(CGC) have far-reaching legal effect when coupled with the state’s nondiscrimination
laws. Until the recent enactment of a limited sealing law, these certificates were the
only individualized relief New York offered for convictions, and they remain the only
mechanism for overriding mandatory legal disabilities, including firearms
disabilities, since sealing does not appear to have that effect.130 Unlike sealing with its
lengthy eligibility waiting period and limit to a single felony, New York certificates are
available for first felony offenses from the court as early as sentencing and to all
others from the parole board after a brief waiting period, and they are not limited to
people with a single felony conviction.131 They are also offered to anyone with a
federal or out-of-state conviction who lives or does business in the state. New Jersey’s
certificate scheme also extends relief at sentencing to persons with first felony
offenses who are not sentenced to prison, and three years after completion of
supervision for those who go to prison and have no other felony conviction within 10
years. It is not clear whether New Jersey’s certificates are available to those with
federal and out-of-state convictions, as New York’s are.
In contrast to New York and New Jersey, whose certificates differ according to a
person’s record, Illinois’ two certificates perform different functions: a “Certificate of
Relief from Disabilities” addresses occupational licensing restrictions and creates an
enforceable “presumption of rehabilitation” that must be given effect by a licensing
board. A “Certificate of Good Conduct” lifts mandatory bars to employment,
occupational licensure, and housing. In Illinois, certificates may be issued by the
sentencing court, either at the time of sentencing or after completion of sentence, or
by the circuit court to those convicted of federal and out-of-state offenses, after a brief
waiting period.132
Certificates generally operate to convert mandatory disqualifications into
discretionary ones, extending opportunities and benefits to individuals who would

N.Y. Crim. Proc. Law § 160.59(9) (sealed convictions remain available to state entities
responsible for issuing firearm licenses).
130

131

N.Y. Correct. Law §§ 703-b(1), (3).

The Illinois certificate scheme was originally proposed by a freshman member of the
Illinois legislature named Barack Obama eager to make his mark during his short-lived stint
in state office. It is described in Margaret Love, Paying Their Debt to Society: Forgiveness,
Redemption, and the Uniform Collateral Consequences of Conviction Act,, 54 HOW. L. J. 753, 76162, 789-91 (2011); see also the Illinois profile from the Restoration of Rights Project.
132

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otherwise be barred from them by law. Some states go further to require that
certificates be given weight in the discretionary decision-making process. In Ohio, for
example, a “Certificate of Qualification for Employment” creates a “rebuttable
presumption that the person's criminal convictions are insufficient evidence that the
person is unfit for the license, employment opportunity, or certification in
question."133 Certificates in New York and Illinois have a similar weighty influence in
connection with discretionary decision-making. Certificates in Ohio and Washington
are specifically directed at employment barriers, but certificates in other states have
a more general application and effect on any mandatory collateral consequences.
Some certificates carve out exceptions for specific consequences, particularly those
that relate to licensing and employment in sensitive occupations. For example,
Washington’s “Certificate of Restoration of Opportunity” has a potent effect in many
occupational licensing schemes, and is the only way a person with a felony record
may be considered for employment by the school system, but it has no effect on
licensing relief for nurses and physicians, private investigators, teachers, or law
enforcement personnel. Illinois’ “Certificate of Relief from Disabilities” authorizes
relief only in specified licensed fields. California’s “Certificate of Rehabilitation” limits
consideration of felony convictions by licensing boards, relieves the obligation to
register as a sex offender, and constitutes the first step in the executive pardon
process.

A person who has fully discharged the sentence after a short eligibility waiting period
(one year after completion of sentence for felonies, six months for misdemeanors) from the
court of common pleas in the county of his residence (if a state resident), or in the court
where he was convicted (if not a resident), for a “certificate of qualification for employment”
(CEQ) that will provide relief from mandatory legal bars and allow him to be considered on
the merits. See Ohio Rev. Code Ann. §§ 2953.25, 2961.21 through 2961.24 (authorizing the
corrections authority and parole board to issue “certificates of achievement and
employability” for certain DRC prisoners and parolees to be used by the recipient to
generally obtain relief from “mandatory civil impacts” that would affect a potential job for
which the person trained while in prison).
133

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Certificates may also provide relief from informal
consequences imposed by private actors by
Certificates may
evidencing rehabilitation or, in the case of New York,
provide relief from
creating
an
enforceable
presumption
of
informal consequences
rehabilitation under the state’s Human Rights Law.
imposed by private
actors by evidencing
Some certificates accomplish this by limiting an
rehabilitation
employer’s liability in negligent hiring actions. In
Ohio, North Carolina, and Vermont, for example,
reliance on a certificate creates a presumption of
due care in hiring; in Illinois and Tennessee, reliance on a certificate is a complete
defense to liability. In Ohio, protections may also extend to other similar forms of
liability like negligence in connection with renting or admission to an educational
program.
Certificates are typically available for a broader range of offenses than sealing or
expungement and may be granted earlier. Of the 12 states that offer certificates, seven
(California, Connecticut, New Jersey, New York, Ohio, Tennessee, and Vermont)
impose no categorical limits on who can approach the court for relief. Illinois excludes
from eligibility individuals convicted of specified crimes involving serious violence,
and Washington makes CROP certificates available only to individuals who have not
been convicted at any time of a Class A felony, certain sex offenses, and a handful of
other serious felonies. Colorado initially limited its “collateral relief” to individuals
sentenced to community corrections, but later extended this relief to all but
convictions involving serious violence or a requirement of registration. Only North
Carolina and Rhode Island extend certificate relief only to those convicted of minor
nonviolent crimes, and only Rhode Island and New Jersey limit eligibility to persons
with no more than one felony conviction.
Individuals may apply for certificates as early as sentencing in seven states (Colorado,
Connecticut, Illinois, New Jersey, New York, Tennessee, and Vermont). In North
Carolina, a certificate is available for more felony offenses after a significantly shorter
waiting period than expungement (one year for a certificate vs. five to ten years for
expungement). In Ohio, Certificates of Qualification for Employment are also available
one year after completion of sentence.
In some of these states, certificates somewhat anomalously purport to evidence
rehabilitation even when issued as early as sentencing, which anecdotally has

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sometimes made courts wary of issuing them.134 But in other states (notably
Connecticut and Vermont) beneficiaries of an early order are required to return for
more complete relief after a further waiting period. The Vermont scheme is modeled
on the Uniform Act, including an early “Order of Limited Relief” and a later “Certificate
of Restoration of Rights.” Connecticut also offers an early Certificate of Employability
and a later full pardon. In Tennessee, individuals may regain their civil rights from
the sentencing court upon completion of their sentence, and simultaneously petition
the court for a “certificate of employability” that lifts most licensing barriers and
protects employers from negligent hiring liability. At this second stage, the court
makes findings after a hearing about character, need for relief (including for
employment or licensing) and public safety. People with federal and out-of-state
convictions are eligible for this more potent certificate and may obtain it from the
court in their county of residence.
State residents with federal and out-of-state convictions are eligible for certificates in
Connecticut, Illinois, New York, Rhode Island, Tennessee, Vermont, and perhaps New
Jersey, but not California, Colorado, North Carolina, Ohio, or Washington. Some states
require applicants convicted in more than one county to file multiple applications, but
others (notably Ohio) permit consolidation of all convictions in one court.
Issuance of a certificate is entirely discretionary in all states except Washington, and
an otherwise eligible petitioner may be denied relief if the court is unable to make the
necessary findings, sometimes weighing the applicant’s need for relief against the
public welfare. Moreover, the scope of relief granted in any specific case is generally
up to the court: a certificate may be unlimited in scope (subject only to legally
established limits), or it may provide relief only from those consequences specified in
the certificate itself. This allows the court to tailor the scope of relief to each petitioner
and his or her specific circumstances, including employment, licensing, or other
objectives. Most states authorize revocation of the certificate if the person has a
subsequent conviction.
It remains to be seen if judicial certificates of relief or restoration of rights will grow
in popularity. Certainly, most of the advocacy around relieving collateral
consequences has been in support of record-sealing, not the more transparent
certificates that rely on the good will of employers, licensing boards, and landlords to

134

See articles cited at note 123.

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give them effect. Like a pardon, a certificate “makes what has happened since the
crime a fully official part of that person’s record, for all employers to see.” 135 As it
becomes apparent that record relief must explore a variety of forms particularly
where felony convictions are concerned, and as certificates are given broader
eligibility and more specific and substantial legal effect, this form of relief may
become more popular than some of the other tools in the arsenal.
The Restoration of Rights Project contains a 50-state summary of expungement,
sealing, and other record relief in each state, with links to specific state profiles that
may be consulted for additional detail.
Report Card: Judicial Certificates of Relief
AL
AK
AZ
AR
CA
CO
CT
DE
DC
FL
GA
HI
ID

B
F
F
F
B
B
B
F
F
F
F
F
F

IL
IN
IA
KS
KY
LA
ME
MD
MA
MI
MN
MS
MO

A
F
F
F
F
F
F
F
F
F
F
F
F

MT
NE
NV
NH
NJ
NM
NY
NC
ND
OH
OK
OR
PA

F
F
F
F
A
F
A
C
F
B
F
F
F

RI
SC
SD
TN
TX
UT
VT
VA
WA
WV
WI
WY
Fed

C
D
F
A
F
F
A
F
C
F
F
F
F

See supra notes 126-27; see also Doleac & Lageson, supra note 82 (arguing that the
expansion of record-sealing is “premature” and that policymakers should, among other
things, experiment with policies that “increase the information available to employers about
individuals’ rehabilitation and job-readiness,” like judicial certificates of relief).
135

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D. Diversion and Deferred Adjudication
An increasingly popular record relief strategy involves diverting individuals away
from a conviction at the front end of a criminal case. Diversion offers a less adversarial
means of resolving an investigation or prosecution through compliance with agreedupon community-based conditions leading to termination of the matter without
conviction. Diversionary dispositions are described in the Model Penal Code:
Sentencing as a way to “hold the individual accountable for criminal conduct when
justice and public safety do not require that the individual be subjected to the stigma
and collateral consequences associated with conviction.”136 In this understanding,
diversion can function as a means to accountability and rehabilitation, rather than as
retribution for its own sake.137 The effectiveness of diversionary dispositions in
furthering these goals has not been studied in depth, but existing research suggests

See American Law Institute, Model Penal Code: Sentencing (2017) §§ 6.06(2) (“Deferred
Adjudication”), 6.04(2) (“Deferred Prosecution”) (same quoted phrase except “charge and”
are inserted before conviction). Because one goal of this model law is to introduce more
transparency and structure into a prosecutor’s administration of pure diversion, the section
on deferred prosecution is considerably more detailed than the one dealing with courtmanaged diversion. These schemes may have been modeled on Section 301.5 of the 1962
Model Penal Code, which provides that upon successful completion of a period of probation,
the court may order that the judgment “shall not constitute a conviction for the purpose of
any disqualification or disability imposed by law upon conviction.” Diversionary schemes
have antecedents even in the early 20th century. See, e.g., Marks v. Wentworth, 85 N.E. 81, 82
(Mass. 1908) (if “the object of the probation seems to the court to have been accomplished,
in such a way as not to require any punishment of the defendant, either for his own
reformation or in the interests of the public, the court may finally dispose of the case by a
dismissal of it”); C. S. Potts, The Suspended Sentence and Adult Probation, 1 TEX. L. REV. 188,
190 (1923) (discussing 1913 law; “[i]f defendant is not convicted of another felony during
the time assessed as punishment by the jury, he may make application for a new trial and
have the case dismissed.”); Report of Committee C of the American Institute of Criminal Law
and Criminology: Adult Probation Parole and Suspended Sentence, 1 J. AM. INST. CRIM. L. &
CRIMINOLOGY 438, 443 (1910) (“we strongly recommend that after successful probation
the indictment or complaint should be dismissed of record.”).
136

See Love, et al., supra note 41 § 7:22 (“Deferred adjudication and other diversionary
dispositions”); Margaret Love, Alternatives to Conviction: Deferred Adjudication as a Way of
Avoiding Collateral Consequences, 22 FED. SENT’G REP. 6 (2009).
137

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their promise.138 Diversion may also be employed in cases where the extent of
culpability is not clear, to allow for a mutually-acceptable outcome for the prosecutor
and individual.
While terminology and program characteristics vary, there are two primary types of
diversion: pure diversion (prosecutor-managed) and deferred adjudication (courtmanaged). One or both of these dispositions are authorized in every jurisdiction. 139
Pure diversion, sometimes also called deferred prosecution, is controlled by the
prosecutor and may commence before or after the filing of criminal charges.
Typically, it involves an agreement between the prosecutor and an arrested or
charged individual that successful completion of a community-based program will
terminate the criminal investigation or prosecution. While a court may be involved in
approving the terms of a diversion agreement, particularly if it involves use of court
supervisory or treatment resources, the prosecutor decides whether a person may
participate in diversion and has complied with conditions of the agreement, so as to
avoid further prosecution. Pure diversion may result in a formal decision not to
prosecute (“nolle prosequi”), and the record of the defendant’s arrest and any charges
may be subject to court-ordered dismissal and sealing. If the person was never
charged, there may be no court record to seal, and state laws may or may not provide

See, e.g., Michael Mueller-Smith and Kevin Schnepel, Diversion in the Criminal Justice
System (January 17, 2019) (studying short- and long-term outcomes of deferred adjudication
in Harris County, Texas, and finding notable benefits for young Black men with no previous
involvement
in
the
justice
system),
https://sites.lsa.umich.edu/mgms/wpcontent/uploads/sites/283/2019/01/Diversion.pdf; Ted Chiricos et al., The labeling of
convicted felons and its consequences for recidivism (17 Sept., 2007) (studying recidivism
outcomes
of
withheld
adjudications
in
Florida),
https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1745-9125.2007.00089.x.
138

See Pretrial Diversion, National Conference of State Legislatures (September 28, 2017),
available
at
http://www.ncsl.org/research/civil-and-criminal-justice/pretrialdiversion.aspx (providing statutes for 48 states and the District of Columbia); S.D. Codified
Laws §§ 23A-3-35, 23A-3-36, 23A-27-12.2, 23A-27-13. The one state that apparently lacks
diversion by statute, North Dakota, provides for diversion by court rule. See N.D. R. Crim. P.
32.2.
139

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for limiting public access to uncharged arrest records in a state repository and law
enforcement agency.140
Deferred adjudication is designated variously in state codes, 141 and varies also in how
it is administered from state to state. But it is most saliently distinguished from pure
diversion by the more formal involvement of the court in managing the criminal case
after charges have been filed. It often requires a plea, admission, or finding of guilt,
and always includes a period of probation and/or other conditions administered by
the court, with the court deferring entry of a judgment of conviction. The prosecutor
may have a say in which defendants are given the option of a deferred disposition,
and in a few states even a dispositive one, but the key legal difference between the
two dispositions is that the court determines whether the defendant has complied
with conditions when adjudication or sentencing has been deferred, so to warrant
vacating any plea and dismissing the charges. Nowadays, dismissal of the charges
generally includes sealing of the record, frequently but not always at disposition.
The discussion that follows focuses on deferred adjudication rather than prosecutorcontrolled diversion, as the latter frequently operates informally in accordance with
the policies of a specific prosecutor’s office and typically does not involve a formal
court proceeding, other than placing the diversion agreement on the record. This
section also does not discuss record relief mechanisms by which courts are
authorized to reduce felony convictions to misdemeanors after completion of
conditions, dispositions that resemble deferred adjudication in offering an alternative

See Collateral Consequences Res. Ctr., Model Law on Non-Conviction Records § 2(a)(Dec.
2019), https://ccresourcecenter.org/model-law-on-non-conviction-records/.
140

See, e.g., Ark. Code § 16-93-1206 (“suspended imposition of sentence”); Cal. Penal Code
§§ 1000 & 1000.8 (“deferred entry of judgment”); Colo. Rev. Code § 18-1.3-102 (“deferred
sentencing”); 11 Del. Cod. § 4218 (“probation before judgment”); Conn. Gen. Stat. § 54-56e
(“accelerated pretrial rehabilitation”); Hawaii Rev. Stat. § 853-1 (“deferred acceptance of
guilty plea”); Maryland Code, Criminal Procedure § 6-220 (“probation before judgment”);
Mass. Gen. Laws ch. 278, § 18 (“continuance without a finding”); N.Y. Crim. Proc. Law §
170.55 (“adjournment in contemplation of dismissal”); N.D. Cent. Code § 12.1-32-02(4)
(“deferred imposition of sentence”); Ohio Rev. Code § 2951.041 (“intervention in lieu of
conviction); Tex. Code Crim. Proc. art. 42A.102 (“deferred adjudication community
supervision”); Utah Code Ann. 77-40-104 (“plea in abeyance”); 18 U.S.C.A. § 3607 (“prejudgment probation”).
141

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way of encouraging compliance and making the record eligible for expungement, but
that do not have the advantage of avoiding a record of conviction.142
Deferred adjudication first became popular in the 1970s as an efficient case
management tool for prosecutors reluctant to divert entirely, and a way of
maximizing the possibility that salvageable defendants could be steered out of the
justice system entirely so as to avoid the collateral consequences of a conviction. 143
(Avoidance of collateral consequences was of course considerably easier in the days
before digitization of criminal records and the near-universal practice of background
checking.) There are pluses and minuses both for criminal defendants and for the
prosecution in these types of dispositions: for defendants there is the prospect of a
“clean slate” if they can manage to comply with sometimes-onerous conditions, which
may include substantial financial costs for supervision or required programs, and for
prosecutors there is the prospect of swift and potentially harsh consequences if a
defendant fails.144 At the same time, the long-term benefits for the community of this

See, e.g., Cal. Penal § 17(b) (“wobbler” charged as a felony may be reduced to a
misdemeanor); Idaho Code. Ann § 19-2601(3) (reduction of felony to misdemeanor); Minn.
Stat. § 609.13, subd. 1 (same); N.D. Cent. Code § 12.1-32-02(9) (same).
142

143 See,

e.g., Yale v. City of Independence, 846 S.W.2d 193 (Mo. 1993) (“The obvious legislative
purpose of the sentencing alternative of suspended imposition of sentence is to allow a
defendant to avoid the stigma of a lifetime conviction and the punitive collateral
consequences that follow.”); State v. Schempp, 498 N.W.2d 618, 620 (S.D. 1993) (noting that
the purpose of suspended imposition of sentence is “to allow first-time offender to
rehabilitate himself without the trauma of imprisonment or the stigma of conviction
record”). See generally Love, Alternatives to Conviction, supra note 136, at 6.
See, e.g., Amy Yurkanin, Leniency for sale? Alabama offers first offenders a second chance at
a
price,
AL.com
(Oct.
9,
2017,
updated
Mar.
7,
2019),
https://www.al.com/news/2017/10/dismissal_for_sale_programs_of.html; see generally
NAT'L ASS'N OF CRIMINAL DEF. LAWYERS, AMERICA'S PROBLEM-SOLVING COURTS: THE CRIMINAL COSTS
OF
TREATMENT AND THE CASE FOR REFORM
11
(2009),
available
at
http://www.nacdl.org/criminaldefense.aspx?id=20191 (“Although procedures vary, the
hoops through which participants must jump result in dismissals for relatively few
defendants. Profound consequences flow from every failure.”). Commenting on the perils of
exposing ill-equipped defendants to the high cost of failure under the Texas deferred
adjudication law, a practitioner in that state recalled that
144

prosecutors value it as an option because it is available to a broader group of offenses
than regular probation (and they have lobbied to keep it that way), and particularly
because the defendant retains their full exposure to the underlying penalty. So a

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sort of conviction-avoidance setup for at least some defendants have been established
in the research literature.145
While every state offers some form of diversion,146 only two states (Kansas and
Wisconsin) do not authorize their courts to defer adjudication in any cases involving
criminal charges. This appears to represent a
significant expansion of an important record
States have expanded
remedy just in the two years since an earlier
eligibility for court-managed
prior version of this report was published in
diversionary dispositions
2018, when we identified 13 states that made
and made sealing more
no provision for deferred adjudication.147 In
generally available
those two years, states have expanded
eligibility for court-managed diversionary
dispositions and made sealing more generally available after successful completion.
Some states have also eliminated the requirement of a guilty plea to avoid having this
disposition trigger federal collateral consequences, as some federal laws and
policies—including immigration law—treat diversionary pleas as convictions, even if
no judgment of conviction is ever entered by the court.148

deferred for burglary (a first degree felony) can be violated with limited due process
and get the 50 years the prosecutor wanted in the first place. They tell the baby DAs
that deferred is the easy way to send someone to prison “because you know they’re
going to screw up.”
145

See supra note 137.

146

See supra note 138.

See Love, Gaines & Osborne, supra note 3 at 13. It is likely that several of the 13 states
reported as having no deferred adjudication authority in fact had such a program through a
drug or other intervention court.
147

See, e.g., Or. Rev. Stat. § 475.245 (eliminating the requirement of a plea or admission to
avoid triggering deportation under 8 U.S.C. § 1101(a)(48)); Colo. Rev. Stat. § 18-1-410.5
(authorizing vacating guilty pleas in diversion cases on grounds that they were entered
without adequate advice of counsel). Among the other federal laws and policies that treat
diversionary dispositions as a conviction if the person was required to plead guilty or admit
facts sufficient to establish guilt, even if the plea has been withdraw and the case dismissed,
are federal sentencing guidelines, U.S.S.G. § 4A1.2(f) and the federal Fair Credit Reporting
Act, 15 U.S.C. § 1681c(a), as construed by Aldaco v. RentGrow, Inc., 921 F. 3d 685 (7th Cir.
2019). The federal banking laws independently consider diversionary dispositions to be
148

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The map accompanying this section shows that 20 states now make deferred
adjudication broadly available, in many cases for any offense eligible for a
probationary sentence and without regard to prior record, leaving it up to the court
(and in some states also the prosecutor) to determine the appropriateness of the
disposition on a case-by-case basis.149 Alabama and Georgia are included in this
category because of their extensive system of intervention courts that are
administered on a county-by-county basis.150 All but one of these 20 states (Idaho)
authorize sealing upon successful completion, though Texas requires a 2-to-5-year
waiting period in some cases before the court will issue an Order of Nondisclosure. 151
In many of the 20 states, a court-managed diversion program has existed for years,

convictions without regard to a guilty plea, see 15 U.S.C. § 1892(a)(1)(A), but the FDIC has
recently proposed to amend its interpretive policy document to give effect to expungement
and sealing, which should provide states with incentive to amend some of the deferred
adjudication provisions that require waiting periods before sealing or do not provide for
sealing at all. See Federal profile, Restoration of Rights Project, Section III(B)(3)(b).
The 20 states whose courts have broad deferred adjudication authority are: Alabama,
Colorado, Georgia, Idaho, Massachusetts, Maryland, Maine, Mississippi, Missouri, Nebraska,
New Mexico, New York, North Dakota, Rhode Island, Tennessee, Texas, Utah, Vermont,
Washington, and West Virginia. Details of these laws and statutory citations are available in
the relevant state profiles from the Restoration of Rights Project.
149

Alabama diversion courts are established and administered county-by-county under a
general state-wide authority, and eligibility criteria and conditions are established locally.
The courts have reportedly had broad participation and, in many cases, considerable success
both for defendants and for the government. But participation in deferred programs may
come at a high price, both literally and figuratively, and lead to more severe punishments for
those who are unable to pay. See Yurkanin, supra note 143. Georgia’s system of
“Accountability Courts,” authorizing diversion in non-property and drug crimes, is similarly
structured. https://cjcc.georgia.gov/accountability-court-program. See Ga. Code Ann. §§ 353-37(h)(2)(C), 15-1-20(b). In contrast, the administration of Mississippi’s intervention
courts is centralized and governed by state statute.
150

In Texas, people charged with non-violent misdemeanors who are discharged following
“deferred adjudication community supervision” are eligible for an automatic OND, although
the court may deny relief in specific cases. Those denied automatic relief, along with those
charged with felonies and serious and repeat misdemeanors, may seek relief after a waiting
period, two years for misdemeanants and five years for felonies. See Tex. Code Crim. Proc.
art. 42A.102; Tex. Gov’t Code § 411.0725.
151

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though programs have recently been expanded or reorganized to target certain
populations, like veterans and individuals with mentally health needs. 152
The next category of 13 states is distinguishable from the first by varying restrictions
on eligibility based on offense charged or prior record and, for many, limits on record
relief.153 Florida and Louisiana alone in this group allow someone with a prior felony
conviction to participate, but both restrict sealing (Florida for almost any prior record
and Louisiana by a 10-year waiting period). Illinois has a 5-year wait to seal, and Iowa
and Wyoming do not allow sealing. Pennsylvania and Delaware restrict eligibility for
their “probation before judgment” programs to misdemeanor-level cases. Another
group of 16 states, D.C. and the federal system offer deferred adjudication only in
specialized types of cases, typically drug cases where the person has no prior record.
As noted, only Kansas and Wisconsin make no provision for court-managed diversion.
The only federal statute authorizing deferred adjudication was enacted in 1984 and
adheres to the narrowest eligibility model, with relief narrowly targeted to youthful
offenses.154 In recent years federal courts have implemented various programs to
divert and defer criminal defendants,155 but there is little authority for these

152

Our report on laws enacted in 2019 stated:
In 2019, 18 states enacted 26 laws creating, expanding, reorganizing, or otherwise
supporting diversionary and deferred dispositions, to enable individuals charged with
crimes to avoid a conviction record . . . . extend[ing] this favorable treatment to
juveniles, military service personnel and veterans, persons with mental illness, drug
and alcohol users, human trafficking victims, caregivers of children, and even certain
persons charged with sex offenses.

See CCRC, Pathways to Reintegration: Criminal Record Reforms in 2019 at 21,
https://ccresourcecenter.org/wp-content/uploads/2020/02/Pathways-toReintegration_Criminal-Record-Reforms-in-2019.pdf.
States in this category are Alaska, Arkansas, Delaware, Florida, Hawaii, Iowa, Kentucky,
Louisiana, Montana, Oklahoma, Pennsylvania, and Wyoming.
153

See 18 U.S.C.§ 3607 (deferred adjudication if a person charged with drug possession has
no prior drug conviction, with expungement only if the offense was committed under the age
of 21).
154

A 2017 report from the United States Sentencing Commission (USSC) catalogues various
programs managed by federal courts that are geared to avoiding a prison sentence, though
perhaps not always a criminal record. See Federal Alternative-to-Incarceration Court
Programs (September 2017), https://www.ussc.gov/sites/default/files/pdf/research-and155

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programs in federal statutes and no evidence of Congressional interest even in
expanding the limited statutory authority that does exist.

In the end, as the public appetite for punitive justice policies fades in the states, and a
public commitment to clean slate outcomes grows stronger, it is likely that
governments will focus more resources on community-based accountability and
rehabilitative programs as opposed to punitive custodial penalties.

publications/research-publications/2017/20170928_alternatives.pdf.
That
report
describes generally analogous state problem-solving court programs but does not focus on
statutory deferred adjudication options aimed at avoiding conviction and generally leading
to expungement of the record. Perhaps because federal law contains only one narrow
authority for deferred adjudication (18 U.S.C. § 3607, sometimes referred to as the Federal
First Offender Act), the USSC report does not address non-incarceration outcomes that avoid
a conviction record. Curiously, it does not suggest the potential usefulness of such outcomes
in reducing recidivism or proposed further study of these issues. Such a study has been
suggested on several occasions by the Practitioner’s Advisory Group to the USSC.

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RECORD RELIEF

In this environment we can expect that jurisdictions will expand reliance on courtmanaged diversionary programs, and that we
can expect to see additional states joining the 20
The few research studies
whose programs are “broadly inclusionary.”
that exist have found
There have been only a few research studies of
diversion effective in
these programs, but those that do exist have
promoting desistance,
found them effective in promoting desistance,
employment, and earning
employment, and earning outcomes at least for
outcomes
some populations.156 As the adverse
consequences of a conviction record show no
signs of abating, studying conviction-avoidance mechanisms like deferred
adjudication should be a research priority for the academy.
Further information about deferred adjudication procedures and eligibility can be
found in in the state-by-state profiles in the Restoration of Rights Project
(http://restoration.ccresourcecenter.org).
Report Card: Deferred Adjudication
AL
AK
AZ
AR
CA
CO
CT
DE
DC
FL
GA
HI
ID

156

B
C
D
B
D
A
D
C
D
C
B
B
B

IL
IN
IA
KS
KY
LA
ME
MD
MA
MI
MN
MS
MO

C
D
C
F
B
C
A
A
A
D
D
A
A

MT
NE
NV
NH
NJ
NM
NY
NC
ND
OH
OK
OR
PA

B
A
C
D
D
A
C
F
A
C
B
D
C

RI
SC
SD
TN
TX
UT
VT
VA
WA
WV
WI
WY
Fed

A
F
D
A
B
A
A
F
A
A
F
C
D

See supra note 137.

COLLATERAL CONSEQUENCES RESOURCE CENTER

E. Non-Conviction Records
When a person is arrested, the police generate a record and send it to a state’s central
repository. Many arrests do not lead to charges. If charges are filed, they may be
dismissed by the prosecutor or by the court. Increasingly, people are placed in
diversion programs, with or without a plea, where completion of specified
requirements results in dismissal. Occasionally, the accused goes to trial and is
acquitted, or prevails on appeal. These are all scenarios that do not result in
conviction, yet each produces a criminal record that may result in a litany of adverse
consequences for its subject.157 Sometimes there is no indication in the official court
or repository files of whether or how an arrest or charge was resolved, but the record
remains open, the matter apparently still pending, which may seem to an employer
or landlord more ominous than a closed case.158
It is particularly disturbing, at a time when so
The mere fact of an
many Americans have taken to the streets to
arrest will leave a person
protest police violence and racism, that in most
with a criminal record
states the mere fact of an arrest will leave a
that is hard to erase
person with a criminal record that is hard to
erase,
creating
long-term
barriers
to
employment and housing, and in other areas of daily life. Protesters should not wind
up with a lifelong criminal record.159

Anna Roberts, Arrests as Guilt, 70 ALA. L. REV. 987, 997–1000 (2019); Benjamin D. Geffen,
The Collateral Consequences of Acquittal: Employment Discrimination on the Basis of Arrests
Without Convictions, 20 U. PA. J. L. & SOC. CHANGE 81 (2017); Eisha Jain, Arrests as Regulation,
67 STAN. L. REV. 809, 821–844 (2015).
157

The FBI’s Interstate Identification Index system, compiled from state repository
submissions, was “missing final disposition information for approximately 50 percent of its
records” as of 2006. U.S. DEPT. OF JUSTICE, OFFICE OF THE ATTORNEY GENERAL, THE ATTORNEY
GENERAL’S
REPORT
ON
CRIMINAL
HISTORY
BACKGROUND
CHECKS
3
(June
2006), https://www.bjs.gov/content/pub/pdf/ag_bgchecks_report.pdf.
158

Margaret Love & David Schlussel, Protesting Should Not Result in a Lifelong Criminal
Record,
Wash.
Post
(June
15,
2020),
https://www.washingtonpost.com/opinions/2020/06/15/protesters-should-not-getlifelong-criminal-record/.
159

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In 2019, we published a Model on Law on Non-Conviction Records.160 Drafted in
consultation with an advisory group of lawyers, judges, lawmakers, academics, policy
experts, and advocates, the model law provides policy guidance on limiting access to
and use of non-convictions. The conventional expungement or sealing process
requires a burdensome and expensive court procedure that only a small percentage
of those who are eligible will ever complete. Instead, our model recommends
automatic expungement of all non-conviction records, including records with no final
disposition, except for pending matters. The model also sets out recommended
restrictions on accessing, inquiring about, and commercially disseminating nonconviction records.
Consistent with these recommendations, 15 states now automatically expunge or seal
most non-conviction records. California and North Carolina will join this group when
their recently enacted laws go into effect in 2021.161
Of these 17 laws, 10 were enacted in the last five
15 states now
years alone: Kentucky and North Carolina (2020);
automatically expunge
California, New Jersey, and Utah (2019); New
or seal most nonHampshire, Pennsylvania, and Vermont (2018);
conviction records
Montana (2017); and Nebraska (2016). The other
seven states are Alaska, Connecticut, Maine,
Michigan, New York, South Carolina162, and
Wisconsin. Some of these laws provide relief at the time of disposition and others
after a waiting period. While these reforms are promising, some states do not cover
dispositions like uncharged arrests or dismissals without prejudice, or relief may be
prospective only (i.e. California), requiring affected individuals to file a court petition
to obtain relief. Those gaps can be filled through subsequent lawmaking. For example,
in New York, a progressive 1970s-era law provided for sealing of non-convictions at
disposition by the court, but uncharged arrests frequently languished in the state
records repository because the police or prosecutor neglected to indicate that the

160

See note 140, supra.

See 50-State Comparison: Expungement, Sealing & Other Record Relief, Collateral
Consequences
Resource
Center,
https://ccresourcecenter.org/state-restorationprofiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/.
161

162 Expungement is automatic for non-convictions disposed in Magistrate or Municipal Court,

but a petition is required if disposed in other courts. See S.C. Code Ann. § 17-22-950.

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matter would not proceed.163 In 2019, New York made undisposed cases confidential
after five years, providing relief for people with uncharged arrests and other matters
stuck in limbo.164
In addition to the 17 states that have automatic sealing, 7 states expedite nonconviction relief through motions filed at the time of dismissal or acquittal without
any waiting period (Colorado, Illinois, Massachusetts, Mississippi) or through a
simplified administrative procedure (Delaware, Hawaii, Idaho).165
But 26 states and D.C. still require a court
petition process before they will seal or
26 states and D.C. still
expunge non-convictions, an approach
require a court petition
increasingly seen as inappropriate and
process before they will seal
unnecessary for this category of records.
or expunge non-convictions
Many of these jurisdictions unreasonably
restrict eligibility and impose burdensome
procedural hurdles such as filing fees and contested hearings. 166 The federal system
and Arizona completely lack a non-conviction expungement law, though Arizona

163

See N.Y. Crim. Proc. Law § 160.50.

164 Id. § 845-C.

New York lawyers who served as Advisors to the model law project explained
the high percentage of undisposed cases in repository and court records systems in that state
as the product of reporting requirements that are unclear and/or unenforced, mistakes
made along the way by various actors in the criminal justice system, and the vagaries of
official record-keeping that make it look as though the individual has an open, pending case
or undisposed charge, when that is not true. Just as one example, multiple charges in a
criminal case may be resolved by a plea to one of them, or to a charge added to the docket
for purposes of disposition, while charges other than the pled-to charge may remain on court
records as “not disposed yet,” although in fact they have been covered by a plea. This can
have serious consequences for the subjects of these records if they are asked to list their
criminal convictions, since they would likely and understandably leave these non-conviction
records out. Once a background check is run they may be accused of lying or falsifying
applications, be denied the jobs, licenses, employment clearance, apartments, college or law
school admission they seek, and be branded as not credible. See Model on Law on NonConviction
Records
n.
25
(Collateral
Consequences
Res.
Ctr.
2019),
https://ccresourcecenter.org/model-law-on-non-conviction-records/.
165

See supra note 159.

166

Id.

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allows non-convictions to be notated as “cleared” if the subject can show that the
charge was “wrongful.”167 Federal law provides no relief at all.168

For these 26 petition-based states, restrictive eligibility criteria may include
disqualifications based on some unrelated record, such as a prior conviction or prior
record-sealing, a current registration obligation, or a bare arrest during a waiting
period. For example, in Florida, a prior conviction in a Florida court for any felony or
a list of specified misdemeanors, including as a minor, disqualifies a person from
167

Ariz. Rev. Stat. § 13-4051(A).

Federal law has a narrow expungement authority that applies to first-offense drug
deferred adjudication for persons under 21, 18 U.S.C. § 3607(a), and some courts have held
that federal courts have inherent ancillary authority to expunge records where an arrest or
conviction is found to be invalid or a clerical error is made. See, e.g., United States v. Jane
Doe, 833 F.3d 192 (2d Cir. 2016), vacating 110 F. Supp. 3d 448 (E.D.N.Y. 2015) (collecting
cases); United States v. Crowell, 374 F.3d 790, 792-93 (9th Cir. 2004), cert. denied, 543 U.S.
1070 (2005).
168

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sealing or expungement, as does a prior sealing
or expungement of any kind.169 The District of
Columbia has one of the most restrictive
schemes, applying similar complex eligibility
criteria to conviction and non-conviction records
alike, including multiple waiting periods and
disqualifying arrests and convictions, ending
with a discretionary decision by a judge.170

RECORD RELIEF

D.C. has one of the most
restrictive schemes,
applying similar complex
eligibility criteria to
conviction and nonconviction records alike

Other states limit eligibility based on the type of offense or nature of the nonconviction disposition. For example, Alabama does not allow violent felony charges
to be expunged unless the person was acquitted after trial.171 In one high profile 2019
case, the state dropped capital murder charges before trial after surveillance footage
exonerated the accused, but the record was categorically ineligible for expungement
because the now-failed charges were violent felonies. Alabama’s attorney general
acknowledged that the case “may draw light to a situation in which the
[expungement] statute could be amended,” but no steps have apparently been taken
to do this. 172 A few states, including Idaho, Virginia, and Wyoming, do not permit
deferred adjudication cases to be expunged, no matter the offense.

169

Fla. Stat. Ann. §§ 943.0585.

See D.C. Code §§ 16-801, 16-803 (waiting period of two to four years; various prior or
subsequent criminal records are disqualifying or extend the waiting period by 5 or 10 years;
waiting periods for all of a person’s arrests and convictions must be satisfied unless a person
waives right to seal the arrests and convictions; court must find that sealing is “in the
interests of justice” under a multi-factor balancing test). For example, in what may be a
unique concession to the power of the prosecutor’s office in criminal cases, and D.C.’s federal
prosecutors in particular, ineligibility for sealing of a non-conviction record based on a prior
disqualifying offense may be waived “except when the case terminated without a conviction
as a result of the successful completion of a deferred sentencing agreement.” D.C. Code § 16803(2)(A), (B).
170

171

See Miss. Code Ann. §§ 99-15-59; Ala. Code §§ 15-27-1, 15-27-2.

Steven Dilsizian, “I-Team: Attorney General Steve Marshall Addresses Alabama
Expungement
Law,”
WAA31
ABC
(May
7,
2019),
https://www.waaytv.com/content/news/Alabama-Attorney-General-Steve-Marshalladdresses-state-expungement-law-509604601.html.
172

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Some of the 26 petition states require satisfaction of court debt, such as costs and
fees, as a prerequisite to expungement, despite the lack of a conviction in the case. 173
Iowa’s requirement to pay all court debt as a precondition to expungement was
challenged by a woman who could not afford to pay the $718 court-appointed
attorney fee imposed when her case was dismissed.174 After the Iowa Supreme Court
rejected her argument that this represented unfair wealth discrimination, we filed an
amicus brief encouraging the U.S. Supreme Court to take up the case, but the petition
was declined.175
Unlike states that expunge non-convictions at the time of disposition on an automatic
basis (i.e. New Jersey) or upon request (i.e. Colorado), the petition-based states
usually have waiting periods—during which, in some states such as Missouri, an
otherwise-eligible person must remain conviction-free or the waiting period begins
anew. The length of time varies from days (180 in Wyoming) to a year (Indiana) to
multiple years (3 in Missouri). Sometimes a state’s regular waiting period is extended
for serious charges (D.C.), uncharged arrests (Nevada), or charges dismissed without
prejudice or following diversion or deferred adjudication (Alabama). In a few cases,
the person may not even be arrested during a recent period (i.e. Oregon requires a
three-year arrest-free period, excluding the arrest sought to be expunged).
The petition process itself is usually costly as a result of filing fees, background fees,
the demanding production of law enforcement and court records, collection of
evidence of good character, and/or formal service on prosecutors, etc. 176 A formal
court hearing may even be required at which the prosecutor and alleged victims may

173

See, e.g. Iowa Code § 901C.2(a)(2).

174

See State v. Doe, 927 N.W.2d 656 (Iowa, 2019).

See id.; Amicus Brief of Collateral Consequences Resource Center et. al in Support of
Petition
for
Certiorari,
No.
19-169
(U.S.
2019),
available
at
https://www.supremecourt.gov/DocketPDF/19/19169/115174/20190909162439215_190903%20for%20E-Filing.pdf. In a subsequent case,
the Iowa Supreme Court rejected the state’s argument that the court debt requirement
extends to any debt owed in any case, holding that a person only need to pay off the debt in
the case sought to be expunged in order to be eligible. See Doe v. State, No. 19–1402 (Iowa,
May 22, 2020).
175

176

See, e.g., Ohio Rev. Code Ann. §§ 2953.52; 22 Okla. Stat. Ann. § 18(A)(7).

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oppose relief—either in every case or if an objection is filed. Sometimes the
requirement of a hearing is left entirely up to the court.
Some petition states have a generous standard of review for those petitioning to
expunge non-convictions (Indiana, for example, requires the court to grant relief to
eligible applicants unless charges are pending against them, 177 and Nevada applies a
rebuttable presumption in favor of sealing178). But other states apply a broad
discretionary standard more commonly found in the conviction context. Oregon, for
instance, requires the court to determine “that the circumstances and behavior of the
applicant…warrant setting aside” and sealing the non-conviction record—the same
discretionary standard that Oregon applies to conviction records.179
The end result of all these barriers is not only
exclusion but also deterrence. The unreasonable
It is disturbing,
call for completion of costly, intimidating, and
particularly at a time
time-intensive procedural tasks, such as document
when large-scale
production and service of process, means that
protests have produced
many thousands will resign themselves to simply
thousands of arrests,
living with the fact of an arrest record. Years after
that more than half the
charges were dismissed, very few will want to have
states retain antiquated
to hire a lawyer again and make a trip back to the
petition systems in
urgent need of reform.
police station and courthouse, especially if they
have since moved out of town or to another state.
It is encouraging that so many additional states
have moved towards automatic or streamlined expungement of non-convictions in
recent years, a trend that will hopefully continue to accelerate. But it is disturbing,
particularly at a time when large-scale protests have produced thousands of arrests,
that more than half the states retain antiquated petition systems in need of reform.
The Restoration of Rights Project contains a 50-state summary of expungement,
sealing, and other record relief in each state, with links to specific state profiles that
may be consulted for additional detail.

177

Ind. Code § 35-38-9-1.

178

Nev. Rev. Stat. § 179.2445.

179

Or. Rev. Stat. § 137.225(3).

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Report Card: Non-Conviction Records
AL
AK
AZ
AR
CA
CO
CT
DE
DC
FL
GA
HI
ID

D
B
F
C
C
B
A
B
D
D
C
B
B

IL
IN
IA
KS
KY
LA
ME
MD
MA
MI
MN
MS
MO

B
C
D
D
A
C
B
D
B
A
B
B
D

MT
NE
NV
NH
NJ
NM
NY
NC
ND
OH
OK
OR
PA

A
A
C
A
A
C
A
C
D
C
C
D
A

RI
SC
SD
TN
TX
UT
VT
VA
WA
WV
WI
WY
Fed

D
A
D
C
C
A
A
D
D
D
A
C
F

COLLATERAL CONSEQUENCES RESOURCE CENTER

III. FAIR EMPLOYMENT & OCCUPATIONAL LICENSING
Introduction
There is perhaps no more critical aspect of a reintegration agenda than removing the
many unjustified and unjustifiable barriers faced by people with a criminal record in
the workplace.180 In an era of near-universal background checking and search
engines, the “Mark of Cain” they bear will sooner or later be known to potential
employers and licensing boards even if it is not called for on an initial application.
Some barriers take the form of laws formally disqualifying people with certain types
of convictions from certain types of jobs.
More frequently barriers result from informal employer or agency discrimination
grounded in an aversion to risk and, too frequently, racial stereotypes. Whether it is
securing an entry level job, moving up to management responsibilities, or being
certified in a skilled occupation, people
with a criminal record are at a
As between two individuals with
disadvantage, if they are even able to
hypothetically equal qualifications,
compete. As between two individuals
it is easy to justify breaking the tie
with
hypothetically
equal
in favor of the person who has
qualifications, it is easy to justify
never been arrested.
breaking the tie in favor of the person
who has never been arrested.
Individualized record relief mechanisms like expungement or pardon are intended to
improve employment opportunities, and they are helpful on a case-by-case basis to
Studies have shown that having a well-paying job has a demonstrable impact on
recidivism rates for those released from prison. See, e.g., Crystal Yang, Local labor markets
and criminal recidivism, 147 J. PUB. ECONOMICS 16 (2017). Recent years have produced an
extraordinary literature on the public policy importance of removing barriers to
employment and licensure for those with criminal records, as a matter of economic
efficiency, public safety, and fairness. See, e.g., J.J. Prescott & Sonja B. Starr, Expungement of
Criminal Convictions: An Empirical Study, 133 HARV. L. REV. 2461 (2020). The chapter on
"Consequences for Employment and Earnings" from the report of the National Research
Council of the National Academy of Sciences, THE GROWTH OF INCARCERATION IN THE UNITED
STATES: EXPLORING CAUSES AND CONSEQUENCES 211-259 (Jeremy Travis and Bruce Western,
eds.), remains the most thorough scientific treatment of the impact of incarceration on the
life prospects of those who experience it.
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those who are eligible and able to access them.181 But equally important are systemic
fair employment and licensing laws that impose general standards and provide for
their enforcement, offering class-wide relief to individuals with a record. States have
enacted an impressive number of this sort of “clean slate” law just since 2015, some
building on laws enacted in an earlier period of reform in the 1970s, and others
breaking new ground in regulating how employers and licensing agencies consider
an applicant’s criminal record.182
In employment, one of the most striking legislative trends in the past decade is the
embrace of limits on inquiry into criminal history in the early stages of the hiring
process, particularly for public employment. The so-called “ban-the-box” campaign
that began modestly more than 15 years ago in California has now produced new laws
or executive orders in two-thirds of the states and over one hundred cities and
counties. More efficient and broadly effective than after-the-fact lawsuits, ban-thebox laws now represent the primary tool for eliminating unwarranted record-based
employment discrimination on a system-wide basis. They are premised on an
expectation that getting to know applicants before learning about this aspect of their
background is likely to lead to a fairer and more defensible hiring decision. This
should be particularly true when a records check comes only after a conditional offer
is made, so if it is withdrawn there is little doubt about the reason.183
Occupational licensing has also seen an acceleration of legislative efforts to limit the
arbitrary rejection of qualified workers. Significant procedural and substantive
reforms have been enacted in more than half the states in the last five years, making
licensing authorities newly accountable for their actions and individuals newly able
to obtain and practice a skill with enhanced career prospects. Following suggestions

Recent reforms in a few states call for automatic sealing of records on a categorical basis,
legislative relief that is described in Part II of this report on Record Relief.
181

The term “clean slate” is frequently used to describe the desired effect of record-sealing
laws, but its definition as “an absence of existing restraints or commitments” makes it equally
apt in connection with regulation imposition of unwarranted record-related restrictions in
employment and occupational licensing. See OXFORD DICTIONARY OF IDIOMS 65 (John Ayto, ed.,
2020), https://www.lexico.com/definition/clean_slate.
182

One caveat that has been raised by researchers about ban-the-box strategies is that
barring early inquiry into criminal record may lead employers to rely on stereotypes about
which applicants are likely to have one. See generally infra note 202.
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proposed in model laws endorsed by organizations from across the political
spectrum, states have substituted objective standards for vague “good moral
character” criteria, prohibited consideration of irrelevant minor offenses unrelated
to job performance, required licensing
agencies to justify their decisions in terms of
States have substituted
public safety, and imposed oversight
objective standards for
requirements to hold licensing agencies
vague “good moral
accountable for their performance.
character” criteria and
required licensing agencies
As shown in the following discussion and in
to justify their decisions in
the “Report Card” maps that follow the
terms of public safety
section, almost every state now has at least
some law aimed at limiting record-based
discrimination in employment or licensure, or
both. Enforcement of these new laws may in many cases depend on education and
persuasion rather than on lawsuits and executive orders, but this may make change
come sooner and have a more lasting effect. The very exercise of repeatedly having to
decide the relevance of an individual’s past conduct through a transparent and
accountable process is likely to result in more reliable decision-making, and a better
understanding of those relatively few instances when it is legitimate to deny someone
an opportunity to work based on their criminal record. We discuss the state of the
law in greater detail in the following sections.
Note: Color-coded maps and a side-by-side Report Card for both employment and
occupational licensing are at the end of the section.

A. Employment
Few states have adopted general rules prohibiting employment discrimination based
on criminal record, and the only relevant federal law depends upon being able to
establish disparate impact based on race or some other protected classification. 184 In

The only national standards for employment of people with a criminal record, the 2012
EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in
Employment Decisions Under Title VII of the Civil Rights Act of 1964 tests the validity of
employment policies affecting people with a criminal record in terms of their adverse effect
on groups that are otherwise protected from discrimination. The EEOC has taken the
position that employers may not reject applicants based on an arrest record alone and may
184

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fact, until this century, only three states had incorporated provisions relating to a
record of arrest or conviction into their general FEP law: New York (1976), Wisconsin
(1981), and Hawaii (1998).185 Article 23-A of New York’s Corrections Law prohibits
“unfair discrimination” against a convicted person by public and private employers
and licensing entities. The law imposes a “direct relationship” standard defined by a
multifactor test limited only by public safety considerations, which may be enforced
through the courts or through the State Human Rights Law. Certificates issued by a
court or the parole board may lift mandatory employment or licensing bars and are
evidence of rehabilitation in discretionary decisions. Rejected applicants must be
given reasons in writing.186 Wisconsin’s fair employment law also covers arrest or

not impose an across-the-board exclusion of people with a conviction record. The Guidance
requires individualized consideration using a multifaceted screening test that considers the
nature of the person’s offense, the time elapsed since it occurred, and the nature of the
position. See Love, et al., supra note 41 § 6:5. In 2019 the Fifth Circuit invalidated the
Guidance, so its legal status is no longer clear. See Texas v. Equal Employment Opportunity
Commission, 933 F.3d 433, 451 (5th Cir. 2019) (finding that the EEOC overstepped its
statutory authority in promulgating guidance on employers' use of criminal records in
hiring).
A fourth state, Connecticut, included as early as 1980 provisions addressing
discrimination based on criminal record in public employment in its human rights code. See
CONN. GEN. STAT. § 46a-80 (citing the former Sec. 4-61o which was transferred to Sec. 46a-80
in 1981). However, the state Commission on Human Rights and Opportunities evidently
never regarded enforcement of these provisions as within its mandate. See 1994
memorandum from the Office of Legislative Research on Employment Discrimination Based
on Prior Conviction of a Crime to the Connecticut General Assembly (Jan. 19, 1999),
https://www.cga.ct.gov/PS94/rpt/olr/htm/94-R-0201.htm.
185

Compare Boone v. New York City Department of Education, 38 N.Y.S.3d 711, 721 (N.Y. Sup.
Ct. 2016) (holding that denial of security clearance for a position as a School Bus Attendant
to petitioner convicted of shoplifting from her employer, without due regard to the factors
set forth in Article 23-A, or petitioner’s CRD, was arbitrary and capricious) with Arrocha v.
Bd. of Educ. Of City of N.Y., 93 N.Y.2d 361, 366 (1999) (holding that the Board of Education’s
determination that teaching license applicant’s prior conviction for sale of cocaine came
within statutory “unreasonable risk” exception to general rule that prior conviction should
not place person under disability, was neither arbitrary nor capricious, where Board
properly considered all statutory factors and determined that those weighing against
granting license outweighed those in favor; age of conviction, applicant’s positive references
and educational achievements, and presumption of rehabilitation were outweighed by
teacher’s responsibility as role model and nature and seriousness of applicant’s offense.).
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conviction record, and has been broadly interpreted by the administrative agency
responsible for its enforcement and the courts to require a conclusion that “a specific
job provides an unacceptably high risk of recidivism for a particular employee.” 187
Many other states adopted laws in the last years of the 20th century providing that a
conviction could not be the “sole” reason for refusing to employ someone, and
enjoined employers to consider whether a criminal record was related in some
fashion to the job. Some even set out detailed criteria for determining when a “direct
relationship” (or, variously, “substantial” or “reasonable” relationship) exists
between a person’s criminal record and the position. These standards were
sometimes sufficiently precise as to encourage rejected applicants to go to court, but
the employer usually won.188 Individuals rejected for employment because of a

See e.g. Palmer v. Cree, Inc., ERD Case No. CR201502651 (LIRC, Dec. 3, 2018) (finding that
lighting products company could not show that a job applicant's convictions—for felony
strangulation and suffocation, and misdemeanor battery, fourth degree sexual assault, and
damage to property—were substantially related to employment as a lighting applications
specialist who would have contact with the public; "Whether the crime is an upsetting one
may have nothing to do with whether it is substantially related to a particular job."); Staten
v. Holton Manor, supra, ERD Case No. CR201303113 (LIRC, Jan. 30, 2018) (holding that skilled
nursing facility could not refuse to hire based on misdemeanor theft conviction that had been
expunged; permitting the employer to do so would conflict with the purpose of the statute
permitting expungement, which is to permit certain persons to “wipe the slate clean of their
offenses and to present themselves to the world—including future employers—unmarked
by past wrongdoing.”).
187

For example, Minnesota’s Criminal Rehabilitation Act of 1974 prohibits discrimination in
public employment and licensing and sets out a detailed set of standards for determining
whether a criminal record is “directly related” to a specific job so that it justifies adverse
employment action. See MINN. STAT. § 364.03, subd. 2. Even where a crime is found to be
directly related, a person may not be disqualified if the person can show “competent
evidence of sufficient rehabilitation and present fitness to perform the duties of the public
employment sought or the occupation for which the license is sought.” § 364.03, subd. 3.
Rehabilitation may be established by a record of law-abiding conduct for one year after
release from confinement, and compliance with all terms of probation or parole. The
problem is that, unlike the laws enacted in Wisconsin and New York, the Minnesota law
contains no enforcement mechanism, leaving aggrieved individuals to seek relief in the
courts, which have tended to interpret the standard in favor of the employer. See,
e.g., Peterson v. Minneapolis City Council, 274 N.W.2d 918 (Minn. 1979) (finding that
conviction for attempted theft by trick directly related to the operation of a massage
parlor); In re Shelton, 408 N.W.2d 594 (Minn. Ct. App. 1987) (holding that embezzlement
188

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criminal record had somewhat better luck under federal civil rights law if they could
establish a correlation between criminal record and another independently
prohibited basis for adverse treatment such as race.189 But for all intents and
purposes until 1998 Wisconsin and New York were the only states that provided
administrative remedies for record-based employment discrimination without also
requiring a nexus with race or some other illegal ground.
When Hawaii extended its Fair Employment Practices law to criminal records in
1998, it was the first state to identify and address a concern about threshold
disqualification based on criminal
background checks. Its prohibition on
Hawaii’s 1998 fair
inquiries into an applicant’s criminal
employment law with its fourrecord until after a conditional offer of
part enforcement mechanism
employment has been made served as an
is still a model for other states
inspiration for the “ban-the-box” campaign
that began several years later in California.
In Hawaii, a conditional offer may be withdrawn only if a conviction within the most
recent 10 years bears a “rational relationship to the duties and responsibilities of the
position.”190 Its four-part enforcement mechanism is still a model for other states:
❖ To prohibit application-stage inquiries about criminal history
❖ After inquiry is made, to prohibit consideration of non-convictions and
certain other records that are categorically deemed “unrelated” to
qualifications
❖ To apply detailed standards to consideration of potentially relevant
records, and

directly related to fitness to teach; teacher with 20 years of service terminated in spite of
efforts to make restitution); In re Shelton, 408 N.W.2d 594 (Minn. Ct. App. 1987).
See, e.g., Green v. Missouri Pacific Railroad Co., 523 Fed. 2d 1158 (8th Cir. 1975), and
discussion of early EEOC practice and policies in Love et al. supra note 41 at § 6:4 (“Title VII
– Applied to criminal records – Judicial interpretations”).
189

See HAW. REV. STAT. §§ 378-2.5(b), (c) (an employer may withdraw a conditional offer of
employment only if a conviction within the previous 10 years “bears a rational relationship
to the duties and responsibilities of the position.”); Sheri-Ann S.L. Lau, Recent Development:
Employment Discrimination Because of One’s Arrest and Court Record in Hawaii, 22 U. HAW. L.
REV. 709, 714-15 (2000).
190

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❖ To enforce these standards and procedures through the general fair
employment law.
While the ban-the-box approach pioneered by Hawaii has taken hold across the
country, only three additional jurisdictions have built a comprehensive approach to
“fair chance employment” around the same four-part mechanism, and of these three
only two applied it to private as well as public employment. The District of Columbia
was the first in this century to enact what has come to be called a “fair chance”
approach to hiring people with a criminal record, regulating public employment in
2010 and a few years later extending similar rules to private organizations employing
more than 10 people.191 California and Nevada followed suit with similar laws in
2017, although Nevada’s extends only to public employment.
California’s Fair Employment and Housing Act (FEHA) is discussed first because it is
the most extensive of the three, extending criminal history protections to both public
and most private employers, delaying a background check until after an offer of
conditional employment is made, and thereafter prohibiting consideration of nonconviction records, as well as convictions that have been dismissed or set aside,
pardoned, or been the subject of a judicial Certificate of Rehabilitation. In all cases,
employers must conduct individualized assessments to determine whether a
conviction has a “direct and adverse relationship with the specific duties of the job,”
notify an applicant in the event of denial and of the record relied upon (though no
further reasons need be given), and allow the applicant to respond. Violations
constitute an “unlawful employment practice” that may lead to administrative
enforcement by the Department of Fair Employment and Housing and ultimately to
court.192

See D.C. CODE §§ 1-620.42, 1-620.43. Public employers and private employers with 10 or
more employees may not inquire into an applicant’s criminal record until after the employer
has extended a conditional offer of employment, may not consider arrests or charges that
are not pending and that did not result in a conviction, and may withdraw a conditional offer
of employment based on an applicant’s conviction history only for a “legitimate business
reason” that is “reasonable” in light of a multifactor test. The applicant may also file a
complaint with the D.C. Office of Human Rights, which can bring administrative proceedings
against an employer that it believes has violated the law and levy fines.
191

See CAL. GOV’T CODE § 12952. It is unclear what effect the enactment of § 12952 will have
on DFEH regulations, also promulgated in 2017, providing that consideration of criminal
192

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Nevada and the District of Columbia employ essentially the same four-part approach
as California and Hawaii before it, including enforcement through their general fair
employment or human rights laws. While Nevada prohibits discrimination in public
employment only and permits inquiry into criminal record after the first interview, it
categorically prohibits consideration not only of non-conviction and sealed records,
but also of misdemeanors that did not carry a prison sentence. Nevada law provides
that failure to comply with its procedures is an unlawful employment practice and
authorizes complaints to be filed with the Nevada Equal Rights Commission. The
District’s law prohibits inquiry until after a conditional offer has been made, which
may be withdrawn only for a “legitimate business reason” that is “reasonable” under
a multifactor test and accompanied by written reasons. The applicant may file a
complaint with the D.C. Office of Human Rights (OHR), though the law does not
contemplate an appeal from its Human Rights Office to the courts.
Two additional states provide for limited record-elated protections through their
human rights laws: Illinois193 prohibits inquiries about or consideration of nonconviction records, juvenile records, or expunged or sealed records; and

history may violate FEHA if it has “an adverse impact on individuals on a basis protected by
the Act, including, but not limited to, gender, race, and national origin.” CAL. CODE REGS. tit. 2
§ 11017.1(d)–(g). Because the regulations are not coextensive with § 12952 and because
they are rooted in a theory of liability not based directly on criminal history discrimination,
it is possible that they may provide an alternate path to relief for some applicants disqualified
due to criminal history.
Effective January 1, 2020, the Illinois Human Rights Act prohibits inquiries about, or
discrimination in employment and real estate transactions, based on “arrest record,” defined
as “an arrest not leading to a conviction, a juvenile record, or criminal history record
information ordered expunged, sealed, or impounded.” 775 ILL. COMP. STAT. ANN. 5/1-103 5/3-103, as amended by SB1780 (explaining how previously the law covered only
employment, and only discrimination based on “the fact of an arrest” and expunged and
sealed records). A claim of racial discrimination has also been sustained under this law
where a criminal conviction was the articulated basis for a refusal to hire. See Bd. of Trs. v.
Knight, 516 N.E.2d 991, 996-97 (Ill. App. Ct. 1987) (stating that no business necessity
justified denial of employment as university police position to person convicted of single
misdemeanor weapons charge; mitigating circumstances existed including time passed since
conviction and record of responsible employment).
193

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Massachusetts194
misdemeanors.

prohibits

FAIR EMPLOYMENT & OCCUPATIONAL LICENSING

consideration

non-convictions

and

some

Some advocates have looked to federal civil rights law for reinforcement, but many
are wary of relying on a vehicle for challenging record-based employment bars that
is necessarily tethered to otherwise-prohibited discrimination based, inter alia, on
race or ethnicity.195
A large number of states have now adopted the first step
of Hawaii’s comprehensive approach to hiring by
A large number of
adopting “ban-the-box” laws, and rely primarily on
states have now
limiting the amount of information employers have
adopted the first
about an applicant’s criminal record until the later stages
step of Hawaii’s
of the hiring process. These laws are premised on a
comprehensive
hopeful expectation that if applicants are given a chance
approach to hiring
by adopting “banto demonstrate their job-related qualifications before
the-box” laws
their past record is revealed, employers will be willing to
take a more considered look at them. By the beginning of
2020, laws or ordinances prohibiting application-stage
inquiries applied to public employment in 36 states, the District of Columbia, and over
150 cities and counties, and in many cases limited record checks until after a

See MASS. GEN. LAWS ch. 151B, § 4(9) (It shall be an unlawful practice for an employer “to
request any information . . . regarding: (i) an arrest, detention, or disposition regarding any
violation of law in which no conviction resulted, or (ii) a first conviction for any of the
following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations,
affray, or disturbance of the peace, or (iii) any conviction of a misdemeanor where the date
of such conviction or the completion of any period of incarceration resulting therefrom,
whichever date is later, occurred five or more years prior to the date of such application for
employment or such request for information, unless such person has been convicted of any
offense within five years immediately preceding the date of such application for employment
or such request for information”). The law is enforced by the Massachusetts Commission
against Discrimination, and procedures are set forth in MASS. GEN. LAWS ch. 151B, § 5.
194

195

See supra note 183.

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conditional offer of employment.196 In 14 states and D.C., and 18 cities and counties,
private sector employment was also affected.197
Even Congress acted in late 2019 to postpone inquiries into criminal record, until
after a conditional offer is made, for federal agency employment in all three branches
of government and private contractor hiring.198 Effective January 2021, the federal
Fair Chance Act also prohibits agency procurement officials from asking persons
seeking federal contracts and grants about their criminal history, until an “apparent
award” has been made.199
Many of these states also enjoin employers to base hiring decisions involving a person
with a criminal record on criteria related in some fashion to the job, and in some cases
set out detailed criteria for determining when a “direct relationship” (or, variously,
“substantial” or “reasonable” relationship) exists between a person’s criminal record
and the position.200 Some also prohibit employer consideration of non-conviction
records and convictions that have been expunged or sealed, or ask employers to
consider “certificates of relief” issued by courts or parole boards. Colorado has built
an extensive set of standards around a “ban-the-box” core, requiring justification for
withdrawing a conditional offer, prohibiting consideration of non-convictions or
sealed or pardoned convictions, and giving effect to judicial or administrative
Beth Avery, Ban-the-Box, U.S. Cities, Counties, and States Adopt Fair Hiring Policies,
National Employment Law Project (July 2019), https://www.nelp.org/publication/ban‑the‑
box‑fair‑chance‑hiring‑state‑and‑local‑guide/. Since this study was published, in 2020 the
Virginia legislature swelled the roll of states that prohibit inquiry in public employment. See
HB
757,
2020
Leg.,
(VI.
2020),
https://lis.virginia.gov/cgi‑
bin/legp604.exe?201+sum+HB757&201+sum+HB757.
196

Avery supra note 195. In early 2020, the Maryland legislature overrode a veto by its
governor to extend its ban-the-box law to private employers. See Guy Brenner and Caroline
Guensberg, Maryland Legislature Overrides Governor’s Veto of “Ban the Box” Legislation, X
NAT’L L. REV. 214 (Feb. 2020) https://www.natlawreview.com/article/maryland-legislatureoverrides-governor-s-veto-ban-box-legislation.
197

See CCRC Staff, Fair Chance Act advances in Congress, (Dec. 16, 2019),
http://ccresourcecenter.org/2019/12/16/fair-chance-act-advances-in-congress/.
198

199

Id.

See Restoration of Rights Project, 50-State Comparison: Criminal Record in Employment &
Licensing,
https://ccresourcecenter.org/state-restoration-profiles/50-statecomparisoncomparison-of-criminal-records-in-licensing-and-employment/.
200

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certificates of relief.201 The limited information available to date on the practical effect
of ban-the-box schemes suggests that they do
improve job opportunities for people with a
Some research has indicated
criminal
record.202
However,
their
that limiting inquiry into
effectiveness depends to some extent upon a
criminal history may lead to
willingness on the part of decision-makers to
employer reliance on racial
forego, at least temporarily, information
or other stereotypes
about a candidate for employment that might
be highly relevant to a hiring decision. In this
regard, some research has indicated that limiting inquiry into criminal history may
lead to employer reliance on racial or other stereotypes about who may have a
criminal record.203

201 See COLO. REV. STAT. § 24-5-101(3)(c), retaining exclusions for non-conviction records, and

convictions that have been sealed, expunged or pardoned, and including for the first time
convictions where “a court has issued an order of collateral relief specific to the employment
sought by the applicant.” If none of the exclusions in (3)(c) apply, the agency “shall consider”
the following factors in deciding whether to disqualify an applicant based on criminal record:
(1) the nature of the conviction; (2) whether the conviction is “directly related” to the job;
(3) the applicant’s rehabilitation and good conduct; and (4) time elapsed since conviction.
Id. § 24-5-101(4).
See Anastasia Christman & Michelle Rodriguez, Research Supports Fair-Chance Laws,
National
Employment
Law
Project
(Aug.
2016),
https://www.nelp.org/publication/research-supports-fair-chance-policies/; Washington
Lawyers Committee for Civil Rights and Urban Affairs, The Collateral Consequences of Arrests
and
Convictions
under
D.C.,
Maryland,
and
Virginia
Law
(2014),
http://www.washlaw.org/pdf/wlc_collateral_consequences_report.pdf; D.C. Council Comm.
on the Judiciary and Public Safety, Report on Bill 20-642, the ‘Fair Criminal Records
Screening Amendment Act of 2014’ at 3 (May 28, 2014); Council for Court Excellence,
Unlocking Employment Opportunities for Previously Incarcerated Persons in the District of
Columbia (2011), http://www.courtexcellence.org/uploads/publications/CCE_Reentry.pdf.
202

Researchers have found that ban-the-box policies may increase racial discrimination due
to employers’ exaggerated impressions of racial differences in conviction outcomes, thereby
artificially decreasing the number of qualified minority applicants who are given a second
look. See, e.g., Amanda Agan & Sonja Starr, Ban the Box, Criminal Records, and Racial
Discrimination: A Field Experiment, 133 QUART. J. ECON. 1, 195-235 (2018); Jennifer Doleac &
Benjamin Hansen, The Unintended Consequences of “Ban the Box”: Statistical Discrimination
and Employment Outcomes When Criminal Histories Are Hidden, 38 J. LAB. ECON. 2, 321-74
(2020),
203

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Some states protect employers from negligent hiring liability, the primary reason
cited by employers for not hiring someone with a criminal record.204 Frequently such
protections are triggered when an employee or applicant for employment receives
some form of individualized restoration of rights, such as a pardon or judicial sealing.
But some states, like Colorado, Minnesota, and New York, absolutely prohibit the use
of conviction evidence in a negligent hiring civil suit. Texas prohibits negligent hiring
suits except when the employer knew or should have known that an employee
committed certain high-risk offenses.205 Massachusetts protects employers so long as
they relied on information from the state’s Criminal Offender Record Information
System (CORI) and reached a decision within 90 days of receiving that information.
While ban-the-box laws generally exclude specific types of employment, including
employment where a background check is required by law, and are essentially
toothless without standards and an enforcement mechanism, collectively they
represent the single most significant advance for people with a record in the
workplace in thirty years. In requiring potential employers to evaluate each
applicant’s circumstances as opposed to reflexively rejecting anyone who reports a
record, and in some cases potentially making it expensive to withdraw an offer
conditionally extended, these laws are to a considerable extent self-enforcing. In this
sense, they depend for their effectiveness not so much on the threat of lawsuits to
compel compliance as on marketplace efficiency.
As we will see in the following discussion, comprehensive occupational licensing
reforms enacted by more than a dozen states since 2018, and partial reforms enacted
by another dozen, are an equally encouraging development.

https://www.journals.uchicago.edu/doi/abs/10.1086/705880?af=R&mobileUi=0&;
see
also Alana Semuels, When Banning One Kind of Discrimination Results in Another, The Atlantic
(Aug. 4, 2016), https://www.theatlantic.com/business/archive/2016/08/consequences-ofban-the-box/494435/.
204

See Love, et al. supra note 41 at §§ 6:18 through 6:29.

See Texas profile Part IV, Restoration of Rights Project. Texas also relies on strict
regulation of background screeners. Screeners are required to obtain records only from a
criminal justice agency and must give individuals the right to challenge their accuracy.
Screeners may not publish records whose disclosure is prohibited under another state law
(e.g., records that have been expunged, or which are subject to an “order of nondisclosure”),
and there is a civil remedy for violations.
205

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B. Occupational Licensing
Recent studies have shown that close to 20% of all jobs in the United States are
available only to people who have been approved to compete for them by a
government licensing agency.206 It is therefore of obvious importance to the
reintegration agenda to remove record-based barriers that unfairly and inefficiently
restrict access to the licenses and certificates that people need to work in regulated
occupations and professions.
In addition to the burdens imposed in time and money by engaging in the licensing
process, applicants face regulatory agencies that may be inhospitable to people with
a criminal record even if they are fully qualified by skill and training. Sometimes this
is because the law mandates a heightened standard for those who have been
convicted of a crime (if they are not excluded entirely). More frequently it is because
of vague “good moral character” standards arbitrarily enforced by those with a guild
mentality or moral scruples untethered to public safety or actual occupational
requirements.207

See Morris M. Kleiner & Evgeny F. Vorotnikov, At What Cost, State and National Estimates
of the Economic Costs of Occupational Licensing, Institute for Justice (Nov. 2018),
https://ij.org/wp-content/uploads/2018/11/Licensure_Report_WEB.pdf;
Stephen
Slivinski, Center for the Study of Economic Liberty at Arizona State University, Turning
Shackles into Bootstraps: Why Occupational Licensing Reform Is the Missing Piece of Criminal
Justice Reform (Nov. 7, 2016), https://research.wpcarey.asu.edu/economic-liberty/wpcontent/uploads/2016/11/CSEL-Policy-Report-2016-01-Turning-Shackles-intoBootstraps.pdf.
206

207 The

White House issued a report in July 2015 on occupational licensing, which noted that
25 states have standards requiring some kind of relationship between a license and an
applicant’s criminal history, 25 states and the District of Columbia “have no standards in
place.” See White House, Occupational Licensing: A Framework for Policymakers, 35–36 (July
2015),
https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing_report_final_no
nembargo.pdf. In April 2016, President Obama directed federal departments and agencies to
ensure that federally-issued occupational licenses are not presumptively denied on the basis
of a criminal record, and the Department of Justice announced support for technical
assistance to states pursuing similar initiatives, as part of $5 million grant solicitation
focused on reentry. See White House Press Secretary, Fact Sheet: New Steps to Reduce
Unnecessary Occupation Licenses that are Limiting Worker Mobility and Reducing Wages
(June
17,
2016),
https://obamawhitehouse.archives.gov/the-press-

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In an earlier era of reform in the 1970s, many states enacted laws intended to soften
the rough edge of what had been complete exclusion of people with a criminal record
from trades and professions.208 Several states regulated public employers and
licensing agencies together, requiring them to consider whether a conviction was
“directly related” to a job or license, and whether the person was “rehabilitated.” 209
Some states that enacted detailed regulation of public employment and licensing
prior to the 1980s have not made major changes to their licensing rules since that
time.210

office/2016/06/17/fact-sheet-new-steps-reduce-unnecessary-occupation-licenses-arelimiting. The extent to which reforms have been successful in the intervening two years is
reflected by the fact that by mid-2020 only six states had no standards in place: Alaska,
Alabama, Massachusetts, South Carolina, South Dakota, and Vermont.
In the 1970s, with public policy favoring encouraging employment opportunities for
people with a criminal record, states began to enact laws that limit denial of licenses (and
public employment) due to criminal convictions. Notable enactments included those in New
Jersey (1968), Colorado (1973), Washington (1973), Hawaii (1974), Minnesota (1974), New
York (1976), North Dakota (1977), Pennsylvania (1979), and Wisconsin (1981). See Love et
al. supra note 41 at § 6:16. Many of these laws did little more than prohibit outright exclusion.
Colorado’s law, for example, provides that a conviction for a felony or moral turpitude
offense does not “in and of itself” prevent public employment or licensure (stating that with
exceptions for certain sensitive positions), but may be considered in determining a person’s
“good moral character.” COLO. REV. STAT. § 24-5-101(2). Others are stronger. For example,
North Dakota’s provisions prohibit denial of licensure unless there is a determination,
considering a number of factors that a person is not sufficiently rehabilitated (with
presumption of rehabilitation five years after completion of sentence) or the offense has a
“direct bearing” on ability to serve. N.D. CENT. CODE § 12.1-33-02.1. Minnesota has not
substantially amended its law since it was enacted in 1974, and it was among the five top
scorers in the ratings published in 2020 by the Institute for Justice. See infra notes 211 and
221.
208

See, e.g., New Jersey’s Rehabilitated Convicted Offenders Act of 1968, N.J. STAT. ANN. §
2A:168A-1; Minnesota’s Criminal Rehabilitation Act (1974), MINN. STAT § 364.01 et seq.; New
Mexico’s Criminal Offender Employment Act of 1974, N.M. STAT. ANN. §§ 28-2-1 et seq.
209

Connecticut, Minnesota, New Mexico, New Jersey, and New York still retain the earlier
structure of regulating public employment and licensing together. While several of these
states have since amended their laws, the licensing law adopted almost half a century ago in
Minnesota has changed little since its adoption, and it got high marks in the Institute for
Justice’s 2020 report. See infra note 211. North Dakota and Virginia also still operate under
detailed licensing regulations dating from the 1980s or earlier. Pennsylvania recently
210

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Beginning in 2013, a new era of occupational licensing reform took shape,
transforming the policy landscape.211 By mid-2020, more than 30 states had enacted
legislation to make it easier for qualified individuals with a criminal record to obtain
occupational and professional licensure and the foothold in the middle class that this
promises.212 The modern reforms were heavily influenced by model occupational
licensing laws proposed by two national organizations with differing regulatory
philosophies: The Institute for Justice (IJ), a libertarian public interest law firm,213 and
the National Employment Law Project (NELP), a workers’ rights research and

abandoned that structure in enacting a new chapter 31 of Title 68 to impose detailed
substantive standards on its licensing agencies, though its new law still offers little by way
of procedural protection for applicants with a record. See CCRC Staff, Pennsylvania expands
access to 255 licensed occupations for people with a record, (July 14, 2020),
https://ccresourcecenter.org/2020/07/14/pennsylvania-expands-access-to-255-licensedoccupations-for-people-with-a-record/.
While licensing was not the most well-publicized type of reform during the period of
2013-2016, new laws addressed licensing in four different ways: (1) seven states excluded
certain records from consideration in licensing; (2) four states expanded the benefits of
certificates of relief in licensing; (3) five states imposed new standards for license denials
based on criminal record; and (4) one state provided greater oversight of licensing boards.
See Collateral Consequences Resource Center, Four Years of Second Chance Reforms, 20132016 (2017), https://ccresourcecenter.org/2017/02/08/round-up-of-recent-secondchance-legislation-2013-2016/.
211

See NICK SIBILLA, Barred from Working: A Nationwide Study of Occupational Licensing
Barriers for Ex-Offenders,” INSTITUTE FOR JUSTICE (May 2020), https://ij.org/report/barredfrom-working/. At the time this report was published, three additional states had major
reform bills awaiting their governor’s signature, all of which were later enacted. See CCRC
Staff, supra note 209.
212

The Institute for Justice initially released its model law as part of its Occupational
Licensing Review Act (OLRA). See Institute for Justice, Model Occupational Licensing Review
Law: Reforming Occupational Licensing Boards following NC Dental Board v. FTC, (2018),
https://ij.org/activism/legislation/model-legislation/model-economic-liberty-law-1/.
Later, the provisions of OLRA relating to criminal records were revised and extended as its
Collateral Consequences in Occupational Licensing Act (CCOLA) (2019), https://ij.org/wpcontent/uploads/2019/11/10-31-2019-Model-Collateral-Consequences-in-OccupationalLicensing-Act-2.pdf.
213

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advocacy group.214 Both of these model law proposals addressed the following five
key issues:
1. What records should be considered? Both proposals limit the kinds of
records that may be considered, recommending that only recent serious
convictions should be the basis of denial or other adverse action, and that nonconvictions and sealed or pardoned convictions not be considered at all.
2. What are proper criteria for denial of licensure? Under IJ’s proposal,
denials must be based on evidence of public safety risk; under NELP’s proposal,
denials must be based on a record’s “direct relationship” to the occupation,
coupled with a lack of rehabilitation. Both proposals would eliminate
mandatory bars to licensure and vague standards like “good moral character.”
3. At what point in the process should criminal record be considered? The
timing for considering whether a criminal record should be disqualifying
differs significantly in the two proposals. Under IJ’s proposal, a person may at
any time petition for a “preliminary determination” whether a criminal record
will be disqualifying, before investing in any training or special education, the
agency must promptly respond and charge a minimal fee, and its
determination is binding upon later application. Under NELP’s proposal the
order of decision is reversed: consideration of the record should occur only
after determining the person is otherwise qualified, a variation on its “ban-thebox” approach.
4. What procedural protections should apply in licensing decisions? Under
both proposals, procedures for decision-making are well-defined, and both

NELP released its Model State Law as part of a report on barriers to licensing for people
with a record. See Michelle Rodriguez and Beth Avery, Unlicensed and Untapped: Removing
Barriers to State Occupational Licenses for People with Criminal Records, National
Employment Law Project (2016), http://www.nelp.org/publication/unlicensed-untappedremoving-barriers-state-occupational-licenses. NELP issued a report on its progress in
2018: Maurice Emsellem, Beth Avery, & Phil Hernandez, Fair Chance Licensing Reform Takes
Hold in the States, National Employment Law Project (May 15, 2018),
https://www.nelp.org/publication/fair-chance-licensing-reform-takes-hold-states/.
214

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require agencies to bear the burden of showing unfitness, to issue written
decisions defending denials, and to allow for appeals.
5. How should licensing agencies be held accountable? Both proposals
require agencies to make periodic reports that will allow monitoring of
compliance by the legislature or responsible executive agency.
The most ambitious and extensive licensing schemes enacted during the current
reform period address each of these questions, while other states have been more
selective in deciding which approaches to adopt. Between 2016 and mid-2020, 30
states enacted a total of 39 laws imposing new generally applicable obligations and
limitations on licensing agencies, some states enacting multiple laws in successive
years:215 Arizona (2017, 2018, 2019), Arkansas (2019), California (2018), Colorado
(2018), Georgia (2016), Idaho (2020), Illinois (2016, 2017), Indiana (2018, 2019),
Iowa (2019, 2020), Kansas (2018), Kentucky (2017), Louisiana (2017), Maryland
(2018, 2019), Massachusetts (2018), Mississippi (2019), Missouri (2020), Nebraska
(2018), Nevada (2019), New Hampshire (2018), North Carolina (2019), Ohio (2019),
Oklahoma (2019), Pennsylvania (2020), Rhode Island (2020) Tennessee (2016,
2018), Texas (2019), Utah (2019, 2020), West Virginia (2019, 2020), Wisconsin
(2018), and Wyoming (2018).
Some of these states regulated licensing decisions state-wide for the first time,216
while others expanded laws enacted during the earlier reform era in the 1970s and
80s.217 Many required agencies to publish lists of disqualifying convictions and limit

Citations and descriptions of these laws can be found in the relevant state profiles from
the Restoration of Rights Project. They are summarized in the RRP’s 50-state comparison
chart on employment of licensing, https://ccresourcecenter.org/state-restorationprofiles/50-state-comparisoncomparison-of-criminal-records-in-licensing-andemployment/, which links to a longer description of each state’s law.
215

The regulatory schemes enacted by Kansas and Nebraska in 2018, Mississippi, Nevada,
and West Virginia in 2019, and Iowa and Idaho in 2020, fall into this first-time category.
Alabama’s 2019 law, modeled on the Uniform Collateral Consequences of Conviction Act, was
also that state’s first regulation of licensing decisions.
216

For example, the laws enacted by Missouri and Pennsylvania in 2020 represented those
states’ first regulation of occupational licensing since 1980 and 1979, respectively. In 2019,
Arkansas, Kentucky, Maryland, North Carolina, Ohio, Oklahoma, and Texas also augmented
licensing laws originally enacted in the 1970s.
217

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disqualification to convictions “directly related” to the occupation, abolished vague
“moral character” criteria and emphasized public safety instead, barred
consideration of non-convictions and certain other records, and required agencies to
justify denials in writing and defend them on appeal. Many states also required
agencies to report periodically to the legislature.218 The Institute for Justice keeps a
running tab of the reforms.219
The most ambitious of the new laws was the comprehensive scheme enacted by
Indiana, which is strong both substantively and
procedurally, and its requirements apply not only
The most surprising
to state agencies but also to county and municipal
were the extensive new
governments that issue occupational and
schemes put in place in
professional licenses and permits.220 New
North Carolina and
Hampshire and Rhode Island come in a close
Mississippi
second.221 The most surprising were the

The provisions of each state’s law are in the Restoration of Rights Project.
https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncomparisonof-criminal-records-in-licensing-and-employment/.
218

As of August 2020, 17 states allowed individuals to petition a licensing board at any time
to determine if their criminal record would be disqualifying, 20 states had done away with
vague criteria like “good moral character” for some or all licenses, 16 states had prohibited
consideration of non-conviction records, 16 states had blocked licensing boards from
denying people a license unless their record is “directly related” to the license, and eight
states instituted new reporting requirements. See Institute for Justice, State Occupational
Licensing Reforms for Workers with Criminal Records (last visited Aug. 1, 2020)
https://ij.org/activism/legislation/state-occupational-licensing-reforms-for-people-withcriminal-records/ (also collecting information on which states prohibit consideration of
certain convictions after a stated period of time).
219

220 Indiana’s licensing law is described at

CCRC Staff, Indiana enacts progressive new licensing
law, (April 3, 2018), https://ccresourcecenter.org/2018/04/03/indiana-enactsprogressive-new-licensing-law/. Indiana was the only state to achieve an “A” rating in the
Institute for Justice’s May 2020 “Barred from Working” grading of state laws. See supra note
211. The significance of extending regulation to licenses and permits issued by counties and
municipalities is underscored in Amy P. Meek, Street Vendors, Taxicabs, and Exclusion
Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level, 75
OHIO ST. L.J. 1 (2014).
Stat. Ann. § 332-G, R.I. Gen. Laws § 28-5.1-14. Both states apply a “substantial
relationship” standard to licensing boards under most departments of state government, and
221 N.H. Rev.

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extensive new schemes put in place in two Southern states, North Carolina and
Mississippi, the first an expansion of a scheme from an earlier reform era, and the
second a brand new effort by a state that previously had no law at all.222 Minnesota
evidently saw no need to modify a progressive set-up first enacted in 1974 and
virtually unchanged since that time,223 but Pennsylvania completely reworked the
substantive standards intended to guide 29 licensing agencies controlling 255
licenses.224 Pennsylvania, along with Nebraska, also imposed new reporting
requirements on occupational licensing boards, perhaps a prelude to more extensive
procedural regulation. Alabama and Washington authorized their courts to grant
exemptions from many barriers to licensure.225

define it in detail. New Hampshire provides for a preliminary determination for an aspiring
applicant, while Rhode Island excludes certain records from consideration (including nonconvictions, misdemeanors, and felonies that are “substantially related”). Both allow
applicants to establish rehabilitation by detailed standards, provides detailed procedures in
the event of denial, suspension or revocation, and includes accountability standards.
CCRC Staff, Two southern states enact impressive licensing reforms, (Sept. 18, 2019),
https://ccresourcecenter.org/2019/09/18/two-southern-states-enact-impressiveoccupational-licensing-reforms/. The laws enacted by these two states were rated among
the five strongest by the Institute for Justice in its May 2020 Barred from Working study. See
supra note 211.
222

The Minnesota Criminal Rehabilitation Act (1974), Minn. Stat § 364.01 et seq., prohibits
discrimination in public employment and licensing. It has only been amended once since its
enactment, in 2013 to add text recognizing the special circumstances of veterans. The virtues
of this half-century-old law were affirmed when Minnesota was judged among the top five
states in the Institute for Justice’s May 2020 “Barred from Working” grading of state laws.
See supra note 211.
223

224 See

CCRC Staff, supra note 209. Pennsylvania’s licensing law, like its employment law, has
strong substantive standards but almost no procedures to ensure these standards are
complied with, remitting disappointed applicants to the courts. The law does require
agencies to report their progress to the legislature in two years, so perhaps this will
encourage compliance.
225 See ALA. CODE § 12-26-5 (Occupational Licensing Order of Limited Relief);

WASH. REV. CODE
§ 9.97.010 (Certificates of Restoration of Opportunity). Both these judicial certificates may
result in removing a mandatory bar to licensure, but without a standard to guide
discretionary decision-making thereafter, Alabama’s certificate appears toothless.
Washington’s law otherwise imposes a “direct relationship” standard and allows only
convictions within 10 years to be considered.

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In addition to these general reforms, several additional states enacted laws regulating
specific occupations or addressing narrower aspects of licensure. Five states
(Connecticut, Delaware, Florida, Idaho, and Iowa) loosened restrictions on barbers
and cosmetologists, and Florida and Iowa facilitated licensing in construction trades
taught in their prisons. Wisconsin added discrimination by occupational licensing
boards to its venerable fair employment law, and Alabama passed a law allowing
individuals to petition a court to remove mandatory bars to specific occupational
licenses so that applicants may be considered on the merits. Texas opened health care
occupations to people who may have been barred from them earlier in life.226 At the
time this report went to press, Michigan had pending seven bills addressing different
aspects of the licensing process.
In summary, given the number of work opportunities
they control, licensing agencies play a key part in any
Licensing agencies
reintegration strategy aimed at giving people with a
play a key part in any
criminal record a fresh start. While the philosophies
reintegration strategy
behind the bipartisan advocacy for licensing reform
may vary, the practical value of its guidance to the
many individuals who stand to benefit cannot be
overestimated. If a “clean slate” means “an absence of existing restraints,” 227 lifting
legal and societal barriers to licensure seems an essential part of a clean slate agenda.

226 See Collateral Consequences Resource Center, Pathways to Reintegration: Criminal Record

Reforms in 2019, at 24, 60-61 (2020), http://ccresourcecenter.org/wpcontent/uploads/2020/02/Pathways-to-Reintegration_Criminal-Record-Reforms-in2019.pdf.
227

See supra note 181.

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Report Card: Employment & Occupational Licensing
The following employment map assigns each state to one of five color-coded
categories reflecting the textual strength of the law regulating how criminal record is
taken account of in the employment application process. (We cannot and do not
comment on how these laws operate or how they are enforced.) Grades below are
based on these categories. The five categories are: 1) Orange: robust regulation of
both public and private employment; 2) Green: robust regulation of public
employment only; 3) Light orange: minimal regulation of both public and private
employment; 4) Light green: minimal regulation of public employment only; and 5)
White: no regulation of either public or private employment. In determining which
laws were robust and which were minimal, consideration was given to whether a
state’s fair employment law extends to discrimination based on criminal record;
whether a “ban-the-box” law prohibits inquiry until after a conditional offer has been
made; whether clear standards determine how employers should consider a record
in the employment application process; and, whether the law provides for
administrative enforcement.

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The following occupational licensing map assigns each state to one of five color-coded
categories reflecting the textual strength of the law regulating consideration of
criminal record by licensing agencies. Grades on the following page are based on
these categories. Orange designates a robust regulatory scheme, green an adequate
one, light orange a modest one, light green a minimally acceptable one, and states
colored white have no general licensing scheme at all. Rankings were determined by:
1) whether clear and specific standards apply to test the relevance of an applicant’s
criminal record to the occupation, by reference to public safety rather than
character; 2) whether certain categories of records (notably non-conviction records)
are excluded as irrelevant to licensure; 3) whether the law provides an opportunity
for aspiring applicants to get an early read on their likelihood of success, and whether
that early read is binding on a later determination; 4) whether procedural protections
are available through written reasons for denial and opportunities to appeal; 5)
whether there is an external accountability mechanism to monitor agency
performance, such as periodic reporting requirements; 6) and whether there is
provision for enforcement. Even licensing schemes deemed “robust” may not have
gotten that high mark in all six categories.

100

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AL
AK
AZ
AR
CA
CO
CT
DE
DC
FL
GA
HI
ID
IL
IN
IA
KS
KY
LA
ME
MD
MA
MI
MN
MS
MO

101

Employment

Licensing

F
F
D
F
A
C
B
B
A
D
D
A
F
A
C
F
D
B
B
D
C
C
D
A
F
B

F
F
A
B
B
C
C
C
D
D
C
C
C
A
A
A
D
C
D
C
D
F
B
A
A
C

MT
NE
NV
NH
NJ
NM
NY
NC
ND
OH
OK
OR
PA
RI
SC
SD
TN
TX
UT
VT
VA
WA
WV
WI
WY
Fed

Employment
F
D
B
F
C
C
A
B
D
D
D
C
C
C
F
F
B
D
D
C
D
C
F
A
F
B

Licensing
D
C
D
A
C
B
B
A
B
D
B
D
C
A
F
F
C
C
A
F
D
C
B
B
C
F

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Comparison of State Grades Between Employment and Licensing
Looking at how states performed on the two report cards, it is interesting that there
is not a particularly strong correlation between their rankings. That is, states that
have a robust system for regulating consideration of conviction in employment may
not and frequently do not have similarly strong systems for regulating occupational
licensing agencies. In fact, only two states (Illinois and
Minnesota) scored at the top of both categories. Three
There is not a
other states that scored well on employment also
particularly strong
scored well on occupational licensing (California, New
correlation between
York, and Wisconsin), but the last two jurisdictions in
how states rank in
the top employment category (Hawaii and the District
employment and
of Columbia) scored poorly on occupational licensing.
licensing
Four of the six states that have robust regulation of
public employment scored in the middle tier of
occupational licensing (Delaware, Kentucky, Missouri, and Tennessee), but the other
two with good scores on public employment scored poorly on occupational licensing
(Louisiana and Nevada).
Conversely, four states that ranked in the top tier for occupational licensing had no
law at all regulating employment (Iowa, Mississippi, New Hampshire, and North
Carolina) and two others had only minimal regulation of public employment (Indiana
and Utah). Three states had no regulation at all governing either employment or
occupational licensing (Alaska, South Carolina, and South Dakota).
The Restoration of Rights Project contains 50-state summaries of the relief
mechanisms analyzed in this report: consideration of criminal records in
employment & licensing; loss and restoration of civil & firearms rights; pardon policy
& practice; and expungement, sealing, & other record relief. Each of these summaries
has links to state profiles that may be consulted for additional detail.

102

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APPENDIX: OVERALL REPORT CARD & STATE RANKINGS
The following table shows the grades for each issue as reflected on the report cards
in this report. The final column assigns an overall ranking of the restoration laws of
state (and D.C), assigning equal weight to the different relief mechanisms, except that
deferred adjudication and certificates of relief were each assigned 50% weight. (The
state rankings are displayed in order in the Executive Summary, at p. 7, supra.)
Voting Pardon

Felony Misdo. Non- Deferred
Cert.
relief relief convict. adjud. of relief Employment Licensing Rank

103

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Voting Pardon

Felony Misdo. Non- Deferred
Cert.
relief relief convict. adjud. of relief Employment Licensing Rank

Fed

n/a

104

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