Restoration of Rights & Record Relief
Last updated: May 20, 2020
I. Loss & restoration of civil/firearms rights
A person convicted of a felony loses the right to vote only while actually serving a prison term. See Colo. Const. art. 7, § 10 (A person shall not be eligible to vote “while confined in any public prison,” but shall be restored to the rights of citizenship “after serving out his full term of imprisonment.”); Colo. Rev. Stat. § 1-2-103(4)(“No person while serving a sentence of detention or confinement in a correctional facility, jail, or other location for a felony conviction is eligible to register to vote or to vote in any election. . . . An individual serving a sentence of parole is eligible to register to vote and to vote in any election.”) Until 2019, a “full term of imprisonment” included a period of parole; effective August 1, 2019, HB 19-1266 restored the vote to parolees, and requires parole authorities to inform people leaving prison of their right to vote and how to register.1 A person in pre-trial detention may vote by mail. § 1-2-103(4).
B. Office, Jury
Persons convicted of a felony are disqualified from public office only while incarcerated, or while on parole from a prison sentence, Col. Rev. Stat. § 18-1.3-401(3), with certain exceptions specified in the state constitution. See Colo. Const. art XII, § 4 (embezzlement of public money, bribery, and perjury all result in permanent disqualification). The right to sit on a jury is not lost at all (the disqualification statute was repealed in 1989).
Persons convicted of a felony may not possess firearms, unless pardoned. Col. Rev. Stat. § 18-12-108(1), (2). Penalty for illegal possession is enhanced if possession occurs within ten years of conviction or release from supervision, for burglary, arson, or any felony involving violence. § 18-12-108(2)(c).
D. Compilation of collateral consequences
The Colorado State Public Defender has compiled an inventory of collateral consequences and statutory relief provisions under Colorado law. See The Consequences of Conviction: Sanctions Beyond the Sentence Under Colorado Law (2014 update), available at http://www.coloradodefenders.us/consequences-of-conviction-2/consequences-of-conviction-2/. Provisions governing sealing and expungement are at pp. 5-9. Mark Evans, Deputy State Public Defender, is the primary author of this very useful study.
II. Pardon policy & practice
The pardon power is vested in the governor, except in cases of treason or impeachment, “subject to such regulation as may be prescribed by law relative to the manner of applying for pardons.” Colo. Const. art. IV, § 7. In every instance where the governor exercises the power, he must “send to the General Assembly at its first session thereafter, a transcript of the petition, all proceedings, and the reasons for his action.” Id. The clemency power is regulated by Colo. Rev. Stat. §§ 16-17-101 and 102, and grants not issued in compliance with those provisions are invalid. See People ex rel. Garrison v. Lamm, 622 P.2d 87 (Colo. App. 1980). Section 16-17-102 provides that before approving a pardon application the governor must submit it to the district attorney, the sentencing judge, and the prosecuting attorney:
“Before the governor approves [a pardon] application, it shall be first submitted to the present district attorney of the district in which the applicant was convicted and to the judge who sentenced and the attorney who prosecuted at the trial of the applicant, if available, for such comment as they may deem proper concerning the merits of the application, so as to provide the governor with information upon which to base his or her action. The governor shall make reasonable efforts to locate the judge who sentenced and the attorney who prosecuted at the trial of the applicant and shall afford them a reasonable time, not less than fourteen days, to comment on such applications.”
The governor is advised by the non-statutory Colorado Executive Clemency Advisory Board, established within the Office of the Governor and consisting of seven members appointed by the governor, including the Executive Director of the Corrections Department, the Executive Director of the Department of Public Safety, and one crime victim representative. The Board must meet at least once every six months. The Board is staffed by the Department of Corrections, and assisted by the Colorado Bureau of Investigation for background investigations. The Board was reconstituted by Governor Jared Polis in October 2019.
Pardon applications are not generally accepted until at least 10 years after completion of a sentence. Persons convicted under federal law or in another state are not eligible for gubernatorial pardon.
Colo. Rev. Stat. § 16-17-103, enacted in 2013, provides that “A pardon issued by the governor shall waive all collateral consequences associated with each conviction” unless the pardon limits the scope. While governors have from time to time explained their criteria for granting a pardon, there appear to be no published standards at the present time.
See Colo. Rev. Stat. § 16-17-102. After a conviction, all applications for commutation of sentence or pardon for crimes committed shall be accompanied by a certificate of the respective superintendent of the correctional facility, showing the conduct of an applicant during his confinement in the correctional facility, together with such evidences of former good character as the applicant may be able to produce. Before the governor approves such application, it shall be first submitted to the present district attorney of the district in which the applicant was convicted and to the judge who sentenced and the attorney who prosecuted at the trial of the applicant, if available, for such comment as they may deem proper concerning the merits of the application, so as to provide the governor with information upon which to base his action. The governor shall make reasonable efforts to locate the judge who sentenced and the attorney who prosecuted at the trial of the applicant and shall afford them a reasonable time, not less than ten days, to comment on such applications.
An application form is posted on the website of the Department of Corrections. https://drive.google.com/file/d/0B_tbUw2-58lyYl9ZMnJneHhrNEk/view.
“Good character previous to conviction, good conduct during confinement in the correctional facility, the statements of the sentencing judge and the district attorneys, if any, and any other material concerning the merits of the application shall be given such weight as to the governor may seem just and proper, in view of the circumstances of each particular case, a due regard being had to the reformation of the accused.” Colo. Rev. Stat. § 16-17-102.
G. Frequency of grants
Governor Jared Polis reconstituted the clemency board in the fall of 2019, and issued several pardons. Governor Hickenlooper granted a total of 156 pardons and several sentence commutations during his eight years in office (2011-2019), all of them during the 18 months between June 2017 and December 2018. His first pardon was issued in June 2017 to a native of Cuba seeking to avoid deportation. See Keith Coffman, Colorado Governor Pardons Man Facing Deportation to Cuba, http://www.reuters.com/article/us-usa-immigration-colorado-idUSKCN18G058. On November 20, 2017, commenting on his philosophy of pardoning, he stated that
“A clemency is an opportunity to really give someone a second chance,” Hickenlooper said. “Someone who’s committed a crime oftentimes when they are much younger. And I think sometimes our criminal justice system of punishment can be almost counterproductive when you see people who have spent 20 or 30 — in some cases 40 — years living exemplary lives, and yet it is still is nagging them.”
See http://www.denverpost.com/2017/11/20/colorado-pardons-john-hickenlooper/. During his first six years in office, Governor Hickenlooper showed little interest in his pardoning power. He created a Executive Clemency Advisory Board in 2012, but did not appoint its members until January 2015. A total of 220 applications were pending at that time.
Until the final 18 months of Governor Hickenlooper’s term, the pardon power had not been functioning in Colorado in a meaningful fashion for a number of years. Governor Ritter (2007-2011) granted only three pardons until his final two weeks in office, when he granted 39 pardons (one posthumously) and ten commutations. His predecessor Bill Owens granted 13 pardons over his eight years in office. Source: Colorado Governor’s Office.
III. Expungement, sealing & other record relief
Criminal records can be sealed only under limited circumstances. Instructions for sealing criminal records, as well as the documents necessary for doing so, can be found on the Colorado State Judicial Branch website. http://www.courts.state.co.us/Forms/SubCategory.cfm?Category=Seal.
Colorado has revised its laws on criminal records several times since 2011. In 2019 the entire section on criminal justice record-sealing was repealed, reorganized and reenacted by HB 1275, with amendments, as reflected below. See also pp. 5-9 of the Colorado State Public Defender’s Consequences of Conviction (2019 ed.), http://www.coloradodefenders.us/wp-content/uploads/2019/12/Consequences-of-Conviction-2019-Edition-1.pdf.
A. General sealing of conviction records
Prior to 2019, the general provisions for sealing of convictions in Colorado law related exclusively to drug crimes, with eligibility waiting periods ranging between three and ten years. Under HB 1275, convictions from petty offenses to less serious felonies, including but not limited to drug crimes, are eligible for sealing. Eligibility waiting periods range from one year in the case of petty offenses, to three years for misdemeanors and lower-level felonies, to five years for all other eligible felonies. § 24-72-706(1)(b). Class 1, 2 and 3 felonies are ineligible for sealing, as are other specified crimes involving sexual offenses or dangerous conduct. § 24-72-706(2)(a). Drug felonies are subject to shorter waiting periods than other felonies.
In cases where an individual was convicted of more than one offense, records of the conviction can only be sealed if all offenses are eligible. If a case was dismissed or not charged due to a plea agreement, sealing is governed by the case in which the conviction was entered. Conviction records cannot be sealed if the individual still owes restitution or other fees ordered by the court, unless the court has vacated the order.
A misdemeanor offense that is otherwise ineligible may be rendered eligible if the DA consents, or if the court finds by clear and convincing evidence that “the petitioner’s need for sealing of the record is significant and substantial, the passage of time is such that the petitioner is no longer a threat to public safety, and the public disclosure of the record is no longer necessary to protect or inform the public.” § 24-72-706(2)(b).
Another bill signed the same day as HB 1275, HB 1263 provided for additional treatment options for drug offenders in lieu of imprisonment, and reduced the maximum penalty for misdemeanor drug offenses (both levels 1 and 2) to 364 days imprisonment, thereby avoiding mandatory deportation as an “aggravated felony” under federal law.
SB8, signed into law about a week before the governor signed HR1275, established a simplified process for sealing less serious drug convictions (Level 4 felonies, misdemeanors, and municipal offenses), applied a three-year eligibility waiting period, and lowered the filing fee to $65. See § 24-72-705.5. To the extent the provisions of this law are inconsistent with those enacted by HR1275, presumably the latter law governs.
SB8 also charged the Colorado Commission on Criminal and Juvenile Justice with advising on alternatives to prison for drug offenders, and directed that it report by June 2020 on establishing a mechanism for automatic sealing of drug convictions.
B. Specific convictions eligible for sealing
Felony drug offense “knocked down” to misdemeanor: Effective July 1, 2013, persons convicted of less serious felony drug offenses (whether by plea or trial) with no more than one prior conviction may have their convictions vacated and reduced to a misdemeanor upon successful completion of probation. Colo. Rev. Stat. § 18-1.3-103.5 (“In order to expand opportunities for offenders to avoid a drug felony conviction, to reduce the significant negative consequences of that felony conviction, and to provide positive reinforcement for drug offenders who work to successfully complete any community-based sentence imposed by the court, the legislature hereby creates an additional opportunity for those drug offenders who may not otherwise have been eligible for or successful in other statutorily created programs that allow the drug offender to avoid a felony conviction, such as diversion or deferred judgment.”) Felonies otherwise ineligible for sealing, see above, may become eligible following reduction.
Decriminalized marijuana offenses: Effective August 2017, courts must, upon petition, seal the records of misdemeanor marijuana possession or use offenses that would not have been crimes if committed on or after December 10, 2012. Colo. Rev. Stat. § 24-72-710 (added by HB 17-1266).
Petty offenses and municipal violations: Colo. Rev. Stat. § 24-72-708 provides for sealing of records pertaining to petty offenses and municipal violations after a three-year waiting period during which the person has not been charged with or convicted of a felony or misdemeanor. Sealing of violations not related to domestic violence is permissible after 3 years even if there was intervening conviction, so long as there was only one conviction; it was not a felony and did not involve domestic violence, child abuse, or sex abuse; and the person has not been convicted of another felony or misdemeanor in the 10 years preceding final disposition (or release, if later) in the intervening case. § 24-72-708(1)(a)(II). Exclusions apply for misdemeanor traffic offenses committed by commercial drivers. § 24-72-708(1)(a)(III).
Victims of human trafficking: Victims of human trafficking may have records of any misdemeanor or municipal violation sealed on petition, § 24-72-707. As originally enacted, only convictions for prostitution were eligible for sealing.
Miscellaneous conviction records eligible for sealing: Other records that may be sealed are: convictions of posting a private image for harassment or pecuniary gain, § 24-72-709; convictions of theft of public transportation services by fare evasion. § 24-72-707. In addition, anyone convicted or charged with underage possession or consumption of alcohol or marijuana may apply for sealing. § 18-13-122(13).
C. Effect of sealing
The effect of sealing is explained at length in Colo. Rev. Stat. § 24-72-703. Employers, landlords, and state and local government agencies are generally prohibited from requiring applicants to disclose any information contained in sealed records, § 24-72-703(4)(d). Upon the entry of an order to seal the conviction records, the defendant and all criminal justice agencies may properly reply, upon an inquiry in the matter, that public conviction records do not exist with respect to the defendant. § 24-72-703(2)(a). However, an order sealing conviction records does not deny access to courts and law enforcement agencies, or any “party or agency required by law to conduct a criminal history record check on an individual.” Id. Sealing does not vacate the conviction, and it may be used in subsequent prosecutions. § 24-72-703(4). Also, some organizations, including the bar committee, the Department of Education, and criminal justice agencies, may still have access to some information in records sealed under these provisions. Id. The Colorado State Public Defender notes that “Individuals with sealed convictions may face a difficult decision regarding whether to tell others about a conviction the individual is not required to disclose but could nevertheless be uncovered during a background check.”
D. Procedural issues
Individuals must be advised by the court at sentencing about the provisions for sealing, and by the probation officer or parole officer upon the conclusion of supervision. Colo. Rev. Stat. § 24-72-703(9). For more serious felonies, the court must hold a hearing; for other offenses, the court need not hold a hearing unless the prosecutor or victim objects. § 24-72-706. In regard to any conviction of a defendant resulting from a single case in which the defendant is convicted of more than one offense, records of the conviction may be sealed pursuant to the provisions of this part only if the records of every conviction of the defendant resulting from that case may be sealed. § 24-72-703(12)(a). Conviction records may not be sealed if the defendant still owes restitution, fines, court costs, late fees, or other fees ordered by the court in the case that is the subject of the petition to seal conviction records. Id. at (12)(b). If a defendant is convicted of a new criminal offense after an order sealing conviction records is entered, the court shall order the conviction records to be unsealed. § 24-72-703(2)(a)(V). Any member of the public may petition the court to unseal “upon a showing that circumstances have come into existence since the original sealing and, as a result, the public interest in disclosure now outweighs the defendant’s interest in privacy.” § 24-72-703(5)(c).
In the case of conviction records, the court may order the record of a conviction sealed after a hearing “if the court finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records.” § 24-72-706(1)(g). The court “shall, at a minimum, consider the severity of the offense that is the basis of the conviction records sought to be sealed, the criminal history of the defendant, the number of convictions and dates of the convictions for which the defendant is seeking to have the records sealed, and the need for the government agency to retain the records.” Id. In the event the court denies the motion, it is required to give its reasons. § 24-72-706(1)(c).
F. Sealing of uncharged arrests and non-conviction records, including diversions and deferred dispositions
As reorganized and revised in 2019, chapter 7 addresses the sealing of uncharged arrest records under Colo. Rev. Stat. § 24-72-704, and the sealing of other non-conviction records under § 24-72-705.
Uncharged arrests and diversions: Under § 24-72-704(1)(a), an individual arrested but not charged may petition the court for sealing if either a) the longest limitations period has run, or b) “the person is no longer being investigated by law enforcement for commission of the offense.” In addition, an individual who completed a diversion agreement with no charges filed may petition the court to have the record sealed. Any petition must include a listing of each custodian of the records to whom the sealing order is directed. § 24-72-704(1)(b). After determining that the petition is sufficient on its face, the court sets a hearing date in 35 days, and notifies the prosecutor and arresting agency. If no objection is lodged within 7 days of the scheduled hearing the court vacates the hearing and seals the record. If the court determines that the arrest is ineligible for sealing, “the court’s order must specify the reasons for the denial of the petition.” §§ 24-72-704(1)(c)(I) and (II).
Non-conviction records: Under § 24-72-705(1)(a), individuals may request (“move”) the court to seal arrest and criminal records when a case is completely dismissed, when the defendant is acquitted on all counts, when a defendant completes a diversion agreement pursuant to 18-1.3-101, or where the defendant completes a deferred judgment and sentence and all charges are dismissed, pursuant to 18-1.3-102. Authority for these diversionary dispositions is discussed below. If a defendants moves under “the expedited procedures of this section, the court shall promptly process the defendant’s request to seal the criminal records within the criminal case without the filing of an independent civil action and without any further evidence.” If the court did not order the sealing at the time of dismissal, the defendant may make a motion at any time without need for filing a civil action. § 24-72-705(1)(b). The subsection “applies retroactively to all eligible cases when the case has been completely dismissed or the defendant has been acquitted of all counts in a state or municipal case.” § 24-72-705(1)(c). There is a processing fee of $65, waivable for indigency.
A requirement in earlier versions of the law, that upon objection by the prosecutor the court “find that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records,” was deleted. Also deleted were provisions that conditioned sealing of non-conviction records on the running of a statute of limitations. Also deleted were provisions precluding sealing if the defendant still owed restitution, fines, or other court debt, which now apply only to sealing of conviction records. A provision permitting sealing where a case was dismissed pursuant to a plea agreement in a separate case was also revised: earlier versions of the law required a petitioner to wait 10 years following final disposition of all criminal proceedings against the person, and to have no intervening criminal charges, but the revised provision requires only waiting until the separate case is eligible for sealing with no mention of intervening charges. See § 24-72-703 (12)(b). The court is required to advise a defendant of the availability of this relief at the time charges are dismissed or upon acquittal. Records pertaining to serious traffic offenses, and offenses involving holders of commercial drivers’ licenses, and sex offenses, are not eligible for sealing. § 24-72-703(12)(c).
A complex, burdensome and costly civil procedure for sealing non-conviction records, previously codified in § 24-72-702(1)(b)(I), was repealed in its entirety. An expedited process for non-conviction sealing enacted in 2016 was also repealed, and replaced by the similarly expedited procedure in § 24-72-705.2 A fee of $65 is assessed to cover processing costs, which may be waived in the event of indigency. Per the Colorado State Public Defender, courts have apparently not been coding for sealing under this expedited authority, so it is next to impossible to determine how frequently it is being used.
Authority for Deferred dispositions
Deferred sentencing: Colo. Rev. Stat. § 18-1.3-102. When a defendant enters a guilty plea, courts are authorized, with the consent of the defendant, his attorney, and the prosecutor, to “continue” the case, i.e. postpone the sentencing portion of the case. The court may continue felony cases for up to four years, and misdemeanor cases for up to two years, during which the defendant is on probation. Upon successful completion of the probationary period, the guilty plea is withdrawn and the charges are dismissed with prejudice. In this case, the person is no longer regarded as convicted, including for purposes of sex offender registration. See McCulley v. People, No. 18SC577, Colo. Sup. Ct., May 18, 2020. If the defendant violates the terms of the probation, the prosecutor may move to revoke probation, and the judge decides, at a hearing, whether to revoke probation. Deferred sentencing is used mostly for people with first-time drug offenses referred to drug court. Sealing is available if the charges are dismissed (see above).
Pretrial diversion: See Colo. Rev Stat. § 18-1.3-101. Effective August 7, 2013, each district attorney is authorized to establish a program for pretrial diversion available to all but specified serious sex offenses. The purpose of the new authority is “to ensure defendant accountability while allowing defendants to avoid the collateral consequences associated with criminal charges and convictions.” § 18-1.3-101(1). Eligibility: In determining whether an individual is appropriate for diversion, the district attorney shall consider: (a) The nature of the crime charged and the circumstances surrounding it; (b) Any special characteristics or circumstances of the defendant; (c) Whether diversion is consistent with the defendant’s rehabilitation and reintegration; and (d) Whether the public interest will be best served by diverting the individual from prosecution.” § 18-1.3-101(3). The term of diversion is generally two years.
“Upon the defendant’s satisfactory completion of and discharge from supervision, the court shall dismiss with prejudice all charges against the defendant. The effect of the dismissal is to restore the defendant to the status he or she occupied before the arrest, citation, or summons. A successfully completed diversion agreement shall not be considered a conviction for any purpose. A person with an order of dismissal entered pursuant to this article may not be subject to charge, prosecution, or liability under Colorado law of perjury or otherwise giving a false statement by reason of his or her failure to recite or acknowledge the arrest, citation, or summons in response to any inquiry made for any purpose.”
Expungement of arrests based on mistaken identity: “Notwithstanding any other provision of law, a court shall expunge the arrest and criminal records information of a person who was arrested as a result of mistaken identity and who did not have charges filed against him or her.” Colo. Rev. Stat. § 24-72-702 (enacted in 2016, reenacted in 2019). The process is initiated by the arresting law enforcement agency, which must file an expungement petition with the district court within 90 days of “find[ing] that a person was arrested as a result of mistaken identity and no charges were filed.” The court must expunge the records within 90 days of filing. Employers, state and local agencies, and educational institutions may not require disclosure of records expunged under this authority, and a person may deny the fact of arrest without penalty. However, law enforcement retains access to these records, as with sealed records.
G. Expungement of juvenile adjudication records
A major revision of the juvenile expungement law, Colo. Rev. Stat. § 19-1-306, took effect in November 2017. A second major revision was enacted in 2019. See y HB 1335. Under the law as revised, courts must expunge records of the following after 42 days: acquittals and dismissals and, upon completion of sentence, adjudications for petty offenses, class 3 & 4 misdemeanors, and level 1 & 2 drug misdemeanors. Colo. Rev. Stat. § 19-1-306(4)(a). Under the 2017 law, diversion, deferred adjudication, or informal adjustment were excepted from mandatory expungement, but in 2019 these dispositions and other sentencing alternatives were specifically included. Prior to 2017, expungement was available for less-serious offenses only by petition, and subject to the court’s discretion and a waiting period that varied based on the seriousness of the offense. Exceptions apply for sex offenses, domestic violence, and crimes requiring victim notification. § 19-1-306(4)(a)(III).
Under the 2019 law, when a court orders diversion or deferred adjudication or an alternative disposition, it must make a finding that the juvenile is eligible for expungement.3 The prosecutor (who receives notice of eligibility from the court), and the victim (who receives notice from the prosecutor), each have 35 days to object to the expungement. § 19-1-306(5)(a) – (e).4 If neither objects, the court must order expungement. § 19-1-306(5)(d). If either objects, a hearing is held, to determine whether “the rehabilitation of the juvenile has been attained to the satisfaction of the court,” and that “the expungement is in the best interest of the juvenile and the community.” § 19-1-306(5)(e) – (g).
A new section added by the 2019 law authorizes the court, in a case where the juvenile’s offense requires registration but is eligible for expungement, to direct that registration be discontinued at the same time the court directs expungement. § 19-1-306(5)(e.5). The prosecutor and victim are given notice, and have 63 days to respond.
Individuals adjudicated as “repeat offenders” and “mandatory sentence offenders” are not otherwise eligible for expungement under subsection (5), but may petition for expungement 36 months after completion of sentence if no charges or delinquency proceedings are pending. § 19-1-306(6)(e). The eligibility requirements, procedures, and standards set forth in subsection (5) apply.
Pursuant to § 19-1-306(8),
A court shall not expunge the record of a person who is:
(A) adjudicated as an aggravated juvenile offender pursuant to section 19-2-516 (4) or as a violent juvenile offender pursuant to section 19-2-516 (3);
(B) adjudicated of homicide and related offenses pursuant to part 1 of article 3 of title 18;
(C) adjudicated for a felony offense involving unlawful sexual behavior as described in section 16-22-102 (9); or
(D) charged, adjudicated, or convicted of any offense or infraction pursuant to title 42 [“Vehicles and Traffic”].
Records of municipal juvenile adjudications are automatically expunged 42 days after completion of sentence. § 19-1-306(9). The prosecutor may object, triggering a hearing in which the only issue is whether the sentence has been completed or the case is closed. § 19-1-306(9)(c) – (e).
Expungement of records in other cases, including closed cases, is covered by subsection (6).
Expungement under § 19-1-306 seals the relevant records of the courts, law enforcement, the Division of Youth Corrections, and the Colorado Bureau of Investigation, and the records “are deemed never to have existed.” § 19-1-306(2)(g), (3); § 19-1-103(48). An individual may deny the fact of arrest or adjudication. § 19-1-306(1)(a).
The 2019 law enacted an entirely new section that details the effect of expungement in juvenile cases and applicable standards. See Colo. Rev. Stat. § 13-10-115.5
Separate sealing authority exists for juvenile records in cases of underage alcohol consumption/possession. Sealing is available after 1 year if the person has not been arrested, charged, or convicted of a crime in the year following conviction. See Colo. Rev. Stat. § 18-13-122(10).
Expungement of underage DUI offenses
Records of conviction for less serious underage DUI offenses (“UDD” offenses) may be “expunged” after a person’s twenty-first birthday subject to certain conditions and exceptions. See Colo. Rev. Stat. §§ 42-4-1715(1)(b), 42-2-121(5).
H. Collateral relief at and after sentencing
At the time of conviction or at any time thereafter, upon the request of the defendant or upon the court’s own motion, a court may enter an “order of collateral relief” in the criminal case to override certain collateral consequences, “for the purpose of preserving or enhancing the defendant’s employment prospects and to improve the defendant’s likelihood of success in the community.” Colo. Rev. Stat. § 18-1.3-107(1), added by HB18-1344. Defendants must be notified prior to sentencing of the availability of this relief. See Col. Rev. Stat. § 16-11-102(1)(a)(II.5).5
Under § 18-1.3-107(2)(a), an application for an order of collateral relief must cite the grounds for granting the relief, the type of relief sought, and the specific collateral consequence from which the applicant is seeking relief. The 2018 amendments included a provision for a filing fee of $30 when relief is sought after sentence has been imposed, in addition to the usual civil filing fee, subject to waiver for indigency. § 18-1.3-107(2)(a). The applicant must provide a copy of the application to the district attorney and to the regulatory or licensing body that has jurisdiction over the collateral consequence from which the applicant is seeking relief, if any.
An order of collateral relief may relieve a defendant of any collateral consequences of the conviction, whether in housing or employment barriers or any other sanction or disqualification that the court shall specify, including but not limited to statutory, regulatory, or other collateral consequences that the court may see fit to relieve that will assist the defendant in successfully reintegrating into the community.
A conviction as to which there has been an order of collateral relief may not be the basis of denial of an occupational license. On the other hand, an order of collateral relief cannot override any collateral consequences imposed by law for licensure by the department of education or any collateral consequences imposed by law for employment with the judicial branch, the department of corrections, division of youth corrections in the department of human services, or any other law enforcement agency in the state of Colorado.
Certain offenses are not eligible, including crimes of violence and sexual offenses. Standards for relief are set forth in § 18-1.3-107(6)(a):
A court may issue an order of collateral relief if the court finds that: (I) The order of collateral relief is consistent with the applicant’s rehabilitation; and (II) Granting the application would improve the applicant’s likelihood of success in reintegrating into society and is in the public’s interest.
The court “may at any time issue a subsequent judgment to enlarge, limit, or circumscribe the relief previously granted,” or may revoke the relief upon evidence of a subsequent criminal conviction or proof that the defendant is no longer entitled to relief. § 18-1.3-107(6)(b)-(c).
People with juvenile adjudications are also eligible for orders of collateral relief, except that additional disqualifying offenses apply (crimes of violence and crimes requiring registration as a sex offender). See Col. Rev. Stat. § 19-2-927, as amended.
The Colorado State Judicial Branch has issued instructions for filing for orders of collateral relief, at http://www.courts.state.co.us/Forms/renderForm1.cfm?Form=869.
IV. Criminal record in employment & licensing
A. Public employment & licensing
Colo. Rev. Stat. § 24-5-101(1)(a):
[T]he fact that a person has been convicted of a felony or other offense involving moral turpitude shall not, in and of itself, prevent the person from applying for and obtaining public employment or from applying for and receiving a license, certification, permit, or registration required by the laws of this state to follow any business, occupation, or profession.7
In 2018, the law relating to consideration of criminal record in licensing and public employment was significantly modified by HB 18-1418, as described below.
1. Standards for considering criminal record in licensing
Prior to May 2018, licensing agencies charged under § 24-5-101(2)(a) with determining whether an applicant possesses the requisite “good moral character” for occupational and professional licensure were specifically permitted to consider an individual’s criminal record in this connection. Language was added to this provision by HB 18-1418 to link consideration of a criminal record more specifically to a determination whether an individual is “qualified.”8. The provision retains the following pre-existing language: “The intent of this section is to expand employment opportunities for persons who, notwithstanding that fact of conviction of an offense, have been rehabilitated and are ready to accept the responsibilities of a law-abiding and productive member of society.”9
In 2018, new language was added to the provision to prohibit a licensing agency or public employer from using as a basis for denial or adverse action arrests and charges not resulting in conviction (though the conduct underlying the arrest may be considered), convictions that have been pardoned, sealed or expunged, or convictions as to which a court has issued an order of collateral relief under § 18-1.3-107(6) (see above). See § 24-5-101(2)(b).
If none of these exclusions apply, the licensing agency or employer “shall consider” the following factors in deciding whether to disqualify based on criminal record: In determining whether a conviction disqualifies an applicant, the state or licensing agency must consider (1) the nature of the conviction; (2) whether the conviction is “directly related” to the license sought; (3) the applicant’s rehabilitation and good conduct; and (4) time elapsed since conviction. § 24-5-101(4). The “direct relationship” standard singles out for specific mention convictions of a sexual nature, and circumstances involving particular public safety risks, including care of vulnerable populations.
Conditional licenses: The 2018 revisions to the law added a section authorizing agencies to issue “conditional licenses” to people with a potentially disqualifying criminal record. See § 24-34-107(5). The individual may petition for removal of the condition: (1) after one year; or (2) when applying to renew the license, whichever is later. If the individual has had no further adverse contact with the justice system, and is no longer on probation or parole, the board “shall grant” the request unless it determines that the conditional designation is “necessary.” After removal, any reference to the original conditional designation shall be confidential.
2. Ban-the-box; standards for considering criminal record in public employment
In May 2012, Colo. Rev. Stat. § 24-5-101 was amended to prohibit state agencies (other than the department of corrections and of public safety) from performing a background check “until the agency determines that an applicant is a finalist or makes a conditional offer of employment to the applicant.” § 24-5-101(3)(b). In 2018 the language excluding from consideration certain criminal records was reworked to conform more closely to the newly enacted exclusions in the law governing licensing decisions, 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.” § 24-5-101(3)(c). One other way in which the exclusion of non-conviction records differs slightly from the analogous provision applicable to licensing is that employing agencies are not permitted to take into account the conduct underlying an arrest not resulting in conviction.
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. § 24-5-101(4).10 The “direct relationship” standard applicable to licensure (see above) also applies to public employment, and was expanded in 2018 to cover employment involving care of vulnerable populations (e.g., age, disability, mental health).
The law does not apply where a statute bars employment of a person “with a specific criminal conviction for a particular position.” § 24-5-101(3)(a). Consideration of criminal history information that the applicant voluntarily provides is permitted. § 24-5-101(3)(e). The law addresses blanket bans in job ads by prohibiting the advertisement of a position with a statement that a person with a criminal record may not apply (unless the law itself prohibits hiring someone with a conviction). § 24-5-101(3)(a).
Section 24-5-101(1) does not apply to certain persons seeking public office and persons seeking licensure and employment in positions involving direct contact with vulnerable persons, public safety, corrections, education, or with the public employees’ retirement association.11 Section 24-5-101 may also be overridden by statutory requirements related to specific licenses or employment. See § 24-34-102(8.7) (§ 24-5-101 applies to licensing under titles 10 (“Insurance”) and 12 (“Professions and Occupations”) of the Colorado Statutes “[u]nless there is a specific statutory disqualification that prohibits an applicant from obtaining licensure”); see also § 27-90-111 (screening and disqualification requirements applicable to department of human services employees who have direct contact with vulnerable persons).
4. General Assembly review of regulatory agencies
Under a law enacted in 2013, and expanded in 2018, the General Assembly must determine “Whether the agency through its licensing or certification process imposes any sanctions or disqualifications on applicants based on past criminal history and, if so, whether the sanctions or disqualifications serve public safety or commercial or consumer protection interests.” Colo. Rev. Stat. § 24-34-104(6)(b)(IX). To assist in considering this factor, the department of regulatory agencies shall prepare an analysis including data on the number of licenses or certifications that were denied, revoked, or suspended based on a disqualification and the basis for the disqualification. Id. The 2018 amendments to this provision made more explicit the information each agency must provide, including the number of conditional licenses issued by each agency pursuant to the new authority in § 24-34-107, described above.
5. Sunrise provision for new licensing requirements
Any proposal to regulate a new profession or occupation must include “A description of any anticipated disqualifications on an applicant for licensure, certification, relicensure, or recertification based on criminal history and how the disqualifications serve public safety or commercial or consumer protection interests.” Colo. Rev. Stat. § 24-34-104.1(2)(f). See also id. at (4)(b)(IV) (factors to be considered in deciding whether regulation is necessary include “Whether the imposition of any disqualifications . . . based on criminal history serves public safety or commercial or consumer protection interests”).
B. Private employment
HB19-1025 § 1:
Previous involvement with the criminal justice system often creates a significant barrier to employment in that applicants with criminal histories are less likely to be considered for an available job when that information is included on an initial job application . . . . Children and families suffer when people with criminal histories are unable to work or work at jobs that are below their potential given their education and skills . . . .
1. Ban-the-box; standards for considering criminal record in private employment
HB 19-1025 has an effective date of August 2, 2019, and the law includes a two-year phase-in period for its provisions: (1) beginning on September 1, 2019, the prohibitions on consideration of criminal records will apply to private employers with 11 or more employees; and (2) beginning on September 1, 2021, the provisions will apply to all private employers. This law—through the addition of a new code section, Colo. Rev. Stat. § 8-2-130—prohibits private employers from “inquir[ing] into or requir[ing] disclosure of” an individual’s criminal history on an “initial” application form. § 8-2-130(3). In addition, employers may not state on an application or an advertisement for a position that someone with criminal history may not apply. Id. The law defines “Criminal History” to include any “record[s] of arrests, charges, pleas, or convictions for any misdemeanor or felony at the federal, state, or local level.” § 8-2-130(2)(a).
However, a broad exception curtails HB 19-1025’s effect, by allowing employers to review an applicant’s publically available criminal history report at any time. § 8-2-130 (3)(b). Additionally, the prohibitions in the law apply only to the “initial” application form. Unlike Colorado’s law regulating consideration of criminal records in public employment, which requires that an applicant be a “finalist” or that an applicant receive a “conditional offer of employment” before public employers may perform a background check, § 24-5-101(3)(b), HB 19-1025 lacks that language, suggesting that private employers may inquire about criminal history at any time after the initial application form.
HB 19-1025 also lacks language analogous to Colorado’s public employment law to require employers to exclude non-convictions, arrests, pardons, expunged and sealed records, and orders for collateral relief from consideration when making hiring decisions. See § 24-5-101(3)(c). As a result, HB 19-1025 leaves room for private employers to deny employment merely for an arrest or a charge that does not result in a conviction,13or for records where a person has obtained judicial or executive relief.
Nonetheless, HB 19-1025 includes enforcement provisions that authorize the Department of Labor and Employment to investigate complaints and impose civil penalties for violations. § 8-2-130(5).
HB 19-1025 does not apply to certain positions that federal, state, or local law or regulations forbid employing individuals with a specific criminal history. § 8-2-130(4)(a). The law also does not apply if an employer is required by law to conduct a criminal history background check for the position, or if the position is designated to participate in a government program to encourage employment of people with criminal histories. §§ 8-2-130(b)-(c).
C. Negligent Hiring
Colorado limits employer liability exposure by preventing the introduction of an employee’s criminal record in a civil action for negligent hiring if “[t]he nature of the criminal history does not bear a direct relationship to the facts underlying the cause of action.” Colo. Rev. Stat. § 8-2-201(b). Information regarding an employee’s criminal history also will be excluded if the employee’s record is sealed, if the employee received a pardon, if the record involves an arrest or charge that did not result in a conviction, or if the individual received a deferred judgment at sentencing. Id. The legislative declaration accompanying this provision states that employers may be reluctant to hire employees with a criminal record “due to a lack of clarity regarding the employer’s risk of liability for such hire,” that there is “a direct correlation between employment and reduced recidivism” so that “it is in the public interest to clarify employer liability,” and that “it is necessary and appropriate for the General Assembly to reduce unnecessary barriers to employment for persons with a criminal conviction and thereby promote economic opportunity, poverty reduction, and public safety in the state of Colorado.” See H.B. 10-1023, ch 42, p. 167, § 2 (2010) (An act concerning clarifying civil liability regarding negligent hiring practices for an employer that hires a person with a criminal record”).
- Colo. Rev. Stat. § 1-2-103(4) was amended in May 2005 to add “for a felony conviction” to its text. Prior to that time, the prohibition on voting applicable to incarcerated persons had been interpreted to extend to people with misdemeanors as well as felonies. It is not clear whether, under the determinate sentencing law adopted by Colorado in 1993, a period of “mandatory parole” following a sentence to confinement “is no longer related to the unserved remainder of the sentence to confinement.” People v. Norton, 63 P.3d 339, 343 (Colo. 2003). In light of the constitutional direction that a person “shall be restored to the rights of citizenship after serving out his full term of imprisonment,” it is arguable that the statutory extension of disenfranchisement to the period of parole in § 1-2-103(4) did not survive this change in Colorado’s sentencing law.
- This earlier process prefigured the process enacted in 2019 in § 24-72-705: The motion “may be informal and may be made in open court at the time of the dismissal of the case or the acquittal of the defendant,” or it “may also be made by the defendant at a time subsequent to the dismissal or acquittal through the filing of a written motion.” If this expedited procedure is invoked, “the court shall promptly process the defendant’s request to seal the criminal justice records within the criminal case without the filing of an independent civil action.” When the court seals criminal justice records under this section it is up to the court to provide a copy of its order “to each custodian who may have custody of any of the records subject to the order.”
- A provision in the 2017 law that set forth eligible dispositions and offenses in detail was repealed by the 2019 law.
- When accepting a plea, the prosecutor may agree, with the victim’s consent, not to object to expungement following completion of sentence. In such cases, the court will automatically expunge the record.
- As originally enacted in 2013, this dispensing authority applied only to non-prison sentences, and was contained in three substantially identical provisions, each dealing with a different type of non-prison sentence: Colo. Rev. Stat. §§ 18-1.3-107 (sentencing alternatives), 18-1.3-213 (probation), and 18-1.3-303 (community corrections), and it was available only at sentencing. This authority was substantially broadened in 2018, with the court’s dispensing authority extended to cover all types of sentence, “at the time of conviction or at any time thereafter,” and the purpose amended to cover “likelihood of success in the community.” Colo. Rev. Stat. § 18-1.3-107(1), added by HB18-1344.
- The term “collateral consequences” is defined in subsection 8 to include “collateral sanctions” and “disqualifications,” and those terms are defined in substantially the same terms as in the Uniform Collateral Consequences of Conviction Act. The State Public Defender reports that some courts have been reluctant to issue orders of collateral relief since the licensing agency would be precluded from considering the conduct underlying the conviction in deciding whether to grant a license.
- See Smith v. Colo. Motor Vehicle Dealer Bd., 200 P.3d 1115, 1117 (Colo. App. 2008):
Section 24-5-101, in its original form, was part of the ‘Ex-Offenders’ Rights Act.’ See ch. 151, sec. 1, § 39-25-101, 1973 Colo. Sess. Laws 513; Ficarra v. Dep’t of Regulatory Agencies, 849 P.2d 6, 8 (Colo. 1993). This statute applies generally to state and local licensing agencies, see R & F Enters., Inc. v. Bd. of Cnty. Comm’rs, 606 P.2d 64, 66 (1980), and, according to the supreme court, ‘is an expression by the general assembly of a public concern that persons who have been convicted of felonies or crimes of moral turpitude should not be deprived of the right to gainful employment solely due to their past activities.’ Beathune v. Colo. Dealer Licensing Bd., 601 P.2d 1386, 1387 (1979).
- The law is now somewhat ambiguous since the “good moral character” language remains in the statute to guide a licensing agency’s decisions, although it seems a fair reading of the new formulation that criminal record is no longer to be regarded as determinative of an absence of “good moral character.”
- It remains to be seen what effect courts will give the statute’s new language. Cf. Smith v. Colo. Motor Vehicle Dealer Bd., 200 P.3d 1115 (Colo. App. 2008) (conviction may serve as a basis for delaying, but not permanently denying, a motor vehicle salesperson license; fact that licensing statute specifies certain convictions within the past 10 years as potentially disqualifying does not create irreconcilable conflict with [§ 24-5-101(1)]”).
- The 2018 revisions made clear that these four factors are inapplicable in cases involving any of the exclusions listed in (3)(c).
- § 24-5-101(1)(b):
“(b) This subsection (1) shall not apply to:
(I) The offices and convictions described in section 4 of article XII of the state constitution;
(II) The certification and revocation of certification of peace officers as provided in section 24-31-305;
(III) The employment of personnel in positions involving direct contact with vulnerable persons as specified in section 27-90-111, C.R.S.;
(IV) The licensure or authorization of educators prohibited pursuant to section 22-60.5-107(2), (2.5), or (2.6), C.R.S.;
(V) The employment of persons in public or private correctional facilities pursuant to the provisions of sections 17-1-109.5 and 17-1-202(1)(a)(I) and (1.5), C.R.S., and the employment of persons in public or private juvenile facilities pursuant to the provisions of sections 19-2-403.3 and 19-2-410(4), C.R.S.;
(VI) The employment of persons by the public employees’ retirement association created pursuant to section 24-51-201 who, upon the commencement of that employment, will have access to association investment information, association assets, or financial, demographic, or other information relating to association members or beneficiaries; and
- Colorado legislators introduced ban-the-box bills in 2016 and 2017 that would have applied to private employers; both bills died in committee. The 2019 ban-the-box in private employment bill, HB 19-1025, was passed by the legislature and signed into law by Governor Jared Polis on May 28.
- However, federal civil rights law may prohibit denial of employment based on arrest. Specifically, U.S. Equal Employment Opportunity Commission (EEOC) guidance on employment discrimination (as prohibited by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,) provides that exclusion from employment by a covered employer based on an arrest, “in itself, is not job related and consistent with business necessity.” See EEOC, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 915.002 at 1 (April 25, 2012), http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf; Id. at n.2 (defining covered employers) (citing 42 U.S.C. §§ 2000e-2, 2000e(b)–(e), 2000e-16(a)). Therefore, a policy or practice of exclusion based on arrest is employment discrimination if it has a disparate impact on individuals of a particular race, national origin, or other protected class. (The EEOC explains that national data, showing disproportionate arrest and incarceration rates for African American and Hispanic people “supports a finding that criminal record exclusions have a disparate impact based on race and national origin,” but this finding can be rebutted with regional or local data. Id. at 10.) Nonetheless, a covered “employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position.”