Vermont
Restoration of Rights & Record Relief

 

Last updated:  December 9, 2024  

 I.  Loss & restoration of civil/firearms rights

A.  Civil rights  

The rights to vote and hold office are not lost as a result of conviction, and a person who is incarcerated is permitted to vote early 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,” or operate to disqualify from any civil service application or appointment. tit. 33, § 5202(a)(1).

B.  Firearms  

Firearm rights are generally not lost upon conviction, though the sentencing court may prohibit possession of firearms as a condition of probation.  See State v. Kasper, 566 A.2d 982, 984 (Vt. 1989); see also Jay Buckey, Note, Firearms for Felons? A Proposal to Prohibit Felons from Possessing Firearms in Vermont, 35 Vt. L. Rev. 957 (2011).  However, persons convicted of a felony under Vermont law who have not been pardoned, or whose convictions have not been sealed or expunged, remain subject to federal firearms restrictions by virtue of the state’s failure to restore all three civil rights.  

C.  Compilation of collateral consequences  

Under Vt. Stat. Ann. tit. 13, § 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, which is linked on the Attorney General’s website.  

II.   Pardon policy & practice

A.  Authority

Pardon authority is vested in the governor exclusively, except in the case of treason.  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.  It is not clear what if any role the parole board has played in recent years, since applications are submitted directly to the governor’s office. 

B.  Process and application form

Guidelines issued by the governor’s office are available along with the Vermont Pardon Application Form, available on the Governor’s website.  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.

C.  Eligibility

The Governor’s Guidelines (supra) cover four areas:

1.  TIME:  A substantial period of time must have elapsed since the date of conviction.  Generally, a ten-year time period for a felony conviction and a five- year period of time for a misdemeanor conviction is required.  A pardon will not be considered for a person who is currently incarcerated or under sentence except in very unusual circumstances where there is independent evidence of a gross miscarriage of justice not reviewable through the courts.

2. SOCIAL BEHAVIOR SINCE CONVICTION:  The applicant’s behavior since conviction must have been exemplary.  A significant or outstanding contribution to family and community should be demonstrated.

3. EMPLOYMENT:  It should be demonstrated that the pardon will remove an obstacle to employment and will enable the applicant to meet family obligations.

4. BENEFIT TO SOCIETY IF PARDONED:  It should be demonstrated that the pardon will result in a contribution to society, not just personal gain or comfort.

The Guidelines state that if an application “falls generally” within these Guidelines, it will be referred to the Department of Corrections and Parole Board for investigation and recommendation. 1

D.  Effect of a pardon

A person is entitled to file an expungement petition for any offense that “has been granted an unconditional pardon from the Governor.”  Vt. Stat. Ann. tit. 23, § 7601(4)(P).

E.  Frequency of grants

In recent years 50-60 pardon applications are received annually, but few are granted.  As of November 18, 2024, Governor Phil Scott had issued no pardons in his first seven years in office.  Until the very end of his term, Governor Peter Shumlin issued only sixteen pardons and added to that total only with a batch of marijuana possession pardons (see below).2 Governor Douglas (2003-2011) granted only 13 pardons.   

Marijuana pardons:  About a month before the end of his term, in December 2016, Governor Shumlin announced his intention to pardon people convicted of possessing less than 1 ounce of marijuana before Vermont passed a decriminalization law in 2013.   People who had never been convicted of a violent crime or felony were eligible to apply, and the governor’s office estimated that 10,000 to 17,000 people could be eligible for the special pardon.  In the end Governor Shumlin pardoned 192 people.  See Vermont Governor Pardons 192 for Marijuana Convictions, New York Times (Jan. 4, 2017); Shumlin issues 192 pardons for minor pot crimes, Burlington Free Press (Jan. 3, 2017). His successor indicated his agreement with the pardons, but after seven years in office had not followed up with any of his own. 

F.  Contact

Pardons Coordinator
Office of the Governor
109 State Street
Montpelier, VT 05609-0101
802-828-3333

III.  Expungement, sealing & other record relief

A.  Expungement/sealing of conviction record

Effective July 1, 2012, a new chapter was added to Title 13 of the Vermont statutes to provide for expungement or sealing of many “qualifying” offenses, including nonviolent misdemeanors, a handful of 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, but the list has been expanded since 2012: 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 domestic violence and stalking) are not within the definition of a “qualifying crime.” §§ 7601(3) and (4).

In 2019, the law was amended to bring a variety of drug possession offenses and forgery within the definition of a “qualifying crime,” and to make some DUI offenses eligible after 10 years (sealing only), and youthful burglary after 15 years. §§ 7602(a)(1)(C), (a)(1)(D), (g), (h). Heightened procedural protections were made applicable to eligible DUI and burglary offenses. For an explanation of these changes and a thorough overview of eligibility and the process for expungement and sealing, see information available on Vermont Law Help.

Automatic sealing of certain motor vehicle violations.  In June 2021, S7 authorized automatic sealing of certain motor vehicle violations traffic violations, including operating after suspension and operating without a license.  See 23 V.S.A. § 2303.  S7 also directed further study of clean slate automation.  See section below.

The Uniform Collateral Consequences of Conviction Act (see below) requires that defendants be informed of their eligibility for expungement or sealing at the time charges are filed and at sentencing, or upon release from prison (if relevant).  See above, Vt. Stat. Ann. tit. 13, § 8006.

A court “shall grant” expungement of the record following conviction of a qualifying crime (“or qualifying crimes arising out of the same incident”) if 5 years have passed since completion of sentence, if the person has not been convicted of any crime since the conviction for which expungement is sought, 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.  Sealing is mandatory in the case of a person convicted of youthful burglary, after 15 years.

In the event of an intervening conviction, the person may still be eligible for expungement.   In that event, the waiting period is increased to 10 years after completion of sentence, with no felony conviction in the 7 years before applying, and no misdemeanor conviction in the 5 years before applying.  § 7602(c)(1).4 If a person is charged with a criminal offense after he or she has filed a petition for expungement pursuant to this chapter, the court shall not act on the petition until disposition of the new charge. § 7604. In all cases, restitution must be paid in full.

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).5 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.6 Sealing is not authorized as an alternative to expungement in cases involving decriminalization.

Procedure for expungement and sealing

Petitions are filed with the court for expungement or sealing of qualifying convictions. Statewide forms maintained by the Vermont Judiciary and accessible on its website. A reasonable effort must be made to notify any victim who is known, and the victim has the right to provide a statement before any stipulation by the State or to the court directly. § 7608. If both the state’s attorney and the petitioner 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. § 7605.7

If granted, notice of the expungement is sent to the Vermont Crime Information Center (VCIC), the arresting agency, the Restitution Unit of the Vermont Center for Crime Victim Services, and any other entity that may have a copy of a record related to the expungement. § 7606(a). The VCIC provides notice to the FBI. Id. The court removes the records from any accessible database, although the court maintains a “special index of cases that have been expunged together with the expungement order,” accessible only if granted access by the court to the person subject of the records or for “research purposes.” §§ 7606(c), (d).

Effect of expungement

An expungement order includes “provisions that its effect is to annul the record of the arrest, conviction, and sentence.” § 7606(a). An expungement order provides that a person “shall be treated in all respects as if he or she had never been arrested, convicted, or sentenced for the offense,” and need not be disclosed in any employment or license application, any civil right or privilege, or in an appearance as a witness. § 7606(b). Responses to inquiries regarding an expunged record is that “no criminal record exists.”

Effect of sealing

The effect of a sealing order is similar to, but more limited than, that of an expungement order. Vt. Stat. Ann. tit. 13, § 7607. A sealing order allows a person to not have to disclose on applications or in an appearance as a witness, and is treated as if there was no arrest, conviction, or sentence. § 7607(b). However, an entity that possesses a sealed record may continue to use it in a civil suit, a criminal justice agency may use a sealed record for criminal justice purposes, the conviction may be used as a predicate in any subsequent prosecution, and the court removes the case file from public access and bars viewing of the record in accessible databases, but does not destroy the case file or remove the record from accessible databases. Id. The court must grant access to inspect a sealed record after filing a petition, which may only be filed by the person or allowed for “research purposes.” The Restitution Unit is able to access sealed records to enforce a restitution order in the same manner as a civil judgment. § 7607(g).

Civil penalties for disclosure: In 2022, a law was enacted providing that any state or municipal employee or contractor or agent of the court who knowingly discloses information about a sealed or expunged criminal record will be fined a civil penalty of up to $1000, and each disclosure will constitute a separate civil violation.  See H729; Vt. Stat. Ann. tit. 13, § 7611. 

B.  Deferred sentencing/expungement

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, § 7041.8  “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,” provided that any restitution obligation has been satisfied. § 7041(e).  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).  Specified serious offenses are ineligible by statute. § 7041(b)(2).

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(f).

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(e).  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 in every case depended upon a prior agreement between the state’s attorney and the defendant. § 7041(a).  In 2005, the law was amended to give the court authority to defer adjudication without agreement from the prosecutor, under specified conditions, set forth in § 7041(b):

1. [the defendant must be 28 years old or younger;]

2. the crime must not be on a list of serious crimes;

3. the court must order a pre-sentence investigation (unless this requirement is waived by the prosecutor);

4. the victim is permitted to submit a statement;

5. the court reviews the pre-sentence investigation and the victim’s impact statement with the parties; and

6. the court determines that deferring sentence is in the interest of justice.

The first of these conditions relating to the defendant’s age was repealed in 2019, so that age is no longer a condition of judge-initiated deferred sentencing.

C.  Diversion program expungement

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(b)(1).9 The program also is designed to assist persons charged with a crime (except serious listed offenses) and who have need of substance abuse or mental health treatment. § 164(b)(2). A parallel juvenile court diversion project can be found under § 163.  Certain juveniles may also be eligible for this program, effective July 1, 2020.  The program may accept only persons against whom charges have been filed and the court has found probable cause but are not yet adjudicated.  § 164(e)(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(e)(1).  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(e)(9).

Program participants are eligible for expungement two years after successful completion of the diversion program if restitution has been paid. § 164(g)(1). The court shall provide notice to all parties of record of the court’s intention to order the expungement 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. Id. The court shall give the state’s attorney an opportunity for a hearing to contest the expungement of the records but, as of 2023, there is no requirement that the state’s attorney dismiss the charges. See H28 amending §§ 163(e) and 164(g).  Upon the entry of an order expunging 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(h). 

D.  Expungement for victims of human trafficking

A person convicted of a “qualifying crime” (defined to exclude only serious violent offenses) as a result of the person having been a victim of human trafficking, may file a motion to vacate the conviction and if granted, the record will be expunged.  Vt. Stat. Ann. tit. 13, § 2658. (As originally enacted, this authority applied only to prostitution convictions, and it was enlarged in 2019 by H.460). If the motion is granted, the Court shall vacate the conviction, strike the adjudication of guilt, and expunge the record of the criminal proceedings. § 2658(d)(2).  “The Court shall issue an order to expunge, or redact the moving party’s name from, all records and files related to the moving party’s arrest, citation, investigation, charge, adjudication of guilt, criminal proceedings, and probation for the offense.” Id.

E.  Expungement of marijuana offenses

On October 7, 2020, Governor Scott signed S.234 authorizing automatic expungement of convictions involving possession of 2 ounces or less of marijuana entered prior to January 1, 2021, with said expungement to be completed no later than January 1, 2022.  Under Section 31 of this bill, the court “shall provide notice of the expungement to the person who is the subject of the record at the person’s last known address, the 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.” S.234, Sec. 31.

F.  Sealing/expungement of youthful offenses (18-25)

In 2018, S. 234 added a new section to Title 13 mandating expungement of conviction records, upon petition by the defendant, 30 days after completion of sentence for qualifying crimes (as defined in § 7601) committed between the ages of 18 and 21, “absent a finding of good cause by the court.”  13 V.S.A. § 7609(a).  “[T]he court shall grant the petition and issue an order sealing or expunging the record if it finds that sealing or expunging the record serves the interest of justice.” § 7609(c).

G.  Non-conviction records

The provisions authorizing expungement or sealing of non-conviction records were extensively revised and expanded in 2018 by Section 3 of S. 173, so that relief is no longer limited to cases where an arrest or charges are for a “qualifying crime,” as defined in § 7601. The waiting periods were reduced in 2019 by H. 460. In addition, the requirement that an individual file a petition was also eliminated in most cases. A petition to expunge charges dismissed before July 1, 2018 requires a petition to be filed, and charges dismissed after that date are sealed automatically. If a person wants to expunge an automatically sealed charge, a petition must be filed.  “Unless either party objects in the interest of justice, the court shall issue an order sealing the criminal history record” 60 days after charges are dismissed at arraignment (reduced from 12 months in 2019), or before trial without prejudice, or at any time if the government agrees. Vt. Stat. Ann. tit. 13, § 7603(a).   If the government objects, the court shall hold a hearing to determine whether sealing or expunging the record “serves the interest of justice.” § 7603(b).  In such cases, the court shall expunge the record after the statute of limitations has expired, or after eight years whichever is shorter. § 7603(f).

Where the defendant is acquitted, or where charges are dismissed before trial with prejudice, the court must seal the record within 60 days, absent agreement by the parties for earlier sealing. § 7603(e).  A person may file a petition requesting sealing or expungement related to non-conviction records at any time, which will be granted if it “serves the interests or justice” or if the parties stipulate.” § 7603(f). Any record sealed prior to July 1, 2018, will be automatically expunged by the court, unless the prosecutor objects, after giving written notice by the court of its intent to do so. § 7603(h). See also the discussion above of the provision of S. 173 authorizing further study of whether to expand eligibility for expungement, and whether to make sealing automatic.

H.  Sealing and expungement for juveniles and “youthful offenders”

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. § 5119(a)(1).  Sealing of offenses committed before age 25 is available upon application to the court (or upon the court’s own motion) two years after final discharge. § 5119(g).10 Individuals with a subsequent conviction or adjudication for serious crimes listed at 13 V.S.A. § 5301 are ineligible, as are those with pending charges. S7 modified a previous bar to relief due to subsequent convictions of a “listed crime” (13 V.S.A. § 5301) to a 10-year bar in 2021.

Per a 2019 law (S105), the court shall expunge juvenile diversion cases two years after completion, if restitution has been paid, the person has no subsequent convictions or pending proceedings, and rehabilitation has been attained to the satisfaction of the court. § 163. The Vermont Judiciary provides a form Petition to Expunge Juvenile Diversion Record on its website.

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).

I.  Consideration of “clean slate” automatic sealing

In June 2021, Section 5 of S7 renewed the legislature’s earlier request for a study of broader expansion and automation of sealing and expungement.11 This time the legislature did not entrust the task of making recommendations to the executive branch:

During the 2021 legislative interim, the Joint Legislative Justice Oversight Committee shall consider how to simplify and automate the process of expungement and sealing of criminal history records and consider a comprehensive policy that provides an avenue for expungement or sealing of records for all or most offenses except those listed in 33 V.S.A. § 5204(a)[violent juvenile offenses]. In its analysis of what offenses should be eligible, the Committee shall consider whether to exclude from eligibility those offenses associated with and resulting from domestic and sexual violence. The Committee shall propose legislation for the 2022 legislative session on its recommendations regarding:

(1) a policy to make all or most criminal history records eligible for sealing or expungement, except for conviction records of offenses listed in 33 V.S.A. § 5204(a) and any other offenses the Committee deems appropriate for exclusion;

(2) the individuals or entities that should have access to sealed criminal history records;

(3) whether Vermont should continue to employ a two-track system that provides for sealing or expungement of criminal history records based on the nature of the offense, or whether Vermont should employ a one-track system that provides for either sealing or expungement for all eligible offenses;

(4) implementing an automated process, not requiring a petition, to seal and expunge criminal conviction records that provides for notice to the prosecuting office and an opportunity for the prosecutor to oppose the sealing or expungement

J. Judicial certificates of relief and restoration of rights 

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.

1.  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. § 8010(b). The order specifies the mandatory sanction for which relief is granted and any restrictions imposed under § 8013(a) and (b). § 8010(c).

2.  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.

The 32 “listed crimes” as well as drug trafficking, are not eligible for either form of relief.  § 8012(b), 13 V.S.A. § 5301(7). 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. 

The 32 “listed crimes” as well as drug trafficking, are not eligible for either form of relief.  § 8012(b), 13 V.S.A. § 5301(7). 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)

3.  Efficacy of certificate relief

For a review of the frequency of certificate relief from the courts in Vermont and other states, see CCRC’s report on certificates of relief, “Positive Credentials That Limit Risk: A Report on Certificates of Relief” (June 2024).  Specifically as to the Vermont certificates authorized under § 8011, this report credited the findings of a student researcher, who in 2023 conducted 34 interviews with court personnel, state’s attorneys, and public defenders’ offices across Vermont.  Her research found that 13 of Vermont’s 14 state’s attorney offices had not received a petition for either the order or the certificate, while eight of the 14 county courts had never granted either one. Staff at the remaining 6 courts could not verify if they had ever approved an order or a certificate. Contacting five county public defender’s offices found that no office had assisted a client in receiving a certificate, with four offices admitting they had never heard of either certificate. The director of a reentry organization stated that they had not heard of these certificates but would be willing to file for one if asked. CCRC Report, supra, App. 2 at p. 39-40.

IV.  Criminal record in employment & licensing

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.

B.  Occupational/professional licensing

Until recently, Vermont had weak general laws regulating consideration of conviction in licensure for a number of professions. Prior to its amendment in 2021,  Vt. Stat. Ann. tit. 3, § 129a(10) provided that 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 (defining the dozens of professions regulated by this law).

In 2021, H289 added the following to § 129a(10):

If an individual has a conviction of concern, the board or hearing officer shall consider the following in determining whether to deny or discipline a license, certification, or registration to the individual based on the following factors:

(A) the nature and seriousness of the conviction;

(B) the amount of time since the commission of the crime;

(C) the relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession; and

(D) evidence of rehabilitation or treatment.

Juvenile court adjudications do not “operate to disqualify the child in any civil service application or appointment.”  Vt. Stat. Ann. tit. 33, § 5202(a)(1).

In 2020, S233 required licensing boards to provide a pre-application determination regarding whether an applicant’s criminal background would disqualify the applicant from licensure in the profession(s) for which the applicant may thereafter seek licensure. tit. 3, § 123(k) and (l).  This request shall provide documentation related to the individual’s conviction or convictions, evidence of rehabilitation, and identification of the profession or professions for which the individual seeks licensure. An applicant would pay a $25 fee for a “second chance determination” request, and this fee would be deducted from the license application fee if the applicant does thereafter seek licensure. The new law applies to the professions and occupations regulated by the Office of Professional Regulation, the Department of Environmental Conservation (for well drillers), the Standards Board for Professional Educators, the Board of Medical Practice, the Electricians’ Licensing Board, and the Plumbers’ Examining Board. Several occupations were added under § 123(j)(1) in 2023 that allow for inquiry into criminal background histories, including clinical mental health counselors, licensed marriage and family therapists, and licensed and nonlicensed psychotherapists under H.62, physical therapists and physical therapist assistants under H.77, and audiologists and speech-language pathologists under H.86.

The Uniform Collateral Consequences of Conviction Act, enacted in 2024 and described in Part III(J) above, authorizes courts to issue orders relieving collateral sanctions imposed under the laws of Vermont, including sanctions barring people with a felony conviction from licensure.   See Vt. Stat. Ann. tit. 13, §§ 8010, 8011

 

 

  1. 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.
  2. See Gov. Shumlin issues three pardons, Burlington Free Press (Jan. 23, 2015); Shumlin issues first 2 pardons, Burlington Free Press (Jan. 23, 2015); Governor Shumlin issues 10 pardons, including John Zaccaro Jr, Vermont Business Magazine (Dec. 31, 2016).
  3. 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.
  4. These waiting periods were also reduced in 2017, and again in 2018.   Prior to 2017 an intervening felony conviction was disqualifying, and there was a 20-year minimum waiting period in the event of a subsequent misdemeanor conviction, and a 15-year crime-free look-back period.  See H-171, § 4 (2017). In 2018, the post-conviction waiting period was reduced to 10 years, with different look-back periods for intervening felonies and misdemeanors.  See S. 173, § 1 (2018).
  5. 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).
  6. 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).
  7. 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.
  8. An individual charged with aggravated sexual assault of a child is ineligible for deferred adjudication and expungement.   Amendments to § 7041 effective July 1, 2014, expanded the class of offenses ineligible for deferred adjudication and expungement to include five additional offenses involving sexual assault of a child.
  9.   In 2009, § 164 was amended to cover second misdemeanors.  2009 Vt. Laws No. 156 (H.789) (eff. July 1, 2010).
  10.  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. Sealing under this authority is subject to a finding that “the person’s rehabilitation has been attained to the satisfaction of the court.” Id.  In 2021, S7 extended the eligibility range to 18-25.
  11.  In May 2018, the Department of State’s Attorneys and Sheriffs was directed to consider, in consultation with the Office of the Court Administrator, the Vermont Crime Information Center, the Office of the Attorney General, the Office of the Defender General, the Center for Crime Victim Services, and Vermont Legal Aid, whether the list of qualifying crimes should be expanded to include nonviolent drug offenses.  The group was also directed to study “the viability of automating the process of expunging and sealing criminal history records.”  The group was directed to report to the legislature by November 1, 2018, and to include “any recommendations on specific crimes to add to the definition of qualifying crimes pursuant to 13 V.S.A. §  7601.” See Section 4 of S. 173.  The group did not reach consensus on the issue of expansion of qualifying crimes in its report to the legislature on November 1, 2018.  The report also concluded that automation needs further study due to technical and resource challenges related to the state’s case management system.  See pp. 10-11 of the report.