Restoration of Rights, Pardon, Expungement & Sealing
Last updated: March 4, 2017
I. Restoration of Civil Rights/Firearms Privileges
Tennessee has changed its rules on restoration of voting rights several times in the past 30 years, and as a result has created what is perhaps the most complex and confusing situation in the nation. The Tennessee Constitution provides that persons convicted of an “infamous crime” shall not be permitted to register to vote. Tenn. Const. art. I, § 5. By statute, conviction of a felony renders an individual “infamous,” and disqualified from voting. Tenn. Code. Ann. § 40-20-112. Effective July 1, 2006, all but a few categories of serious felony offenders convicted after 1981 are eligible to have their right to vote restored upon expiration of sentence, and may register upon obtaining a “certificate of restoration” from prison authorities or from the Board of Probation and Parole. See id. §§ 40-29-202(a), 203(a). All court-ordered fines, fees, and restitution must be paid, id. § 40-29-202(b), and a convicted person must also be current in child support obligations. Id. § 40-29-202(c).1 Persons convicted of murder, rape, treason, or voter fraud are permanently ineligible to vote (unless pardoned). Id. § 40-29-204.2
Persons convicted of a felony are disqualified from office unless and until their rights have been restored by a court. Tenn. Code Ann. § 40-20-114.3 See also § 8-18-101(1) (disqualifying “[t]hose who have been convicted of offering or giving a bribe, or of larceny, or any other offense declared infamous by law, unless restored to citizenship in the mode pointed out by law”). Persons “convicted of a felony or any other infamous offense” are also disqualified from jury service. § 22-1-102.
Other judicial rights are lost only with a sentence to the penitentiary: “The effect of a sentence of imprisonment in the penitentiary is to put an end to the right of the inmate to execute the office of executor, administrator or guardian, and operates as a removal from office.” § 40-20-115. These rights may be restored only through the judicial procedure described in § 40-29-101 through 106, notwithstanding restoration of the right to vote. See § 40-29-201(c).4 Federal and out-of-state offenders residing in the state are eligible to apply, § 40-29-101(a), and the procedure is described in Part IIB.
Tennessee’s laws relating to loss and restoration of firearms privileges have changed several times during the past several years, and are among the most complex in the Nation. Practitioners and affected individuals are encouraged to review the law carefully and seek expert advice.
A person convicted of a felony “involving the use or attempted use of force, violence or a deadly weapon,” or a felony drug offense, may not possess any firearm. See Tenn. Code. Ann. § 39-17-1307(b).5 Antique weapons are excepted from this prohibition. See § 39-17-1316(b)(1). Persons convicted of any felony may not possess a handgun. § 39-17-1307(c). In addition, persons convicted of certain misdemeanors are prohibited from obtaining a permit to carry a handgun. See §§ 39-17-1351(c)(6).6
Restoration – In General
Firearms privileges may generally be regained by a pardon, judicial order, expungement, or set-aside. They may also be regained through a “certificate of restoration” under Tenn. Code Ann. § 40-29-105, except where the offense involved violence or drug-trafficking (see below). See also §§ 39-17-1316(a)(2) (pardon, expungement and set-aside remove firearms restrictions, but judicial “certificate of restoration” is not sufficient to relieve restrictions for those convicted of violent offenses or drug felonies); 39-17-1351(j) (court may restore handgun rights for certain offenses). Felony offenders convicted between July 1986 and July 1996 and not sentenced to the penitentiary may regain firearms privileges automatically by the judicial “certificate of restoration” provided for in §§ 40-29-105(b). See Tenn. Op. Att’y Gen. No. 02-119, supra note 4, at 2. Persons with federal or out of state convictions may also petition the circuit court for judicial restoration under § 40-29-101(a).
Restoration – Violent or Drug Crimes
The Tennessee Supreme Court has confirmed that judicial restoration of civil rights (see Part II, infra) does not relieve the restrictions in § 39-17-1307(b) applicable to persons convicted of violent crimes or drug crimes. State v. Johnson, 79 S.W.3d 522, 528 (Tenn. 2002) (interpreting 39-17-1316(a)(2)(C) and (D)).7 A gubernatorial pardon by itself does not relieve firearms disabilities not subject to relief under the restrictions in § 39-17-1307(b). However, under a 2012 law, an expungement does. See § 40-32-101(g)(15)(B)(“Notwithstanding § 39–17–1307(b)(1)(B) [relating to drug felonies] and (c) [relating to felony handgun possession], a petitioner whose petition is granted pursuant to this subsection (g) … shall be eligible to purchase a firearm pursuant to § 39–16–1316 and apply for and be granted a handgun carry permit pursuant to § 39–17–1351.”). In addition, effective May 2013, a pardon may serve as grounds for expungement, and thus restoration of firearms privileges. See Tenn. Code Ann. § 40-29-105(h); see also Blackwell v. Haslam, 2013 WL 3379364 (Tenn. Ct. App. 2013), appeal den. (Oct. 16, 2013) (Blackwell II)(remanding for consideration whether Georgia pardon restoring firearms privileges should be given full faith and credit in Tennessee, in light of new Tennessee law authorizing expungement of pardoned convictions).8
II. Discretionary Restoration Mechanisms
A. Executive Pardon
The governor has full authority to grant reprieves, commutations, and pardons, except in cases of impeachment. Tenn. Const. art. III, § 6. Tenn. Code Ann. § 40-27-101 states that the governor’s power is “subject to the regulations provided in this chapter,” which require the governor to keep a record of the reasons for each clemency grant and associated documents, and “submit the same to the general assembly when requested.” Id. § 40-27-107. The governor is also required to notify the attorney general and relevant district attorney before any grant of executive clemency is made public, and they in turn are required to notify the victim. Id. § 40-27-110. The governor may be advised by Board of Probation and Parole, but its role does not limit his power. See id. §§ 40-28-104(a)(10), 40-28-128. The governor may also issue exonerations, signifying innocence. Id. § 40-27-109.
The Board of Probation and Parole is composed of seven members appointed by the governor to six-year terms. Tenn. Code Ann. § 40-28-103. The Board makes “nonbinding” recommendations to the governor, “based upon its application of guidelines and criteria adopted by the governor.” § 40-28-104(a)(10). See also Tenn. Comp. R. & Regs. § 1100-01-01-.16.
A pardon application form available from the Board provides that an applicant must have completed sentence, including any period of community supervision. See http://www.tn.gov/assets/entities/bop/attachments/BOP_Pardon_Application-BP_0245.pdf. In addition, the governor “will give serious consideration” to pardon requests where: 1) applicant has had no conviction for five years since completion of sentence for which he seeks pardon; 2) applicant has “demonstrated good citizenship,” which means “both specific achievements and incident-free behavior;” and 3) petition has demonstrated with proper verification a “specific and compelling need for a pardon.” Id. See also http://www.tn.gov/assets/entities/bop/attachments/BOP_Executive_Clemency_Information.pdf (explanation of clemency application process, including Governor’s Guidelines for Pardons, Commutations & Reprieves (April 1, 2011)). Federal and out-of-state offenders are not eligible for a governor’s pardon.
Pardon has limited legal effect, and does not restore civil or other rights lost under state law, and is not entered into law enforcement databases. An individual who receives a pardon that restores full rights of citizenship must still petition the court for restoration. Tenn. Code Ann. § 40-29-105(c)(2). Accordingly, even if the pardon purports to restore the “full rights of citizenship,” the person must still petition the circuit court to obtain the restoration of those citizenship rights. See Blackwell v. Haslam, 2013 WL 3379364, slip. op at 11 (Tenn.Ct. App. 2013)(“the restoration of rights is not automatic by virtue of the pardon itself”).
A pardon is of limited effect where other collateral disabilities are concerned, because these are not considered “punishment,” e.g., disqualification from employment as police officer. See Tenn. Op. Att’y Gen. No. 84-063 (1984) (person convicted of felony may not serve as police officer even if pardoned by the Governor, and hence is subject to prosecution for carrying a firearm). However, a pardon may be helpful in connection with employment and licensing decisions. For example, according to the Board, applications for some nursing licenses provide that an applicant need not report a felony conviction if it has been pardoned. In addition, a pardon may serve as grounds for a court order restoring civil rights. See Tenn. Code Ann. §§ 40-29-105(b)(1)(A), (c)(2)(A).
Effective May 2013, a pardon may serve as grounds for expungement, and thus restoration of firearms privileges. See Tenn. Code Ann. § 40-29-105(h), discussed in Part IIB infra.
A hearing is held by the Board in every case where the applicant is deemed worthy of favorable consideration. See Tenn. Comp. R. & Regs. § 1100-01-01-.16(1)(b)2, (c)1. See also Governor’s Interim Guidelines, supra. After a determination of eligibility has been made, the Board collects background information about the crime and the applicant’s adjustment since release. Tenn. Comp. R. & Regs. § 1100-01-01-.16(1)(d)1-4. A hearing is not held in every case (2/3 of applications filed are denied without a hearing). If a hearing is held, the Board notifies various interested parties, including the prosecutor, judge and police. Id. § 1100-01-01-.16(1)(d)6. The legislative oversight committees also receive notification of the hearing. After the Board makes its recommendation to the governor, it forwards to the legislative oversight committees the names of those it is recommending and those it is not, along with reasons in each case. Id. § 1100-01-01-.16(1)(f).
By statute, the Board of Probation and Parole must base clemency recommendations “upon its application of guidelines and criteria adopted by the governor.” Tenn. Code Ann. § 40-28-104(a)(10). The governor’s eligibility guidelines set forth on the pardon application form (available from the Board) are described above. To demonstrate good citizenship, an applicant must provide written communication from at least five persons verifying the period of good citizenship, and written verification of a specific and compelling need. See http://www.tn.gov/assets/entities/bop/attachments/BOP_Pardon_Application-BP_0245.pdf. “[T]he need for a pardon will not be found compelling when other provisions of the law provide appropriate relief for the petitioner.” Id.
The Board’s formal regulations set forth additional criteria for granting a pardon, which include the nature and severity of the crime, the applicant’s previous criminal record, the views of the trial judge and the district attorney general who prosecuted the case; the comparative guilt of others involved in the applicant’s offense; the applicant’s circumstances in the community; any mitigating circumstances surrounding the offense; the views of the community, victims of the crime or their families, institutional staff, parole officers or other interested parties; and medical and psychiatric evaluation when required by Board. Tenn. Comp. R. & Regs. § 1100-01-01-.16(1)(d)6.
Frequency of Grants
From 2003 to January 2011 (Governor Phil Bredesen), the Board received 221 pardon applications, granted 16 hearings, and recommended 15 cases favorably. See http://images.chattanoogan.com/breakingnews/2011/011111BredesenExecutiveClemencyCases.PDF. On his final day in office, Governor Bredesen granted 22 pardons in cases “collected over his eight years in office” that he said should be “completely noncontroversial” because “they affect people who committed less serious offenses and have already served their sentences.” Sixteen of the 22 were with the recommendation of the Board. See http://www.chattanoogan.com/2011/1/11/192110/Bredesen-Grants-22-Pardons-4.aspx. In the other six cases the Board did not hold a hearing based on failure to comply with technical requirements. From 1996 to 2002 (Governor Donald Sundquist), the Board received 241 applications for pardon, granted a hearing in 32 cases, and recommended favorably in 15 cases, all of which were granted. Source: Board of Probation and Parole.
State of Tennessee Board of Probation and Parole
404 James Robertson Parkway
Nashville TN 37243
B. Judicial Restoration or Expungement
Until recently, Tennessee provided for judicial restoration of rights, but not for expungement of adult convictions, even convictions that have been pardoned. See State v. Blanchard, 100 S.W.3d 226 (Tenn. Crim. App. 2002). However, as further discussed infra, a 2012 law allows an individual to petition the court for expungement of a conviction for certain “nonviolent” offenses. See Tenn. Code Ann. § 40-32-101(g), amended by Tenn. Laws Pub. Ch. 1103 (S.B. 3520) (2012). Expungement now restores firearms privileges even for drug and violent offenders. And, because a pardon may now serve as grounds for expungement under a 2013 law, it too restores firearms privileges.
1. Judicial Restoration of Rights
Tenn. Code Ann. § 40-29-101 provides a procedure through which “[p]ersons rendered infamous or deprived of the rights of citizenship by the judgment of any state or federal court may have their full rights of citizenship restored by the circuit court.” (emphasis added). (As noted in section I, above, the right to vote is restored in most cases without court action upon expiration of sentence. See Tenn. Code Ann. §§ 40-29-202(a) and 203(a).) A petition may be based on expiration of the maximum sentence or a pardon, or and must also demonstrate to the court that he or she “merits having full rights of citizenship restored.” § 40-29-105(c). Note that persons with convictions from other states or with federal convictions may qualify for restoration of rights under this provision. § 40-29-105(c)(1).
Restoration of “full rights of citizenship” includes restoration of firearms rights, except as otherwise provided by law for violent and drug offenses. See Tenn. Code. Ann. § 39-17-1316(a)(2); Part I(C), supra.
The judicial restoration procedure requires filing a petition in the circuit court of the county of residence with proper notice to both federal and state prosecutors and proof of character. Tenn. Code Ann. §§ 40-29-102 through 104. Federal and out-of-state offenders residing in the state are also eligible. § 40-29-101(a). The petitioner must demonstrate to the court that “ever since the judgment of disqualification, the petitioner has sustained the character of a person of honesty, respectability and veracity, and is generally esteemed as such by the petitioner’s neighbors.” § 40-29-102. There is a presumption that the full citizenship rights of the petitioner shall be restored, which may be overcome only upon proof by a preponderance of the evidence either 1) that the petitioner is not eligible for restoration or 2) there is otherwise good cause to deny the petition. See § 40-29-105(c)(3).
2. Judicial “Certificate of Employability”
Legislation enacted in 2014 allows anyone that has had or is seeking a judicial restoration of rights (including those with federal and out-of-state convictions) to petition the same court for a “certificate of employability” that lifts certain licensing disqualifications and protects employers and others from liability for the actions of a certificate-holder. See Tenn. Code Ann. § 40-29-107.
If a person holds a certificate of employability, “no board, agency, commission, or other licensing entity that issues, restores or renews licenses or certificates and regulates occupations and trades for which a license or certificate is required to do business in this state shall deny the issuance, restoration or renewal of an occupational license or certificate based solely on the person’s past record of criminal activity but instead shall consider on a case-by-case basis whether to grant or deny the issuance, restoration or renewal of an occupational license or an employment opportunity.” § 40-29-107(m)(1). A certificate preempts “any present rule that authorizes or requires the denial or refusal to issue, restore or renew a license or certificate if the denial is based upon the person’s past record of criminal activity.” § 40-29-107(m)(3). The law lists a number of licenses for which a certificate of employability does not provide relief, including licenses related to health care, mental health and developmental disabilities services, welfare services, law enforcement, education, insurance, and banking and finance. See § 40-29-107(o).
In a judicial or administrative proceeding alleging negligence or other fault, a certificate of employability … 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 person to whom the certificate was issued if the person knew of the certificate at the time of the alleged negligence or other fault.
Tenn. Code Ann. § 40-29-107(n)(1). An employer who hires a person with a certificate is immune to negligent hiring liability. § 40-29-107(n)(2). An employer may only be held liable for negligent retention of an employee with a certificate if the employer has knowledge that the employee “demonstrates danger” or is convicted of a felony. § 40-29-107 (n)(3).
A certificate of employability may only be sought by someone who has received or is seeking judicial restoration of rights. § 40-29-107(a). The petition for a certificate must be filed in the same court as the restoration of rights petition. § 40-29-107(b). The petition must include a statement of criminal and employment history, references and endorsements, and a statement of why the petition should be granted. § 40-29-107(e). The district attorney general in the county of conviction and of the petitioner’s current county of residence may submit filings and evidence in opposition to the petition, as may any victim of crimes by the petitioner. § 40-29-107(f), (g). The U.S. attorney may similarly resist the petition if the petitioner’s loss of rights was the result of a federal conviction. § 40-29-107(f).
A petition may only be granted if the court finds all of the following by a preponderance of evidence standard:
(1) The petitioner has sustained the character of a person of honesty, respectability, and veracity and is generally esteemed as such by the petitioner’s neighbors; (2) Granting the petition will materially assist the person in obtaining employment or occupational licensing; (3) The person has a substantial need for the relief requested in order to live a law-abiding life; and (4) Granting the petition would not pose an unreasonable risk to the safety of the public or any individual.
§ 40-29-107(i). Denial of the petition may be appealed to the court of appeals only on the basis of abuse of discretion. § 40-29-107(k)(2). A certificate of employability “shall be presumptively revoked if the person to whom the certificate of employability was issued is convicted of or pleads guilty to a felony offense committed subsequent to the issuance of the certificate of employability.” § 40-29-107(l).
3. First Offender Expungement Following Conviction
Until recently, an adult convicted of a crime under Tennessee law was not eligible for expungement. See Tenn. Code Ann. § 40-32-101(a)(1)(A) (as of May 29, 2012). However, since July 1, 2012, courts have been authorized under this provision to grant expungement of convictions for certain less serious non-violent offenses, as long as the individual has no other conviction. See § 40-32-101(g), amended by 2012 Tennessee Laws Pub. Ch. 1103 (adding subsection (g) to Tenn. Code Ann. § 40-32-101). Offenses eligible for expungement under the new law are those which: (1) did not have as an element the use, attempted use, or threatened use of physical force against the person or property of another; (2) was not a felony offense that, by its nature, involved a substantial risk that physical force would be used in committing the offense; (3) did not involve the use of a firearm; (4) was not a sexual offense for which the offender is required to register as a sex offender or violent sexual offender; and (5) did not result in causing the victim to sustain a loss of $25,000 or more. Id. A person who satisfies these criteria may request an expungement so long as: (1) at the time of filing, the person had never been convicted of any other criminal offense (however, multiple contemporaneous convictions may be treated as a single offense and expunged together under new subsection (g)(1)(D), enacted in 2014) ; and (2) the person has fulfilled all requirements of the sentence imposed by the court in which the person was convicted of the nonviolent offense; and (3) five years have elapsed since completion of sentence. Id. A checklist of requirements and eligible offenses is available here: http://da.nashville.gov/the-courtroom/expungements-under-40-32-101-g. Petitioners must pay a $450 fee (includes $ 350 expungement fee and $100 general filing fee), which may be paid in installments. § 40-32-101(g)(10), (17). See also Bill Dries, Expungement Fees Get Legislative Scrutiny, Memphis Daily News (March 24, 2016), https://www.memphisdailynews.com/news/2016/mar/24/expungement-fees-get-legislative-scrutiny.
Effect of expungement
Expungement “means, in contemplation of law, the conviction for the expunged offense never occurred and the person shall not suffer any adverse affects [sic] or direct disabilities by virtue of the criminal offense that was expunged.” A person whose conviction has been expunged “shall not be guilty of perjury or otherwise giving a false statement by reason of the person’s failure to recite or acknowledge the arrest, indictment, information, trial or conviction in response to any inquiry made of the petitioner for any purpose.” Tenn. Code Ann. § 40-32-101(g)(15)(C)-(D). See also Pizzillo v. Pizzillo, 884 S.W.2d 749, 754 (Tenn. Ct. App. 1994). Under the 2012 law, expungement restores firearms privileges even for drug and violent offenders.9 In addition, effective May 2013, a pardon may serve as grounds for expungement, and thus restoration of firearms privileges. See Tenn. Code Ann. § 40-29-105(h).10
Law enforcement records, including records of district attorneys, are excluded from the definition of “public records” destroyed by an expungement order, as are appellate court records and appellate opinions. § 40-32-101(b)(1). See also § 40-32-101(c)(3)(“Release of arrest histories of a defendant or potential witness in a criminal proceeding [shall be made] to an attorney of record in the proceeding . . . upon request.”).
4. Deferred Adjudication followed by dismissal and expungement
The court may defer proceedings against a “qualified defendant” and place the individual on probation for a period of time not less than the maximum sentence for the offense for which the person is charged. Tenn. Code Ann. § 40-35-313(a)(1)(A). A “qualified defendant” is one who pleads guilty or nolo contendere to a misdemeanor or a Class C felony or below, except a sex offense or DUI, and who has not previously been convicted of a felony or Class A misdemeanor for which a sentence of confinement was served. § 40-35-313(a)(1)(B).11 Upon successful completion of probation, the charges are dismissed and the proceedings discharged. § 40-35-313(b). The discharge or dismissal “shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose, except [for purposes of subsequent related civil actions].” § 40-35-313(a)(2).
Dismissal and expungement
Upon dismissal, the person “may apply to the court for an order to expunge from all official records, other than the nonpublic records to be retained by the court under subsection (a) and the public records that are defined in 40-32-101(b). . .” Tenn. Code Ann. § 40-35-313(b).
The effect of the [court’s expungement] order is to restore the person, in the contemplation of the law, to the status the person occupied before the arrest or indictment or information. No person as to whom the order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person’s failures to recite or acknowledge the arrest, or indictment or information, or trial in response to any inquiry made of the person for any purpose.
§ 40-35-313(b). Discharge and dismissal under this authority may occur only once with respect to any person. § 40-35-313(a)(1)(B)(i)(d).
In making a determination regarding deferred adjudication, the trial court must consider the following factors: (1) the defendant’s amenability to correction, (2) the circumstances of the offense, (3) the defendant’s criminal record, (4) the defendant’s social history, (5) the defendant’s mental and physical health and (6) the deterrent effect of the sentencing decision to both the defendant and other similarly situated defendants. State v. Spurling, No. E2008-02599-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 91, at *6-7 (Tenn. Crim. App. Feb. 8, 2010) (citing State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App. 1997)). The decision should be based on whether the grant of diversion will serve the ends of justice for both the public and the defendant. at *7 (citing Lewis). The record must reflect that the trial court considered and weighed all these factors in arriving at its decision. Id. (citing State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998)). Furthermore, “[t]he court must explain on the record why the defendant does not qualify under its analysis, and if the court has based its determination on only some of the factors, it must explain why these factors outweigh the others.” Id.
5. Pretrial diversion, exoneration
Tenn. Code Ann. § 40-15-102 through 106. Misdemeanants and Class D felony offenders who have had no prior deferral (excluding certain offenders such as sex offenders, DUI offenders, or misdemeanant government officers) may agree to be placed on probation for up to two years. § 40-15-105(a)(1)(A)-(B) (as amended by 2012 Tenn. Laws Pub. Ch. 766 (SB 2566)). Upon successful conclusion the court will expunge record and jeopardy will attach for the offense. § 40-15-105(e). Convictions may also be expunged in cases where there has been an “exoneration” from the governor in a case of innocence. § 40-27-109(a)-(b). See also State v. Blanchard, supra, 100 S.W.3d at 230.
6. Nonconviction records
Tenn. Code Ann. § 40-32-101(a). The court “shall” order “destruction” of “public records” in case of acquittal, or where charges have been dismissed.12 “Public records” do not include affect law enforcement records or records of appellate opinions. § 40-32-101(b)(1). See also § 40-32-101(c)(3)(“Release of arrest histories of a defendant or potential witness in a criminal proceeding [shall be made] to an attorney of record in the proceeding . . . upon request.”).
7. Partial Expungement
Tennessee is one of a handful of states that allows courts to redact conviction records to expunge charges not resulting in conviction. See State v. L.W., 350 S.W.3d 911 (2011) (conviction for one count in a multi-count indictment or presentment does not preclude expungement of the records relating to a separate count).
8. Juvenile records
Police records may be expunged when a juvenile turns age 18 or at least one year has elapsed from his most recent adjudication, if the juvenile has never received a criminal conviction after transfer from juvenile court, has never been convicted of a sex offense, and meets certain behavior and rehabilitation guidelines. Tenn. Code Ann. § 37-153(f). Juveniles may petition the court for record expungement, and the court may grant if the above criteria are met. § 37-1-153(f). Upon expungement, all public records are destroyed immediately. See § 10-7-504.
III. Nondiscrimination in Licensing and Employment:
A. Certificate of Employability
In 2014 Tennessee authorized its courts to grant individuals seeking restoration of rights for either state or federal offense a “certificate of employability.” Tenn. Code Ann. § 40-29-107.
If a person presents a valid certificate of employability, no board, agency, commission, or other licensing entity that issues, restores or renews licenses or certificates and regulates occupations and trades for which a license or certificate is required to do business in this state shall deny the issuance, restoration or renewal of an occupational license or certificate based solely on the person’s past record of criminal activity but instead shall consider on a case-by-case basis whether to grant or deny the issuance, restoration or renewal of an occupational license or an employment opportunity. . . . If a person seeking the issuance, restoration or renewal of a license or certificate, does possess a certificate of employability, it shall preempt any present rule that authorizes or requires the denial or refusal to issue, restore or renew a license or certificate if the denial is based upon the person’s past record of criminal activity.
A board, agency, commission, or other licensing entity may adopt a rule on or after April 28, 2014, denying the issuance, restoration or renewal of a license or certificate to a person, notwithstanding the person’s possession of a certificate of employability, based on the time that has elapsed since the criminal offense; or the nature of the offense having a direct bearing on the fitness or ability of the person to perform one (1) or more of the duties or responsibilities necessarily related to the license or certificate sought.
Negligent hiring protection
(1) In a judicial or administrative proceeding alleging negligence or other fault, a certificate of employability issued to a person pursuant to this section 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 person to whom the certificate was issued if the person knew of the certificate at the time of the alleged negligence or other fault.
(2) In any proceeding on a claim against an employer for negligent hiring, a certificate of employability issued to a person pursuant to this section “shall provide immunity for the employer with respect to the claim if the employer knew of the certificate at the time of the alleged negligence.
An employer who hires a person who has been issued a certificate of employability under this section may be held liable in a civil action based on or relating to the retention of the person as an employee if the employee demonstrates dangerousness or is convicted and is subsequently retained.
A court that may issue a certificate of employability, at the court’s discretion, if the court finds that the person has established all of the following by a preponderance of evidence:
(1) The petitioner has sustained the character of a person of honesty, respectability, and veracity and is generally esteemed as such by the petitioner’s neighbors;
(2) Granting the petition will materially assist the person in obtaining employment or occupational licensing;
(3) The person has a substantial need for the relief requested in order to live a law-abiding life; and
(4) Granting the petition would not pose an unreasonable risk to the safety of the public or any individual.
The application shall summarize the applicant’s criminal history “with respect to each offense that is a disqualification from employment or licensing in an occupation or profession, including the years of each conviction or plea of guilty for each of those offenses.” The district attorney general of the county in which the petitioner was convicted shall have twenty (20) days’ notice of the petition in order that, if deemed advisable, each may resist. The United States attorney and the district attorney general in whose district the petitioner currently resides shall be given notice of the petition and shall be given the same opportunity to resist, as afforded the United States attorney and the district attorney general when the petitioner was rendered infamous or deprived of the rights of citizenship by the judgment of a federal court.
If the court denies the petition, the petitioner may appeal the decision to the court of appeals only if the petitioner alleges that the denial was an abuse of discretion on the part of the court.
§ 40-29-107 (l):
A certificate of employability issued under this section shall be presumptively revoked if the person to whom the certificate of employability was issued is convicted of or pleads guilty to a felony offense committed subsequent to the issuance of the certificate of employability.
B. Licensing standards relaxed
In 2016, HB 2496 authorized seven state regulatory agencies whose laws prohibit licensing of individuals with a felony conviction, to consider whether a person’s conviction bears directly on the person’s fitness to practice competently when making determinations regarding the person’s licensure. The professions include alcoholic beverage servers (Tenn. Code Ann. §§ 57-3-703, -704), barbers (§ 62-3-121), land surveyors (§ 62-18-116), soil scientists (§ 62-18-217), athletic trainers (§ 63-24-107), reflexologists (§§ 63-30-103, -111), fireworks exhibitors (§ 68-104-204), and well drillers (§ 69-10-105).
C. Ban-the-Box in State Hiring
SB-2440, which went into effect on April 14, 2016, regulates consideration of criminal records in state hiring. See
http://www.capitol.tn.gov/Bills/109/Bill/SB2440.pdf (codified in Tenn. Code Ann. tit. 8, ch. 50, part 1). The law covers “the state and any agency, authority, branch, bureau, commission, corporation,department, or instrumentality of the state, but does not include a political subdivision of the state.” SB-2440, § 1(e)(2) (2016).
The law distinguishes between “covered positions” — those for which a criminal background check is required by federal law, or for which “commission of an offense is a disqualifying event for employment under federal or state law” — and all other positions. SB-2440, § 1(e)(1). Covered positions are not subject to regulation, except that announcements for those positions must contain a notice that a criminal background check is required. SB-2440, § 1(a).
For all other positions,
the employer shall not inquire about an applicant’s criminal history on the initial application form. An employer may inquire about an applicant’s criminal history after the initial screening of applications. If an employer inquires about an applicant’s criminal history, the employer shall provide the applicant with an opportunity to provide an explanation of the applicant’s criminal history to the employer.
SB-2440, § 1(b). If a subsequent records check reveals that an applicant for such position has a criminal record, the employer “shall consider”
(1) The specific duties and responsibilities of the position;
(2) The bearing, if any, that an applicant’s criminal history may have on the applicant’s fitness or ability to perform the duties required by the position;
(3) The amount of time that has elapsed since the applicant’s conviction or release;
(4) The age of the applicant at the time of the commission of each offense;
(5) The frequency and seriousness of each offense;
(6) Any information produced by the applicant regarding the applicant’s rehabilitation and good conduct since the occurrence of an offense; and
(7) Any public policy considerations with respect to the benefits of employment for applicants with criminal histories.
SB-2440, § 1(c). Criminal records obtained by employers are confidential and not subject to open records laws, “except as otherwise required or expressly permitted by state or federal law.” SB-2440, § 1(d).
D. Memphis Ban-the-Box Ordinance
In June 2010, the Memphis City Council enacted a ban-the-box ordinance that delays criminal records checks in municipal hiring until after it has been determined that the applicant is otherwise qualified for the position, and a conditional offer of employment has been made. See Municipal Ordinance No. 5363, §§ 2.1-2.2, available at http://www.nelp.org/content/uploads/2015/03/Memphis-Ordinance.pdf. The ordinance also requires the City to consider seven criteria in determining whether an applicant’s conviction history warrants a denial of employment, including the nature of the crime and its relationship to the job for which the person has applied, the time elapsed since the conviction or release, and the gravity of the offense. Id. § 2.4. In the event the City wishes to withdraw a conditional offer of employment after obtaining the applicant’s criminal history, the City must give provide the applicant with an opportunity to respond, in light of these criteria. Id. § 2.3.
- The obligation to satisfy financial obligations including child support as a condition of regaining the vote was upheld against constitutional challenge inJohnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010), reh’g denied, No. 08-6377, 2010 U.S. App. LEXIS 26390 (6th Cir. Dec. 17, 2010), and cert denied, Johnson v. Haslam, 131 S. Ct. 2903 (2011). See also Erika L. Wood & Neema Trivedi, The Modern Day Poll Tax: How Economic Sanctions Block Access to the Polls,Clearinghouse Review, May-June 2007, available at http://brennan.3cdn.net/c82128f55efee5440d_g8m6btpex.pdf.
- Prior to the passage of Chapter 860 (signed into law on June 14, 2006), Tennessee had one of the most complex felony disenfranchisement schemes in the country. Persons convicted after 1996, between 1981 and 1986, and prior to 1973, were permanently disenfranchised unless pardoned by the governor or restored to the vote by action of a court. Persons convicted between 1973 and 1981, and most of those convicted between 1986 and 1996, were automatically eligible to vote upon completion of sentence, and were permitted to register upon obtaining a “certificate of restoration” from prison authorities or from the Board of Probation and Parole. Tenn. Code Ann. § 40-29-105(a) and (b). As under current law, those convicted of murder, rape, treason, or voter fraud were permanently disenfranchised. Id. § 40-29-105(b)(2).
- Prior to 2007, the prohibition applied only to persons “sentenced to the penitentiary, either on the state or federal level.” The ban was broadened by 2007 Tenn. Laws Pub. Ch. 325, § 1.
- Prior to the passage of Chapter 860, see note 2 supra, the automatic restoration procedure specified in § 40-29-105(b)(3) for persons convicted between 1986 and 1996 accomplished restoration of all civil rights. See Tenn. Op. Att’y Gen. No. 02-119 (Oct. 24, 2002), available at http://www.tn.gov/attorneygeneral/op/2002/op/op119.pdf. The law makes clear that this is no longer the case. Tenn. Code Ann. § 40-29-201(c).
- Prior to 2008, § 39-17-1307(b) barred possession of handguns only, but was amended in that year to apply to all firearms (except antique weapons) for certain offenders. See 2008 Tenn. Laws Pub. Ch. 1166 (S.B. 219). Later that year, § 39-17-1307 was again amended to make clear that no one convicted of any felony may possess a handgun. See 2008 Tenn. Laws. Pub. Ch. 1176 (S.B. 2866).
- See §§ 39-17-1351(c)(11) (driving under the influence, second offense), (16) (domestic violence), and (18) (stalking).
- Although the facts in Johnson involved a person who was convicted of a violent felony, other Tennessee caselaw indicates that the holding in Johnson is equally applicable to one who is convicted of a felony drug offense. See State v. Ferguson, 106 S.W.3d 665, 667 (Tenn.Ct.App.2003); see also David L Raybin, “ Stick to Your Guns: Restoration of Tennessee’s ‘Firearm Rights ’ “ 39 Tenn. B.J. 17, 18 (Mar.2003) (citing Johnson and concluding that, under Tennessee statutes, “even restoration of rights will not allow possession of handguns for those convicted of certain violent felonies or felony drug convictions”).
- This was the second time the Blackwell case was remanded for consideration of full faith and credit and public policy issues. See Blackwell v. Haslam, 2012 Tenn. App. LEXIS 23 (Tenn. Ct. App. 2012) (Blackwell I) In Blackwell II, supra, 2013 WL 3379364, the Tennessee Court of Appeals held that a pardon does not restore firearms rights, but noted the extension of the expungement statute to non-violent pardoned offenses, It remanded to give the state “the opportunity to show that giving full faith and credit to Georgia’s restoration of Mr. Blackwell’s firearm rights would offend Tennessee’s public policy” against restoring firearm rights to a person convicted of a felony involving violence or a deadly weapon). 2013 WL 3379364, slip op. 17 (“We remand the case to the trial court for the and further related proceedings.”) In turn, Blackwell appealed the intermediate court’s ruling to the Supreme Court of Tennessee based on the Second Amendment, but the case became moot when the State agreed to give effect to Blackwell’s Georgia pardon. While the Blackwell case involves the effect of an out-of-state pardon under Tennessee law, the effect of an in-state pardon also appears resolved by this case, overruling Tenn. Op. Att’y Gen. No. 09-168, at 4 (Oct. 20, 2009), available at http://tennessee.gov/attorneygeneral/op/2009/op/op09-168.pdf (because pardons do not “erase the fact of” conviction under Tennessee law, the firearms disability remains even if person received full pardon for the offense in the state of conviction).
- See § 40-32-101(g)(15)(E)(“Notwithstanding § 39–17–1307(b)(1)(B) [relating to drug felons] and (c) [relating to felony handgun possession], a petitioner whose petition is granted pursuant to this subsection (g) … shall be eligible to purchase a firearm pursuant to § 39–16–1316 and apply for and be granted a handgun carry permit pursuant to § 39–17–1351.”). See Part I, supra.
- See also Blackwell v. Haslam, 2013 WL 3379364 (Tenn. Ct. App. 2013) (Blackwell II)(remanding for consideration whether Georgia pardon restoring firearms privileges should be given full faith and credit in Tennessee, in light of new Tennessee law authorizing expungement of pardoned nonviolent convictions).
- Offenses committed by elected or appointed government officers in their official capacity are also excluded. See 2012 Tenn. Laws Pub Ch 766 (SB 2566).
- See § 40-32-101(a):
(1)(A): All public records of a person who has been charged with a misdemeanor or a felony shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if:
(i) The charge has been dismissed;
(ii) A no true bill was returned by a grand jury; or
(iii) The person was arrested and released without being charged.