Restoration of Rights, Pardon, Expungement & Sealing
Last updated: August 5, 2017
I. Restoration of Civil/Firearms Rights
Right to vote depends upon state law, for both state and federal offenders. See Richardson v. Ramirez, 418 U.S. 24, 54 (1974). Most states that do not restore the right to vote automatically give federal offenders access to their restoration procedures. (See profiles in this series for Florida, Kentucky, and Virginia.)
Eligibility for federal jury service is lost upon conviction in state or federal court of a crime punishable by more than one year if a person’s “civil rights have not been restored.” 28 U.S.C. § 1865(b)(5). The courts and the Administrative Office of United States Courts interpret this provision to require an affirmative act (such as a pardon or expungement) to restore federal jury eligibility. See, e.g., United States v. Hefner, 842 F.2d 731, 732 (4th Cir. 1988) (legislative history of § 1865(b)(5) indicates that “some affirmative act recognized in law must first take place to restore one’s civil rights to meet the eligibility requirements of section 1865(b)(5)”). Thus the automatic restoration of rights that takes place in many states upon completion of sentence will not be sufficient. See Paul J. Komives & Peggy S. Blotner, Loss and Restoration of Civil Rights Affecting Disqualification for Federal Jury Service, 70 Bus. L.J. 542 (1991).
The U.S. Constitution does not prohibit convicted persons from holding office, but some statutes provide that conviction will result in the loss of office. See, e.g., 18 U.S.C. § 201(b) (sentencing court may order disqualification from federal office of official convicted for bribery). A felony conviction does not disqualify a person from federal employment, but may be considered by particular agencies in connection with determining suitability. See Kelly Salzmann & Margaret Love, Internal Exile: Survey of the Collateral Consequences of Conviction under Federal Laws and Regulations (Washington, D.C.: Am. Bar Ass’n, ABA Commission on Effective Criminal Sanctions, 2008), available at http://www.abanet.org/cecs/internalexile.pdf.
People with convictions in any court, of a crime punishable by imprisonment for a term exceeding one year, are subject to the prohibition on possession of firearms under federal law, 18 U.S.C. § 922(g)(1), and to additional prohibitions under the laws of the several states. Persons convicted of domestic violence offenses also lose firearms rights. § 922(g)(9). The only relief available to federal offenders is a presidential pardon. See Beecham v. United States, 511 U.S. 368 (1994). People with state convictions may avoid the federal bar if their convictions are pardoned, set-aside, or expunged, or if their civil rights have been restored, as long as they are not subject to state firearms disabilities. See 18 U.S.C. §§ 921(a)(20), (a)(33). Automatic restoration of civil rights is effective to remove federal gun dispossession. See Caron v. United States, 524 U.S. 308 (1998).
E. Capacity to testify
Federal Rule of Evidence 609(b) provides that evidence of a conviction for a felony is not admissible if a period of more than ten years has elapsed since the date of the conviction unless, “[i]ts probative value, supported by specific facts and circumstances, substantially outweigh its prejudicial effect.” FRE 609(c) provides:
“Evidence of a conviction is not admissible if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or imprisonment for more than one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.”
* Additional Federal Collateral Consequences are discussed in Part III, infra. Discretionary relief may be available from a variety of these collateral disabilities from responsible agency officials. See Salzmann & Love, Internal Exile, supra.
II. Discretionary Restoration Mechanisms
A. Executive pardon
Executive pardoning power lies exclusively in President and cannot be limited or regulated by Congress. U.S. Const. art. II, sec. 2. By Executive Order, the Attorney General is charged with providing advice on pardon policy and investigating and making recommendations on all applications for pardon and commutation. See 28 C.F.R. Part 1.
Five years after the completion of a sentence, beginning upon release from prison, or date of sentencing if not incarcerated. Waiver of the eligibility waiting period is infrequent. Ordinarily an applicant must have no court proceedings pending, and must have completed supervision. 28 C.F.R. Part 1. Offenders whose convictions were prosecuted under the Uniform Code of Military Justice are eligible to apply for a presidential pardon, as are D.C. Code offenders.
A pardon “in no way reverses the legal conclusion of the courts; it ‘does not blot out guilt or expunge a judgment of ’” Hirschberg v. Commodity Futures Trading Com’n, 414 F.3d 679, 682 (7th Cir. 2005), citing In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994). See also Nixon v. United States, 506 U.S. 224, 232 (1993) (“a pardon is in no sense an overturning of a judgment of conviction by some other tribunal”); Burdick v. United States, 236 U.S. 79, 94 (1915) (a pardon “carries an imputation of guilt”); United States v. Noonan, 906 F.2d 958, 960 (3d Cir. 1990) (concluding that a pardon can only remove the punishment for a crime, not the fact of the crime itself, and holding that Burdick implicitly rejected the Supreme Court’s prior sweeping conception of the pardoning power in Ex Parte Garland). See additional authorities cited in 30 Op. O.L.C. 1 (2006)(“Whether a Presidential Pardon Expunges Judicial and Executive Branch Records of a Crime”).
A pardoned offense may be used as a predicate offense, and to enhance a subsequent sentence. Carlesi v. New York, 233 U.S. 51 (1914).
The effect of a presidential pardon is not to prohibit all consequences of a pardoned conviction, but rather to preclude future punishment for the conviction. See Nixon, 506 U.S. at 232; Bjerkan v. United States, 529 F.2d 125, 127-28 (7th Cir. 1975). Thus, a pardon relieves legal disabilities arising under state or federal law solely by virtue of the conviction, but it does not preclude adverse action taken on the basis of the conduct underlying the conviction. See, e.g., In re Abrams, 689 A.2d 6 (D.C. App. 1997) (upholding bar discipline based upon conduct underlying pardoned conviction: “[A]lthough the presidential pardon set aside Abrams’ convictions, as well as the consequences which the law attaches to those convictions, it could not and did not require the court to close its eyes to the fact that Abrams did what he did.”); see also Effects of a Presidential Pardon, 19 Op. Off. Legal Counsel No. 160, 1995 WL 861618 (June 19, 1995). In this regard, a pardon may be taken as evidence of rehabilitation and good character.
The federal pardon process is described at http://www.justice.gov/pardon/clemency.htm. An application is made to the Office of the Pardon Attorney (OPA), U.S. Department of Justice, on a form provided by that office. See http://www.usdoj.gov/pardon/pardon_petition.htm. Each pardon application is investigated by OPA, which in meritorious cases includes an FBI background investigation and inquiry to the U.S. Attorney and the sentencing judge, and a recommendation is made to the President through the Deputy Attorney General. Cases are reviewed on a paper record, and there is no formal hearing. Official pardon recommendations and OPA advice to the President are confidential. Pardon recommendations are handled in the White House by the Office of White House Counsel. Processing time for a favorable recommendation is generally at least 18 months and may be considerably longer.
Standards applicable to a Justice Department review of pardon applications are set forth in § 1-2.112 of United States Attorneys Manual. See http://www.justice.gov/pardon/petitions.htm. Factors to be considered include:
- Post-conviction conduct, character, and reputation
- Seriousness and relative recentness of the offense
- Acceptance of responsibility, remorse, and atonement
- Need for relief
- Official recommendations and reports1
Frequency of Grants
President Obama granted a total of 212 pardons and denied 1,708 applications, leaving 2011 applications pending when he left office. (He also granted 1,715 sentence commutations, and denied 18,749 applications, leaving some 8000 prisoner petitions still pending.) The rate of application picked up markedly at the end of his tenure, notwithstanding the sluggish grant rate. See Office of the Pardon Attorney, Clemency Statistics, (retrieved July 1, 2017), available at http://www.justice.gov/pardon/statistics.htm (listing clemency statistics by administration from 1900 to present). George W. Bush granted a total of 189 pardons and eleven commutations, and denied more than 1700 pardon petitions. Id.
Historically, and until the mid-1980s, American presidents have pardoned regularly and generously. Presidential pardoning has abated in recent years, however, compared to pre-1980 grant rates. See generally Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169 (2010); H. Humbert, The Pardoning Power of the President (1941). The number of presidential pardons each year has steadily declined since 1980, as has the percentage of applications granted.2 The federal pardon process has been criticized in recent years as being unduly influenced by prosecutors. See, e.g., Paul Larkin, Revitalizing the Clemency Process, 39 Harvard Journal of Law and Public Policy 833 (2016); Margaret Love, Justice Department Administration of the President’s Pardon Power: A Case Study in Institutional Conflict of Interest, 47 U. Tol. L. Rev 89 (2016). In December 2011 the Washington Post co-published an investigative series on federal pardoning during the Bush Administration purporting to show racial disparity and undue congressional influence in the federal pardoning process. See http://www.propublica.org/series/presidential-pardons.
Office of the Pardon Attorney
145 N Street N.E.
Washington, D.C. 20530
B. Judicial sealing or expungement
There is no general federal expungement statute, and federal courts have no inherent authority to expunge records of a valid federal conviction. See, e.g., United States v. Crowell, 374 F.3d 790, 792-93 (9th 2004), cert. denied, 543 U.S. 1070 (2005). However, some courts have held that federal courts have inherent ancillary authority to expunge criminal records where an arrest or conviction is found to be invalid or a clerical error is made. United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000). See cases collected in Hall v. Alabama, 2010 U.S. Dist. LEXIS 14082, at *22-30 (M.D. Ala. 2010).3 Occasionally, courts have agreed to expunge an arrest record upon a showing of need where the government did not object.4
Federal First Offender Act (Misdemeanor Drug Possession)
Where a person with no prior drug conviction is found guilty of misdemeanor possession of a controlled substance under 21 U.S.C. § 844, courts may impose probation before entry of judgment, and subsequently dismiss the case without entry of judgment and no conviction resulting if the person has not violated of condition of his probation. See 18 U.S.C. § 3607(a).5 Expungement of all records is available only if the defendant was less than 21 years of age at the time of offense. § 3607(c). The effect of expungement under this section is explained as follows:
“The expungement order shall direct that there be expunged from all official records, except the nonpublic records referred to in subsection (b), all references to his arrest for the offense, the institution of criminal proceedings against him, and the results thereof. The effect of the order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or institution of criminal proceedings. A person concerning whom such an order has been entered shall not be held thereafter under any provision of law to be guilty of perjury, false swearing, or making a false statement by reason of his failure to recite or acknowledge such arrests or institution of criminal proceedings, or the results thereof, in response to an inquiry made of him for any purpose.”
18 U.S.C. § 3607(c).6
Congress has directed that DNA analysis be expunged from certain indices when a conviction has been overturned. 10 U.S.C. § 1565(e) (under military law); 42 U.S.C. § 14132(d) (FBI expungement). See also 18 U.S.C. § 921(a)(20), (33)(B)(ii) (defining certain crimes to exclude convictions that have been expunged or for which the person has been pardoned or had his civil rights restored).
No provision for expungement or sealing.7
C. Administrative certificate
While there is no general administrative relief mechanism available from federal collateral consequences, waivers in particular cases may be available from responsible agency officials for both state and federal offenders subject to disabilities under particular federal statutes. See generally Salzmann & Love, Internal Exile, supra. For example, exceptions to the prohibition on military enlistment of felony offenders may be authorized by the Secretary of the service involved in “meritorious cases.” 10 U.S.C. § 504(a). Also, persons prohibited from holding national security clearance by virtue of their conviction may be granted a waiver “in accordance with standards and procedures prescribed by, or under the authority of, an Executive order or other guidance issued by the President.” 50 U.S.C. § 435c(c)(2)(A) See also the waiver authority of the FDIC and TSA described in Part III.
State Relief Mechanisms
A few federal statutes specifically incorporate a waiver provision based on state provisions for pardon or restoration of rights. For example, under the Firearms Owners Protection Act of 1986, state convictions that have been expunged, set aside, or pardoned, or for which a person has had civil rights restored, do not constitute “convictions” for purposes of prosecution as a felon in possession. 18 U.S.C. § 921(a)(20); James W. Diehm, Federal Expungement: A Concept in Need of a Definition, 66 St. John’s L. Rev. 73, 99 (1992). In certain cases, an alien may avoid deportation based on conviction if he is pardoned. See Morison, Presidential Pardons and Immigration Law, supra note 4, at 268-272; Elizabeth Rapaport, The Georgia Immigration Pardons: A Case Study in Mass Clemency, 13 Fed. Sentencing Rep. 184, 184 (2000). A felony offender is disqualified from serving on a federal jury “if his civil rights have not been restored.” 28 U.S.C. § 1865(b)(5). The federal prohibitions relating to involvement in labor organizations and employee benefit plans last up to thirteen years, but may be removed earlier if an individual’s civil rights have been “fully restored.” 29 U.S.C. §§ 504(a), 1111(a). Under HUD regulations, federal restrictions on licensure as a mortgage originator for persons convicted of a felony may be waived by a pardon. See 24 C.F.R. § 3400.105(b)(2), 76 Fed. Reg. 38464 (June 30, 2011). See also the Transportation Safety Administration regulations described in Part III, infra, which give effect in connection with employment in transportation-related occupations to both state pardons and expungements.
III. Nondiscrimination in Licensing and Employment
A. Civil Rights Act of 1964
There is no general provision in federal law that prohibits consideration of a criminal conviction in connection with employment or licensure. The Equal Employment Opportunity Commission (EEOC) has taken the position that “an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population. Consequently, the Commission has held and continues to hold that such a policy or practice is unlawful under Title VII in the absence of a justifying business necessity.” See EEOC, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 915.002 (April 25, 2012), http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf .8
Recent litigation under Title VII is described in Michelle Natividad Rodriguez & Maurice Emsellem, 65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks for Employment, National Employment Law Project (2011), at 9-12, available at http://www.nelp.org/page/-/SCLP/2011/65_Million_Need_Not_Apply.pdf?nocdn=1. See also NELP, Civil Rights and Consumer Protection Litigation Docket, available at http://www.nelp.org/page/-/SCLP/2011/CivilRightsConsumerProtectionLitigationDocket.pdf?nocdn=1.
B. Fair Credit Reporting Act
Prohibits a “consumer reporting agency,” including private firms that supply criminal background information to employers, from disseminating to a prospective or current employer information about arrests that are more than seven years old, for which the statute of limitations has run. See 15 U.S.C. § 1681c(a)(2). However, convictions of any age may be reported. 15 U.S.C. § 1681c(a)(5). Additional notice and other procedural protections required by the FCRA also apply directly to an employer, as discussed in FTC advisory letters. See http://www.cardreport.com/laws/fcra/ftc-opinion/fcra-opinion.html. For a description of recent FCRA litigation, see the NELP Publications cited in the preceding section.
C. Federally Regulated Occupations and Employments
Federal law now authorizes or requires criminal history background checks, and mandates disqualification based on certain convictions, for a wide variety of state-licensed occupations and employments. See Legal Action Center, National H.I.R.E. Network, “Federal Occupational Restrictions Affecting People with Criminal Records,” available at http://www.hire.web5design.com/content/federal-occupational-restrictions-affecting-people-criminal-records. Some of these regulatory schemes contain time limits or provide for administrative waiver, as described below.
Security Regulation of the Transportation Industry
Since 9/11, the nation’s transportation industry has adopted a new regime of criminal background checks intended to identify workers who may pose a terrorism security risk. Starting with the USA Patriot Act, a progression of federal laws and regulations have been enacted to screen workers employed in the air, sea, and ground transportation industries. Although the laws themselves vary in specificity, by regulation and policy the Transportation Security Administration (TSA) has attempted to harmonize the different screening policies, though the Aviation and Transportation Security Act of 2001 imposes more stringent limits on airport employment than those applicable to maritime employees and commercial drivers.
The Aviation and Transportation Security Act of 2001 (ATSA) denies “unescorted access” authority to anyone convicted of disqualifying offenses within the past ten years. 49 U.S.C. § 44936(b)(1). Major categories of workers covered by the ATSA include airport screeners, mechanics, flight attendants and pilots, fleet service workers, and workers handling commercial or passenger cargo in secured areas. 44936(a)(1)(B). (TSA has proposed regulations to extend a separate level of screening to workers who handle cargo in unsecured areas.) The ATSA itself includes a list of disqualifying criminal offenses covering various dangerous acts related to transportation, crimes involving espionage and treason, violent felonies, property crimes including theft and burglary that resulted in a felony conviction, and any felony related generally to “dishonesty, fraud or misrepresentation.” See 49 U.S.C. § 44936(b)(1)(B); see also TSA regulations at 49 C.F.R. §§ 1542.209(d), 1544.229(d), 1544.230. In addition, some misdemeanors may also be disqualifying. Most notably, both felony and misdemeanor convictions for unlawful possession or use of a “weapon” (ranging from explosives to firearms, knives, brass knuckles, black jacks, and mace) result in disqualification. See United States v. Baer, 324 F.3d 282, 286-88 (4th Cir. 2003) (misdemeanor firearms offense is disqualifying under § 44936). In contrast to the Hazmat regulations (below), the TSA regulations make felony simple possession of a controlled substance a disqualifying offense also. 49 C.F.R. § 1542.209(d)(26)(ix). If there is no disposition, or if the disposition did not result in a conviction or in a finding of not guilty by reason of insanity of a disqualifying offense, the individual is not disqualified. § 1542.209(g).
Waiver: Unlike the regulations applicable to commercial drivers and maritime employees, the TSA regulations implementing the ATSA do not provide for waiver.
For the effect of convictions that have been expunged, pardoned, or set-aside; or for offenses that did not result in a conviction, see TSA, “Legal Guidance on Criminal History Records Checks” (May 28, 2004) (also discussed below in “What constitutes a conviction” section).
Hazmat Licenses for Commercial Drivers
Under the USA PATRIOT Act, commercial drivers licensed by the states to transport hazardous material are subject to federal laws regulating their “hazardous materials endorsements” (HME), including new criminal background screening requirements imposed by the USA Patriot Act (49 U.S.C. § 5103a(a)(1)) to insure that “the individual does not pose a security risk warranting denial of the license.” Drivers requiring HME endorsements range from municipal trash collectors carrying items like bleach and batteries, to interstate truckers carrying nuclear and biological waste. Unlike the ATSA, the Patriot Act does not list disqualifying offenses or impose any time limits on their consideration. A state may not grant a driver a “license to operate a motor vehicle transporting in commerce a hazardous material” unless the DHS first notifies the state “that the individual does not pose a security risk warranting denial of the license.” 49 U.S.C. § 5103a(a)(1). The TSA, acting on behalf of the DHS, assesses whether an individual poses a security risk; in practice the TSA notifies the state that an individual poses no threat by granting that individual an HME.
TSA’s final regulations (49 C.F.R. § 1572.103, see generally 69 Fed. Reg. 68720 (Nov. 24, 2004)), list 35 “permanent” and “interim” disqualifying offenses. “Permanent disqualifying offenses” include convictions for especially serious crimes, including murder, espionage, acts of terrorism and crimes related to explosive devices. 49 C.F.R. § 1572.103(a). These offenses, whether felonies or misdemeanors, will be considered disqualifying no matter how dated. (Misdemeanor offenses are disqualifying only if they are of a “terroristic nature,” such as sale of explosives or weapons. Id.) The regulation’s “interim disqualifying criminal offenses” are expressly limited to felonies and to those convictions that took place within the past seven years, or where the individual was released from prison within five years of the application. § 1572.103(b). These include various acts of violence, weapons offenses, property crimes, and a general category of crimes involving “dishonesty, fraud, or misrepresentation, including identify fraud.” Distribution of a controlled substance is also included as a disqualifying offense. § 1572.103(b)(2)(vii). However, TSA removed simple drug possession from the final list of disqualifying offenses, concluding that it “generally does not involve violence against others or reveal a pattern of deception . . . .” 69 Fed. Reg. 68723.
Waiver: If the TSA determines an applicant for an HME has been convicted of any of several “disqualifying criminal offenses” listed in the TSA’s threat assessment regulation (49 C.F.R. § 1572.103) and therefore determines that he poses “a security threat warranting denial” of his application (per § 1572.5(a)(1)), then the TSA serves the applicant with its “Initial Determination of Threat Assessment.” 49 C.F.R. § 1572.15(d). An applicant disqualified because of a criminal offense may within 60 days appeal that determination within the TSA and, if unsuccessful, then seek review in a court of appeals. § 1515.5. If he does not appeal within 60 days, or if his administrative appeal is unsuccessful, then the Initial Determination of Threat Assessment becomes a Final Determination. See §§ 1515.5(b)(1); (c). Alternatively, any time after receiving an Initial Determination of Threat Assessment and until 60 days after receiving a Final Determination, the applicant may request a waiver on the ground that in fact he “does not pose a security threat.” §§ 1515.7(b); (c)(iii). Should his waiver request be denied, he may seek review of that decision as well, first before an Administrative Law Judge, then before the Deputy Administrator, and then by petitioning a court of appeals for review. §§ 1515.7(d); 1515.11. See also Boniface v. United States Dep’t of Homeland Security, 613 F.3d 282 (D.C. Cir. 2010), cert. denied, 131 S.Ct. 931(2011) (TSA improperly treated appeal as request for a waiver and denied it without giving petitioner an opportunity to demonstrate his rehabilitation).
“In determining whether to grant a waiver, TSA will consider the following factors, as applicable to the disqualifying condition: (i) The circumstances of the disqualifying act or offense. (ii) Restitution made by the applicant. (iii) Any Federal or State mitigation remedies. (iv) Court records or official medical release documents indicating that the applicant no longer lacks mental capacity. (v) Other factors that indicate the applicant does not pose a security threat warranting denial of the HME or TWIC.”
49 C.F.R. § 1515.7(c)(2). As to pardoned or expunged convictions, see infra.
The Maritime Transportation Security Act of 2002 (MTSA), as amended, establishes a new “transportation worker identification credential” (TWIC) required of anyone with unescorted access to a “secure area” of a port facility or vessel. 46 U.S.C. § 70105. Persons are ineligible for a TWIC if the Secretary determines they pose “a security risk warranting denial of the card.” 70105(b). Persons are disqualified if they have been convicted within the preceding 7-year period of a felony that “the Secretary believes could cause the individual to be a terrorism security risk to the United States” or if they have been released from incarceration within the preceding 5-year period for committing such a felony. §§ 70105(c)(1)(B), (c)(1)(D). (Note that these expiration dates have been adopted by the TSA for “interim” disqualifying offenses, but not for “permanent” disqualifying offenses, while the ATSA imposes a ten-year rule on all disqualifying offenses.) TSA regulations identifying disqualifying offenses and defining a conviction for purposes of obtaining a TWIC are at 46 U.S.C. § 70105(c); 49 C.F.R. §§ 1570.3; 1572.103. Privacy protections are written into the law – individual employers may be informed only of the results. See 46 U.S.C. § 70105(e) (information obtained may not be made available to the public, including the individual’s employer; employer may only be informed of whether or not the individual has been issued the card). The TSA background check process is described in the very helpful guidance prepared by the National Employment Law Project (NELP). See http://www.nelp.org/content/uploads/NELP-TWIC-Update-June-2008.pdf (guidance specific to port workers). The NELP guidance also contains sample letters for responding to TSA initial determinations of ineligibility and/or requesting a waiver.
Waiver: The MTSA as amended requires a “waiver” process that will “give consideration to the “circumstances of any disqualifying act or offense, restitution made by the individual, Federal and State mitigation remedies, and other factors from which it may be concluded that the individual does not pose a terrorism risk warranting denial of the card.” 46 U.S.C. § 70105(c)(2). Alternatively, a waiver may be granted if the employer establishes “alternative security arrangements acceptable to the Secretary.” § 70105(c)(2)(B). The TSA must also establish an appeals process that requires notice and a hearing. § 70105(c)(4).
What constitutes a “conviction”?
For all maritime and land transportation security employments subject to regulation by TSA, the rules on expunged and pardoned offenses are contained in 49 C.F.R. § 1570.3. The TSA has taken the position that a “conviction” does not include offenses that have been discharged or set-aside such as convictions that have been expunged or pardoned. See § 1570.3:
Convicted means any plea of guilty or nolo contendere, or any finding of guilt, except when the finding of guilt is subsequently overturned on appeal, pardoned, or expunged. For purposes of this subchapter, a conviction is expunged when the conviction is removed from the individual’s criminal history record and there are no legal disabilities or restrictions associated with the expunged conviction, other than the fact that the conviction may be used for sentencing purposes for subsequent convictions. In addition, where an individual is allowed to withdraw an original plea of guilty or nolo contendere and enter a plea of not guilty and the case is subsequently dismissed, the individual is no longer considered to have a conviction for purposes of this subchapter.
Note that in order to be effective, an expungement must “nullify” the conviction, which means it must remove the criminal record from the applicant’s file and cannot impose any restrictions or disabilities on the applicant. See May 28, 2004, Memorandum from the Office of the TSA Chief Counsel, “Legal Guidance on Criminal History Records Checks” at 2-3. Examples of restrictions specifically mentioned in TSA advisory memoranda include limitations on ownership of a firearm, and limitations on employment as law enforcement officer, teacher, or health care provider. See id. at 3. Therefore “some expungements remove the disabling effect of the underlying conviction and some expungements do not.” Id. On the other hand, TSA takes the position that “all pardons will act to nullify the underlying conviction” for purposes of the airport “unescorted access” authority. Id. at 4. If a record fails to indicate the disposition of an arrest, the credentialing authority may take into account convictions outside the 10-year period in making a suitability determination. Id. The commentary to the TSA regulations refers to the May 28, 2004 policy memorandum applicable to airport personnel, discussed above, which notes that to be effective an expungement cannot place limits on hiring as a police officer, teacher, or health care worker: “TSA believes it is necessary to include this level of detail in the definition to ensure that applicants are treated consistently across the country. Procedures on expungements vary from state to state, and may change at any time. Therefore, TSA hopes to avoid inconsistent application of the law against hazmat drivers by providing the new definition.” 69 Fed. Reg. at 68729. Thus pardons and some expungements will be given effect even prior to the waiver stage.
Section 19 of the Federal Deposit Insurance Act prohibits people who have been convicted of a crime of dishonesty, breach of trust, or money laundering from working in, owning, or controlling a bank (an “insured depository institution”) unless they obtain a waiver from the FDIC. 12 U.S.C. § 1829(a). For purposes of this law, pre-trial diversion or similar programs are considered to be convictions. 1829(a)(1)(A).9 Certain specified federal crimes cannot be waived for a ten-year period after conviction, absent a motion by the FDIC and court approval. § 1829(a)(2). A 1998 FDIC policy statement (http://www.fdic.gov/regulations/laws/rules/5000-1300.html) (“SOP”) provides that all drug crimes require FDIC waiver, but that pre-trial diversion programs will be considered on a case-by-case basis (except for those that occurred prior to November 29, 1990, which do not require a waiver). See SOP §§ (B)(2)-(3). The term “dishonesty” encompasses offenses including the wrongful taking of property belonging to another, in violation of any criminal statute. See FDIC Statement of Policy, 63 Fed. Reg. 66, 177, 66, 185 (Dec. 1, 1988).10 Youthful offender adjudications and “de minimis crimes”11 are not considered “convictions” requiring a waiver, nor are convictions that have been “completely expunged.” Id. at §§ (B)(1), (4). However, a conviction for which a pardon has been granted will require a waiver. Id. at § (B)(1). The FDIC generally requires the institution to submit the request for FDIC approval on behalf of the job applicant. Id. at § C. (The National H.I.R.E. Network reports that institutions rarely seek a waiver, except for higher level positions when the candidate is someone the institution really wants to hire. Individuals can only seek FDIC approval themselves if they ask the FDIC to waive the usual requirement. See www.reentry.net/library/attachment.93411.)
In determining whether to grant an applicant a waiver, the FDIC will consider the following factors: (1) the conviction and nature and circumstances of the offense; (2) evidence of rehabilitation, including age at conviction, and time elapsed; (3) the position to be held; (4) amount of influence and control over the management of the institution; (5) management’s ability to supervise and control the person’s activities; (6) degree of ownership over the institution; (7) applicability of the institution’s fidelity bond coverage to the individual; (8) opinion of primary Federal and/or state regulator; and (9) any additional relevant factors. See SOP, § D. Other banking agencies charged with administering laws regulating real estate and mortgage brokerage licensing may defer to FDIC for waivers.
Care Providers for Vulnerable Populations
Federal law authorizes or requires states to conduct background checks for a variety of employments affecting vulnerable populations. See, e.g., 42 U.S.C. § 5119a (child-care, elder-care, care of individuals with disabilities); 28 U.S.C. § 534 note (nursing care facilities and home health care agencies); 20 U.S.C. § 7115(b)(2)(E)(xx) (teachers and other education agency employees); 42 C.F.R. § 418.114 (hospice employment). See Internal Exile, supra, at 30-33.
Prohibitions relating to office-holding in labor organizations and employee benefit plans last 13 years, but may be removed earlier if civil rights have been “fully restored” or if a federal court or the Parole Commission so directs. 29 U.S.C. §§ 504(a), 1111(a).
Federal defense contractors
Persons convicted of fraud or any felony arising out of a contract with the Department of Defense are prohibited for a period of “not less than five years after the date of conviction” from working in a management or supervisory capacity with a defense contractor, or from serving on the board of directors or acting as a consultant for any company that is a defense contractor. 10 U.S.C. § 2408(a). (Waiver prior to five years available from Secretary of Defense “in the interests of national security.” 2408(a)(3).)12
Certain classes of felons are barred for 13 years after one’s conviction from holding any of several positions in a union or other organization that manages an employee benefit plan, including serving as an officer of the union or a director of the union’s governing board. 29 U.S.C. §§ 504(a), 1111(a).
Those convicted of certain crimes are prohibited from providing healthcare services reimbursed by Medicare or from working for the generic drug industry. 42 U.S.C. § 1320a-7; 21 U.S.C. § 335a.
Criminal history background checks are required for individuals who provide care for children in any Federal agency or facility operated by the Federal government. 42 U.S.C. § 13041. In addition, the Federal Child Protection Act, 42 U.S.C. § 5119a, authorizes states to enact statutes concerning the facilitation of criminal background checks of persons who work with children. It authorizes states to institute mandatory or voluntary fingerprinting of prospective employees in childcare fields in order to facilitate criminal background checks. Id.
Prisoner transportation (including private prisoner transportation) is federally regulated. 42 U.S.C. § 13726b sets “[m]inimum standards for background checks and pre-employment drug testing for potential employees, including requiring criminal background checks, to disqualify persons with a felony conviction or domestic violence conviction . . . for eligibility for employment.” The purpose of the act was to provide protection against risks to the public inherent in the transportation of violent prisoners and to assure the safety of those being transported. See L. 106–560 (December 21, 2000) (“An Act To provide protection against the risks to the public that are inherent in the interstate transportation of violent prisoners.”); 42 U.S.C. § 13726(5) (private prisoner transport companies should be subject to regulation to enhance public safety).
D. Additional Note on Federal Criminal Background Checks
In June 2006 the Attorney General issued a report pursuant to § 6403(d) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L.108-458, 118 Stat. 3638, 3759) making recommendations to Congress for standardizing non-criminal justice access to FBI-maintained criminal history records. See The Attorney General’s Report on Criminal Background Checks, http://www.usdoj.gov/olp/ag_bgchecks_report.pdf. The report recommends that the FBI’s national database of criminal records generally be made more widely available to private employers and private screening firms for purposes of determining suitability for employment or placement in a position of trust.13 Id. at 59. It also recommends that privacy protections be created (including notice to an individual whose records have been requested, and an opportunity to review and challenge the accuracy of those records), and that procedures for assuring accuracy of records be improved. Id. at 59-65, 72-73.14 It recommends national standards relating to disposition reporting and record completeness, including declinations to prosecute and expungement and sealing orders, so that there is uniformity in improvements by repositories nationwide. Id. at 72. As to suitability criteria, the report recommends that Congress consider “whether guidance should be provided to employers on appropriate time limits that should be observed when applying criteria specifying disqualifying offenses and on providing an individual the opportunity to seek a waiver from the disqualification.” Id. at 68.15
The information and recommendations in the 2006 Report of the Attorney General has been updated by its principal author Frank Campbell, then-Senior Counsel in the Justice Department’s Office of Legal Policy, in Love et al., Collateral Consequences of Criminal Conviction: Law Policy & Practice, §§ 5:32 through 5:51 (West/NACDL, 2006 ed.).
- Post-conviction conduct, character, and reputation: “An individual’s demonstrated ability to lead a responsible and productive life for a significant period after conviction or release from confinement is strong evidence of rehabilitation and worthiness for pardon. The background investigation customarily conducted by the FBI in pardon cases focuses on the petitioner’s financial and employment stability, responsibility toward family, reputation in the community, participation in community service, charitable or other meritorious activities and, if applicable, military record. In assessing post-conviction accomplishments, each petitioner’s life circumstances are considered in their totality: it may not be appropriate or realistic to expect ‘extraordinary’ post-conviction achievements from individuals who are less fortunately situated in terms of cultural, educational, or economic background.”Seriousness and relative recentness of the offense: “When an offense is very serious (e.g., a violent crime, major drug trafficking, breach of public trust, or white collar fraud involving substantial sums of money), a suitable length of time should have elapsed in order to avoid denigrating the seriousness of the offense or undermining the deterrent effect of the conviction. In the case of a prominent individual or notorious crime, the likely effect of a pardon on law enforcement interests or upon the general public should be taken into account. Victim impact may also be a relevant consideration. When an offense is very old and relatively minor, the equities may weigh more heavily in favor of forgiveness, provided the petitioner is otherwise a suitable candidate for pardon.” .Acceptance of responsibility, remorse, and atonement: “The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to its victims are important considerations. A petitioner should be genuinely desirous of forgiveness rather than vindication. While the absence of expressions of remorse should not preclude favorable consideration, a petitioner’s attempt to minimize or rationalize culpability does not advance the case for pardon. In this regard, statements made in mitigation (e.g., ‘everybody was doing it,’ or ‘I didn’t realize it was illegal’) should be judged in context. Persons seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion.”Need for relief: “The purpose for which pardon is sought may influence disposition of the petition. A felony conviction may result in a wide variety of legal disabilities under state or federal law, some of which can provide persuasive grounds for recommending a pardon. For example, a specific employment-related need for pardon, such as removal of a bar to licensure or bonding, may make an otherwise marginal case sufficiently compelling to warrant a grant in aid of the individual’s continuing rehabilitation. On the other hand, the absence of a specific need should not be held against an otherwise deserving applicant, who may understandably be motivated solely by a strong personal desire for a sign of forgiveness.”Official recommendations and reports: “The comments and recommendations of concerned and knowledgeable officials, particularly the United States Attorney whose office prosecuted the case and the sentencing judge, are carefully considered. The likely impact of favorable action in the district or nationally, particularly on current law enforcement priorities, will always be relevant to the President’s decision. Apart from their significance to the individuals who seek them, pardons can play an important part in defining and furthering the rehabilitative goals of the criminal justice system.”
- President Ronald Reagan was the last president to issue pardons regularly each year, and his 393 pardons represented only about 20% of the applications he acted on. Reagan’s 393 pardons in eight years can be compared to the 534 pardons issued by his predecessor Jimmy Carter in four. (He commuted only thirteen sentences compared to Carter’s 29.) Going further back in time, President Ford issued 382 pardons in two and one half years, and President Nixon 863 in eight years, Johnson 960 in four, and Kennedy 472 in three. The percentage of applications acted on favorably also steadily declined from Nixon (51%) through Ford (39%) and Carter (34%) to Reagan (20%). A sharper downward trend in federal pardoning began with President George H.W. Bush (74 pardons in four years, 10% of those acted upon), and continued under Clinton. Excluding the last minute irregular grants on the eve of his leaving office, President Clinton issued only 178 pardons and 21 commutations (12 of which were FALN members) through the end of FY 2000, acting favorably on only 10% of the pardon applications decided during that period of time. President George W. Bush’s 189 pardons out of almost 2500 cases decided yields a grant rate of about 7.5%. Many of President Bush’s pardon denials came at the beginning of his tenure, in cases left undecided by the Clinton Administration.
- Federal courts have inherent or ancillary jurisdiction to expunge arrest records only in “extreme circumstances,” United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977), cert. denied, 435 U.S. 907 (1978), when necessary “to preserve basic legal rights.” Livingston v. U.S. Dep’t of Justice, 759 F.2d 74, 78 (D.C. Cir. 1985). An interest in reputation or employment opportunities is generally not sufficient to warrant expungement even when the prosecution elected not to pursue charges or the defendant has been acquitted, see, e.g., United States v. Lopez, 704 F. Supp. 1055, 1056-57 (S.D. Fla. 1988) and United States v. Singleton, 442 F. Supp. 722, 723-24 (S.D. Tex. 1977). However, evidence of actual innocence or improper government conduct may warrant expungement. See, e.g., United States v. Van Wagner, 746 F. Supp. 619 (E.D. Va. 1990) (expungement appropriate where government conceded that indicted defendant was actually innocent after dismissing charges, and defendant proved he was suffering economic hardship because of record); United States v. Johnson, 714 F. Supp. 522 (S.D. Fla. 1989) (expungement of arrest record appropriate where court directed acquittal on ground of no probable cause, and “negative mark” of arrest record would likely jeopardize potential employment); Natwig v. Webster, 562 F. Supp. 225 (D.R.I. 1983); (expungement of arrest record from FBI files appropriate where plaintiff was never indicted and record might jeopardize plaintiff’s planned emigration to Australia); Menard v. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974) (FBI must expunge information when reporting agency later reported information disputing accuracy of original information).
Courts have also expunged records of convictions set aside under the Youth Corrections Act. See, e,g, United State. v. Doe, 2004 WL 1124687 (S.D.N.Y. 2004); United States v. Benlizar, 459 F. Supp. 614 (D.D.C. 1978). Compare United States v. Doe, 935 F.Supp. 478 (S.D.N.Y.1996)(Chin, J.)(expunging YCA conviction that had previously been set aside) with United States v. Seibel, 1999 WL 681276 at *2 n. 2 (S.D.N.Y.1999) (Chin, J.) (stating that Doe was “based in large part upon the Youth Corrections Act, 18 U.S.C. 5021(b)”).
- See, e.g., United States v. McKnight, Case No. 07-mj-1218-SKG, 2014 U.S. Dist. LEXIS 95484,2014 (2014); United States v. Bohr, 406 F.Supp. 1218, 1219 (E.D.Wis.1976). The decision by Judge John Gleeson in Doe v. United States, __ F. Supp. __ (E.D.N.Y., May 20, 2015) seems anomalous and has been appealed by the government. See http://ccresourcecenter.org/2015/09/04/doj-argues-federal-court-has-no-power-to-expunge/.
- The effect of vacatur under this section for immigration purposes is discussed in Samuel T. Morison, Presidential Pardons and Immigration Law, 6 Stanford J. C. R. & C. L. 253, 268-272 (2010).
- Before its 1984 amendment, § 844(b) itself permitted expungement for misdemeanor marijuana possession. See Pub. L. 98-473, 98 Stat. 1837, § 219(a). A bill to expand the Federal First Offender act to all first offender drug cases was introduced in the 112th Congress. See H.R. 2567 (Federal First Offender Improvement Act of 2011).
- Youth Corrections Act: Between 1950 and 1984, offenders between the ages of 18 and 26 could have their convictions “set aside” after successful completion of probation under the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5056 (1984). The effect of a set-aside under this statute was never settled in the courts, and the YCA was in any event repealed in its entirely by the Sentencing Reform Act of 1984. (A companion House bill pending at that time would have extended the set-aside remedy to all federal offenders, and clarified its effect as full expungement permitting an individual to deny having been convicted. See Margaret Colgate Love, Starting Over With a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 Fordham Urb. L.J. 1705, 1715-16 (2003).)
- See also EEOC Guidance No. N-915, February 4, 1987, Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., available at http://www.eeoc.gov/policy/docs/convict1.html (citing previous decisions). See also EEOC Guidance No. N-915-061, September 7, 1990, Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq., available at http://www.eeoc.gov/policy/docs/arrest_records.html. See generally http://www.hire.web5design.com/content/federal-occupational-restrictions-affecting-people-criminal-records. See also Love, Roberts, and Klingele, Collateral Consequences of Criminal Convictions: Law, Policy & Practice at §§ 6:1 through 6:13 (2012).
- See Smith v. Bank of Am. Corp., 865 F. Supp. 2d 298 (E.D.N.Y. 2012) (New York ACD in shoplifting case held disqualifying, notwithstanding state laws barring unreasonable discrimination based on criminal record).
- Waivers are generally granted in the case of minor thefts. See, e.g., In Matter of David Emad Hamdan, 2010 FDIC Enf. Dec. LEXIS 31 (waiver appropriate in the case of Class B misdemeanor theft 10 years in the past); In the Matter of James A. Smedley, Jr., 2009 FDIC Enf. Dec. LEXIS 703(waiver appropriate in the case of false statement 20 years in the past); In the Matter of Susan L. Yedlicka, 2009 FDIC Enf. Dec. LEXIS 702 (shoplifting at age 20, 30 years in the past with no other arrests or convictions, and applicant had successful employment history).
- SOP § B(5) provides that “[a]pproval is automatically granted and an application will not be required where the covered offense is considered de minimis, because it meets all of the following criteria: • There is only one conviction or program entry of record for a covered offense; • The offense was punishable by imprisonment for a term of one year or less and/or a fine of $2,500 or less, and the individual served three (3) days or less of actual jail time; • The conviction or program was entered at least five years prior to the date an application would otherwise be required; and • The offense did not involve an insured depository institution or insured credit union.
- Restrictions on eligibility for a DOD Security Clearance applicable to persons convicted of a felony and actually incarcerated as a result for a period of not less than one year (the so-called “Smith Act”) were repealed effective January 1, 2008 by Pub. L. 110-181, 122 Stat. 3, 110th Cong., 2d Session, § 1072(b)(1). See 10 U.S.C. § 986(c)(1) (2007 ed.). Under the repealed provision, waiver could be granted by the Secretary of Defense “if there are mitigating factors.” § 986(d).
- Private employers may already access information from the FBI’s national system in specified situations. See Report, at 4-5 and Appendix 1, for a listing of employers and others who had access to FBI records for non-law enforcement purposes as of 2006. See also note 13, infra. The FBI may also exchange the information with “authorized officials,” which includes federal and state agencies that conduct criminal background checks for employment and licensing purposes. 28 U.S.C. § 534(a)(4). New federal regulations now authorize these “authorized officials” to outsource certain administrative functions to private screening firms, thus allowing these firms to directly access the FBI’s records for the first time. See 28 C.F.R. § 906.2 (discussing third-party handling of criminal history record information). No state can access the FBI’s records for employment or licensing purposes without FBI approval of required state legislation. 28 C.F.R. §§ 20.33, 50.12. To qualify for approval, the state must provide certain minimum protections, including a system of fingerprinting, notice to the worker whenever an FBI records search is conducted, and an opportunity on the part of the individual to challenge the accuracy of the FBI’s records. 28 C.F.R. § 50.12(b).
- Section 6402 of Pub. L.108-458, codified at 28 U.S.C. § 534 (note), authorizes states to share FBI criminal history records with private employers of security guards relating to whether particular guards have been convicted of or charged with a felony. See 118 Stat. 3638, 3756-57. With the guard’s written permission, a private employer may submit the guard’s fingerprints to the state, which in turn will inform the employer whether the guard has been convicted of a felony within the previous ten years or has been arrested for a felony within the preceding year. See Pub. L.108-458, § 6402(d)(1)(D), 118 Stat. 3638, 3757.
- The Report (at Appendix 1) contains the following list of statutes that at the time authorized fingerprint checks for non-criminal justice purposes: 28 U.S.C. § 534 (2002) Note (federally chartered or insured banking industry and, if authorized by a state statute approved by the United States Attorney General (approval authority has been delegated to the FBI), state and local employment and licensing [per Pub. L. 92-544, Title II, § 201, Oct. 25, 1972, 86 Stat. 1115]); 42 U.S.C. § 5119a (1998) (relating to providing care to children, the elderly, or disabled persons); 28 U.S.C. § 534 (2002) Note (relating to the parimutuel wagering industry (horse/dog racing) [per Pub. L. 100-413, Aug. 22, 1988, 102 Stat. 1101]); 7 U.S.C. §§ 12a and 21(b)(4)(E) (2000), (commodity futures trading industry); 42 U.S.C. § 2169 (2005) (nuclear utilization facilities (power plants)); 15 U.S.C. § 78q(f)(2) (2004) (securities industry); 49 U.S.C. §§ 44935-44936 (2003) (aviation industry); 49 U.S.C. § 44939 (2003) (relating to flight school training); 28 U.S.C. § 534 (2002) Note (nursing and home health care industry [per Pub. L. 105-277, Div. A, § 101(b) [Title I, § 124], Oct. 21, 1998, 112 Stat. 2681-73]); 49 U.S.C. § 5103a (2005) (relating to issuance and renewal of HAZMAT-endorsed commercial driver license); 5 U.S.C. § 9101 (2000) (relating to federal government national security background checks); 25 U.S.C. §§ 3205 and 3207 (2000) (relating to Indian child care); 42 U.S.C. § 13041 (1991) (relating to federal agencies and facilities contracted by federal agencies to provide child care); 42 U.S.C. §§ 1437d(q) (1999) (relating to public housing and section 8 housing); 25 U.S.C. § 4138 (1999) (relating to Indian housing); 25 U.S.C. § 2701 (1988) (relating to Indian gaming); 42 U.S.C. § 13726 (2000) (relating to private companies transporting state or local violent prisoners); 8 U.S.C. § 1105 (2001) (relating to visa issuance or admission to the United States); Executive Order 10450, 18 Fed. Reg. 2489 (Apr. 27, 1953) (follows 5 U.S.C. § 7311 (1966)) (relating to applicants for federal employment); Pub. L. No. 107-188, § 201 and 212 (2002), 116 Stat. 594 (2002) (relating to handling of biological agents or toxins [see 42 U.S.C. § 262a]); 46 U.S.C. §§ 70101 Note, 70105, and 70112 (2002) (relating to seaport facility and vessel security); Pub. L. No. 108-458 § 6402 (2004) (relating to private security officer employment [see 28 U.S.C. § 534 Note]).