Restoration of Rights, Pardon, Expungement & Sealing
Last updated: November 20, 2017
I. Restoration of Civil/Firearms Rights
A person convicted of a felony loses the right to vote if sentenced to a prison term, and does not regain it until completion of parole. See Colo. Const. art. 7, § 10 (A person shall not be eligible to vote “while confined in any public prison,” but shall be restored to the rights of citizenship “after serving out his full term of imprisonment.”); Col. Rev. Stat. § 1-2-103(4).1 Persons sentenced to a term of probation only do not lose the right to vote. By statute, disenfranchisement continues through a period of parole. See Col. Rev. Stat. § 1-2-103(4) (“No person while serving a sentence of detention or confinement in a correctional facility, jail, or other location for a felony conviction or while serving a sentence of parole shall be eligible to register to vote or to vote in any election.”).2 A person in pre-trial detention may vote by mail. § 1-2-103(4). The Administrative Office for U.S. Courts has taken the position that federal offenders on supervised release are entitled to register and vote.3
B. Office, Jury
Persons convicted of a felony are disqualified from public office only while incarcerated, or while on parole from a prison sentence, Col. Rev. Stat. § 18-1.3-401(3), with certain exceptions specified in the state constitution. See Colo. Const. art XII, § 4 (embezzlement of public money, bribery, and perjury all result in permanent disqualification). The right to sit on a jury is not lost at all (the disqualification statute was repealed in 1989).
Persons convicted of a felony may not possess firearms, unless pardoned. Col. Rev. Stat. § 18-12-108(1), (2). Penalty for illegal possession is enhanced if possession occurs within ten years of conviction or release from supervision, for burglary, arson, or any felony involving violence. § 18-12-108(2)(c).
D. Compilation of collateral consequences
The Colorado State Public Defender has compiled an inventory of collateral consequences and statutory relief provisions under Colorado law. See The Consequences of Conviction: Sanctions Beyond the Sentence Under Colorado Law (2014 update), available at http://www.coloradodefenders.us/consequences-of-conviction-2/consequences-of-conviction-2/. Provisions governing sealing and expungement are at pp. 5-9. Mark Evans, Deputy State Public Defender, is the primary author of this very useful study.
II. Discretionary Restoration Mechanisms:
A. Executive pardon
The pardon power is vested in the governor, except in cases of treason or impeachment, “subject to such regulation as may be prescribed by law relative to the manner of applying for pardons.” Colo. Const. art. IV, § 7. In every instance where the governor exercises the power, he must “send to the General Assembly at its first session thereafter, a transcript of the petition, all proceedings, and the reasons for his action.” Id. The clemency power is regulated by Colo. Rev. Stat. §§ 16-17-101 and 102, and grants not issued in compliance with those provisions are invalid. See People ex rel. Garrison v. Lamm, 622 P.2d 87 (Colo. App. 1980). Section 16-17-102 provides that
“Before the governor approves [a pardon] application, it shall be first submitted to the present district attorney of the district in which the applicant was convicted and to the judge who sentenced and the attorney who prosecuted at the trial of the applicant, if available, for such comment as they may deem proper concerning the merits of the application, so as to provide the governor with information upon which to base his or her action. The governor shall make reasonable efforts to locate the judge who sentenced and the attorney who prosecuted at the trial of the applicant and shall afford them a reasonable time, not less than fourteen days, to comment on such applications.”
The governor is advised by the non-statutory Colorado Executive Clemency Advisory Board, established within the Office of the Governor and consisting of seven members appointed by the governor, including the Executive Director of the Corrections Department, the Executive Director of the Department of Public Safety, and one crime victim representative. Executive Order B008-07 (Aug. 29, 2007). The Board must meet at least once every six months. Id. The Board is staffed by personnel from those two agencies, and assisted by the Colorado Bureau of Investigation for background investigations.
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. Executive Order B007-8 provides:
“[T]he Board may make favorable recommendation for pardon on clemency applicants who have completed their sentences and demonstrate they are fully rehabilitated and reintegrated into society, and to:
- Restore civil rights, including but not limited to voting, jury service, holding public office and reinstatement of firearms privileges;
- Assist with licensing, certification or employment requirements;
- Recognize meritorious educational or vocational achievement;
- Reward exceptional or extraordinary citizenship.”
See Colo. Rev. Stat. § 16-17-102. After a conviction, all applications for commutation of sentence or pardon for crimes committed shall be accompanied by a certificate of the respective superintendent of the correctional facility, showing the conduct of an applicant during his confinement in the correctional facility, together with such evidences of former good character as the applicant may be able to produce. Before the governor approves such application, it shall be first submitted to the present district attorney of the district in which the applicant was convicted and to the judge who sentenced and the attorney who prosecuted at the trial of the applicant, if available, for such comment as they may deem proper concerning the merits of the application, so as to provide the governor with information upon which to base his action. The governor shall make reasonable efforts to locate the judge who sentenced and the attorney who prosecuted at the trial of the applicant and shall afford them a reasonable time, not less than ten days, to comment on such applications. Favorable recommendations must receive the support of at least four Board members. Executive Order B007-8.
“Good character previous to conviction, good conduct during confinement in the correctional facility, the statements of the sentencing judge and the district attorneys, if any, and any other material concerning the merits of the application shall be given such weight as to the governor may seem just and proper, in view of the circumstances of each particular case, a due regard being had to the reformation of the accused.” Colo. Rev. Stat. § 16-17-102.
Frequency of Grants
As of November 20, 2017, Governor Hickenlooper had granted 23 pardons since taking office in 2012. 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, he pardoned an additional 22 individuals, all of whom had long since served their sentences. See http://www.denverpost.com/2017/11/20/colorado-pardons-john-hickenlooper/:
The crimes committed by [those] on the list run the gamut. Nine are drug cases, many from decades ago, with seven of those relating to marijuana possession. At least four of the people requested a pardon to restore their ability to own a gun and go hunting. Two of the people granted a pardon want to apply to work in law enforcement.
“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.”
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.
In recent years, there have been very few pardons granted by Colorado governors. Governor Ritter (2007-2011) granted only three pardons until his final two weeks in office, when he granted 39 pardons (one posthumously) and ten commutations. His predecessor Bill Owens granted 13 pardons over his eight years in office. Source: Colorado Governor’s Office. It seems fair to conclude that the pardon power in Colorado is not functioning in a meaningful fashion.
B. Judicial sealing and other relief
Criminal records can be sealed only under limited circumstances. Instructions for sealing criminal records, as well as the documents necessary for doing so, can be found on the Colorado State Judicial Branch website. http://www.courts.state.co.us/Forms/SubCategory.cfm?Category=Seal.
In 2011 Colorado enacted a major revision of its laws on sealing, and in 2014 it relocated and revised these laws. Further revisions were made in 2016. An additional filing fee is charged only for sealing of controlled substances convictions.
1. Sealing of conviction records
a. Records relating to controlled substance convictions
Individuals may request the court to seal conviction records for selected offenses involving controlled substances committed after 2008. Colo. Rev. Stat. § 24-72-704 (convictions between 2008 and 2011), § 24-72-705 (convictions after July 1, 2011). For pre-2011 convictions, there is a 10-year waiting period after completion of sentence, during which the petitioner cannot have been “charged or convicted” of a crime. For post-2011 convictions, there is a variable eligibility waiting period ranging from one year for petty offenses, 3-to-5 years for misdemeanors, and 7-to-10 years for felonies. § 24-72-705(1)(b). An additional filing fee of $200 is charged over and above the fee otherwise required by law, which is deposited in the “Judicial Stabilization Cash Fund.” § 24-72-704(2)(b)(III).
Felony drug offense “knocked down” to misdemeanor
Effective July 1, 2013, persons convicted of less serious felony drug offenses (whether by plea or trial) with no more than one prior conviction may have their convictions vacated and reduced to a misdemeanor upon successful completion of probation. Colo. Rev. Stat. § 18-1.3-103.5 (“In order to expand opportunities for offenders to avoid a drug felony conviction, to reduce the significant negative consequences of that felony conviction, and to provide positive reinforcement for drug offenders who work to successfully complete any community-based sentence imposed by the court, the legislature hereby creates an additional opportunity for those drug offenders who may not otherwise have been eligible for or successful in other statutorily created programs that allow the drug offender to avoid a felony conviction, such as diversion or deferred judgment.”) Felonies otherwise ineligible for sealing, see above, may become eligible following reduction.
Decriminalized marijuana offenses
Effective August 2017, courts must, upon petition, seal the records of misdemeanor marijuana possession or use offenses that would not have been crimes if committed on or after December 10, 2012. Colo. Rev. Stat. § 24-72-710 (added by HB 17-1266).
b. Sealing of petty and other convictions
Conviction records pertaining to petty offenses and municipal violations may be sealed under § 24-72-708 after a three-year waiting period during which the person has not been charged with or convicted of a felony or misdemeanor. Effective August 2017, the standard will be loosened to permit sealing of violations not related to domestic violence after 3 years even if there was intervening conviction, so long as there was only one conviction; it was not a felony and did not involve domestic violence, child abuse, or sex abuse; and the person has not been convicted of another felony or misdemeanor in the 10 years preceding final disposition (or release, if later) in the intervening case. § 24-72-708(a)(II) (added by HB 17-1360 (2017)). Exclusions apply for misdemeanor traffic offenses committed by commercial drivers. § 24-72-708(1)(a)(III).
Victims of human trafficking convicted of several types of offenses, § 24-72-706; people convicted of posting a private image for harassment or pecuniary gain, § 24-72-709; those convicted of theft of public transportation services by fare evasion. § 24-72-707. In addition, anyone convicted or charged with underage possession or consumption of alcohol or marijuana may apply for sealing. § 18-13-122(13).
Effect of sealing
Under the revised sealing scheme, employers, landlords, and state and local government agencies are generally prohibited from requiring applicants to disclose any information contained in sealed records. § 24-72-703(4)(d). Upon the entry of an order to seal the conviction records, the defendant and all criminal justice agencies may properly reply, upon an inquiry in the matter, that public conviction records do not exist with respect to the defendant. § 24-72-703(4). However, an order sealing conviction records does not deny access to courts and law enforcement agencies, or any “party or agency required by law to conduct a criminal history record check on an individual.” Id. Also, some organizations, including the bar committee, the Department of Education, and criminal justice agencies, may still have access to some information in records sealed under these provisions. Id. The Colorado State Public Defender notes that “Individuals with sealed convictions may face a difficult decision regarding whether to tell others about a conviction the individual is not required to disclose but could nevertheless be uncovered during a background check.”
Individuals must be advised by the court at sentencing about the provisions for sealing, and by the probation officer or parole officer upon the conclusion of supervision. Colo. Rev. Stat. § 24-72-703(1). Sealing does not vacate the conviction, and it may be used in subsequent prosecutions. Id. § 24-72-703(4). Any member of the public may petition the court to unseal “upon a showing that circumstances have come into existence since the original sealing and, as a result, the public interest in disclosure now outweighs the defendant’s interest in privacy.” Id. If a defendant is convicted of a new criminal offense after an order sealing conviction records is entered, the court shall order the conviction records to be unsealed. Id.
The office of the state court administrator shall post on its web site a list of all petitions to seal conviction records that are filed with a district court. A district court may not grant a petition to seal conviction records until at least thirty days after the posting. Id. at (5). In regard to any conviction of a defendant resulting from a single case in which the defendant is convicted of more than one offense, records of the conviction may be sealed pursuant to the provisions of this part only if the records of every conviction of the defendant resulting from that case may be sealed. Id. at (7). Conviction records may not be sealed if the defendant still owes restitution, fines, court costs, late fees, or other fees ordered by the court in the case that is the subject of the petition to seal conviction records. Id. at (8).
The court may order the record sealed after a hearing “if the court finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records.” §§ 24-72-702(b), 703(c), 704(c). In the case of conviction records, the court “shall, at a minimum, consider the severity of the offense that is the basis of the conviction records sought to be sealed, the criminal history of the defendant, the number of convictions and dates of the convictions for which the defendant is seeking to have the records sealed, and the need for the government agency to retain the records. §§ 704(c)(1), 705(e). In the case of nonconviction records, the court is required to give notice of the reasons for denial. § 24-72-702(b).
2. Sealing of non-conviction records
Under Colo. Rev. Stat. § 24-72-702, individuals may petition the court to seal arrest and criminal records other than those pertaining to a conviction if:
The records pertain to official actions involving a criminal offense for which the person in interest completed a diversion agreement, or was not charged and any applicable statute of limitations has run, or was not charged but the person is no longer being investigated by law enforcement, or a case which was completely dismissed, or a case in which the person was acquitted ….
Sealing may also be sought where a case was dismissed pursuant to a plea agreement in a separate case, after a 10-year waiting period following final disposition of all criminal proceedings against the person, as long as there are no intervening criminal charges.
Non-conviction records (other than those involving deferred dispositions) “shall” be sealed if eligible. § 24-72-702(1)(b)(II)(A). Court is required to advise a defendant of the availability of this relief. § 24-72-702(3). Records pertaining to serious traffic offenses, and offenses involving holders of commercial drivers’ licenses, and sex offense, are not eligible for sealing. § 24-72-702(4).
Records pertaining to offenses resolved by pretrial diversion generally must be sealed, upon request by the defendant, following successful completion of the agreement. Colo. Rev. Stat. § 18-1.3-101(10)(c).
Sealed records are confidential, and criminal justice agencies receiving a record request must respond that “that no such record exists.” An individual may deny the existence of the record in most instances, and employers, educational institutions, and state and local government agencies may not require disclosure. § 24-72-702(f)(I).
Expedited process for non-conviction sealing
In 2016, Colorado enacted Colo. Rev. Stat. § 24-72-702.5, creating an alternative expedited process for sealing non-conviction records. Defendants may move immediately and informally to have the records of a case sealed at the time of acquittal or dismissal of all charges, including where charges are dismissed pursuant to diversion or deferred sentencing. The eligibility requirements and standards applicable to sealing by petition apply.
Colo. Rev. Stat. § 18-1.3-102. When a defendant enters a guilty plea, courts are authorized, with the consent of the defendant, his attorney, and the prosecutor, to “continue” the case, i.e. postpone the sentencing portion of the case. The court may continue felony cases for up to four years, and misdemeanor cases for up to two years, during which the defendant is on probation. Upon completion of the probationary period, the guilty plea is withdrawn and the charges are dismissed with prejudice. If the defendant violates the terms of the probation, the prosecutor may move to revoke probation, and the judge decides, at a hearing, whether to revoke probation. Deferred sentencing is used mostly for first-time drug offenders referred to drug court. Sealing of arrest records is available if the charges are dismissed (see above).
Effective August 7, 2013, each district attorney is authorized to establish a program for pretrial diversion available to all but specified serious sex offenses. See Colo. Rev Stat. § 18-1.3-101. 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. § 24-72-701.5 (enacted July 10, 2016). The process is initiated by the arresting law enforcement agency, which must file an expungement petition with the district court within 90 days of “find[ing] that a person was arrested as a result of mistaken identity and no charges were filed.” The court must expunge the records within 90 days of filing. Employers, state and local agencies, and educational institutions may not require disclosure of records expunged under this authority, and a person may deny the fact of arrest without penalty.
3. Expungement of juvenile records
A major rewrite of the juvenile expungement law, Colo. Rev. Stat. § 19-1-306, takes effect in November 2017.4 Under the new law, courts must expunge records of the following after 42 days: acquittals and dismissals (except in cases of diversion, deferred adjudication, or informal adjustment), and, upon completion of sentence, adjudications for petty offenses, class 3 & 4 misdemeanors, and level 1 & 2 drug misdemeanors. Colo. Rev. Stat. § 19-1-306(4)(a). In the case of adjudications, exceptions apply for sex offenses, domestic violence, and crimes requiring victim notification. § 19-1-306(4)(a)(III).
Most other less-serious dispositions, including some low-level felony adjudications, may be expunged through a process that it is automatically initiated 91 days after completion of diversion, deferred adjudication, adjustment, or adjudication for an eligible offense. § 19-1-306(5).5 The prosecutor (who receives notice of eligibility from the court after 91 days) and victim (who receives notice from the prosecutor) each have 84 days to object to the expungement. § 19-1-306(5)(a) – (e).6 If neither objects, the court must order expungement. § 19-1-306(5)(d). If either objects, a hearing is held, to determine whether “the rehabilitation of the juvenile has been attained to the satisfaction of the court,” and that “the expungement is in the best interest of the juvenile and the community.” § 19-1-306(5)(e) – (g).
Individuals adjudicated as “repeat offenders” and “mandatory sentence offenders” are not eligible for expugement under subsection (5), see § 19-1-306(5)(j), but may petition for expungement 36 months after completion of sentence if no charges or delinquency proceedings are pending. § 19-1-306(6)(e). The eligibility requirements, procedures, and standards set forth in subsection (5) apply.
Pursuant to § 19-1-306(8),
A court shall not expunge the record of a person who is:
(A) adjudicated as an aggravated juvenile offender pursuant to section 19-2-516 (4) or as a violent juvenile offender pursuant to section 19-2-516 (3);
(B) adjudicated of homicide and related offenses pursuant to part 1 of article 3 of title 18;
(C) adjudicated for a felony offense involving unlawful sexual behavior as described in section 16-22-102 (9); or
(D) charged, adjudicated, or convicted of any offense or infraction pursuant to title 42 [“Vehicles and Traffic”].
Records of municipal juvenile adjudications are automatically expunged 42 days after completion of sentence. § 19-1-306(9). The prosecutor may object, triggering a hearing in which the only issue is whether the sentence has been completed or the case is closed. § 19-1-306(9)(c) – (e).
Expungement of records in other cases, including closed cases, is covered by subsection (6).
Expungement under § 19-1-306 seals the relevant records of the courts, law enforcement, the Division of Youth Corrections, and the Colorado Bureau of Investigation, and the records “are deemed never to have existed.” § 19-1-306(2)(g), (3); § 19-1-103(48). An individual may deny the fact of arrest or adjudication. § 19-1-306(1)(a).
Separate sealing authority exists for juvenile records in cases of underage alcohol consumption/possession. Sealing is available after 1 year if the person has not been arrested, charged, or convicted of a crime in the year following conviction. See Colo. Rev. Stat. § 18-13-122(10).
Expungement of underage DUI offenses
Records of conviction for less serious underage DUI offenses (“UDD” offenses) may be “expunged” after a person’s twenty-first birthday subject to certain conditions and exceptions. See Colo. Rev. Stat. §§ 42-4-1715(1)(b), 42-2-121(5).
C. Collateral Relief at Sentencing
Effective May 2013, the sentencing court imposing a non-prison sentence may enter an “order of collateral relief” “for the purpose of preserving or enhancing the defendant’s employment or employment prospects and to improve the defendant’s likelihood of success” while serving the non-prison sentence. See subsection 1 of the substantially identical provisions of Colo. Rev. Stat. §§ 18-1.3-107 (sentencing alternatives), 18-1.3-213 (probation), and 18-1.3-303 (community corrections). Under subsection 2 of the three provisions, an application for an order of collateral relief must cite the grounds for granting the relief, the type of relief sought, and the specific collateral consequence from which the applicant is seeking relief. The applicant must provide a copy of the application to the district attorney and to the regulatory or licensing body that has jurisdiction over the collateral consequence from which the applicant is seeking relief, if any. Subsection 3 of each of the three statutes provides:
An order of collateral relief may relieve a defendant of any collateral consequences of the conviction, whether in housing or employment barriers or any other sanction or disqualification that the court shall specify, including but not limited to statutory, regulatory, or other collateral consequences that the court may see fit to relieve that will assist the defendant in successfully completing probation or a community corrections sentence.
An order of collateral relief cannot relieve any collateral consequences imposed by law for licensure by the department of education or any collateral consequences7 imposed by law for employment with the judicial branch, the department of corrections, division of youth corrections in the department of human services, or any other law enforcement agency in the state of Colorado. Certain offenses are not eligible, including crimes of violence and sexual offenses. Standards for relief are set forth in subsection 6(a):
A court may issue an order of collateral relief if the court finds that: (I) The order of collateral relief is consistent with the applicant’s rehabilitation; and (II) Granting the application would improve the applicant’s likelihood of success in reintegrating into society and is in the public’s interest.
The court “may at any time issue a subsequent judgment to enlarge, limit, or circumscribe the relief previously granted,” or may revoke the relief upon evidence of a subsequent criminal conviction or proof that the defendant is no longer entitled to relief. See subsection 6(b)-(c).
The Colorado State Judicial Branch has issued instructions for filing for orders of collateral relief, at http://www.courts.state.co.us/Forms/renderForm1.cfm?Form=869.
III. Nondiscrimination in Licensing and Employment
A. Consideration of conviction in public employment & licensing
Colo. Rev. Stat. § 24-5-101(1)(a):
[T]he fact that a person has been convicted of a felony or other offense involving moral turpitude shall not, in and of itself, prevent the person from applying for and obtaining public employment or from applying for and receiving a license, certification, permit, or registration required by the laws of this state to follow any business, occupation, or profession.8
Whenever any state or local agency is required to make a finding of “good moral character” as a condition of issuing a license or permit, the fact that someone has in the past been convicted “shall be given consideration in determining whether, in fact, the applicant is a person of good moral character at the time of the application. The intent of this section is to expand employment opportunities for persons who, notwithstanding that fact of conviction of an offense, have been rehabilitated and are ready to accept the responsibilities of a law-abiding and productive member of society.” § 24-5-101(2). See Smith v. Colo. Motor Vehicle Dealer Bd., 200 P.3d 1115 (Colo. App. 2008) (conviction may serve as a basis for delaying, but not permanently denying, a motor vehicle salesperson license; fact that licensing statute specifies certain convictions within the past 10 years as potentially disqualifying does not create irreconcilable conflict with [§ 24-5-101(1)]”). See also City of Colo. Springs v. Givan, 897 P.2d 753 (Colo. 1995) (reversing intermediate court finding that city manager abused discretion in discharging long-time city employee because of incest conviction; though employee’s work record was excellent, and testimony of co-workers was equivocal on likely impact of his serious conviction on morale in workplace, city may consider both impact on employees he supervised and public perception of city).
Ban-the-Box and Standards for considering arrests and convictions
In May 2012, Colo. Rev. Stat. § 24-5-101 was amended to prohibit state agencies from performing a background check “until the agency determines that an applicant is a finalist or makes a conditional offer of employment to the applicant.” § 24-5-101(3)(b). In determining whether a conviction disqualifies an applicant, the state or licensing agency must consider (1) the nature of the conviction; (2) the relationship of the conviction to the job; (3) the applicant’s rehabilitation and good conduct; and (4) time elapsed since conviction. § 24-5-101(4). The law prevents agencies from using arrests not leading to conviction in deciding whether to deny or withdraw an offer. Agencies may not disqualify an applicant based on an expunged, sealed, or pardoned conviction or charges dismissed pursuant to a deferred judgment, unless they first consider the four factors listed above. § 24-5-101(3)(d). This law does not apply where a statute bars licensing based on criminal convictions. § 24-5-101(3)(a). Consideration of criminal history information that the applicant voluntarily provides is permitted. § 24-5-101(3)(e). The law addresses blanket bans in job ads by prohibiting the advertisement of a position with a statement that a person with a criminal record may not apply (unless the law itself prohibits hiring someone with a conviction). § 24-5-101(3)(a).
Section 24-5-101(1) does not apply to certain persons seeking public office and persons seeking licensure and employment in positions involving direct contact with vulnerable persons, public safety, corrections, education, or with the public employees’ retirement association.9 Section 24-5-101 may also be overridden by statutory requirements related to specific licenses or employment. See § 24-34-102(8.7) (§ 24-5-101 applies to licensing under titles 10 (“Insurance”) and 12 (“Professions and Occupations”) of the Colorado Statutes “[u]nless there is a specific statutory disqualification that prohibits an applicant from obtaining licensure”); see also § 27-90-111 (screening and disqualification requirements applicable to department of human services employees who have direct contact with vulnerable persons).
B. General Assembly review of regulatory agencies
Under a law enacted in 2013, General Assembly must determine “Whether the agency through its licensing or certification process imposes any disqualifications on applicants based on past criminal history and, if so, whether the disqualifications serve public safety or commercial or consumer protection interests.” Colo. Rev. Stat. § 24-34-104(6)(b)(IX). To assist in considering this factor, the department of regulatory agencies shall prepare an analysis including “data on the number of licenses or certifications that were denied, revoked, or suspended based on a disqualification and the basis for the disqualification.” Id.
C. Sunrise provision for new licensing requirements
Any proposal to regulate a new profession or occupation must include “A description of any anticipated disqualifications on an applicant for licensure, certification, relicensure, or recertification based on criminal history and how the disqualifications serve public safety or commercial or consumer protection interests.” Colo. Rev. Stat. § 24-34-104.1(2)(f). See also id. at (4)(b)(IV) (factors to be considered in deciding whether regulation is necessary include “Whether the imposition of any disqualifications . . . based on criminal history serves public safety or commercial or consumer protection interests”).
D. Negligent Hiring
Colorado limits employer liability exposure by preventing the introduction of an employee’s criminal record in a civil action for negligent hiring if “[t]he nature of the criminal history does not bear a direct relationship to the facts underlying the cause of action.” Colo. Rev. Stat. § 8-2-201(b). Information regarding an employee’s criminal history also will be excluded if the employee’s record is sealed, if the employee received a pardon, if the record involves an arrest or charge that did not result in a conviction, or if the individual received a deferred judgment at sentencing. Id. The legislative declaration accompanying this provision states that employers may be reluctant to hire employees with a criminal record “due to a lack of clarity regarding the employer’s risk of liability for such hire,” that there is “a direct correlation between employment and reduced recidivism” so that “it is in the public interest to clarify employer liability,” and that “it is necessary and appropriate for the General Assembly to reduce unnecessary barriers to employment for persons with a criminal conviction and thereby promote economic opportunity, poverty reduction, and public safety in the state of Colorado.” See H.B. 10-1023, ch 42, p. 167, § 2 (2010)(An act concerning clarifying civil liability regarding negligent hiring practices for an employer that hires a person with a criminal record”).
- Col. Rev. Stat. § 1-2-103(4) was amended in May 2005 to add “for a felony conviction” to the text of the statute. Prior to that time, the prohibition on voting applicable to incarcerated persons had been interpreted to extend to misdemeanants as well as felony offenders.
- Under the determinate sentencing law adopted by Colorado in 1993, a period of “mandatory parole” following a sentence to confinement “is no longer related to the unserved remainder of the sentence to confinement.” People v. Norton, 63 P.3d 339, 343 (Colo. 2003). In light of the constitutional direction that a person “shall be restored to the rights of citizenship after serving out his full term of imprisonment,” it is not clear whether the statutory extension of disenfranchisement to the period of parole in § 1-2-103(4) survives this change in Colorado’s sentencing law.
- In an opinion dated October 31, 2008, the General Counsel, Administrative Office for U.S. Courts, opined that federal supervised release, as a penalty imposed separately from a prison sentence, is analogous to probation as opposed to parole. (Opinion on file with author.)
- Previously, expungement was available for less-serious offenses only by petition, and subject to the court’s discretion and a waiting period that varied based on the seriousness of the offense.
- Eligible dispositions and offenses are listed at § 19-1-306(5)(a):
I) A juvenile diversion program, a deferred adjudication, or an informal adjustment;
II) A juvenile sentence for an adjudication for a class misdemeanor or a petty or a misdemeanor offense that is not eligible for expungement under subsection (4) of this section, if the offense did not involve unlawful sexual behavior as defined in section 16-22-102 (9).
III) A juvenile sentence for an adjudication for a misdemeanor offense involving unlawful sexual contact as described in section 18-3-404; or
IV) A juvenile sentence for an adjudication for a felony offense or felony drug offense if:
A) The felony offense did not constitute unlawful sexual behavior as defined in section 16-22-102 (9);
B) The felony offense was not a crime of violence as described in section 18-1.3-406;
C) The felony offense was not a class 1 or class 2 felony; and
- When accepting a plea, the prosecutor may agree, with the victim’s consent, not to object to expungement following completion of sentence. In such cases, the court will automatically expunge the record. § 19-1-306(5)(i).
- 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.
- 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).”
- § 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