Restoration of Rights & Record Relief
Last updated: May 21, 2020
I. Loss & restoration of civil/firearms rights
A. Civil rights
Persons convicted of “treason, felony, or bribery in an election” cannot vote “while such disability continues.” W. Va. Const. art. IV, § 1. A conviction for these crimes also results in forfeiture of the right to serve on a jury and hold office. W. Va. Code § 6-5-5, 52-1-8(b)(5) and (6). The rights to vote and hold office are restored automatically upon completion of sentence, including parole (unless for bribery of a state officer). See Osborne v. Kanawha County Court, 68 W. Va. 189, 69 S.E. 470 (W. Va. 1910); see also 55 Op. W. Va. Att’y Gen. 3 (1972); 51 Op. Att’y Gen. 182 (1965). However, the federal courts have held that the right to sit on a jury is not restored automatically upon completion of sentence. See U.S. v. Morrell, 61 F.3d 279 (4th Cir. 1995), discussed infra. Disqualification from office is permanent only for those convicted of crimes involving bribery. W.Va. Const. art VI, § 45; W. Va. Code § 61-5-4, -5; Webb v. County Court, 113 W. Va. 474 (1933).1 Persons convicted of a state (though not federal) felony are permanently barred from serving in the legislature. See W. Va. Const. art. VI, § 14.
Persons convicted in any court of a crime “punishable by imprisonment for a term exceeding one year,” or of a misdemeanor crime of domestic violence, are guilty of a misdemeanor if they possess a firearm. See W. Va. Code § 61-7-7(a)(1) and (8). Possession of a firearm is a felony in the case of a person convicted of a felony crime of violence against the person of another, a felony sexual offense, or a felony drug offense (except marijuana). § 61-7-7(b). Persons convicted of a felony are separately prohibited from possessing a concealed handgun. § 61-7-7(c)
Under § 61-7-7(g) persons prohibited from possessing a firearm under § 61-7-7(a) may regain their rights rights by expungement or set-aside, or by a pardon.2 However, a separate judicial restoration procedure under § 61-7-7(f) appears to be ineffective in restoring rights.3 In addition, judicial restoration is not available to those dispossessed under § 61-7-7(b). Similarly, persons convicted of misdemeanor domestic violence remain subject to federal firearms disabilities because, having never lost their rights, they cannot be “restored” for the purposes of 18 U.S.C. § 921(a)(33)(B)(ii) and hence are ineligible for judicial restoration. See In re Petition of Robert A. Parsons, 624 S.E.2d 790 (W. Va. 2005).
II. Pardon policy & practice
Pardon authority resides exclusively in the governor, except for impeachment. W. Va. Const. art 7, § 11. The governor is required to report the particulars of every clemency grant to the legislature, with reasons for the grant. W. Va. Code § 5-1-16.
The Parole Board has authority, if requested by the governor, to investigate and consider all applications for pardon, reprieve or commutation and to make recommendations thereon to the governor. W. Va. Code § 5-1-16(l) and (m). At least ten days prior to making a recommendation for pardon, reprieve or commutation, and prior to releasing any inmate on parole, the board shall notify the sentencing judge and prosecuting attorney. § 5-1-16(m). As a matter of policy, the governor does not consider an application except upon the recommendation of the Parole Board. Application forms are available from the Governor’s Office at 304-558-2000. Only state offenders are eligible for pardon.
Pardon lifts most legal barriers, but does not preclude consideration of the pardoned offense as a predicate. Dean v. Skeen, 137 W. Va. 105 (1952). Pardon may also restore firearms rights. See Part I.
D. Frequency of grants
The governor receives from 50-100 applications for pardon each year. Pardons are rarely granted – only one pardon in the last 10 years, and only 121 since 1980. Conditional pardons for prisoners (a sort of parole) are more frequent (200 in this same time period). Since taking office in 2017 Governor Justice has granted no pardons, and his predecessor Governor Tomblin granted only one pardon. Executive records are kept by the secretary of state: Pardons, Reprieves, Commutations, and Respites, available at http://www.sos.wv.gov/public-services/execrecords/Pages/Pardons.aspx. Source: Governor’s Office.
Office of General Counsel, Governor’s Office
Charleston, WV 25305-0770
III. Expungement, sealing & other record relief
A. Felony conviction reduction
Effective June 7, 2019, courts will no longer have discretionary authority to reduce many non-violent felony convictions to “reduced misdemeanors” after a 10 year waiting period. SB 152 (2019), signed into law in March 2019, repeals W. Va. Code §§ 61- 11B-1 to 61-11B-5,4 and makes such convictions eligible for expungement for the first time, after an abbreviated waiting period. See below.
B. Expungement for misdemeanors and nonviolent felonies
Until June 7, 2019, the only convictions eligible for expungement were youthful misdemeanor first offenses. See W. Va Code § 61-11-26 (2018). Effective on that date, an amended § 61-11-26 and a new § 61-11-26a dramatically expanded eligibility for expungement to most misdemeanors and some non-violent felonies, including those previously eligible to have felony convictions reduced to misdemeanors pursuant to W.Va. Code §§ 61-11B-1 to 61-11B-5, described in Section A. Persons with multiple misdemeanors are eligible but a person may apply for one felony only (though the law is not clear whether a second felony conviction is disqualifying).
W. Va. Code § 61-11-26(a): Eligibility for Expungement
(1) Misdemeanors – Subject to the limitations set forth in this section, a person convicted of a misdemeanor offense or offenses may, pursuant to the provisions of this section, petition the circuit court in which the conviction or convictions occurred for expungement of the conviction or convictions and the records associated with the conviction or convictions.
(2) Nonviolent felonies – Subject to the limitations set forth in this section, a person convicted of a nonviolent offense or offenses arising from the same transaction or series of transactions may, pursuant to the provisions of this section, petition the court in which the conviction or convictions occurred for expungement of the convictions or convictions and the records associated with the conviction or convictions.
A number of felony and misdemeanor offenses are ineligible, including those involving violence, including domestic violence; sexual offenses; use or exhibition of a deadly weapon or dangerous instrument; abuse or neglect of an incapacitated adult; cruelty to animals; stalking or harassment, and various driving offenses, including driving while a license is suspended or revoked, driving while impaired, and violations by holders of commercial licenses or drivers of a commercial motor vehicle. § 61-11-26(c).
Persons convicted of an eligible misdemeanor may apply one year after conviction, completion of incarceration or supervision, whichever is later. If convicted of multiple misdemeanors, the waiting period is two years after the last conviction, completion of incarceration or supervision, whichever is later. Those convicted of an eligible nonviolent felony are eligible five years after conviction, incarceration, or supervision. § 61-11-26(b). The eligibility waiting period is shortened for persons who have participated in an “approved treatment or recovery and job program:” 90 days for a single misdemeanor, one year for multiple misdemeanors, and three years for nonviolent felonies. § 61-11-26a(a).
In the petition, the petitioner must provide “significant personal information” and explain why expungement is sought (“such as, but not limited to, employment or licensure purposes”), and why it should be granted. W. Va. Code §§ 61-11-26(d)(9) and (10). If expungement is sought by a person who has participated in an approved treatment program, the person must also explain “[t]he steps the petitioner has taken since the time of the offense or offenses toward personal rehabilitation, including treatment, work, or other personal history that demonstrates rehabilitation.” § 61-26a(b). The petitioner must notify the state police, the police department where the offense was committed, prosecuting attorney, court where convicted, superintendent or warden where confined; prosecutor must notify “any identified victim.” § 61-11-26(e). Any person or entity that must be notified and any other “interested individual or agency” may file an opposition within “30 days of receipt of the petition.” § 61-11-26(g).
The clerk of court is to charge the same filing fee as for any civil action. § 61-11-26(n). An additional $100 fee is charged after the expungement is granted for the “records division of the West Virginia State Police,” except in cases where the special treatment or job program authority is applicable. §§ 61-11-26(n) and 61-11-26a(c).
A petitioner must show by clear and convincing evidence that he or she has no other cases pending, that expungement is consistent with the general welfare, and that the “petitioner has, by his or her behavior since the conviction or convictions, evidenced that he or she has been rehabilitated and is law-abiding,” along with the other ministerial requirements for relief. § 61-11-26(h). Within 60 days of the filing of the petition, the court shall summarily grant the petition, set it for hearing, or deny it if the court finds that the petition is insufficient or that the petitioner is not entitled to expungement as a matter of law. § 61-11-26(i). If the court sets a hearing, it must notify those who have filed an opposition and may conduct a full inquiry into the petitioner’s character.
Amendments in 2020 deleted the provision that a person may file only one expungement petition under either the general expungement authority or the special treatment/job program authority. In addition, the 2020 amendments provided that a state resident seeking expungement of convictions in multiple counties may file a petition for expungement in his or her county of residence. See SB562.
If the petition is granted, the court “shall order the sealing of all records in the custody of the court and expungement of any records in the custody of any other agency or official, including law-enforcement records. Every agency with records relating to the arrest, charge or other matters arising out of the arrest or conviction that is ordered to expunge records shall certify to the court within 60 days of the entry of the expungement order that the required expungement has been completed. All orders enforcing the expungement procedure shall also be sealed.” W. Va. Code § 61-11-26(l).
[With some exceptions,] upon expungement, the proceedings in the matter shall be considered, as a matter of law, never to have occurred. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating to the record on an application for employment, credit or other type of application.
W. Va. Code § 61-11-26(l)(1).
Any person required by state or federal law to obtain a criminal history record check on a prospective employee [is] authorized to have knowledge of any conviction expunged . . . .
Inspection of the sealed records in the court’s possession may thereafter be permitted by the court only upon a motion by the person who is the subject of the records or upon a petition filed by a prosecuting attorney that inspection and possible use of the records in question are necessary to the investigation or prosecution of a crime in this state or another jurisdiction. If the court finds that there is a legitimate reason for access and the interests of justice will be served by granting a petition to inspect the sealed record, it may grant access.
§§ 61-11-26(l)(3), (m).
An expunged record “may not be considered in an application to any educational institution in this state or an application for any licensure required by any professional organization in this state.” § 5-1-16a.
C. Victims of human trafficking
W. Va. Code § 61-14-9 provides that an individual convicted of prostitution as a direct result of being a victim of trafficking, may apply by petition to the circuit court in the county of conviction to vacate the conviction and expunge the record of conviction. The court may grant the petition upon a finding that the individual’s participation in the offense was a direct result of being a victim of trafficking. A victim of trafficking seeking relief under this section is not required to complete any type of rehabilitation in order to obtain expungement. A petition filed under his provision is subject to the procedural requirements of § 61-11-26, except that the age or criminal history limitations in that section are inapplicable to victims of human trafficking.
D. Pardoned convictions
Persons granted full and unconditional pardon may apply for expungement from the circuit court in which they were convicted one year after the pardon was granted and at least five years after discharge from sentence, with certain exceptions for violent crimes. W. Va. Code § 5-1-16a(a). If a conviction is expunged, educational institutions and licensing authorities may not consider it. § 5-1-16a(b).
E. Non-conviction records
Records in cases of acquittal or where the charges were dismissed (except pursuant to a plea to other charges in the case) may be expunged upon petition filed no sooner than 60 days after disposition. Records in DUI cases are ineligible, and a person who has a prior felony conviction is ineligible for relief. See W. Va. Code §§ 61-11-25(a), (b). The court must inform the defendant of the right to seek expungement upon disposition. Every agency with records relating to the arrest or charge shall certify to the court within six months that the expungement has been completed. § 61-11-25(b).
Upon receipt of the filing, the court schedules a hearing, notifies the prosecutor, who has the right to oppose. If the court finds that there are no charges pending relating to the matter for which expungement is sought, the court “may” order the sealing of all records in its custody and in the custody of any other agency or official including law enforcement records. § 61-11-25(d).
Every agency with records relating to the arrest, charge or other matters arising out of the arrest or charge, that is ordered to expunge records, shall certify to the court within sixty days of the entry of the expungement order, that the required expungement has been completed.
Upon expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall reply to any inquiry that no record exists on the matter. All orders enforcing the expungement procedure shall also be sealed.The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit or other type of application.
§ 61-11-25(e). Inspection of expunged non-conviction records is limited to their subject and to a prosecutor for a specific investigation or prosecution, and only upon court order:
Inspection of the sealed records in the court’s possession may thereafter be permitted by the court only upon a motion by the person who is the subject of the records or upon a petition filed by a prosecuting attorney that inspection and possible use of the records in question are necessary to the investigation or prosecution of a crime in this state or another jurisdiction. If the court finds that the interests of justice will be served by granting the petition, it may be granted.
F. Juvenile records
Juvenile records are sealed automatically the later of one year after turning age 18 or one year after juvenile or personal jurisdiction is terminated. W. Va. Code § 49-5-18(a). If a proceeding is transferred to adult court, records are not automatically sealed. § 49-5-18(e). Records may be opened only by court order. § 49-5-18(c). Sealing the record extinguishes the conviction as if it never occurred. § 49-5-18(d).
IV. Criminal record in employment & licensing
West Virginia has no general rule governing consideration of conviction in public or private employment.
Until 2019, West Virginia had no general law regulating consideration of conviction in licensure, except a rule that that licensing authorities could not consider expunged convictions. W. Va Code § 5-1-16a(b). By HB118, with a few exceptions (law, medicine, law enforcement, security guards) licensing agencies are subject to an elaborate scheme of regulations. A new W. Va. Code § 30-1-24 addresses “Use of criminal records as disqualification of authorization to practice,” and provides that boards may not disqualify based on conviction “unless that conviction is for a crime that bears a rational nexus to the occupation requiring licensure.” §30-1-24(a). In addition, it discourages the use of the term “moral turpitude”:
Because the term “moral turpitude” is vague and subject to inconsistent applications, boards or licensing authorities referred to in this chapter when making licensure, certification or registration determination may not rely upon the description of a crime as one of “moral turpitude” unless the underlying crime bears a rational nexus to the occupation requiring licensure, certification, or registration.
§ 30-1-24 (b). Standards to determine”rational nexus” include seriousness of crime, passage of time and evidence of rehabilitation. It does not require the board to give reasons for denial, though it does permit a candidate who has been denied to reapply after 5 years (with violent and sexual crimes subject to a longer period of disqualification). It also provides for a preliminary determination within 60 days (but no cap on application fee as with other similar laws). Finally, it reenacts a number of specific licensing schemes that prohibit convictions within the last five years, deleting a provision requiring applicants to have “good moral character.”
- In Webb, the West Virginia Supreme Court of Appeals interpreted an ambiguous provision to allow election to office after completion of sentence:
“Society must be protected from law violators, and their punishment must be just–commensurate with the seriousness of the offense. But the state does not punish malefactors in vengeance. She does not entertain against them throughout the years a spirit of vindictiveness, nor is the state relentless or unforgiving. It is the anxious desire of the state that those of her citizens who have transgressed her laws, suffered convictions, and paid the penalty of the law, shall profit from their unfortunate experience and thereafter make of themselves good citizens by leading lives of uprightness and usefulness. Society is interested in such result, and not in placing forever the brand of iniquity upon the forehead of one who in the frailty of humanity has departed from the narrow path. Conscientious trial judges, in imposing sentences upon convicted men, seek to impress upon them these truths. It by no means follows from the fact that the Constitution precludes ex-convicts from serving in the legislature and inhibits persons convicted of giving or receiving bribes from thereafter holding office that a felony conviction, other than for bribery, forever disqualifies the convicted person from holding any office of public trust.”
- Before passage of this law in 2013, a governor’s pardon had been held not to restore firearms rights, but merely to trigger eligibility for restoration under § 61-7-7(c). Perito v. County of Brooke, 215 W.Va. 178, 597 S.E.2d 311 (W. Va. 2004).
- Section 61-7-7(f) provides that a person dispossessed by virtue of a felony conviction may petition the circuit court of the county in which they reside to regain the ability to possess a firearm “if the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibility concomitant with the possession of a firearm,” and if possessing a firearm does not violate federal law. However, because felony offenders do not regain the right to sit on a jury, they remain subject to federal disqualification and are thus ineligible to regain rights through the judicial restoration procedure. See U.S. v. Morrell, supra. W. Va. Stat. § 52-1-8(b) has two separate provisions relating to jury service by a convicted person. While § 52-1-8(b)(5) appears to link right to vote and the right to serve on jury (A prospective juror is disqualified if he “has lost the right to vote because of a criminal conviction”), § 52-1-8(b)(6) separately disqualifies anyone who has “been convicted of perjury, false swearing or other infamous offense.” The Morrell court, relying on the reasoning of Berger v. United States, 867 F. Supp. 424 (S.D.W.V. 1994), held that the latter provision remained effective to bar a felony offender from jury service, and did not consider the possible implications of the former. However, because convicted felons are independently ineligible to regain handgun rights under §§ 61-7-4(a)(5) and 61-7-7, they would be unable to satisfy the requirements of the “unless clause” of 18 U.S.C. § 921(a)(20) under the Supreme Court’s holding in Caron v. United States, 524 U.S. 308 (1998). There have been efforts in recent years, to date unsuccessful, to remove the federal impediment to firearm restoration in West Virginia, by restoring jury rights automatically and providing relief from the handgun ban. The 2013 amendment to W.Va. Code § 61-7-7 relating to restoration of firearms rights has not yet been tested as to the effect on these rulings, but because expungement and pardon are separately specified grounds for federal restoration in 18 USC § 921(a)(20) it appears that either form of relief would result in automatic restoration of the right to possess firearms.
- W. Va. Code § 61-11B-3(a), enacted in 2017, provided that:
a person convicted of a nonviolent felony offense may seek a criminal offense reduction by petition to the circuit court. If granted, the petitioner’s felony conviction shall be vacated and the petitioner’s status will thereafter be designated on all records relating to the offense as a “reduced misdemeanor”. The petitioner’s criminal record shall also reflect that he or she be granted such legal status as is associated with being convicted of a misdemeanor and, except as provided by the provisions of this article, the person shall not be deemed to have been convicted of a felony for any legal purpose or restriction.