Restoration of Rights, Pardon, Expungement & Sealing
Last updated: March 28, 2015
I. Restoration of Civil/Firearms Rights
Uniform Act on Status of Convicted Persons: The right of felony offenders to vote is suspended while actually incarcerated. “[I]f the defendant is placed on probation or the defendant is paroled after commitment to imprisonment, the defendant may vote during the period of the probation or parole.” Haw. Rev. Stat. § 831-2(a)(1).
The right to seek and hold public office is restored upon final discharge of sentence. § 831-5.
Only a pardon restores the right to serve on a jury. Haw. Rev. Stat. § 612-4(b)(2). Other provisions of the UASCP govern the effect of prior conviction and expungement. §§ 831-3.1, 3.2 (see infra).
No one may own possess, or control a firearm if he has been prohibited from owning firearms under federal law; or convicted of committing a felony, crime of violence, or an illegal drug sale; or is under age 25 and has been adjudicated by the family court of committing a felony, two or more crimes of violence, or an illegal drug sale. See Haw. Rev. Stat. §§ 134-7(a), (b), (d). A pardon does not relieve firearms disabilities unless expressly provided. Cf. Haw. Op. Att’y. Gen. No. 81-12, 1981 WL 37235 (1981).
II. Discretionary Restoration Mechanisms:
A. Executive Pardon
The power to grant pardons of state convictions is vested in the Governor. Haw. Const., art. V, § 5. The Governor may seek the recommendation of the director of public safety and the Hawaii State Paroling Authority, but the governor’s pardon power is independent. See Haw. Const., art. V, § 5; Haw. Rev. Stat. § 353-72 (directory of public safety and Paroling Authority “shall consider every application for pardon which may be referred to them by the governor”). While the Hawaii Constitution specifically permits the legislature to “authorize the governor … to restore civil rights denied by reason of conviction of offenses by tribunals other than those of this State,” Haw. Const., art. V, § 5, no such statute has been enacted.
There are no restrictions for state offenders. Federal and out-of-state offenders are ineligible. See Haw. Const., art. V, § 5; U.S. Const., art. II, §2.
A pardon will state that the person has been rehabilitated, and a pardon relieves legal disabilities and prohibitions.1 A pardon does not expunge records, and a pardoned offense may be used in a subsequent criminal proceeding.
No statutory process is specified for considering pardon applications, but the Governor, as a matter of policy, always asks the Paroling Authority (HPA) and Attorney General for advice and recommendation. See Haw. Rev. Stat. § 353-72:
“The director of public safety and the Hawaii paroling authority shall consider every application for pardon which may be referred to them by the governor and shall furnish the governor, as soon as may be after such reference, all information possible concerning the prisoner, together with a recommendation as to the granting or refusing of the pardon.”
The application form is posted on the Paroling Authority website, http://hawaii.gov/psd/attached-agencies/hpa/Pardon-application2.pdf.
According to the Pardons Administrator of the Hawaii Paroling Authority, pardon applicants undergo a formal investigation process conducted under the direction of HPA, including a face-to-face interview by a parole officer with the petitioner (if practicable, by phone if not). Two affidavits attesting to character must be filed in support by persons in the community. The administrative staff develops recommendations to the Parole Board, which are considered in monthly administrative sessions. The Director of Public Safety reviews recommendations, and endorses or recommends disapproval, and then sends them to the Attorney General’s office where a second investigation and confidential summary is completed. The entire investigative process takes about eight months from filing to the Governor’s desk.
Frequency of Grants
Governor Abercrombie granted 83 pardons during his tenure from 2011 to 2014, 50 of which were during his final year in office. See Honolulu Star Adviser Pardon Database, http://data.staradvertiser.com/pardons/pardons. During the 2011 through 2014 fiscal years, the Paroling Authority conducted 467 pardon investigations and recommended 230 cases favorably. See Hawaii Paroling Authority Annual Statistical Reports, available at http://dps.hawaii.gov/hpa. The Paroling Authority reviews applications on a regular basis, sending its recommendations through the Attorney General to the Governor.
Governor Lingle granted 132 pardons in her eight years in office, 55 of which were in her last year (2010). See Derrick DePledge, Lingle’s 55 pardons are most in 8 years, Star Advertiser, Dec. 4, 2010, available at http://www.staradvertiser.com/news/hawaiinews/20101204_lingles_55_pardons_are_most_in_8_years.html. The two governors immediately preceding Governor Lingle had similar records, granting 204 (Cayetano) and 115 (Waiheee) pardons respectively in their eight years in office.
Paroles & Pardons Administrator
Hawaii Paroling Authority
B. Judicial Expungement and Sealing
Procedure for deferred acceptance of guilty plea (DAGP) or deferred acceptance of no contest (DANC) is available for persons with no prior felony convictions charged with certain offenses that are otherwise eligible for probation. See Haw. Rev. Stat. §§ 853-1, 853-4. Enumerated serious offenses are ineligible. § 853-4. Deferred treatment is available when “[i]t appears to the court that the defendant is not likely again to engage in a criminal course of conduct,” and “the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law.” §§ 853-1(a)(2), (3). In such cases “the court, without accepting the plea of nolo contendere or entering a judgment of guilt and with the consent of the defendant and after considering the recommendations, if any, of the prosecutor, may defer further proceedings” and place the defendant on probation for a term not exceeding the maximum potential sentence, but in the event of a petty misdemeanor no more than a year. §§ 853-1(a), (b). If the defendant successfully completes probation, the court discharges him and dismisses the charges without an adjudication of guilt. “Discharge of the defendant and dismissal of the charge [following successful completion of the deferral period] . . . is not a conviction.” § 853-1(d). One year after the discharge and dismissal, the defendant may apply to the Attorney General for expungement. Haw. Rev. Stat. § 853-1(e); see also Haw. Rev. Stat. § 831-3.2(a)(5). Info: Office of the Attorney General: 808-586-1500.
The DAGP procedure was enacted
“because [the legislature] determined that certain offenders should be provided the opportunity to be conviction free consistent with the government’s penal goals. The legislature explained that ‘in certain criminal cases, particularly those involving first time, accidental, or situational offenders, it is in the best interest of the [prosecution] and the defendant that the defendant be given the opportunity to keep his [or her] record free of a criminal conviction, if he [or she] can comply with certain terms and conditions during a period designated by court order.'”
State v. Shannon, 185 P.3d 200, 205 (Haw. 2008)(quoting State v. Putnam, 3 P. 3d 1239, 1244-45 (Haw. 2000), quoting 1976 Haw. Sess. L. Act 154, § 2 at 279); see also id. at 221 (Nakayama, dissenting), quoting Sen. Stand. Comm. Rep. No. 616.76, in 1976 Senate Journal, at 1152 (internal quotations omitted):
“[For certain offenders], the humiliation and inconvenience of arrest and prosecution satisfy the need for punishment; and a trial and conviction would serve no purpose other than to impair the offenders’ educational, employment, and professional opportunities and ability to function as a responsible and productive member of the community. Additionally, the [DAG plea] procedure . . . has the . . . benefit of saving time and money for the criminal justice system without adversely affecting the public interest. Also, [i]t will further relieve the congestion in the courts and enable the criminal justice system to direct its limited resources where they can be most beneficial to the community.”
Deferred adjudication and expungement are also authorized for minor first time drug offenders under Haw. Rev. Stat. § 712-1255. Discharge and dismissal upon completion of probation under this section “shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.” § 712-1255(3). A defendant may apply to the court for expungement if under age of 20. § 712-1256.2
Expungement is governed by Haw. Rev. Stat. §§ 571-88(a), (e). A juvenile may motion the court for an expungement, which annuls the arrest record and prevents circulation of court records. § 571-88(a). Sealing is governed by Haw. Rev. Stat. § 571-84(e). Juvenile records are considered confidential, rendering them per se sealed. Id. A court order is required for any agency to access sealed juvenile court records. Id. Pursuant to informal court policy, a juvenile’s attorney may motion for a dismissal in the interest of justice following the disposition, which, if granted, would destroy court records.
Only criminal justice agencies and agencies authorized by Hawaii’s laws, such as the Department of Human Services for their child care program, can access non-conviction information. In addition, upon application by the affected individual, the Attorney General “shall issue an expungement order annulling, canceling, and rescinding the record of arrest” not leading to conviction, except in cases where arrested person absconded. Haw. Rev. Stat. § 831-3.2. Expungement available in deferred adjudication cases after a one-year waiting period. § 831-3.2(a)(5).
Effect of Expungement
Persons whose records have been expunged shall be treated “as not having been arrested.” Haw. Rev. Stat. § 831-3.2(b). Records shall not be divulged except upon inquiry by a court or agency thereof (including for preparation of presentence report), a government agency considering the subject person for a position immediately and directly affecting the national or state security, or a law enforcement agency acting within the scope of its duties. § 831-3.2(d). “Response to any other inquiry shall not be different from responses made about persons who have no arrest records.” Id. The Attorney General shall issue to the person for whom an expungement order has been entered, a certificate stating that the order has been issued and that its effect is “to annul the record of a specific arrest.” § 831-3.2(e). The certificate “shall authorize the person to state, in response to any question or inquiry, whether or not under oath, that the person has no record regarding the specific arrest. Such a statement shall not make the person subject to any action for perjury, civil suit, discharge from employment, or any other adverse action.” Id.
AG’s office, criminal records section
C. Administrative certificate
Uniform Act on Status of Convicted Persons (see below)
III. Nondiscrimination in Licensing and Employment:
A. Fair Employment Practices
Hawaii includes discrimination based on conviction record in its more general fair employment practices law. Haw. Rev. Stat. §§ 378-2 to 378-6. Under § 378-2.5(b), it is an unlawful employment practice to inquire into arrest and conviction records before the employee receives a conditional offer of employment, which may be withdrawn if a conviction within the previous 10 years “bears a rational relationship to the duties and responsibilities of the position.” § 378-2.5(b), (c). The Hawaii Supreme Court held in August 2006 that this law also prohibits termination of existing employment because of a previous conviction, absent a showing that the conviction bears a rational relationship to the employment. Wright v. Home Depot, 142 P. 3d 265, 275 (Haw. 2006).3 The law includes a long list of exceptions for various public and private employments where an employer is expressly permitted to ask about a conviction record, such as health, education, law enforcement and security services, public employment, transportation, public libraries, insurance and banks, coop or condominium housing, etc. Haw. Rev. Stat. § 378-2.5(d).
The law is enforced by the Hawaii Civil Rights Commission. The 1998 amendments were evidently precipitated when the HCRC promulgated regulations that addressed what constitutes a “bona fide occupational qualification” and what is an “inquiry.” See Sheri-Ann S.L. Lau, Recent Development: Employment Discrimination Because of One’s Arrest and Court Record in Hawaii, 22 U. Haw. L. Rev. 709, 714-15 (2000). “Significantly, an application form cannot ask the prospective employee whether he or she has an arrest record, court record, or conviction record unless ‘the inquiry is pursuant to a statutory exemption and seeks information about a conviction for a specific offense within the exemption.’” Id. The HCRC makes it clear that the employer has the burden of proving a BFOQ based on the employer’s business requirements and the totality of the circumstances. See id. at 715-16 (footnote omitted) (“it appears that the legislature’s main emphasis is to provide employment opportunities for individuals with conviction records and reduce the likelihood that they will return to public assistance or a life of crime. The Legislature’s secondary concern is protecting employers from litigation when trying to provide a safe environment for customers and employees.”). As to arrests alone, it is an unlawful discriminatory practice to refuse to hire, to fire or to otherwise discriminate against an individual based on their arrest and court record. Haw. Rev. Stat. § 378-2(a)(1).
B. The Uniform Act on Status of Convicted Persons
Provides that a person may not be disqualified from public office or government employment, or be disqualified from licensure, solely because of a prior conviction, except that a crime committed within the past 10 years (excluding any period of incarceration) may be considered “if it bears a rational relationship to the duties and responsibilities of a job, occupation, trade, vocation, profession, or business.” Haw. Rev. Stat. § 831-3.1(a). In addition, a person convicted of a felony may be denied a liquor license. § 831(a)(1). The statute does not apply to employment in regulated health care facilities, a youth correctional facility, detention or shelter facility, or correctional facility, or to government positions with contact with children or dependent adults where the applicant poses a risk to their health, safety or well-being, or positions with contact with persons committed to a correctional facility for certain crimes and where the applicant poses a risk to the inmates, staff or public. § 831-3.1(f).
Refusal to hire or denial of license may occur only when the agency determines after appropriate investigation, notification of results and planned action, and opportunity to meet and rebut the finding, “that the person so convicted has not been sufficiently rehabilitated to warrant the public trust.” Haw. Rev. Stat. § 831-3.1(c). A person who is denied a position in the civil service on the basis of a criminal conviction “may appeal the adverse decision to the civil service commission or merit appeals board, as appropriate, within twenty days after the notice of action has been sent to the person.” § 831-3.1(e).
In 1998, Hawaii became the first state to ban the box as applied to both public and private employment. Haw. Rev. Stat. § 378-2.5 prohibits employers from inquiring into an applicant’s criminal history until after a conditional offer of employment has been made. The offer may be withdrawn if the applicant’s conviction bears a “rational relationship” to the duties and responsibilities of the position sought. Under the law, employers may only consider an employee’s conviction record within the most recent ten years, excluding periods of incarceration. Prior to 1998, the definition of unlawful discriminatory practices (§ 378-2) included “arrest and court record” as an impermissible reason for an employer to “refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual.”
- In a press release accompanying 11 grants in 2010 grants, Governor Lingle stated: “The individuals broke the law, but they have served their sentences, kept their records clean and have proven that they are now leading law-abiding lives in the community.” Star-Advertiser staff, 11 given pardons this year, Star Advertiser, Jul. 3, 2010, available at http://www.staradvertiser.com/news/20100703_11_given_pardons_this_year.html
- 2006 law extending this expungement authority to all deferred adjudication situations was vetoed by the Governor based on objections to the amount and kinds of violations that could be expunged, referring specifically to trespass, disorderly conduct and loitering for prostitution. Permitting expungement would make records of those crimes unavailable to criminal justice agencies and officials who are not entitled to “law enforcement” access.
- Wright is discussed in Christine Neylon O’Brien and Jonathan J. Darrow, Adverse Employment Consequences Triggered by Criminal Convictions: Recent Cases Interpret State Statutes Prohibiting Discrimination, Wake Forest L. Rev. 991, 996-1002 (2007).