Restoration of Rights, Pardon, Expungement & Sealing
Last updated: July 23, 2016
I. Restoration of Civil Rights/Firearms Privileges
A. Civil Rights
Persons convicted of a felony lose the right to vote and serve on a jury. Va. Const. art. II, § 1 (“No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.”); see also Va. Code Ann. § 8.01-338 (2). The right to hold office is contingent on the right to vote. Civil rights may be regained only by action of the governor under his constitutional pardon power, through restoration of rights or pardon. Va. Const. art. V, § 12. Individuals convicted of non-violent offenses are eligible immediately upon completion of their sentences, while those convicted of violent offenses must wait five years. See https://governor.virginia.gov/newsroom/newsarticle?articleId=3880. Virginia remains one of only a handful of states that do not restore the right to vote automatically.1 See also Va. Code Ann. § 53.1-231.2 (procedure for petitioning court for restoration, with subsequent referral to governor for fast-track action). When a prisoner finishes his or her sentence, the director of the Department of Corrections is required to notify him or her of the procedures whereby civil rights may be restored. § 53.1-231.1.
According to the Office of the Secretary of the Commonwealth, people who were convicted in another state, and whose right to vote was restored in that state (evidenced by voter registration card), may vote in Virginia. This applies also to federal offenders convicted in another state. Persons convicted in other jurisdictions while residing in Virginia (including federal offenders), or who moved to Virginia before their rights were restored in the jurisdiction of conviction, must apply to the Governor for restoration. See Part II, infra.
Persons convicted of a felony lose firearms rights, as do those adjudicated delinquent at age 14 or older of murder, kidnapping, robbery with a firearm, or rape. Additionally, an adjudication of delinquency for any crime that would be a felony if committed by an adult results in the loss of firearm rights until the age of 29. Va. Code Ann. § 18.2-308.2(A). Firearms rights may be restored by pardon or by gubernatorial restoration of rights, § 18.2-308.2(B), or by court order in the county of the applicant’s residence if other rights have been restored. § 18.2-308.2(C).2 Persons residing in the state but with out of state convictions must also pursue this judicial route to relief in order to hunt in Virginia. See Farnsworth v. Commonwealth, 599 S.E.2d 482 (2004), aff’d, 270 Va. 1, 613 S.E.2d 459 (2005).3 It is not clear what (if any) relief from firearms disabilities may be available for individuals with a Virginia conviction who reside in another state, who will remain subject to federal firearms disabilities unless and until their firearms rights are restored in Virginia.
Concealed carry permits
In 2014 Virginia enacted new restrictions on concealed carry permits for those convicted of two or more misdemeanors (5 years), marijuana possession and public drunkenness (3 years), stalking (permanent with no relief), and juvenile offenses that would be a felony (16 years). See Va. Code Ann. § 18.2-308.09.
II. Discretionary Restoration Mechanisms
A. Executive Pardon & Restoration of Rights
The governor may grant a full pardon or limited restoration of rights, “under such rules and regulations as may be prescribed by law.” Va. Const. art. V, § 12. Section 12 also requires the governor to “communicate to the General Assembly, at each regular session, particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting, or commuting the same.” The governor’s annual reports to the General Assembly (“List of Pardons, Commutations, Reprieves, and Other Forms of Executive Clemency”), including reasons for granting pardon in each case, are accessible dating back to 1974 at http://leg2.state.va.us/DLS/h&sdocs.nsf/Search+All+Published/?SearchView&SearchOrder=4&query=clemency.
The legislature has authorized the Parole Board, at the request of the governor, to investigate and make recommendations on pardon cases, but this does not limit the governor’s power. Va. Code Ann. §§ 53.1-136(5), 53.1-231. The Parole Board consists of five members appointed by the governor to open-ended terms. No more than two members are full-time. § 53.1-135. One must be a representative of a victims group. § 53.1-134. Applications for both pardon and restoration of rights are made to the Office of the Secretary of the Commonwealth. The Secretary of the Commonwealth alone makes the recommendation in restoration of rights cases. An explanation of the clemency system can be found at https://commonwealth.virginia.gov/judicial-system.
See Va. Code Ann. § 53.1231.2
Restoration of rights
On July 22, 2016, the Virginia Supreme Court struck down a series of executive orders issued by Governor Terry McAuliffe on a monthly basis beginning in April 2016, which purported to restore the vote automatically to all disenfranchised individuals who had completed their sentences and satisfied any attendant financial obligations. See Howell v. McAuliffe (Va. 2016). The court, in a 4-to-3 decision, disputed the governor’s assertion that his clemency power was absolute under the state’s Constitution. “We respectfully disagree,” the majority justices wrote. “The clemency power may be broad, but it is not absolute.” Specifically, the pardon power must be interpreted in light of the constitutional prohibition on suspension of laws by the executive. Governor McAuliffe responded to the court’s action by promising to restore the vote on an individual basis to the more than 200,000 individuals affected by his orders. http://www.nytimes.com/2016/07/23/us/virginia-felony-supreme-court.html. See also Part I-A, supra.
Prior to the issuance of the Executive Order in April 2016, nonviolent offenders were eligible for restoration immediately upon completion of sentence, if no felony charges were pending, and restoration was automatic upon determination of eligibility.4 Applicants also had to have satisfied all financial penalties, including fines and restitution. Those convicted of violent offenses, crimes against children, election fraud, and other “more serious offenses” were required to satisfy a waiting period — as of February 2016, three years after completion of supervision. (Unsupervised probation did not count as part of waiting period.) It remains to be seen what eligibility standards will inform the case-by-case restoration procedure going forward.
See general rules at https://commonwealth.virginia.gov/judicial-system/pardons/simple-pardons/. The website of the Office of the Secretary of the Commonwealth indicates that “If any felony was involved, you MUST have been granted your Restoration of Rights before appealing for the pardon.” There is a five-year eligibility waiting period, which runs from date sentence is completed (including any probation, suspended time, or good behavior time).5 If a pardon application is denied, applicant may reapply after two years. Federal and out-of-state offenders are not eligible to apply for pardon.
Restoration of rights
Restores right to vote, sit on jury, hold public office, and serve as a notary public. It does not restore firearms rights. In 2015, Governor McAuliffe adopted a policy allowing individuals that have had their rights restored to have that restoration noted on their official criminal record if they choose. See https://governor.virginia.gov/newsroom/newsarticle?articleId=11651.
“Simple” pardon does not expunge the record, but “it does constitute official forgiveness and often serves as a means for the petitioner to advance in employment, education, and self-esteem.” As of February, 2016, the criminal records of those who receive a simple pardon will be marked with a notation indicating the pardon grant. “Absolute” pardon is generally granted only for innocence. According to the Secretary of Commonwealth’s website, a petitioner must have pleaded not guilty and, if eligible, exhausted all other remedies, including filing a writ of actual innocence. (“Conditional” pardon, only for those currently incarcerated, has the effect of commuting sentence.) A pardon is useful in signifying rehabilitation, but Virginia authorities advise that it is not clear what if any legal effect a pardon may have under state law. Pardon does not entitle a person to judicial expungement unless granted for innocence (“absolute” pardon).
Va. Code Ann. §18.2-308.2(B) provides that firearms dispossession provisions “shall not apply to . . . .(iii) any person who has been pardoned or whose political disabilities have been removed pursuant to Article V, Section 12 of the Constitution of Virginia provided the Governor, in the document granting the pardon or removing the person’s political disabilities, may expressly place conditions upon the reinstatement of the person’s right to ship, transport, possess or receive firearms.” Cf. Gallagher v. Commonwealth, 284 Va. 444, 451, 732 S.E.2d 22 (Va. 2012).6
Restoration of rights
In April 2016, Governor McAuliffe announced plans to periodically restore rights by executive order. See Part I-A, supra. No action is necessary on the part of a person seeking restoration, and previous procedures and standards have been removed from the website of the Secretary of the Commonwealth. See http://commonwealth.virginia.gov/judicial-system/restoration-of-rights.
Governor McAuliffe has continued and expanded upon the expedited procedures put in place by his predecessor, Governor McDonnell, who announced in May 2013 that he would automatically restore the rights of all non-violent felony offenders upon the completion of sentence.7 Though rights were restored automatically, they were required to be restored by action of the governor on an individual basis, so restoration was not immediate.8 Information on the Secretary of the Commonwealth’s website provided that, “the Department of Corrections provides a monthly listing to the Secretary’s Office of those offenders who may qualify for restoration of rights. Any individual that meets the criteria will be mailed a letter and grant order to either their last known address or their home plan address.” https://commonwealth.virginia.gov/judicial-system/restoration-of-rights (as of March 2016). Individuals with past non-violent convictions that have not yet had their rights restored could request a grant through a simple online form. See https://solutions.virginia.gov/RestorationOfRights.
Under the policy before April 2016, those convicted of violent crimes, crimes against children, and election fraud had to apply by mail via a one-page application.9 Approximately 70% of applications from persons convicted of violent offenses are approved. Applicants that were denied could reapply after 1 year. Restoration of rights is the first step in the pardon application process for felony offenders.
Notice of restoration procedure by Corrections Director
Va. Code Ann. §1-231.1 requires the Director of Corrections to give notice to individuals completing their sentences of the procedure for regaining rights.
Court route to restoration
An alternative process allows for petition to the local circuit court or court of conviction to restore the right to vote (unavailable for those convicted of violent felonies, drug-trafficking, or election fraud; five year waiting period). Upon filing, the court holds a hearing and makes a determination as to whether the person has demonstrated “civil responsibility,” then makes a recommendation to the governor. Va. Code. Ann. § 53.1-231.2. This “fast track” pardon/restoration scheme purports to impose on the Governor’s office a 90-day time limit to decide applications. § 53.1-231.2.
Governor McAuliffe formalized the pardon process, so that applicants fill out a questionaire that requires information related to the applicant’s juvenile and adult criminal record, sentence, employment history, educational background, military service, community service, as well as the reason the applicant feels the governor should grant a pardon. The pardon application form is available at https://commonwealth.virginia.gov/judicial-system/pardons/simple-pardons. Applications are sent to the Office of the Secretary of the Commonwealth and forwarded to the Parole Board which makes a nonbinding recommendation to the governor following an investigation. Va. Code Ann. § 53.1-136(5). The website of the Secretary of the Commonwealth explains that
the petition process does not include a hearing, meeting or conference with the petitioner or persons on the petitioner’s behalf. There is no reliable method of predicting how long a pardon petition investigation will take to complete. The investigation process may take a year or longer.
https://commonwealth.virginia.gov/judicial-system/pardons/simple-pardons/. Interested persons are invited to contact the Secretary’s office by e-mail (firstname.lastname@example.org) or by phone (804-692-2542.) The governor is required by the state constitution to give a reason for each grant in his report to the legislature (see above), but he generally gives no reasons for denials.
Frequency of Grants
Restoration of Rights
As a result of the expedited restoration procedure described above, Governor McDonnell restored rights to many thousands of individuals, and Governor McAuliffe has continued this expansion, granting more than 200,000 by executive order, in addition to over 18,000 individual grants he made prior to the executive order. Between January 2006 and January 2010, Governor Tim Kaine granted restoration of rights to more than 5000 individuals, and rejected fewer than 600, generally based on the seriousness of the offense or overall criminal record. Between January 2002 and January 2006, Governor Mark Warner restored civil rights to 3,486 people, and rejected 195 applications. (Analogous figures for Gilmore (238), Allen (480), Wilder (427), and Robb (1180).)
In his first two years in office Governor McAuliffe granted 38 simple pardons, 2/3 to individuals convicted of misdemeanors, all “In view of [her][his] commendable adjustment since [her][his] conviction and upon the recommendation of the Parole Board.” He also granted one “conditional pardon” (sentence commutation) to reduce a non-citizen’s sentence from 360 days to six months, presumably to avoid inadmissibility. (Because the individual’s sentence had earlier been reduced by the court from one year to 360 days, his conviction was not regarded as an aggravated felony and thus grounds for deportation.)10
In his four years in office (2010-2014) Governor McDonnell granted a total of 52 simple pardons, 46 in his final year in office, for reasons ranging from restoration of firearms privileges to facilitate military enlistment and removal of legal barriers to adoption, to relief from disqualification for public office and employment. He also granted four “conditional pardons” to enable the recipients to avoid deportation, and a number of medical pardons (commutations). See http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/SD22014/$file/SD2.pdf.11
Governor Kaine issued 108 simple pardons (three to individuals seeking to avoid deportation), and one commutation to avoid deportation.12 He also granted a number of absolute pardons (for innocence), conditional pardons (sentence commutations), and medical pardons (terminally ill prisoners). His predecessor Governor Mark Warner granted a total of 46 simple pardons from 2002-2006.
Office of the Secretary of the Commonwealth 804-786-2441.
Restoration of Rights
Candice Reid, Restoration of Rights Director
Office of the Secretary of the Commonwealth
Post Office Box 2454
Richmond, Virginia 23218-2454
Office of the Secretary of the Commonwealth
B. Judicial Restoration or Expungement
Virginia law makes no provision for expunging adult conviction records, except those that have been vacated pursuant to a writ of actual innocence, see Va. Code Ann. § 19.2-392.2(J), or those which were the subject of an absolute pardon, see § 19.2-392.2 (I).
Available for certain first offender drug possession offenses upon plea of guilty or not guilty, see Va. Code Ann. § 18.2-251, but no authority exists to expunge or seal the records. Comm. v. Dotson, 661 S.E.2d 473 (Va. 2008) (because court required to find evidence of guilt, charges not “otherwise dismissed” within the meaning of expungement statute). Cf. Crespo v. Holder, 631 F.3d 130 (4th Cir. 2011) (where non-citizen pled not guilty under § 18.2-251, deferred adjudication was not a conviction for purposes of 8 U.S.C. §1101(a)(48)(A)(i) to make him deportable).
May be expunged under Va. Code Ann. § 19.2-392.2, in the case of acquittal or where charges were nol prossed or otherwise dismissed, or where a conviction has been pardoned for innocence, but not where adjudication deferred. See Comm. v. Dotson, supra. Employers may not inquire about expunged non-conviction records or conviction records expunged in the case of a pardon for innocence. § 19.2-392.4. Applicants are not required to disclose expunged records in response to any employment-related inquiry. Id.
There is no mechanism for actively sealing juvenile records, but most juvenile court records are confidential and only accessible by statute or court order. Court records are automatically destroyed annually if the juvenile is at least age 19 and five years have elapsed since the last hearing in any juvenile case. Va. Code Ann. § 16.1-306(A). Automatic destruction is unavailable in several instances, including for most offenses that would constitute adult felonies. § 16.1-307. A person may deny the existence of a destroyed record, and it is a misdemeanor offense to access an expunged record. §§ 19.2-392.3, 19.2-392.4(A)–(B). Deferred adjudication and dismissal without an adjudication of guilt is available for most juvenile offenses. See § 16.1-278.8.
Sex Offender Registry
Va. Code Ann. § 9.1-910 (“Removal of name and information from Registry”). Persons required to register, other than a person who has been convicted of any sexually violent offense, two or more offenses for which registration is required, or murder, “may petition the circuit court in which he was convicted or the circuit court in the jurisdiction where he then resides for removal of his name and all identifying information from the Registry.” Minimum waiting period is 15 years, and for some offenses it is 25 years. A petition may not be filed until all court ordered treatment, counseling, and restitution has been completed. The court holds a hearing on the petition at which the applicant and any interested persons may present witnesses and other evidence. The Commonwealth shall be made a party to any action under this section. “If, after such hearing, the court is satisfied that such person no longer poses a risk to public safety, the court shall grant the petition.” In the event the petition is not granted, the person shall wait at least 24 months from the date of the denial to file a new petition for removal from the Registry.
See Part I.
III. Nondiscrimination in Licensing and Employment
A. Ban-the-Box in public hiring
On April 3, 2015 Governor McAuliffe issued Executive Order 41, directing that all state agencies remove the question relating to criminal record from employment applications, and “encourag[ing] similar hiring practices among private employers operating within the Commonwealth and state government contractors.” All hiring authorities within the executive branch were informed that “state employment decisions will not be based on the criminal history of an individual unless demonstrably job-related and consistent with business necessity, or state or federal law prohibits hiring an individual with certain convictions for a particular position.” A background check is conducted only after a candidate has signed a waiver and is being considered for a specific position. Certain positions classified as sensitive are excepted.
B. Nondiscrimination in licensing
The Department of Professional and Occupational Licensure is subject to the general nondiscrimination provision at Va. Code Ann. § 54.1-204 (“Prior convictions not to abridge rights”). A person shall not be refused a license or occupational/professional certificate “solely because of” a prior criminal conviction, unless the criminal conviction “directly relates” to the occupation or profession for which the license, certificate or registration is sought. However, the regulatory board shall have the authority to refuse a license, certificate or registration if, based upon all the information available, including the applicant’s record of prior convictions, it finds that the applicant is “unfit or unsuited to engage in such occupation or profession.” § 54.1-204(A).
(B) In determining whether a criminal conviction directly relates to an occupation or profession, the regulatory board shall consider the following criteria:
- The nature and seriousness of the crime;
- The relationship of the crime to the purpose for requiring a license to engage in the occupation;
- The extent to which the occupation or profession might offer an opportunity to engage in further criminal activity of the same type as that in which the person had been involved;
- The relationship of the crime to the ability, capacity or fitness required to perform the duties and discharge the responsibilities of the occupation or profession;
- The extent and nature of the person’s past criminal activity;
- The age of the person at the time of the commission of the crime;
- The amount of time that has elapsed since the person’s last involvement in the commission of a crime;
- The conduct and work activity of the person prior to and following the criminal activity; and
- Evidence of the person’s rehabilitation or rehabilitative effort while incarcerated or following release.
Notification of reasons for denial:
If an applicant is denied a registration, license or certificate because of the information appearing in his criminal history record, the regulatory board or department shall notify the applicant that information obtained from the Central Criminal Records Exchange contributed to such denial. The information shall not be disseminated except as provided for in this section.
- On July 22, 2016, the Virginia Supreme Court struck down a serious of executive orders issued by Governor Terry McAuliffe on a monthly basis beginning in April 2016, which purported to restore the vote automatically to all disenfranchised individuals who had completed their sentences and satisfied any attendant financial obligations. See Howell v. McAuliffe, http://www.eji.org/files/howell-v-mcauliffe-virginia-supreme-court-decision-07-22-16.pdf. Governor McAuliffe responded to the court’s action by promising to restore the vote on an individual basis to the more than 200,000 individuals affected by his orders. http://www.nytimes.com/2016/07/23/us/virginia-felony-supreme-court.html.
Since 2013, the right to vote in Virginia has been restored automatically on a case-by-case basis to eligible individuals upon completion of sentence. In 2014, Governor McAuliffe expanded eligibility for automatic restoration to all convicted individuals convicted of non-violent crimes who had fully satisfied the terms of their sentence, and by April 2016 had restored the vote to some 18,000 individuals. Those convicted of violent crimes are required to wait five years. Prior to 2013 individuals were required to petition for restoration of rights, with waiting periods differing depending upon the nature of the offense. Governor Robert McDonnell inaugurated the automatic restoration policy in 2013, following the conclusions of a task force convened by the Attorney General that 1) the General Assembly cannot establish by statute a process for the automatic restoration of rights; 2) the governor cannot institute by executive order an automatic, self-executing restoration of rights for all convicted felons in the Commonwealth of Virginia; but 3) the governor may exercise his discretionary clemency power in a more expansive manner to restore civil rights on an individualized basis. See https://www.washingtonpost.com/local/va-politics/cuccinelli-set-to-announce-findings-on-restoring-voting-rights-of-virginia-felons/2013/05/27/9f6819e0-c6e4-11e2-9245-773c0123c027_story.html. See Part II, infra.
- In what appears to be a somewhat questionable decision, in light of the clear grant of authority to the governor under §18.2-308.2(B), the Virginia Supreme Court in Gallagher v. Commonwealth, 284 Va. 444; 732 S.E.2d 22 (2012) held that the legislature’s grant of authority to the court under § 18.2-308.2(C) superseded and rendered nugatory its grant of authority to the governor in light of the longstanding constitutional concern for separation of powers:
. . .[O]ur constitutional history demonstrates a cautious and incremental approach to any expansions of the executive power, leading to the conclusion that the concerns motivating the original framers in 1776 still survive in Virginia. If the executive clemency power were construed to include the restoration of firearm rights, then Code § 18.2-308.2(C), insofar as it grants the circuit courts’ jurisdiction to restore them, would not only be redundant, but would be an unconstitutional intrusion by one branch of government on the powers of another.
- Because it was not properly raised, the Farnsworth court declined to consider whether the Full Faith and Credit clause precluded conviction after an out-of-state restoration of rights.
- On April 22, 2014, four drug offenses were officially reclassified as non-violent. See Press Release, Governor’s Office, Governor McAuliffe Announces Changes to Virginia’s Restoration of Rights Policy (April 18, 2014), https://governor.virginia.gov/newsroom/newsarticle?articleId=3880. See Olympia Meola, McAuliffe to Speed Rights Restoration, Richmond Times-Dispatch (Apr. 17, 2014), http://www.timesdispatch.com/news/state-regional/mcauliffe-to-speed-rights-restoration/article_661befcf-b8c9-5ca3-ba60-05b75812c9a3.html.
- The waiting period was reduced by Governor McAuliffe from 10 years on January 1, 2016.
- But see note 2, supra, for a discussion of the Gallagher holding.
- See Press Release, Governor’s Office, Governor McAuliffe Announces Changes to Virginia’s Restoration of Rights Policy (April 13, 2014), https://governor.virginia.gov/newsroom/newsarticle?articleId=3880; Press Release, Governor’s Office, Governor McDonnell Announces Automatic Restoration of Voting and Civil Rights on Individualized Basis for Non-Violent Felons (May 29, 2013), https://commonwealth.virginia.gov/judicial-system/restoration-of-rights/may-ror. Prior to the changes implemented by Governor McDonnell, non-violent offenders were required to wait two years before filing an application for restoration, which the governor reserved discretion to deny, although approximately 90% of applications from such persons were approved.
- See note 1, supra, for the report of the attorney general concluding that the governor has no power under the Commonwealth constitution to restore voting rights on a blanket basis, but must do so case by case.
- Governor McAuliffe significantly simplified the application process for violent offenses by shortening the application from 13 pages to one page, and removing burdensome requirements such as notarization and letters to the governor. See Press Release, Office of the Governor, Governor McAuliffe Announces the Restoration of Civil and Voting Rights to Over 5,100 Virginians (December 18, 2014), https://commonwealth.virginia.gov/news/newsarticle?articleId=7495.
- Because federal immigration authorities have taken the position that Virginia “simple” pardons do not satisfy the requirement in federal law that a pardon be “full and unconditional,” see, e.g., Karen Brulliard, Kaine Intervenes in Deportation Case, Washington Post, August 15, 2008, in several recent cases where deportation was triggered by the length of the sentence imposed, the governor took the unusual step of commuting the person’s sentence nunc pro tunc. For example, in 2009 Governor Kaine commuted Sharyn Harmon’s sentence, imposed in 2002, from one years’ imprisonment (with all but ten days suspended) to five months’ incarceration (with all but ten days suspended), to enable her to avoid automatic deportation based on status as an aggravated felon. See p. 39 of http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/SD22010/$file/SD2.pdf. Similarly, in 2012 and 2013 Governor McDonnell commuted the sentences of Ramjit Kissoon so that his convictions would no longer be considered “aggravated felonies” resulting in automatic deportability. See pp. 2, 3 of http://leg2.state.va.us/DLS/h&sdocs.nsf/a762cd2685f84d7a85256f030053196e/0407b390e94aad9e852579bf005c4445?OpenDocument&Highlight=0,clemency. Three of Governor Kaine’s simple pardons and one of Governor Warner’s were issued to individuals seeking pardon to avoid deportation, but as noted federal immigration authorities do not regard Virginia pardons as effective to avoid deportation. Governor Gilmore issued three absolute pardons to individuals seeking pardon to avoid deportation.
- See note 10, supra.