Restoration of Rights, Pardon, Expungement & Sealing
Last updated: November 29, 2017
I. Restoration of Civil/Firearms Rights
A. Civil rights
The rights to vote and hold office are not lost as a result of conviction, and prisoners are permitted to vote by absentee ballot. Vt. Stat. Ann. tit. 28, § 807. A person who “has served a term of imprisonment in this state after conviction of a felony” is disqualified to act as a grand or petit juror, unless pardoned. tit. 12, § 64. See also tit. 4, § 962(a)(5). Juvenile court adjudications do not “impose any civil disabilities sanctions ordinarily resulting from a conviction.” tit. 33, § 5202(a).
Firearms rights are generally not lost upon conviction, though court may prohibit possession of firearms as a condition of probation. See State v. Kasper, 566 A.2d 982, 984 (Vt. 1989). However, persons convicted of a felony under Vermont law remain subject to federal firearms disabilities, unless pardoned.
C. Compilation of collateral consequences
Under 13 V.S.A. § 8004, enacted in 2014 and effective January 1, 2016, the state attorney general is directed to compile a collection of “any provision in this State’s Constitution, statutes, and administrative rules which imposes a mandatory sanction or authorizes the imposition of a discretionary disqualification and any provision of law that may afford relief from a collateral consequence,” and to update this compilation annually. In carrying out this duty the attorney general “may rely on the study of this State’s collateral sanctions, disqualifications and relief provisions prepared by the National Institute of Justice described in section 510 of the Court Security Improvement Act of 2007, Public Law 110-177.”
In 2017 an interactive searchable database of collateral consequences imposed by Vermont statutes and rules was prepared for the Vermont Attorney General by the Collateral Consequences Resource Center. It is available at vermont.ccresourcecenter.org.
II. Discretionary restoration mechanisms
Pardon authority is vested in the governor exclusively. Vt. Const. § 20. “On request of the governor, the [Parole Board] shall act as an advisory board to assist or act for him or her in investigating or hearing matters pertaining to pardons, and may make recommendations to him or her regarding such matters.” Vt. Stat. Ann. tit. 28, § 453.
Process and application form
Guidelines issued by the governor’s office are available on the pardon application, available at http://governor.vermont.gov/sites/governor/files/VERMONT%20PARDON%20APPLICATION%209-6-13.pdf. See also Vermont Dept of Corrections, Pardons, http://www.doc.state.vt.us/index.html. A person must be up to date in payment of taxes and child support, have good credit, and submit four letters of recommendation. There is no provision for an in-person hearing. The process takes “a minimum” of several months to complete, and the contents of the application may be available via a public records request.
The Governor’s Guidelines (supra) provide:
As a general matter, the Governor is not likely to grant a pardon to someone convicted within the past 10 years, absent other compelling factors. The Governor is especially unlikely to grant a pardon if you have not fully completed all aspects of your sentence (including probation or parole).1
The Guidelines indicate that a pardon is unlikely for persons convicted of violent crimes, or with a significant criminal history.
According to the Governor’s Guidelines (supra), the following additional factors are considered in the pardon determination:
- The nature of the offense (unlikely to consider violent crimes)
- Whether the applicant has taken responsibility for actions
- Subsequent offenses
- Citizenship and contributions to the community (extremely important: “What have you done since your conviction to demonstrate your good citizenship and to make contributions to the community? Are you up to date on all of your legal obligations, including child support, if any?”)
- Manifest injustice in the legal process (only in rare cases – the pardon process is not the place to reargue your case)
- Reason for the pardon request (“how specifically will a pardon help you to better contribute to your community?”)
Effect of a pardon
According to the Governor’s guidelines, “A pardon will not necessarily erase your conviction or the record of that conviction, and may not change the consequences of that conviction.”
Frequency of grants
In recent years 50-60 pardon applications are received annually, but few are granted. As of February 2016 Governor Shumlin had granted six pardons, all to minor offenders who he determined had turned their lives around. See http://governor.vermont.gov/node/2619; http://www.burlingtonfreepress.com/story/news/2015/01/23/shumlin-issues-three-pardons/22224479/; http://www.burlingtonfreepress.com/story/news/2013/12/31/shumlin-issues-first-2-pardons-/4267847/. In his nearly eight years in office (2003-2011), Governor Douglas granted 13 pardons, fewer than two a year.
Office of the Governor
109 State Street
Montpelier, VT 05609-0101
B. Judicial sealing or expungement of adult felony convictions
Uniform Collateral Consequences of Conviction Act
On June 10, 2014, the Governor of Vermont signed the Uniform Collateral Consequences of Conviction Act, making Vermont the first (and, to date, only) state in the Nation to enact the entirety of this scheme into law. See Act 181, Vt. Stat. Ann. tit. 13, ch. 231. This law, which became effective January 1, 2016, authorizes courts to issue orders relieving collateral sanctions imposed under the laws of Vermont, to benefit those convicted and sentenced under Vermont law and under the laws of other jurisdictions.
Order of Limited Relief
Under Vt. Stat. Ann. tit. 13, § 8010, the sentencing court is authorized to issue an order dispensing with “one or more mandatory sanctions related to employment, education, housing, public benefits, or occupational licensing,” if the court finds that the individual has established by a preponderance of the evidence that granting the petition “will materially assist the individual” in obtaining a benefit in one of these areas, that the individual has substantial need for the relief requested in order to live a law-abiding life; and that granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual.
Certificate of Restoration of Rights
Under Vt. Stat. Ann. tit. 13, § 8011, a court may issue a certificate relieving all but certain specified collateral sanctions five years after sentencing or release from incarceration for a conviction in any jurisdiction.
Sanctions not affected include sex offender registration, driver’s license suspensions and revocations, and law enforcement employment. § 8012(a). Serious crimes, including drug trafficking, are not eligible for relief. § 8012(b). Under § 8014, an order of limited relief or a certificate of restoration of rights may be introduced as evidence of a person’s due care in a judicial or administrative proceeding alleging negligence or other fault. Pardon and other relief afforded convictions from other jurisdictions is given the same effect in Vermont as it has in the jurisdiction that granted it. § 8009(d) and (e).
Defendants must be given notice of collateral consequences by the court upon the filing of charges and before accepting a guilty plea (§ 8005), and by the department of corrections upon release from confinement (§ 8006). In 2017 these sections were amended to include a requirement of notice of eligibility for expungement or sealing. See H-171 § 3 (2017).
Expungement/sealing of adult conviction records
Effective July 1, 2012, a new chapter was added to Title 13 of the Vermont statutes to provide for expungement or sealing of many nonviolent misdemeanor offenses, four minor felonies, and offenses that are no longer criminal or prohibited by law. See Vt. Stat. Ann. tit. 13, ch. 230, (§ 7601 et seq). The list of “qualifying” felonies originally included only grand larceny and criminal mischief — in 2015, burglary of an unoccupied dwelling was added to the list, and in 2017 fraud/deceit offenses were added. See S-115, § 1 (2015); H-172, § 3 (2017). Certain specified serious misdemeanors, including those involving sexual misconduct or violence, or misdemeanors that can otherwise serve as a “predicate offense” (including DUI, domestic violence, and stalking) are not within the definition of a “qualifying crime.” § 7601(3) and (4).2 In 2017 the Uniform Collateral Consequences of Conviction Act was amended to require that defendants be informed of their eligibility for expungement or sealing at the time charges are filed and at sentencing, upon release from prison (if relevant). See above.
A court “shall grant” expungement of the record of a qualifying crime (“or qualifying crimes arising out of the same incident”) if 5 years have passed since completion of sentence without any conviction, if all restitution has been paid, and if the court finds that expungement “serves the interest of justice.” § 7602(b)(1).3 Alternatively, the court “shall” seal the record if it finds that more limited relief “better serves the interest of justice than expungement” and that “the person committed the crime after reaching 19 years of age.” § 7602(b)(2). It thus appears that sealing is not an available alternative for a crime committed while a minor.
In the event that the person is convicted again during that 5-year waiting period, the person must wait at least 10 years; provided that the person may have no subsequent felony convictions, and no misdemeanors for 5 years before applying. § 7602(c).4 Any restitution must be paid in full. If both the state’s attorney and the petition stipulate to the granting of the petition, the court “shall grant” the petition without a hearing. § 7602(a). If a petition for expungement is denied by the court pursuant to this chapter, no further petition shall be brought for at least two years, unless the court authorizes a shorter duration. § 7605.5
In 2015, expungement was made available in cases where a person “was convicted of an offense for which the underlying conduct is no longer prohibited by law or designated as a criminal offense.” § 7602(a)(1)(B) (added by Vt. Act No. 36 (2015)).6 Expungement under this authority is available by petition immediately upon completion of sentence, including satisfaction of any restitution. § 7602(d). Expungement “shall” be ordered “unless the court finds that expungement would not be in the interest of justice.” Id.7 Sealing is not authorized as an alternative to expungement in cases involving decriminalization.
Effect of expungement
(a) Upon entry of an expungement order, the order shall be legally effective immediately and the person whose record is expunged shall be treated in all respects as if he or she had never been arrested, convicted, or sentenced for the offense. The court shall issue an order to expunge all records and files related to the arrest, citation, investigation, charge, adjudication of guilt, criminal proceedings, and probation related to the sentence. The court shall issue the person a certificate stating that such person’s behavior after the conviction has warranted the issuance of the order and that its effect is to annul the record of arrest, conviction, and sentence. The court shall provide notice of the expungement to the respondent, Vermont Crime Information Center (VCIC), the arresting agency, and any other entity that may have a record related to the order to expunge. The VCIC shall provide notice of the expungement to the Federal Bureau of Investigation’s National Crime Information Center.
(b) In any application for employment, license, or civil right or privilege or in an appearance as a witness in any proceeding or hearing, a person may be required to answer questions about a previous criminal history record only with respect to arrests or convictions that have not been expunged.
(c) Nothing in this section shall affect any right of the person whose record has been expunged to rely on it as a bar to any subsequent proceedings for the same offense. . . .
(e) Upon receiving an inquiry from any person regarding an expunged record, an entity shall respond that ‘NO RECORD EXISTS.’
Vt. Stat. Ann. tit. 13, § 7606. The sentence in subsection (a) that begins “The court shall issue an order to expunge all records and files related to the arrest…” was added in 2017. See H-171, § 6 (2017).
Effect of sealing
The effect of a sealing order is in all respects the same as that of an expungement order except that an entity that possesses a sealed record may continue to use it in a civil suit, and the conviction may be used as a predicate in any subsequent prosecution. Vt. Stat. Ann. tit. 13, § 7607(c). There are also some minor differences about the way a court keeps sealed a opposed to expunged records – but in both cases the response to an inquiry is that ‘NO RECORD EXISTS.”
Sealing of convictions for offenses committed before age 21
Sealing of conviction records related to offenses committed before age 21 is available upon application to the court (or upon the court’s own motion) two years after final discharge. § 5119(g).8 Sealing is subject to a finding that “the person’s rehabilitation has been attained to the satisfaction of the court.” Id. Individuals with a subsequent conviction or adjudicated for serious crimes listed at 13 V.S.A. § 5301 are ineligible, as are those with pending charges. Sealing “means to physically and electronically segregate the record in a manner that ensures confidentiality of the record and limits access only to those persons who are authorized by law or court order to view the record.” § 5119(j). Sealed records “shall be considered never to have occurred, all general index references thereto shall be deleted, and the person, the Court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter.” § 5119(e).
Vermont’s deferred sentencing statute, originally enacted in 1971, authorizes a court to defer imposition of sentence after an adjudication of guilt, and to place an individual on probation for an indefinite period pending satisfaction of conditions. Vt. Stat. Ann. tit. 13, § 7041.9 “Upon fulfillment of the terms of probation and of the deferred sentence agreement, the court shall strike the adjudication of guilt and discharge the respondent. Upon discharge the record of the criminal proceedings shall be expunged,” § 7041(b), provided that any restitution obligation has been satisfied. § 7041(c). A deferred sentence is “not a sentence at all, but rather a postponement of sentence that offers the defendant an opportunity to have an adjudication of guilt expunged.” State v. Pierce, 163 Vt. 192, 196, 657 A.2d 192, 195 (1995). The only crime specifically excluded by statute is aggravated sexual assault of a child, see § 7041(c), though many are excluded as a matter of policy.
In determining whether to order deferred sentencing or imprisonment, the court “shall consider the nature and circumstances of the crime, the history and character of the defendant, the need for treatment, and the risk to self, others, and the community at large presented by the defendant.” § 7030. The court is not required to impose a fixed probationary period or to allow discharge from probation upon completion of specific and clear conditions within the control of the probationer, but rather may impose probation until further order of the court. See State v. Lloyd, 169 Vt. 643 (1999). During the period of probation, the defendant must meet certain conditions imposed by the court in order to avoid incarceration, and failure to meet those conditions may result in revocation of probation. See State v. Bensh, 168 Vt. 607 (1998). A deferred sentence may include a restitution order, but “[n]onpayment of restitution shall not constitute grounds for imposition of the underlying sentence.” § 7041(e).
Upon successful completion of probation, the charges are dismissed and the record is automatically expunged, “except that the record shall not be expunged until restitution has been paid in full, absent a finding of good cause by the court.” § 7041(d). Between 2001 and 2003, the law provided that the charges could not be dismissed until restitution had been paid, a requirement that evidently quickly proved unworkable. An individual who has successfully completed probation need not wait the two year period called for under the expungement statute applicable to juvenile adjudications. See State v. Putvain, 179 Vt. 619 (2006).
Under the law as originally enacted, and until recently, the court’s authority depended upon a prior agreement between the state’s attorney and the defendant. See Vt. Stat. Ann. tit. 13, § 7041(a). In 2005, the law was amended to give the court authority to defer adjudication without agreement from the prosecutor, under specified conditions:
- the defendant must be 28 years old or younger;
- the crime must not be on a list of serious crimes;
- the court must order a pre-sentence investigation (unless this requirement is waived by the prosecutor);
- the victim is permitted to submit a statement;
- the court reviews the pre-sentence investigation and the victim’s impact statement with the parties; and
- the court determines that deferring sentence is in the interest of justice.
First offender diversion/sealing
Vermont law also provides for an “adult court diversion project,” which is administered by the Attorney General and is “designed to assist adults who have been charged with a first or second misdemeanor or a first nonviolent felony.” Vt. Stat. Ann. tit. 3, § 164(a).10 The diversion project shall accept only persons against whom charges have been filed and the court has found probable cause, but are not yet adjudicated. § 164(c)(1). Each state’s attorney, in cooperation with the adult court diversion project, “shall develop clear criteria for deciding what types of offenses and offenders will be eligible for diversion; however, the state’s attorney shall retain final discretion over the referral of each case for diversion.” § 164(c)(4). Program participants may be required to pay a fee of up to $300, but will not be excluded on the basis of inability to pay. § 164(c)(9).
Within thirty days of two years after successful completion of the diversion program, the court shall provide notice to all parties of record of the court’s intention to order the sealing of all court files and records, law enforcement records other than entries in the adult court diversion project’s centralized filing system, fingerprints, and photographs applicable to the proceeding. The court shall give the state’s attorney an opportunity for a hearing to contest the sealing of the records. The court shall seal the records if it finds that
- two years have elapsed since the successful completion of the adult diversion program by the participant and the dismissal of the case by the state’s attorney;
- the participant has not been convicted of a subsequent felony or misdemeanor during the two-year period, and no proceedings are pending seeking such conviction; and
- rehabilitation of the participant has been attained to the satisfaction of the court.
§ 164(e). Upon the entry of an order sealing such files and records under this section, the proceedings in the matter under this section “shall be considered never to have occurred . . . and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such participant inquiry in any matter.” § 164(f).
Juvenile and “youthful offender” adjudications
Juvenile records are generally unavailable to the public. Vt. Stat. Ann. tit. 33, § 5117. Records of juvenile adjudications shall be sealed two years after discharge, unless, on motion of the state’s attorney, the court finds that additional charges are pending and that rehabilitation has not been attained. Vt. Stat. Ann. tit. 33, § 5119(a). Records of “youthful offender” cases (those originally filed in district court and later transferred to family court) are automatically expunged in district court and sealed in family court upon a successful motion to terminate youthful offender status for successful completion of probation. Vt. Stat. Ann. tit. 33, § 5287. Under both of these authorities, sealing “means to physically and electronically segregate the record in a manner that ensures confidentiality of the record and limits access only to those persons who are authorized by law or court order to view the record.” § 5119(j). Sealed records “shall be considered never to have occurred, all general index references thereto shall be deleted, and the person, the Court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter.” § 5119(e).
See also “Sealing for offenses committed prior to age 21,” above.
An individual may apply for expungement or sealing of non-conviction records, if charges were not brought or were dismissed before trial. Vt. Stat. Ann. tit. 13, § 7603.
III. Occupational licensing and employment
A. Ban-the-box in public and private employment
Effective July 1, 2017, no public or private employer may inquire about an applicant’s criminal history on an initial employment application. Vt. Stat. Ann. tit. 21, § 495j (added by 2016 H.261). Inquiries into criminal history may only be made during an interview or after the employee has been deemed otherwise qualified for the position. § 495j(a). The law does not apply to positions where state or federal law creates a mandatory or presumptive employment disqualification based on one or more types of convictions. § 495j(b). However, the law does provide that, in such cases, the scope of the inquiry may only cover those convictions that would trigger the disqualification. § 495j(b)(1)(B). It also gives those excepted employees an opportunity to explain the circumstances of any conviction, including post-conviction rehabilitation. § 495j(c). Each violation of this provision is punishable by a $100 civil penalty.
Vermont has a general law regulating consideration of conviction in licensure for a number of professions. Per Vt. Stat. Ann. tit. 3, § 129a(10), unprofessional conduct that provides the basis for discipline of applicable licensees includes “[c]onviction of a crime related to the practice of the profession or conviction of a felony, whether or not related to the practice of the profession.” See also § 12 (creating 41 offices of professional regulation). Juvenile court adjudications do not “operate to disqualify the child in any civil service application or appointment.” Vt. Stat. Ann. tit. 33, § 5202(a).
- Vt. Stat. Ann. tit. 28, § 809 provides procedures for executive pardons of persons currently incarcerated. Section 809 provides procedures for conditional pardons of incarcerated persons whereby a person may be returned to incarceration upon failure to comply with the conditions of pardon. These provisions are probably of little significance since the Guidelines provide that a pardon is especially unlikely prior to completion of sentence.
- Under a 2013 amendment to the expungement/sealing scheme, misdemeanor possession of marijuana is no longer considered a disqualifying “predicate offense” for expungement purposes. See § 7601(3) (as amended by 2013 Vermont Laws No. 76 (H. 200)). As of 2015, “disorderly conduct” is also no longer a disqualifying predicate. Id., as amended by 2015 Vermont Laws No. 36 (S. 115).
- The waiting period was reduced from 10 to 5 years in 2017. See H-171, § 4 (2017). At the same time, now-redundant authority that permitted expungement of offenses committed before age 25 after 5 years was repealed.
- These waiting periods were also reduced in 2017. Previously, there was a 20-year minimum waiting period for subsequent convictions, and a 15-year look-back for misdemeanors. See H-171, § 4 (2017).
- This waiting period was also reduced in 2017, from 5 to 2 years. See H-171, § 5 (2017). The authority for reduction with court authorization was also added at that time.
- This expansion in scope followed 2012 legislation that reduced possession of small quantities of marijuana from a criminal to a civil offense. In cases where expungement is sought for marijuana possession in an amount that is no longer criminal, “the petitioner shall bear the burden of establishing that his or her conviction was based on possessing an amount of regulated drug that is no longer prohibited by law or for which criminal sanctions have been removed.” § 7602(e).
- Prior to 2017, petitioners were required to wait a year before filing for expungement, and the court was required to find that expungement is in the interest of justice before granting a petition. See H-171, § 4 (2017).
- 2011 Vt. Laws No. 16 (S. 58) (eff. May 9, 2011) substituted 21 years of age for “the age of majority.” Vt. Stat. Ann. tit. 1, § 173 defines minority as under 18 yrs.
- An individual charged with aggravated sexual assault of a child is ineligible for deferred adjudication and expungement. Amendments to § 7041 effective July 1, 2014, expand the class of offenses ineligible for deferred adjudication and expungement to include five additional offenses involving sexual assault of a child.
- In 2009 § 164 was amended to cover second time misdemeanants. 2009 Vt. Laws No. 156 (H.789) (eff. July 1, 2010).