Washington State courts are now authorized to grant certain individuals a Certificate of Restoration of Opportunity (CROP), which prohibits many state licensing entities from disqualifying the holder solely based on his or her criminal history.  A CROP also protects employers and housing providers from liability for negligent hiring and renting.  The new certificate authority was created by HB 1533, which was signed by Governor Jay Inslee on March 31 and took effect last month.

In light of the trend toward giving courts responsibility for restoring legal rights and certifying rehabilitation, we took a closer look at who is eligible for this newest judicial certificate and the benefits it confers. 

Eligibility

A CROP is available to individuals convicted of a misdemeanor, gross misdemeanor, or less-serious felony (or adjudicated in juvenile court for equivalent offenses) so long as certain eligibility requirements are met.  To be eligible, a person must be “in compliance with or have completed all sentencing requirements imposed by a court,” must have no pending charges, and must not have been arrested for or convicted of a new crime.  Persons convicted at any time of a Class A felony, certain sex offenses, extortion, drive-by shooting, vehicular assault, or luring are ineligible, as are registered sex offenders. Waiting periods apply and depend on the offense and sentence:

• 1 year from sentencing – misdemeanor/gross misdemeanor (probation/noncustodial sentence)
• 18 months from release – misdemeanor/gross misdemeanor (sentence of confinement)
• 2 years from sentencing (probation/noncustodial sentence) or release (sentence of confinement) – Class B/C felony
• 5 years from sentencing (probation/noncustodial sentence) or release (sentence of confinement) – violent offense under Wash. Rev. Code § 9.94A.030

Effect

With a number of exceptions, “no state, county, or municipal department, board, officer, or agency . . . may disqualify a qualified applicant, solely based on the applicant’s criminal history, if the qualified applicant has obtained a [CROP]….” Excepted professions for which a CROP does not limit the ability of an entity to disqualify an applicant include: accountants, assisted living facility employees, nurses and physicians, private investigators, teachers, security guards, vulnerable adult care providers, and law enforcement.

For otherwise unspecified professions and businesses that involve unsupervised contact with vulnerable adults, children, or disabled individuals, a licensing entity may only disqualify an applicant based solely upon criminal history after reviewing “relevant factors, including the nature and seriousness of the offense, time that has passed since conviction, changed circumstances since the offense occurred, and the nature of the employment or license sought.”

Employers and housing providers are not required to consider a CROP in making hiring or rental decisions, but if an employer/provider does consider a CROP, then evidence of the employee or renter’s crimes may not be entered into evidence in any action against the employer or provider for negligent or intentionally tortious conduct. 

Procedure & criteria

Applications may be filed either with the sentencing court or the superior court in the applicant’s county of residence. If filed in the county of residence, the court may decline to consider the application, and it must dismiss the application if the person does not meet the eligibility standards.  In either case, dismissal in the county of residence is without prejudice, and the application may be refiled with the sentencing court, which must consider the application. Applicants must give notice to the prosecutor in the county where the certificate is sought and to the prosecutors in any county where a person has been sentenced in the last 5 years.   

Notwithstanding the exception for dismissal in the court of the county of residence, the court must grant a certificate if the applicant meets the eligibility criteria described above. However, the court has discretion to determine whether the certificate applies to all past criminal history or only the convictions in the court’s jurisdiction. A hearing on the application is not required.

CROP grants are transmitted to the Washington state patrol identification section, which must update its criminal history records to reflect the CROP. § 3(9).  A CROP has no other effect on court or law enforcement records. § 3(1)(c).

 

More information on Washington relief mechanisms is available in the state’s guide to restoration of rights, pardon, sealing & expungement here.  For information on similar laws in other states, see our 50-state comparison on the consideration of criminal records in licensing and employment here.