Restoration of Rights, Pardon, Expungement & Sealing
Last updated: November 17, 2017
I. Restoration of Civil/Firearms Rights
A person convicted of a felony forfeits the right to vote. See Const. art. V, § 2; Del. Code Ann. tit. 15, § 1701. In addition, persons guilty of certain misdemeanor election law violations are prohibited from voting for ten years following completion of sentence. Del. Const. art. V, § 7; Del. Code Ann. tit. 15, § 1701. Under a 2013 amendment to the Delaware Constitution, most persons disenfranchised because of a conviction may regain the vote upon expiration of sentence.1 Prior to 2016, Del. Code Ann. tit. 16, § 6102 required that outstanding fines and restitution be paid before rights could be restored, but that requirement has now been repealed. Individuals seeking to have voting rights restored may apply to their county department of elections and, following a review initiated by the State Election Commissioner, restoration is automatic upon a determination of eligibility. Del. Code Ann. tit. 15, §§ 6103-05. Convicted persons shall not be registered earlier than expiration of sentence unless pardoned. Del. Code Ann. tit. 15, § 6103(c). Persons convicted of certain serious offenses (murder, manslaughter, bribery or public corruption, sex offense) are constitutionally barred from voting unless pardoned.1
B. Public Office
Article II, section 21 of the Delaware Constitution states that no person convicted of “embezzlement of the public money, bribery, perjury or other infamous crime, shall be eligible to a seat in either House of the General Assembly, or capable of holding any office of trust, honor or profit under this State.” The governor may remove from office a public officer convicted of misbehavior in office or an “infamous” crime. See Del. Const. art. XV, § 6. See also Slawik v. Folsom, 410 A.2d 512 (Del. 1979) (power to remove from office includes removal for federal convictions). A pardon does not remove this bar. See Del. Code. Ann. tit. 11, § 4364 (even if granted pardon, person convicted of infamous crime is ineligible to hold a seat in the General Assembly or other office of honor, trust, or profit in the State). In In re Request of the Governor for an Advisory Opinion, 950 A.2d 651, 653 (Del. 2008), the court ruled that an offense committed when as a juvenile that was subsequently pardoned did not constitute an “infamous offense” so as to disqualify an individual from being appointed as a family court commissioner, citing State ex rel. Wier v. Peterson, 369 A.2d 1076, 1081 (Del. 1976) for the proposition that “the totality of the circumstances in each case must be examined before a determination may be made that a specific felony is infamous.” Because the constitutional disqualification depends upon “character,” it is not automatically relieved by a pardon.
Convicted felony offenders may not serve on juries, unless pardoned. Del. Code Ann. tit. 10, § 4509(b)(6).
Persons convicted of “a felony or a crime of violence involving physical injury to another, whether or not armed with or having in possession any weapon during the commission of such felony or crime of violence crime of violence;” a drug offense; or a crime of domestic violence lose firearms rights, unless pardoned. Del. Code Ann. tit. 11, §§ 1448(a)(1), (3), (7); see also Op. Att’y Gen. 03-IB04, 2003 WL 1088725 (Feb. 4, 2003) (while a Delaware pardon does not remove guilt for the underlying criminal offense, it nonetheless restores the right to purchase and possess firearms). However, a prohibition based on a crime that is not a felony lasts only five years. § 1448(d).
II. Discretionary Restoration Mechanisms:
A. Executive pardon
The power to pardon, except in cases of impeachment, is vested in the governor. Del. Const. art. VII, § 1. The governor cannot grant a pardon or commutation in the absence of an affirmative recommendation of a majority of the Board of Pardons after a full hearing, but the governor is not bound to accept the Board’s affirmative recommendation, and exercises independent judgment in all cases submitted to him or her following an affirmative recommendation by the Board. Id. The governor must “fully set forth in writing the grounds of all reprieves, pardons and remissions, to be entered in the register of official acts and laid before the General Assembly at its next session.” Id. The Board of Pardons consists of the chancellor, lieutenant governor, secretary of state, state treasurer, and auditor of accounts. Del. Const. art. VII, § 2. Under the Board’s rules, the lieutenant governor is president of the Board, and the secretary of state acts as secretary. Del. Bd. of Pardons, Rules of the Board of Pardons, Rule 5(c)-(d) (re-adopted Apr. 2009), available at http://pardons.delaware.gov/rules/. The history of the Board’s establishment and its operations over the years are described in an article by former Lieutenant Governor Matthew Denn. See Clemency in the State of Delaware: History and Proposals for Change, 13 Del. L. Rev. 55 (2012).
“Except as otherwise provided by the Delaware Constitution, or expressly by any provision of the Delaware Code or any court rule, the granting of an unconditional pardon by the Governor shall have the effect of fully restoring all civil rights to the person pardoned.” Del. Code Ann. tit. 11, § 4364. Such civil rights include, but are not limited to, the right to vote, the right to serve on a jury if selected, the right to purchase or possess deadly weapons and the right to seek and hold public office provided however, that this section shall not limit or affect the Governor’s authority to place lawful conditions upon the granting of a pardon.” Id.; see also Heath v. State, 983 A.2d 77 (Del. 2009) (individual pardoned unconditionally allowed to deregister as a sex offender); Del. Op. Att’y Gen. 03-IB04 (2003), 2003 WL 1088725 (unconditional pardon restores right to possess firearms). According to the Board of Pardons, a pardon also relieves employment-related and other legal disabilities. However, the generally prevailing rule is that a pardon does not preclude consideration of the conviction in sentencing for a subsequent offense. State v. Robinson, 251 A.2d 552, 556 (Del. 1969). Moreover, a pardon does not remove the prohibition against persons convicted of “embezzlement of the public money, bribery, perjury or other infamous crime” from holding a seat in either House of the General Assembly or holding any office of trust, honor or profit in the State. Del. Code Ann. tit. 11, § 4364. See State ex rel. Wier v. Peterson, supra Part I.
With certain exceptions, misdemeanor and violation convictions that have been unconditionally pardoned may be expunged in the discretion of the court, with petitioner required to prove manifest injustice by a preponderance of the evidence. Del. Code Ann. tit. 11, § 4375. “The fact that the petitioner was convicted of the criminal offense that is the subject of that petitioner’s expungement application shall be considered by the Court as prima facie evidence that the continued existence and possible dissemination of information relating to the arrest in question does not constitute a manifest injustice to the petitioner.” Id.
According to Board staff, a waiting period after conviction is informally imposed by Board: three to five years after sentence completed, depending on seriousness of offense, unless a legitimate hardship can be demonstrated (e., a need for employment, pending deportation, etc.). Applications from misdemeanants are accepted. See http://pardons.delaware.gov/frequently-asked-questions/. Out-of-state and federal convictions are ineligible for a pardon by the Delaware Governor.
Applications for a pardon or commutation are made in writing through the office of the Secretary of State, who acts as the secretary of the Board. See Rules of the Board of Pardons, supra, at Rule 3; Bd. of Pardons, Pardon Application Package, available at http://pardons.delaware.gov/wp-content/uploads/sites/42/2017/03/PardonApp-pack.pdf. The Board meets on the final Thursday of each month in Dover in open session (except for July and August), and hears every application it receives. Rules of the Board of Pardons, supra, at Rule 1; http://pardons.delaware.gov/meeting-calendar/. Before the Board may consider applications relating to certain crimes, including from certain violent and sex offenders, such an applicant must have been recently examined by a psychiatrist and psychologist, who must submit an opinion to Board as to the applicant’s mental and emotional health, and likelihood of re-offending. Del. Code Ann. tit. 11, § 4362. The Board must also request a full report on each case, including an opinion concerning the state of rehabilitation, from the Board of Parole. Rules of the Board of Pardons, supra, at Rule 3(f) (citing Del. Code Ann. tit. 11, § 4363). A hearing is generally held within a year of filing. See Frequently Asked Questions, http://pardons.delaware.gov/frequently-asked-questions/. All applicants must appear at the hearing date assigned, though those convicted of minor crimes may not be required to make a presentation to the Board. If an application is denied, the applicant must wait for fifteen months before refiling, and a hearing will not be scheduled for a full eighteen months after denial, unless the Board agrees in advance to consider the new application sooner. Rules of Board of Pardons, at Rule 7(c).
The applicant must complete an application form that includes an explanation of the offense and reasons for seeking a pardon. Bd. of Pardons, Pardon Application Package, supra. As a requirement of filing a petition for pardon and commutation, the applicant must notify the judge who imposed the sentence on the applicant, the Attorney General, the chief of police having jurisdiction of the place where the crime occurred, and the Superintendent of the Delaware State Police. Rules of the Board of Pardons, supra, at Rule 2(d). The Attorney General’s office is responsible for notifying the victim (or, if deceased, surviving family members) and witnesses when a convicted felon applies for a pardon or commutation. Del. Code Ann. tit. 11, § 4361(d). If the victim or surviving family members wish, the Attorney General is responsible for presenting the position of the victims, and the Board requests that a legal representative from the Attorney General’s office attend all sessions of the Board. Rules of the Board of Pardons, supra, at Rule 8.
The hearings of the Board are public hearings at which any person with an interest in the matter will normally be accorded an opportunity to speak. Del. Code Ann. tit. 11, § 4361(d). Individuals may and are encouraged to represent themselves before the Board when their cases are scheduled for presentation. The Board has full subpoena power and may require the attendance of witnesses and production of evidence. Id. § 4361(a). It may also administer oaths, and those who testify falsely are subject to criminal penalties. Id. §§ 4361(a), (c). Decisions of the Board with respect to an application are often made in executive session of the Board at which the Board may discuss and debate the record. The Board announces its recommendation from the bench. Rules of the Board of Pardons, supra, at Rule 5(a). A decision reached by majority is recorded and filed in the office of the Secretary of State, who in turn notifies the Governor. Del. Const. art. VII, § 1. The Governor’s decision may take several months.
In reaching its decisions, the Board considers nature and age of crime, rehabilitation of applicant and contributions to the community, applicant’s remorse, employment-related need for a pardon, official support, and lack of opposition by the victim.
Frequency of Pardon Grants
|Total Number of Petitions for Pardon||130||153||129||129||160||231||230||300||321||343||411||432||466||468|
|Pardons Recommended to the Governor||116||134||106||112||146||191||188||246||278||282||337||352||388||411|
|Pardons Denied by the Board||9||13||21||13||13||23||22||30||38||44||68||71||75||48|
|Pardons Granted by the Governor||32||130||97||105||140||105||175||214||246||204||207||336||472||366|
|Pardons Denied by the Governor||13||4||8||6||5||5||9||6||4||17||5||15||25||9|
Source: Delaware Board of Pardons
Recent increase in pardon applications/grants
Governor Jack Markell granted 1569 pardons during his 6-year tenure. He noted that there have been “50 different pieces of legislation” requiring a background check, and that people are seeking pardon to improve their job prospects. The board caseload has gone from about a dozen each month 20 years ago to over 50. The Attorney General’s office has begun providing some staff assistance to the board in briefing cases. See Cris Barrish and Jonathan Starkey, Dramatic Rise in Pardons in Delaware, http://www.delawareonline.com/story/news/local/2015/04/25/dramatic-rise-pardons-delaware/26374339/pcts./ See also Barrish and Starkey, Pardons Driven by Getting Jobs, http://www.delawareonline.com/story/news/local/2015/04/25/pardons-driven-getting-jobs/26354375/. According to Board staff, the increase in applications relates to more stringent employer background checks since 9/11. Sixty percent of applications come from misdemeanants.2
Judy A. Smith
Board of Pardons
401 Federal Street
Townsend Building, Suite 3
Dover, DE 19901
Phone: (302) 739-4111
Fax: (302) 739-7654
B. Judicial sealing or expungement
The expungement laws (Del. Code Ann. tit. 11, §§ 4372, et seq.) were revised in July 2008 in part to facilitate consideration for qualifying non-conviction records, including deferred adjudication and first offender drug diversion (“facilitate the rehabilitative efforts”). Delaware House Bill No. 496 (2008), at Synopsis, available at http://legis.delaware.gov/LIS/lis144.nsf/6073710c7262e49f85257426006e8626/f39d948b58119365852572de006d94b7?OpenDocument.
Deferred adjudication & diversion
Expungement may be ordered by the court where misdemeanor and other minor charges have been dismissed pursuant to Probation Before Judgment program, Del. Code Ann. tit. 11, § 4218, or the first offenders controlled substances diversion program, id., tit. 16 § 4767. See Ryan v. State, 791 A.2d 742, 744 (Del. 2002) (even if the petitioner was not innocent in fact, his completion of probation before judgment and subsequent dismissal of charges rendered him “innocent as a matter of law”). A 2010 amendment eliminated the five-year waiting period for people who received probation before judgment, and the two-year waiting period for first offenders who completed a controlled substance diversion program to apply for expungement. See 77 Del. Laws 348 (2010), § 7 (repealing Del. Code Ann. tit. 11, § 4378 in its entirety). In 2014, Del. Code Ann. tit. 10, § 1025 and tit. 11, § 4372 were amended to add cases resolved by probation before judgement to the list of cases “terminated in favor of the accused,” making them eligible for expungement subject to the same criteria and procedures applicable to other non-conviction records. See “Non-conviction records” infra.
Pardoned misdemeanor convictions
With some of the same exceptions as specified in Title 11, section 4373 of the Delaware Code (regarding mandatory expungement), misdemeanor and violation convictions that have been unconditionally pardoned may be expunged in the discretion of the court, with petitioner required to prove manifest injustice by a preponderance of the evidence. Del. Code Ann. tit. 11, § 4375. “The fact that the petitioner was convicted of the criminal offense that is the subject of that petitioner’s expungement application shall be considered by the Court as prima facie evidence that the continued existence and possible dissemination of information relating to the arrest in question does not constitute a manifest injustice to the petitioner.” Id.
Old age expungement
The State Bureau of Identification may not destroy information identifying a person until a person reaches age eighty, or reaches age seventy-five with no criminal activity listed on the person’s record in the past forty years. Del. Code Ann. tit. 11, § 8506(c).
New laws regarding expungement of juvenile delinquency records took effect in January 2012, and were significantly expanded in 2017. Del. Code Ann. tit. 10, §§ 1014-1020. The purpose of the laws is to “protect children and citizens from unwarranted damage which may occur as a result of a juvenile arrest record[.]” Id. § 1014. The new scheme mirrors the one applicable to expungement of adult non-conviction records, i.e., provides for mandatory and discretionary judicial expungement after graduated waiting periods. Id. §§ 1017, 1018. Under § 1017, a court must grant a petition for expungement in cases where no adjudication resulted, or in cases of a single nonviolent felony/nonsexual adjudication, after a crime-free waiting period of one to three years. Under § 1018, discretionary expungement is available after a crime-free waiting period of one to seven years for other adjudications, including most violent felony/sexual adjudications. However, adjudication of certain serious violent offenses, including murder, rape, and first degree arson, disqualifies juveniles from relief under either provision. § 1015(b)(1)(“Prohibitions to expungement”). Traffic offenses do not constitute disqualifying subsequent adjudications. See Fuller v. State, 2014 Del. LEXIS 504 (Del. 2014).
In 2017, SB-54 significantly expanded eligibility for both mandatory and discretionary expungement by eliminating robbery and burglary as “prohibitions to expungement” under § 1015(b)(1), shortening waiting periods for discretionary expungement under § 1018, and creating a catch-all provision that allows discretionary expungement of all eligible offenses after 7 years, regardless of the number of adjudications. Previously, expungement was unavailable after exceeding a cap on the number of adjudications which varied depending on the types of offenses.
Title 11, section 4372 of the Delaware Code authorizes expungement of non-conviction records where the case results in acquittal, nolle prosequi, or all charges are otherwise dismissed — including discharge following probation before judgement. Expungement is mandatory upon request for those charged with misdemeanors or certain violations (except for specified excluded offenses, including sex and violent offenses) who have not previously or since been convicted of another crime. Del. Code Ann. tit. 11 § 4373. Discretionary judicial expungement for other non-conviction records is authorized by section 4374. A petitioner requesting discretionary expungement under this provision must establish to the satisfaction of the court, by a preponderance of the evidence, that “the continued existence and possible dissemination of information relating to the arrest of the petitioner causes, or may cause, circumstances which constitute a manifest injustice to the petitioner. . . .” Id. § 4374(c). The existence of a prior record (other than the one that is the subject of the expungement petition) will be prima facie evidence that disclosure will not constitute manifest injustice. Id.
Effect of expungement
With certain exceptions applicable to use of records for law enforcement purposes, it is unlawful (Class B misdemeanor) for any person having or acquiring access to an expunged court or police record to open or review it or to disclose to another person any information from it without an order from the court that ordered the record expunged. Del. Code Ann. tit. 11, § 4376(a)(f).3 State records repositories must respond to non-law enforcement requests for records “that there is no record.” § 4376(b).
General availability of records
State criminal records are not generally available to the public. Del. Code Ann. tit. 11, § 8513. However, criminal history information may be provided for “any purpose authorized by Delaware state statute” or executive or court order, § 8513(b). Conviction information only may be provided to employers and news media. § 8513(c). Civil and criminal penalties are authorized for knowingly providing criminal history records information for profit (felony), or to unauthorized persons (misdemeanor), and may be grounds for dismissal from public employment. § 8523(c)-(e).
III. Nondiscrimination in Licensing and Employment
A. Ban-the-Box in Public Employment
In May 2014 the legislature amended § 711 of Title 19 of the Delaware Code to make it an unlawful employment practice for public employers to inquire into or consider the criminal record, criminal history or credit history or score of an applicant “during the initial application process, up to and including the first interview.” Del. Code Ann. tit. 19, § 711(g)(1). In addition, a public employer may inquire into or consider an applicant’s criminal record “only after it has determined that the applicant is otherwise qualified and has conditionally offered the applicant the position.” § 711(g)(2). A public employer “may disqualify an applicant from employment based on criminal history where the exclusion is job related for the position in question and consistent with business necessity.” § 711(g)(3). In connection with any hiring decision, a public employer “shall consider” the following factors: “a. The nature and gravity of the offense or conduct; b. The time that has passed since the offense or conduct and/or the completion of the sentence; and c. The nature of the job held or sought.” Id.4 The law does not apply to police forces, the Department of Correction, the Department of Justice or Public Defender, or “any position where federal or state law requires or expressly permits the consideration of an applicant’s criminal history. § 711(g)(4).
B. Uniform Licensing Policy
Legislation enacted in 2004 created a uniform approach throughout Title 24 of the Delaware Code relating to professions and occupations, regarding disqualifications for licensure. 74 Del. Laws 262 (2004). The act requires that the refusal, revocation or suspension of licenses for professions and occupations regulated under Title 24 be based upon conviction of crimes that are “substantially related” to the profession or occupation at issue, and not for crimes that are unrelated to the profession or occupation. See, e.g., Del. Code Ann. tit. 24, § 107 (accountancy); § 307 (architecture); § 508 (podiatry); § 707 (chiropractic); §§ 1122, 1126 (dentistry); § 1204 (in application for license to operate a security business, evidence of lack of good character includes “convictions for crimes involving offenses against the person, dishonesty or fraud”); § 1922 (nursing).5 Boards of affected professions and occupations are required to promulgate regulations that specifically identify the crimes that are “substantially related” to the profession or occupation. In August 2009 this scheme was further amended to require affected boards to promulgate criteria for waiving disqualification based on convictions substantially related to the professions either by a hearing or a review of documentation to determine whether applicants meet the specified criteria for a waiver. See 77 Del. Laws 199 (2009). For waiver of disqualification in the case of a felony, five years must have elapsed since the conviction; for misdemeanors there is no waiting period, provided that applicants are not incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence, and are in substantial compliance with all fines, restitution and community service. See Del. Code Ann. tit. 24, §§ 1808(a)(5), 1821(a)(7), 3319(a)(4).
C. Governor’s Statement on Reentry
In his 2014 State of the State address, Governor Markell called on the legislature to repeal the law banning persons convicted of a drug offense from acquiring a driver’s license, criticized the law precluding the Department of Correction from hiring anyone with a felony conviction, and proposed a state-wide ban-the-box policy for public sector hiring. See http://governor.delaware.gov/speeches/2014StateOfTheState/unleashingpotential.pdf.
- See note 1, supra. Under title 11, section 4347(i) of the Delaware Code, “civil rights” are automatically restored by certificate from Board of Parole upon discharge of sentence, but not earlier than one year after release from prison except when the sentence expires earlier thereto. However, these rights have been ruled by Delaware Attorney General to include only “those commonly exercised in everyday life,” not the rights to vote, sit on jury, or hold office. See U.S. Dep’t of Justice, Office of the Pardon Att’y, Civ. Disabilities of Convicted Felons: A State-by-State Survey, at 37-38, n.2 (1996), available at https://www.ncjrs.gov/pdffiles1/pr/195110.pdf.
- The Board also hears a number of requests for sentence commutation, and recommends a handful to the governor each year. In 2006, the Board received twenty-one requests for commutation, recommended five favorably, of which the governor granted none; in 2007 the Board received twenty-five commutation requests, recommended three favorably, and two were granted by the Governor; in 2008, the Board received thirty-two commutation requests, recommended six, and one was granted; in 2009 the Board received thirty-seven requests, recommended thirteen favorably, and one was granted; in 2010, the Board received twenty-four requests, recommended thirteen favorably, of which seven were granted by the governor; in 2011 the Board received 54 requests, recommended 19 favorably, or which 10 were granted; in 2012 the Board received 65 requests, recommended 24, of which 2 were granted; in 2013 the Board received 73 requests, recommended 17 favorably, of which 2 were granted. Until recently the Board held an in-person hearing in every commutation requests, but it has now begun to dispose of some on a paper record.
- Expunged records may be disclosed to law-enforcement officers acting in the lawful performance of their duties in investigating criminal activity, for the purpose of an employment application as an employee of a law-enforcement agency, or for the purpose of determining whether a person is eligible for probation before judgment or first offender controlled substance diversion. Id. § 4376.
- Last-minute amendments to the law eliminated provisions that would have prohibited consideration of certain types of criminal records, including felony convictions more than ten years old and misdemeanor convictions more than five years old.
- The uniform regulatory scheme in Title 24 applies to the boards of Accountancy, Landscape Architecture, Architects, Podiatry, Chiropractic, Cosmetology & Barbering and Aestheticians, Dentistry and Dental Hygiene, Electrical Examiners, Medical Licensure and Discipline, Plumbing/HVACR Examiners, Nursing, Occupational Therapy, Examiners in Optometry, Pharmacy, Physical Therapists and Athletic Trainers, Professional Land Surveyors, Professional Engineers, Dietetics/Nutrition, Real Estate Services, Real Estate Appraisers, Mental Health and Chemical Dependency Professionals, Funeral Services, Veterinary Medicine, Examiners of Psychologists, Geologists, Speech/Language Pathologists, Audiologists, and Hearing Aid Dispensers, Clinical Social Work Examiners, Examiners of Nursing Home Administrators, Massage and Bodywork, Manufactured Home Installation, Athlete Agent Examiners, and Board of Home Inspectors (home inspector statutory provisions effective August 6, 2013). See, e.g., 74 Del. Laws 262, supra; 74 Del. Laws 267 (2004) (professional engineers); 78 Del. Laws 170 (2011) (home inspectors).