Restoration of Rights, Pardon, Expungement & Sealing
Last updated: January 20, 2017
I. Restoration of civil rights/firearms privileges
A. Civil rights
Upon conviction of a felony, a person loses the right to vote, serve on a jury, or hold an office of “honor, trust, or profit.” However, a felony offender may vote during a period of probation (“non-jail community control sanction”) or parole. Ohio Rev. Code § 2961.01(A). Other civil rights are restored upon a “final release” from parole or post-release control, or upon completion of the prison sentence if the person is not placed under post-release control. § 2967.16(C). A final release is not available earlier than one year after release on parole or post-release control, and in the case of a person serving a minimum sentence of life, not earlier than five years after release on parole or post-release control. § 2967.16(A). A person sentenced to a “community control sanction” (including probation or a fine) regains the right to hold office and sit on a jury upon completion of the sanction. §§ 2961.01, 2967.16(C)(1)(c).
A public servant convicted of soliciting or receiving improper compensation is disqualified from public office or employment for a period of seven years after the date of conviction. § 2921.43(E). A public servant or party official who is convicted of bribery or a theft offense is “forever disqualified” from holding any public office, employment, or position of trust in the state. See §§ 2921.02(H) (bribery), 2921.41(C)(1) (theft).
The general restoration of rights includes only civil rights and not firearms privileges, which may be restored either by a pardon or by a court (see below).
A person may not carry or use any firearm if convicted of a felony offense of violence or any felony drug offense. See Ohio Rev. Code § 2923.13(A)(2)-(3). A license to carry a concealed handgun will not be issued to a person who has been convicted of a felony drug offense or of assault when the victim is a peace officer. See § 2923.125(D)(1)(e). A person subject to a firearms disability may apply to the court of common pleas in the county of his residence for relief from state firearms disabilities if he is fully discharged from the sentence, has led a law-abiding life since, and is not “otherwise prohibited by law” from having a firearm. See § 2923.14(D). This restoration provision appears to be available to Ohio residents with out-of-state convictions, but is unavailable to anyone who does not reside in the state. See State v. Cantwell, 2013-Ohio-1685 ¶ 10 (Ct. App., 5th Dist. 2013). In 2011, subsections (B) and (F) of § 2923.14 were amended to make clear that the “otherwise prohibited” language in subsection (D) does not include any prohibition based solely upon a criminal conviction. Relief granted pursuant to this section is intended to lift any firearms restriction under federal law for Ohio offenders.1
C. Collateral consequences
Ohio has an on-line compilation of collateral consequences, prepared under the auspices of the Ohio Justice and Policy Center and the State Office of the Public Defender. See Civil Impacts of Criminal Convictions under Ohio Law, available at http://civiccohio.org/. In addition, a narrative survey of the collateral consequences in Ohio can be found in Kimberly R. Mossoney and Cara A. Roecker, Ohio Collateral Sanctions Project, 36 U. Toledo L. Rev. 611 (2005). The Ex-Offender Reentry Coalition established by Ohio Rev. Code Ann. § 5120.07 was directed to identify and examine “social service barriers and other obstacles to the reentry of ex-offenders into the community.” § 5120.07 (C). See Part III, infra.
II. Discretionary restoration mechanisms
A. Executive pardon
Ohio Const. art. III, § 11: The pardon power, except for treason and cases of impeachment, is vested in the governor, “subject . . . to such regulations, as to the manner of applying for commutations and pardons, as may be prescribed by law.” Ohio Rev. Code Ann. § 2967.07 requires that all applications for pardon or other clemency be made in writing to the Adult Parole Authority (part of the Parole and Community Services Division of the Department of Rehabilitation and Correction), which is required by law to investigate and make a recommendation to the governor on every application, but whose recommendation is advisory only. The Ohio constitution provides that “[t]he Governor shall communicate to the general assembly, at every regular session, each case of reprieve, commutation, or pardon granted, stating the name and crime of the convict, the sentence, its date, and the date of the commutation, pardon, or reprieve, with the Governor’s reasons therefor.” Ohio Const. art. III, § 11.
“The Ohio Parole Board is the bureau of the Adult Parole Authority assigned to process clemency applications. The governor may also direct the Parole Board to investigate and examine any case for the propriety of clemency. Upon completion of its examination, the Parole Board sends a report to the governor providing a summary of the facts in the case, a recommendation for or against the granting of clemency, and the reasoning behind the recommendation.” http://www.drc.state.oh.us/web/ExecClemency.htm.
A person may apply for a pardon at any time, though ordinarily clemency is granted after a person has shown an ability to live a crime-free lifestyle. See Ohio Parole Board Application for Executive Clemency Instructions and Guidelines, available at http://drc.ohio.gov/web/Forms/DRC3068instructions.pdf; see also http://www.cjpf.org/clemency/find-your-state/ohio (Criminal Justice Policy Foundation information on Ohio applications for clemency). Also, a person who is denied clemency must wait two years to re-apply unless he presents significant new information that was not and could not have been presented in the earlier application. See http://drc.ohio.gov/web/Forms/DRC3068instructions.pdf; Ohio Admin. Code 5120:1-1-15(H). Only Ohio convictions are eligible for a pardon.
An unconditional pardon “relieves the person to whom it is granted of all disabilities arising out of the conviction or convictions from which it is granted.” Ohio Rev. Code Ann. § 2967.04(B). A “full and absolute pardon releases the offender from the entire punishment prescribed for his offense, and from all the disabilities consequent on his conviction.” State v. Boykin, 138 Ohio St.3d 97, 102 (2013), quoting from State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 650, 4 N.E. 81 (1885). In State v. Radcliff, Slip Opinion No. 2015-Ohio-235, the Ohio Supreme Court held that Ohio courts have no authority to expunge or seal the record of a pardoned conviction that is not otherwise eligible for sealing under Ohio Rev. Code Ann. §§ 2953.31 (see Part II, infra.). The Radcliff decision settled an issue that had divided the state courts of appeal, and left open in its Boykin decision, which is that judicial power to seal a conviction record, including the record of a conviction that has been pardoned, is limited by law. The Radcliff court pointed out that the legislature had made certain provisions for retaining pardon documents, and noted that “[t]he fact that the General Assembly has required that a record of a defendant’s pardon be filed in the same court where the pardoned offense was originally adjudicated expresses the General Assembly’s intent that courts must preserve the record of a pardon, not conceal it.” Radcliff, slip op. at *11-12. The Radcliffe court took the opportunity to express its frustration with the legislature’s failure to provide a broader sealing authority:
Despite any frustrations judges may have with their inability to do justice in any given case of a pardoned offender, judges must respect that it is the role of the legislature to address the statutory scheme on sealing records, even in cases in which gubernatorial pardons are granted. Until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness. State v. Skinner, 632 A.2d 82, 84 (Del.1993), citing Stone v. Oklahoma Real Estate Comm., 369 P.2d 642 (Okla.1962). The pardon does not wipe the slate clean. Id. If the slate is to be wiped clean for those pardoned of crimes, including Radcliff, the General Assembly must act.
Id. at *14.
Application is made to the Parole Board, which conducts an investigation. Ohio Rev. Code Ann. §§ 2967.03, 2967.07; Parole Board Instructions and Guidelines, supra. At least three weeks prior to making a recommendation, the Board must give notice to the court, prosecutor, victim and/or victim’s family. § 2967.12. The victim is invited to submit written comments, and make a recommendation. Id. Meritorious cases may or may not be granted a hearing, and a recommendation is then sent to the governor. See Ohio Admin. Code 5120:1-1-15. The governor reviews all clemency applications – even the Parole Board denials. The governor considers all factors (individuals are free to submit whatever information they believe is relevant). Obviously, factors like the nature of the crime, time served, institutional adjustment/programming, recommendations of judge/prosecutor, letters of support, and community service all factor into the decision, but everything is considered. The governor may grant a full pardon, or include reservations. According to an older version of the clemency application instructions, the entire process can take between 6-8 months. 2
Little is known about Governor Kasich’s philosophy of pardoning, and he has to date pardoned sparingly, see infra, – though he has commuted a number of death sentences. His predecessor Ted Strickland was comparatively generous in pardoning, and had this to say about the role of pardons in the justice system:
Executive clemency power is an important part of our justice system – it provides a second chance to those who have earned one and ensures that unusually long sentences are in line with similar cases. . . . This process also provides an opportunity to show mercy and forgiveness to those who have recognized what is expected of them in our society and who remain committed to being productive and responsible citizens.3
Frequency of grants
Governor Kasich has used his executive clemency power sparing in post sentence pardon cases. In 2015, he approved only two of 250 pardon requests, and less than 70 of over 1,700 requests from 2011 through 2015. See Associated Press, Analysis: Kasich’s pardon rate in 2015 less than 1 percent, http://wkbn.com/2016/01/02/analysis-kasichs-pardon-rate-in-2015-less-than-1-percent (January 2, 2016); Alan Johnson, Kasich rarely uses clemency to pardon, commute sentences, Columbus Dispatch, http://www.dispatch.com/content/stories/local/2015/03/16/kasich-rarely-uses-clemency.html (March 16, 2015). In 2015, the Board reviewed 176 applications and recommended favorable action for 19. The number of reviews/recommendations was 290/41 in 2014, 288/31 in 2013, and 281/71 in 2012. See Parole Board Reports, http://www.drc.ohio.gov/web/Reports/reports7.asp. In his first three and a half years in office, Governor Kasich was more liberal in commuting capital sentences, granting six of 17 petitions. See Jeremy Pelzer, How often does Gov. John Kasich grant clemency to criminals? We break down the numbers, Clevland.com, http://www.cleveland.com/open/index.ssf/2014/06/kasich_rarely_grants_pardons_b.html (June 20, 2014). Kasich’s predecessor Governor Ted Strickland granted a total of 290 pardons and 29 commutations. Most of those pardoned by Strickland were convicted of minor non-violent offenses, and his clemency counsel is reported to have said that “the overwhelming majority of pardons granted by the governor were to ameliorate the collateral consequences suffered by the pardon applicants.”4 Governor Strickland denied about 75% of the cases sent him by the Parole Board, including both pardons and commutations, generally (though not always) following the Board’s recommendation. Governor Taft (1998-2006) considered 1153 clemency applications, 225 for pardon, and granted 48 pardons, slightly over 21% of those considered. (He also granted eight commutations and six “imminent danger of death” compassionate releases.) Governor Voinovich (1991-1998) considered 4621 clemency applications, granted 69 pardons and 50 commutations.
B. Judicial sealing or expungement
Sealing of conviction records
Courts have statutory authority to seal the record of an “eligible offender” under Ohio Rev. Code Ann. §§ 2953.31(A)(1) (defining “eligible offender”) and 2953.32(A)(1) (permitting eligible offenders to petition for the sealing of a conviction record)).5 Ohio courts have no inherent authority to seal a conviction record. See State v. Radcliff, Slip Opinion No. 2015-Ohio-235, **8-10, explaining that the doctrine of Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303 (1981) did not survive the enactment of a statutory sealing authority.6
An eligible offender is anyone with a single felony conviction, two misdemeanor convictions,7 and one felony conviction and one misdemeanor conviction from Ohio or from any other jurisdiction, including federal convictions. (See below.) When two or more convictions result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction.8
Application may be made at the expiration of three years after the offender’s final discharge if convicted of a felony, or at the expiration of one year after the offender’s final discharge if convicted of a misdemeanor. Ohio Rev. Code Ann. § 2953.32(A)(1). Misdemeanor arrest records in cases involving bail forfeiture may also be sealed. § 2953.32(A)(2). Certain minor misdemeanor and ordinance violations, including some traffic offenses, do not count against eligibility status. § 2953.31(A). Crimes ineligible for sealing include those carrying a mandatory prison term; first and second degree felonies; crimes of violence (including robbery and domestic violence); sex offenses; offenses against minors; and certain traffic offenses. § 2953.36.
When two or more convictions “result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction.” § 2953.31(A). Also:
When two or three convictions result from the same indictment, information, or complaint, from the same plea of guilty, or from the same official proceeding, and result from related criminal acts that were committed within a three-month period but do not result from the same act or from offenses committed at the same time, they shall be counted as one conviction, provided that a court may decide . . . that it is not in the public interest for the two or three convictions to be counted as one conviction.
Id. Multiple offenses need not occur simultaneously to be considered “connected with the same act.” State v. Taylor, No. 97CA006850, 1998 WL 281352, at *1 (Ohio Ct. App. May 27, 1998) (quoting State v. McGinnis, 629 N.E.2d 1084 (Ohio Ct. App. 1993)). However, offenses “separated by a significant lapse of time” will generally be considered separate. Id. Further, “in order to be ‘connected with the same act,’ the two offenses must be ‘linked together coherently or logically’ in such a way that they can properly be considered ‘the same act’ for purposes of expungement.” Id. (quoting McGinnis, 629 N.E.2d at 1085). See also Silver Lake v. Osman, No. 26023, 2012 WL 1026765, at *3 (Ohio Ct. App. Mar. 28, 2012) (shoplifting was not related to possession of drug paraphernalia that occurred several months later, notwithstanding defendant’s claim that both crimes stemmed from his addiction to drugs: “The two convictions at issue here involved separate offenses that occurred at separate times, and proceeded through the judicial system independently of each other.”). Upon filing, “the court initially shall determine whether it is not in the public interest for the two or three convictions to be counted as one conviction.” Ohio Rev. Code Ann. § 2953.32(C)(1)(a). Where two convictions are not related, no finding is required. See Osman, 2012 WL 1026765, at *3.
Federal and Out-of-State Offenses
The court’s sealing authority extends, somewhat anomalously, to convictions from other states and from the federal system. See e.g., § 2953.32(A)(1)(“ an eligible offender may apply to the sentencing court if convicted in this state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of the record of the case that pertains to the conviction”). The effect of such sealing is limited, however, since the courts only have jurisdiction over records held by Ohio state officials and agencies that are not maintained pursuant to federal law. See In re Pacifico, 717 N.E.2d 393 (Ohio Ct. App., Montgomery County 1998).
Procedure and standards
The application and hearing procedures are spelled out in Ohio Rev. Code Ann. § 2953.32(A)-(C), and include a $50 filing fee. The court must notify the prosecutor, who is permitted to object to the granting of the application, of the hearing on the application. § 2953.32(B). The court must also direct probation officials to “make inquiries and written reports” concerning the applicant, and determine whether the applicant has been satisfactorily rehabilitated. § 2953.32(B), (C). In performing the balancing test set out in § 2353.32(C), the court “must weigh the interest of the public’s need to know as against the individual’s interest in having the record sealed, and must liberally construe the statute so as to promote the legislative purpose of allowing expungements.” State v. Hilbert, 764 N.E.2d 1064, 1066 (Ohio Ct. App. 2001). See Pierre H. Bergeron and Kimberley A. Eberwine, One Step in the Right Direction: Ohio’s Framework for Sealing Criminal Records, 36 U. Tol. L. Rev. 595, 600 (2005) (citing cases). See also Ohio Ex-Offender Reentry Coalition, Instructions for Sealing a Criminal Record (Expungement), available at http://www.reentrycoalition.ohio.gov/docs/expunge.pdf.
In the event that a record is sealed, the court
shall order all official records pertaining to the case sealed and . . . all index references to the case deleted . . . . The proceedings in the case shall be considered not to have occurred and the conviction . . . of the person who is the subject of the proceedings shall be sealed, except that upon conviction of a subsequent offense, the sealed record of prior conviction or bail forfeiture may be considered by the court in determining the sentence or other appropriate disposition . . . .
Sealing “restores the person . . . to all rights and privileges not otherwise restored by termination of the sentence or community control sanction or by final release on parole or post-release control.” § 2953.33(A). Private and public employers, as well as occupational licensing authorities, may not question a person about a sealed adult conviction, unless the question “bears a direct and substantial relationship to the position for which the person is being considered.” § 2953.33(B). In addition, any public employee who discloses a sealed conviction in connection with an application for employment or license is guilty of a misdemeanor. §§ 2953.35; 2953.54.
However, there are a number of exceptions to the limitations on access that are set forth in § 2953.32 itself. Sealed records may be used in sentencing for another offense, in determining whether to seal records of a subsequent conviction, and in charging a person with a new offense when the nature and character of that offense would be affected by the sealed information. §§ 2953.32(D), 2953.32(E). Sealed records may also be accessed by law enforcement agencies, by other state agencies in connection with applications for certain state employment, and for purposes of a variety of other employments set forth in the statute governing the Bureau of Criminal Identification (state repository of criminal records), including licensed facilities working with vulnerable populations, schools, home health agencies and financial institutions. See §§ 2953.32(D); 109.57 et seq. In addition, sealing does not restore the right to hold public office to a public servant convicted of bribery in office. State v. Bissantz, 532 N.E.2d 126 (Ohio 1988).
S.B. 337, enacted into law in June 2012 and codified in various sections of the Ohio Revised Code, contains a number of additional limitations on the use of sealed records. See 2012 Ohio Laws File 131 (Am. Sub. S.B. 337); see also Ohio Legislative Service Commission, Sub. S.B. 337 Bill Analysis (2012), available at http://bit.ly/SB337_summary.
It appears that the sealing statute does not give the person whose record has been sealed the option of denying the existence of the record, even if questioned improperly about it. Ohio Rev. Code Ann. § 2953.55(A) (sealing upon finding of not guilty specifically permits a person to deny the occurrence of the criminal case of which the records have been sealed).
Courts have expressed concern over sealing provisions in suits brought by media to gain access to sealed records. See State ex rel. Cincinnati Enquirer v. Winkler, 782 N.E.2d 1247 (Ohio Ct. App. 2002) (Enquirer II); State ex rel. Cincinnati Enquirer v. Winkler, 777 N.E.2d 320 (Ohio Ct. App. 2002) (Enquirer I). Legislative efforts to expand the scope of the statute to help returning offenders with employment opportunities have met with resistance in the past. See also Lisa Rab, “Forgive and Forget? The Push to Keep Criminal Records from Employers,” CleveScene, Sept. 21, 2005, available at http://www.clevescene.com/cleveland/forgive-and-forget/Content?oid=1492146. But see section regarding 2012 Expansion of Expungement Authority, infra.
Frequency of grants
The record of sealing and expungement filings from Hamilton County several years ago suggests that felony offenders are aware of the availability of this remedy and do file applications to seal their records:
|Year||Number of Filings|
However, it is not clear whether the number of filings reflects only applications for relief from convicted persons or whether it also includes applications from people seeking to seal arrest records that did not result in conviction.9
Sealing of non-conviction records
Sealing is also available for records pertaining to charges that were dismissed or as to which the defendant was found not guilty, Ohio Rev. Code Ann. § 2953.52, and no inquiry may be made about such a sealed record. § 2953.55. Sealing is available in cases where a prior arrest has been sealed (including prior out-of-state arrests), although prosecutor may object and court may in its discretion deny.
Sealing of juvenile records
Ohio law sets forth a procedure for the sealing of the records of a case in which a person was adjudicated a delinquent child, but it prohibits the sealing of the records if the adjudication is for committing aggravated murder, murder, or rape. Ohio Rev. Code. § 2151.356 (A).10 A motion or application to seal records may be made six months after termination of a court order or unconditional discharge or a court order containing a determination that the child is no longer a juvenile offender registrant. § 2151.356(C)(1). (Prior to the passage of S.B. 337, the juvenile was required to wait two years after termination of any court order or unconditional discharge.) The court may require the applicant to submit any relevant documentation, and may investigate if the applicant has been rehabilitated to a satisfactory degree. The court must notify the prosecuting attorney of any proceedings to seal records, and is entitled to file a response. § 2151.356(C)(2). In determining whether the applicant has been satisfactorily rehabilitated, S.B. 337 also permits the court to consider the granting of a new tier classification or declassification from the juvenile offender registry. § 2151.356(C)(2)(e)(v) (as amended by S.B. 337).11
If the court orders records sealed pursuant to § 2151.356, “the person who is subject of the order properly may, and the court shall, reply that no record exists with respect to the person upon any inquiry in the matter.” §§ 2151.356, 2151.357(A). The court also shall (a) order that the proceedings in a case be deemed never to have occurred, (b) delete all index references to the case so they are permanently irretrievable, and (c) order that records including DNA specimens maintained by any public office or agency be expunged. Id. S.B. 337 prohibits the court from charging a fee for the filing of an application for the sealing of juvenile records.
Sealing of pardoned convictions
The Ohio Supreme Court has resolved what had been a split of authority among the Ohio appellate courts, holding that a court has no inherent authority to seal or expunge a pardoned conviction. See State v. Radcliff, Slip Opinion No. 2015-Ohio-235, **8-10, explaining that the doctrine of Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303 (1981) did not survive the enactment of a statutory sealing authority.12
Intervention in lieu of conviction (ILC)
Ohio Rev. Code Ann. § 2951.041. Pre-plea diversion is available at the direction of the court for individuals charged with certain non-serious offenses who have not previously been convicted of a felony involving violence (except upon recommendation of prosecutor):
If an offender is charged with a criminal offense and the court has reason to believe that drug or alcohol usage by the offender was a factor leading to the criminal offense . . . , the court may accept, prior to the entry of a guilty plea, the offender’s request for intervention in lieu of conviction.
§ 2951.041(A)(1). The Court must find that “intervention in lieu of conviction would not demean the seriousness of the offense, and intervention would substantially reduce the likelihood of any future criminal activity.” § 2951.041(B)(6).
Successful completion of the intervention plan and period of abstinence under this section shall be without adjudication of guilt and is not a criminal conviction for purposes of any disqualification or disability imposed by law and upon conviction of a crime, and the court may order the sealing of records related to the offense[.]
§ 2951.041(E). If the court determines that the offender has failed to comply with any of those terms and conditions, “it shall enter a finding of guilty and shall impose an appropriate sanction[.]” § 2951.041(F). The statute was amended in 2011 to provide similar relief to offenders with mental illness or intellectual disability. §§ 2951.041(A), (B).
Expungement for victims of human trafficking
Ohio Rev. Code § 2953.38 provides a mechanism for victims of human trafficking to expunge conviction records where “the applicant’s participation in the offense was a result of having been a victim of human trafficking.” “Expunge” means to destroy, delete, or erase a record as appropriate for the record’s physical or electronic form or characteristic so that the record is permanently irretrievable. § 2953.38(A)(1). “The proceedings in the case that is the subject of an order issued under . . . this section shall be considered not to have occurred and the conviction of the person who is the subject of the proceedings shall be expunged. The record of the conviction shall not be used for any purpose, including, but not limited to, a criminal records check under section 109.572 of the Revised Code. The applicant may, and the court shall, reply that no record exists with respect to the applicant upon any inquiry into the matter. Id. § 2953.38(G)(2).
Ohio Rev. Code Ann. § 2953.37 provides a mechanism for expunging a conviction of improperly handling firearms in a motor vehicle that is no longer a crime
Judicial restoration of firearms privileges
Firearms disabilities, imposed for a conviction of a crime of violence or certain drug offenses, see Ohio Rev. Code. Ann. § 2923.13(A), may be removed by petitioning a state court for restoration of firearm privileges. The applicant must be “fully discharged from” imprisonment, probation, or parole; have “led a law abiding life since discharge or release” and “appear likely to continue to do so[;]” and not be “otherwise prohibited by law from acquiring, having, or using firearms.” § 2923.14(D).
C. Administrative/judicial certificates
Certificate of employability
A 2011 law provided provides for the issuance by the Department of Rehabilitation and Corrections (DRC) or the Adult Parole Authority of “certificates of achievement and employability” for certain DRC prisoners and parolees to be used by the recipient to generally obtain relief from “mandatory civil impacts” that would affect a potential job for which the prisoner trained. See Ohio Rev. Code Ann. §§ 2961.21 through 2961.24. A “mandatory civil impact” is defined as any law that “precludes the person with the criminal record from maintaining or obtaining licensure or employment, precludes the agency from issuing a license or certification to the person with the criminal record or business, or precludes a business from being certified or from employing the person with the criminal record.” § 2961.21(D)(1). This law lifts mandatory bars and requires the licensing agency to give the person individualized consideration, in effect converting a mandatory civil impact into a discretionary one. § 2961.23(A). It also affords an employer a degree of protection from liability. § 2961.23(B). Relief from “mandatory civil impacts” does not extend to barriers to jury service and holding office. See § 2961.22(C)(3).
Certificate of qualification for employment
S.B. 337,13 signed into law on June 26, 2012, creates a mechanism by which an individual who has been convicted of or pleaded guilty to an offense, who is subject to a “collateral sanction” barring him from a particular occupation or license,14 and who has fully discharged his sentence, may after a short eligibility waiting period (one year after completion of sentence for felonies, six months for misdemeanors) apply to the court of common pleas in the county of his residence for a “certificate of qualification for employment” (CEQ) that will provide relief from the sanction and allow him to be considered on the merits. See Ohio Rev. Code Ann. § 2953.25.15
Limited to people convicted under Ohio law who reside in the state. See Ohio Rev. Code Ann. § 2953.25(A)(6) (defining “offense” as “any felony or misdemeanor under the laws of this state”) and § 2953.25(B)(5) (petition shall be filed in “the court of common pleas of the county in which the individual resides,” and court shall notify “the prosecuting attorney of the county in which the individual resides that the individual has filed the petition.”).
A CQE may lift the “automatic bar” of most collateral sanctions imposed under Ohio law. The particular sanctions lifted are specified in each individual CQE, and depend on the need articulated by the petitioner. Ohio Rev. Code Ann. §§ 2953.25(B)(1)-(2). See also § 2953.25(D) (“[A CEQ] lifts the automatic bar of a collateral sanction, and a decision-maker may consider on a case-by-case basis whether to grant or deny the issuance or restoration of an occupational license or an employment opportunity, notwithstanding the individual’s possession of the certificate.”).
Exceptions: Certain collateral consequences are not affected, such as restrictions on employment as a prosecutor or law enforcement officer, restrictions on driver’s licenses and on licensing in the health care field, and loss of licenses resulting from failure to pay child support. Ohio Rev. Code Ann. § 2953.25(C)(5). Nor does a CEQ relieve restrictions contained in § 2961.01(A)(1) regarding service on a jury, and § 2961.02(B) regarding public office or employment, including as a volunteer, if the volunteer activity involves substantial management or control over the property of a state agency, political subdivision, or private entity. § 2953.25(E).
The standard for issuing a certificate is whether the individual has established by a preponderance of the evidence that (a) granting the petition will materially assist in obtaining employment or occupational licensing; (b) the individual has a substantial need for the relief in order to live a law-abiding life; and (c) granting the petition would not pose an unreasonable risk to the safety of the public or any individual. Ohio Rev. Code Ann. § 2953.25(C)(3). The certificate is “presumptively revoked” if the individual is convicted of or pleads guilty to a felony offense committed after issuance of the certificate. § 2953.25(H).16
Limitation on employer liability
In a judicial or administrative proceeding alleging negligence or other fault, a certificate of qualification for employment issued under the mechanism may be introduced as evidence of a person’s due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the individual to whom the certificate was issued if the person knew of the certificate at the time of the alleged negligence or other fault. In any proceeding on a claim against an employer for negligent hiring, a certificate of qualification for employment issued under the mechanism provides immunity for the employer as to the claim if the employer knew of the certificate at the time of the alleged negligence. Ohio Rev. Code Ann. § 2953.25(G).
Application and procedure
The application can be accessed at http://www.drccqe.com/Login2.aspx?APPTHEME=OHCQE, and the application process is explained at http://www.drccqe.com/documentation/OHCQE/Online_CQE_petition_Instructions.pdf.
If the offense was a felony, the petition may be filed one year after completion of sentence, or six months after completion of sentence for a misdemeanor. Ohio Rev. Code Ann. § 2953.25(B)(4). Petitions for a CQE shall be filed with a court, unless the person has served a term in a state correctional institution or spent time in a department-funded program for any offense, in which case the petition is initially filed with the designee of the deputy director of the division of parole and community services, who then forwards it to court. § 2953.25(B)(1)-(2), (5). The required contents of a petition are specified, and include a statement of the reasons the certificate is sought and references.
Upon receiving a petition, the court shall review the petition, the individual’s criminal history, all filings submitted by the prosecutor or the victim, and all other relevant evidence. § 2953.25(C). The court in which a petition is filed or forwarded is required to determine all other Ohio courts in which the individual was found guilty of an offense other than the offense from which relief is sought and notify those courts of the filing, notify the prosecuting attorney of the county in which the individual resides that the individual has filed the petition, and review the petition, the individual’s criminal history, all filings submitted by the prosecutor or the victim, and all other relevant evidence. § 2953.25(B)(5)(b). The court that receives or is forwarded a petition under the bill must decide whether to issue the certificate within 60 days after the court receives or is forwarded the completed petition and all information requested by the court. This time limit may be extended upon request of the individual who filed the application. § 2953.25(C)(1), (2).
A court that denies a petition may place conditions on the individual regarding the filing of any subsequent petition for a certificate. An individual may to appeal a denial decision of a court of common pleas to the court of appeals only if the individual alleges that the denial was an abuse of discretion by the court of common pleas. § 2953.25(C)(1), (2). The certificate is “presumptively revoked” if the individual is convicted of or pleads guilty to a felony offense committed after issuance of the certificate. § 2953.25(H).
D. Additional resources
The Ohio Justice and Policy Center publishes a comprehensive guide to obtaining administrative employability certificates and sealing of adult and juvenile convictions. See Ohio Justice & Policy Center, Understanding and Clearing up Criminal Records in Ohio (2012), available at http://ohiojpc.org/wp-content/uploads/2015/07/OJPCs-Criminal-Record-Manual.pdf.
III. Nondiscrimination in licensing and employment
A. Ban-the-box in public hiring
Per Ohio Rev. Code Ann. § 9.73, enacted in 2015, “No public employer shall include on any form for application for employment with the public employer any question concerning the criminal background of the applicant.” “Public employers” include all state all state agencies and political subdivisions of the state.
B. Nondiscrimination in licensing
Effective April 7, 2009, each agency, commission or board “authorized to deny licensure or certification without offering an opportunity for a hearing” to anyone convicted of “any specified criminal offense[,]” and which “intends to add specified criminal offenses to the list of criminal offenses for which licensure or certification can be so denied[,]” must promulgate rules listing each additional criminal offense for which licensure or certification can be denied and “state the basis for which each of those specified criminal offenses is substantially related to a person’s fitness and ability to perform the duties and responsibilities of the occupation, profession, or trade.” Ohio Rev. Code Ann. § 4743.06.
C. Sealed convictions
However, as noted above, if a conviction has been sealed pursuant to the first offender sealing statute, Ohio Rev. Code Ann. §§ 2953.31 et seq., a person may not be questioned by an employer or licensing board about it “unless the question bears a direct and substantial relationship to the position for which the person is being considered.” § 2953.33(B). If an arrest record not leading to conviction has been sealed pursuant to § 2953.52, an employer or licensing agency may not question the person about it at all, § 2953.55(A), and anyone who discloses the information is guilty of a misdemeanor in the fourth degree. § 2953.55(B).
D. Ex-offender reentry coalition — Identification of barriers to reentry
In 2009, the Ohio Legislature established the Ex-Offender Reentry Coalition, composed of senior state officials involved in corrections and agencies serving returning prisoners. See Ohio Rev. Code Ann. § 5120.07; see also http://www.reentrycoalition.ohio.gov (Ex-Offender Reentry Coalition website). S.B. 337 added an “ex-offender” appointed by the director of corrections to the Coalition.17 The Coalition was directed to “identify and examine social service barriers and other obstacles to the reentry of ex-offenders into the community,” and report to the legislature with an analysis of
the effects of those barriers on ex-offenders and on their children and other family members in various areas, including but not limited to, the following: (1) Admission to public and other housing; (2) Child support obligations and procedures; (3) Parental incarceration and family reunification; (4) Social security benefits, veterans’ benefits, food stamps, and other forms of public assistance; (5) Employment; (6) Education programs and financial assistance; (7) Substance abuse, mental health, and sex offender treatment programs and financial assistance; (8) Civic and political participation; (9) Other collateral consequences under the Revised Code or the Ohio administrative code law that may result from a criminal conviction.
E. Additional limitations on licensing exclusions in S.B. 337
S.B. 33719 prohibits the Ohio Optical Dispensers Board, the Registrar of Motor Vehicles (with regard to motor vehicle salvage dealers, motor vehicle auctions, and salvage motor vehicle pools), the Construction Industry Licensing Board, the Hearing Aid Dealers and Fitters Licensing Board, and the Director of Public Safety (with regard to private investigators and security guards) from precluding individuals from obtaining or renewing licenses, certifications, or permits the entity issues due to any past criminal history of the individual unless the individual has committed a crime of moral turpitude or a disqualifying offense.20 S.B. 337 further provides a new definition of “crime of moral turpitude” to include only a number of specified serious crimes of violence. Ohio Rev. Code § 4776.10(A).
S.B. 337 specifies that (1) if an individual applying for a license, certification, or permit has been convicted of or pleaded guilty to a misdemeanor that is not a crime of moral turpitude or a “disqualifying offense” (defined below) less than one year prior to making the application, any licensing entity listed in the preceding paragraph may use its discretion in granting or denying the individual a license, certification, or permit, (2) if an individual applying for a license, certification, or permit has been convicted of or pleaded guilty to a felony that is not a crime of moral turpitude or a disqualifying offense less than three years prior to making the application, any licensing entity listed in the preceding dot point may use its discretion in granting or denying the individual a license or registration, or renewing the license. See e.g., Ohio Rev. Code Ann. § 4725.48(D) (as amended by S.B. 337) (concerning optical dispensing licenses).21
A “disqualifying offense” is defined to mean an offense that is a felony and that has a “direct nexus” to an individual’s proposed or current field of licensure, certification, or employment. § 4776.10 (C). “Direct nexus” means that the nature of the offense for which the individual was convicted or to which the individual pleaded guilty has a direct bearing on the fitness or ability of the individual to perform one or more of the duties or responsibilities necessarily related to a particular occupation, profession, or trade. § 4776.10(B). The provisions described in clauses (1) and (2) do not apply with respect to any offense unless the licensing entity, prior to the bill’s effective date, was required or authorized to deny the application based on that offense.
F. Casino control commission
The Commission must provide a written statement to each applicant denied a license under this chapter describing the reason or reasons for which the applicant was denied the license. The Commission must submit an annual report to the legislature specifying the number of applications denied in the preceding calendar year for each type of such license, and the reasons for those denials.
G. Background checks for trainees for certain professions or occupations
S.B. 337 requires the following licensing agencies to obtain criminal records checks for applicants for trainee positions: the Accountancy Board, the Board of Embalmers and Funeral Directors; the State Board of Optometry; the Ohio Optical Dispensers Board; the State Board of Pharmacy; the State Medical Board; the State Board of Psychology; the State Chiropractic Board; the Ohio Construction Industry Licensing Board; the State Veterinary Medical Licensing Board; the Occupational Therapy Section, Physical Therapy Section, and Athletic Trainers Section of the Ohio Occupational Therapy, Physical Therapy, and Athletic Trainers Board; the Counselor, Social Worker, and Marriage and Family Therapist Board; the Ohio Board of Dietetics; the Ohio Respiratory Care Board; the State Board of Orthotics, Prosthetics, and Pedorthics; the Casino Control Commission; the Registrar of Motor Vehicles regarding certain motor vehicle salvage licenses; Hearing Aid Dealers and Fitters Licensing Board; or Director of Public Safety regarding private investigators and security guard providers. See Ohio Rev. Code. Ann. § 4776.021 (as amended by S.B. 337).
These provisions requiring a criminal records check of applicants for trainee licenses do not apply with respect to any person who is participating in an apprenticeship or training program operated by or under contract with the Department of Rehabilitation and Correction. Ohio Rev. Code. Ann. § 4776.021(E).
None of the agencies may issue a trainee license to an applicant if the agency determines that the applicant would not be eligible for issuance of a license, certificate, or other authority to engage in the profession or occupation, or operate certain equipment or machinery, or enter certain premises. Ohio Rev. Code. Ann. § 4776.021(D).
An agency that uses criminal records in determining whether an applicant should be granted a trainee license under Ohio Rev. Code. Ann. § 4776.021 must make the results available to the applicant. § 47764.04(C)(2).
- Acts 2011, HB 0054, § 3 amended subsection B of § 2923.14 to “clarify that relief from a weapons disability granted under [this section] restores a person’s civil firearm rights to such an extent that the uniform federal ban on possessing any firearms at all, 18 U.S.C. § 922(g)(1), does not apply to that person, in correlation with the U.S. Supreme Court’s interpretation of 18 U.S.C. 921(a)(20) in Caron v. U.S. (1998), 524 U.S. 308.” This provision must be understood to apply only to persons convicted in Ohio, since by its terms § 921(a)(20) requires relief to be granted in the jurisdiction of conviction.
Under Governor Strickland, clemency recommendations from the Board were further reviewed by his staff:
The governor’s legal staff review of each parole board recommendation includes, but is not limited to: communication with the court and the prosecutor’s office involved in the conviction; input and assistance from law enforcement officials, defense counsel, witnesses, victims and others who may have information relevant to the governor’s decisions; consultation of official records from the offender’s prosecution and appeals, the parole board’s report and exhibits, petitions, letters, media reports and other documents or materials concerning the case.
The legal counsel prepares these findings for the governor’s review, initially shielding their clemency recommendations at the governor’s request. After a thorough and detailed discussion of the specifics of a given case, the legal staff presents their recommendation for or against clemency. The governor considers the totality of information presented for each application and decides whether to approve or deny clemency.
Press Release, Governor’s Office, Governor Announces 2009 Clemency Decisions , available at https://votesmart.org/public-statement/575300/governor-announces-2009-clemency-decisions#.VxpKKDArLIU. Governor Strickland agreed with the Board in most but not all cases, both favorable and denial recommendations. See id.
See Alan Johnson, Strickland shows mercy in 39 cases, The Columbus Dispatch, Nov. 24, 2010, available at http://www.dispatch.com/content/stories/local/2010/11/24/strickland-shows-mercy-in-39-cases.html. Announcing his first pardons, Governor Strickland stated:
“In every case, these pardons have been granted to individuals who have completed their entire sentence, usually many years ago. Virtually every case involves an individual who has not re-offended with the exception of traffic violations. The individuals granted pardons today have demonstrated that they have been rehabilitated and have assumed the responsibilities of citizenship. People have become nurses, successful business people, they have obtained master’s degrees and bachelor’s degrees.”
Alan Johnson, Strickland grants clemency to 78: Commutes life sentence of Lucas County man, The Columbus Dispatch, Nov. 23, 2009, available athttp://www.dispatch.com/content/stories/local/2009/11/23/strickland-clemency.html.
- Joann Sahl, Battling Collateral Consequences: The Long Road to Redemption, University of Akron Law School, University of Akron Legal Studies Research Paper No. 12-01 (February 20, 2012), available at http://ssrn.com/abstract=2008463. The Sahl article reports that Strickland pardoned a total of 280 people during his term, a number that is not exactly the same as numbers reported by the press contemporaneously with each set of grants. See also Alan Johnson, Strickland clears desk of requests, grants 152 pardons, The Columbus Dispatch, Jan. 7, 2011, available at http://www.dispatch.com/content/stories/local/2011/01/07/strickland-clears-desk-of-requests-by-granting-152-pardons.html; Mark Naymik, Gov. Ted Strickland gives 39 people pardons or commuted sentences, The Plain Dealer, Nov. 23, 2010, available at http://www.cleveland.com/open/index.ssf/2010/11/gov_ted_strickland_gives_39_pe.html.
- Until July 2012 the only conviction records eligible for sealing under Ohio law were certain minor non-violent convictions where the court determined that the applicant had no other criminal record and no charges pending. This “first offender” requirement was jurisdictional, and included both felonies and misdemeanors. State v. Coleman, 691 N.E.2d 369 (Ohio Ct. App. 1997). A new law passed by the legislature and signed by Governor Kasich on June 26, 2012, replaced the term “first offender” with “eligible offender” throughout the chapter.
- See Radcliffe, slip op. at 10: “Although the judicial power to seal criminal records still exists, “it is limited to cases where the accused has been acquitted or exonerated in some way and protection of the accused’s privacy interest is paramount to prevent injustice.” Even in the case of an acquittal, “judicial expungement is an exceptional remedy to be employed where the equities of the situation demand it.” Id.
- 2014 amendments deleted the phrase “if the convictions are not of the same offense” qualifying two misdemeanors.
- If an applicant for sealing was convicted of failure to pay child support, the probation department must contact the child support enforcement agency enforcing the applicant’s obligations under the child support order to inquire about the offender’s compliance with the child support order.
According to an e-mail from Judge Robert Gorman dated October 29, 2004,
the original reason for creating this remedy was to seal the records of people convicted of possession of marijuana and certain traffic offenses in the 1960’s and 1970’s. The intent was that those convictions, often the product of the culture of the day, would not interfere with current or future employment opportunities of young people. Gradually, as they became more comfortable with the concept, judges expanded expungement to all situations based on potential hardship. Judicial applications prompted the General Assembly to start tweaking the procedure by a series of amendments. For example, because of the Ohio Supreme Court’s decision in Pepper Pike v. Doe [421 N.E.2d 1303 (Ohio 1981)], the General Assembly added a new section covering the sealing of arrest records where the charge was dismissed or the defendant was acquitted. The General Assembly later precluded the sealing of records for mandatory prison terms and certain specific felonies (R.C. 2953.36).
- Prior to June 26, 2012, sexual battery and gross sexual imposition were also excluded from offenses for which juvenile records could be sealed. § 2151.356(A) (as amended by S.B. 337).
- See also Ohio Rev. Code Ann. §§ 109.57, 109.572, 109.578 (as amended by S.B. 337) (regarding limited disclosure by Attorney General or Superintendent of the Bureau of Criminal Identification and Investigation of information relating to the adjudication of a child as delinquent in certain circumstances).
- See Radcliffe, slip op. at 10: “Although the judicial power to seal criminal records still exists, “it is limited to cases where the accused has been acquitted or exonerated in some way and protection of the accused’s privacy interest is paramount to prevent injustice.” Even in the case of an acquittal, “judicial expungement is an exceptional remedy to be employed where the equities of the situation demand it.” Id.
- 2012 Ohio Laws File 131 (Am. Sub. S.B. 337).
- A collateral sanction is defined as “a penalty, disability, or disadvantage that is related to employment or occupational licensing, however denominated, as a result of the individual’s conviction of or plea of guilty to an offense and that applies by operation of law in this state whether or not the penalty, disability, or disadvantage is included in the sentence or judgment imposed.” Ohio Rev. Code Ann. § 2953.25(A)(1).
- The new bill has no effect on the mechanism, enacted in 2011, authorizing “certificates of achievement and employability,” described above.
- S.B. 337 requires the department of rehabilitation and corrections (DRC) (1) to conduct a study to determine the manner for transferring the bill’s mechanism for the issuance of a certificate of qualification for employment to an electronic database established and maintained by DRC, specifies certain provisions that must be included in the database to which the mechanism is to be transferred, and requires DRC by one year after the bill’s effective date to submit to the General Assembly and the Governor a report containing the results of the study and recommendations for transferring the mechanism, and (2) in conjunction with the Ohio Judicial Conference, to conduct a study to determine whether the application process for certificates of qualification for employment created by the bill is feasible based upon DRC’s caseload capacity and the courts of common pleas and, not later than one year after the bill’s effective date of this section, and submit to the General Assembly a report that contains the results of the study and any recommendations for improvement of the application process. Ohio Rev. Code § 2953.25(K).
- 2012 Ohio Laws File 131 (Am. Sub. S.B. 337) (codified at various sections of the Ohio Revised Code).
- The Coalition’s 2012 Annual Report can be found at http://www.reentrycoalition.ohio.gov/docs/2012%20OERC%20Annual%20Report.pdf.
- 2012 Ohio Laws File 131 (Am. Sub. S.B. 337) (codified at various sections of the Ohio Revised Code).
- See Ohio Rev. Code §§ 3772.07, 4501.02, 4725.44, 4725.48, 4725.52, 4725.53, 4738.04, 4738.07, 4740.06, 4740.10, 4747.05, 4747.10, 4747.12, 4749.03, 4749.04, 4749.06, and 5502.011.
- See also statutes listed at note 17, supra.