Last updated:   November 30, 2024

 I.  Loss & restoration of civil/firearms rights

A.  Vote

Article VI, Section 3 of the Washington State Constitution provides that “[a]ll persons convicted of an infamous crime … are excluded from the elective franchise.”  “Infamous crimes” are defined as those “punishable by death in the state penitentiary or imprisonment in a state correctional facility,” Wash. Rev. Code § 29A.04.079, and have historically included only felonies.  See State v. Collins, 124 P. 903 (Wa. 1912). 

Effective January 1, 2022, the right to vote is restored automatically as long as a person is not “serving a sentence of total confinement” for a felony conviction.  An individual who is incarcerated and whose vote is restored upon release will still need to re-register to vote at that time.  See SHB 1078 (2021), amending § 29A.08.520(1). For the purposes of this section, a sentence of total confinement does not include confinement imposed as a sanction for a community custody violation. § 29A.08.520(3). Prior to the enactment of SHB 1078, § 29A.08.520(6)(2020) provided several ways to regain the vote, primarily by an order of discharge issued by the sentencing court under § 94A.637, and also by a court order restoring the right pursuant to § 9.92.066, or by a certificate of restoration issued by the governor, as provided in § 9.96.020.  Alternatively, a person could petition the governor for a pardon.¹

A person with an out-of-state or federal conviction may register to vote “as long as the person is no longer incarcerated,” without condition.  § 29A.08.520(1).²

B.  Public office and jury

A person filing a declaration of candidacy for an office shall, at the time of filing, be a registered voter and possess the qualifications specified by law for persons who may be elected to the office.Wash. Rev. Code § 29A.24.075(1).  

A person may not serve as a juror if he “has been convicted of a felony and has not had his or her civil rights restored.”  § 2.36.070(5).  A certificate of discharge from the court or parole board restores civil rights. See § 9.94A.637(9)(sentencing court); § 9.96.050(1)(c)(parole board).  If a person has not completed all “legal financial obligations” of the sentence, and thus is ineligible for a certificate of discharge, they may seek discharge after five years if they have completed nonfinancial aspects of the sentence.  § 9.94A.637(4)(a).  See also § 9.94A.885(2) (enabling State Clemency and Pardons Board to restore civil rights to those convicted of federal and out-of-state crimes). 

C.  Firearms

Persons convicted of “any serious offense” (defined in § 9.41.010(16) to include violent, drug, and sex offenses) or any other felony or any misdemeanor involving domestic violence or other violent conduct, may not possess a firearm or obtain a license to carry a concealed pistol. Wash. Rev. Code §§ 9.41.040(1)(a), (2)(a)(i) and (ii). A person has been “convicted”, whether in an adult court or adjudicated in a juvenile court, at such time as a plea of guilty has been accepted, or a verdict of guilty has been filed, even if charges are later dismissed after a period of probation, suspension or deferral of sentence, in Washington or another state.  § 9.41.040(3). However, persons sentenced to probation for certain less serious offenses who received a probationary sentence under § 9.95.200, and who received a dismissal of the charge under § 9.95.240, do not lose firearms rights. § 9.41.040(4). 

Relief from firearms restrictions is available from the executive or through the courts.  Under Wash. Rev. Code § 9.41.040(3), firearms restrictions may be removed through “pardon, annulment, certificate of rehabilitation, or  other equivalent procedure based on a finding of . . . rehabilitation” or innocence.³  

Washington courts are specifically authorized by statute to restore firearms rights to individuals convicted of a crime.  In clarifying a court’s authority and codifying it in a new section, Wash. Rev. Code § 9.41.041, the legislature found that “it is important to recognize and remove barriers for individuals who have demonstrated that they have safely reintegrated into their communities.” See SHB 1562. As revised, this authority authorizes restoration to all but class A felonies, felony sex offenses, and “a felony offense with a maximum sentence of at least 20 years.” Wash. Rev. Code § 9.41.041(1) and (2). Under § 9.41.041(3), relief must be sought from a court where the person was convicted after a specified waiting period in the community without a further disqualifying conviction: five years for felonies and specified misdemeanors involving violent or threatening conduct, and three years for other misdemeanors. § 9.41.041(2)(a)(i) and (ii). A person must have completed their sentence, including restitution (but not fine and fees) and have no charges pending. § 9.41.041(2)(b).  The procedure detailed in § 9.41.041(3) involves verification by the prosecuting attorney that all relevant documents have been reviewed and state-level background checks performed, and notification to victims.  The court “shall grant the petition only if the court finds that the person petitioning for restoration of firearm rights meets the requirements set forth in this section.” § 9.41.041(3)(f). These elaborate procedures appear designed to safeguard the public in light of caselaw holding that the court’s restoration function is merely ministerial once eligibility criteria have been met.  See, e.g., State v. Swanson, 116 Wn. App. 67, review denied, 150 Wn.2d 1006 (2003) (holding that court could not require misdemeanant to show he no longer presented a substantial danger).  See also Nelson v. State (In re Firearm Rights), 120 Wn. App. 470 (2003)(Where the record of juvenile convictions has been expunged, no basis exists for precluding possession of a firearm,). 

A vacatur does not have the effect of restoring firearms rights, and in 2019 this limitation was codified in Wash. Rev. Code §§ 9.96.060(8)(“nothing in this section affects the requirements for restoring a right to possess a firearm under RCW 9.41.041(a)”).

If a person is convicted of a crime for which § 9.41.040 and § 9.41.041 prescribe no procedure for the restoration of firearm rights, the only available remedy is a pardon by the governor with a finding either of innocence or of rehabilitation.  See 2002 Op. Atty Gen. Wash. No. 4.  

A sentencing court is required to notify a defendant orally and in writing that the person may not possess a firearm unless a court of record restores his right to do so.  Wash. Rev. Code § 9.41.047(1)(a).  Failure to do so may result in vacating a subsequent felon-in-possession conviction.  State v. Breitung, 155 Wn. App. 606 (Wash. App. 2010).  See also State v. Leavitt, 107 Wn. App. 361 (Wash. App. 2001) (conviction reversed where defendant demonstrated actual prejudice arising from a sentencing court’s failure to comply with the mandate in § 9.41.047).  

II.  Pardon policy & practice

A.  Authority

The pardon power is vested in the governor, “under such regulations and restrictions as may be prescribed by law.”  Wash. Const. art III, § 9.  The governor is required by law to report to the the legislature every session on “each case of reprieve, commutation or pardon granted, and the reasons for granting the same . . .  .”  Wash. Const. art III, § 11.  He is also required to submit all applications for pardon to the State Clemency & Pardons Board, which must hold a hearing. Wash. Rev. Code §§  9.94A.885.  However, the governor is not required to conform his action to what the board recommends. See State ex rel Rogers v. Jenkins, 20 Wash. 787 (1898).  The governor may also grant restoration of rights without a pardon when a sentence has expired or is about to expire, which has the effect of discharging unpaid portion of fine, or grant a pardon without restoring rights.  

B.  Administration

The State Clemency and Pardons Board is composed of five members appointed by the governor to four-year terms, subject to confirmation by the Senate.  They receive no compensation, and staff is provided by the Attorney General’s office.  The Board elects its own chairman from among its members.  The Board’s home page points to its policies and an information packet. 

C.  Effect

Pardon has the effect of vacating the conviction and limiting public access to the record. Wash. Rev. Code § 9.94A.030(11)(b) (“A conviction may be removed from a defendant’s criminal history only if it is vacated pursuant to [Wash Rev. Code §§] 9.96.060, 9.94A.640, 9.95.240, or a similar out-of-state statute, or if the conviction has been vacated pursuant to a governor’s pardon.”); see also 1967 Wash. Att’y Gen. Op. No. 6.  Vacatur relieves all legal disabilities, but not firearms dispossession, and a conviction that has been vacated need not be reported.  Vacatur limits dissemination of administrative records, and may be grounds for sealing the court record.  See § 9.94A.640(1), (3), and General Rule 15 of the Washington Courts, discussed infra. However, effective June 7, 2019, a vacated conviction counts as “criminal history” if a person is “charged with a recidivist offense.”  §§ 9.94A.030 (11)(b), 9.94A.060(3)(c), as amended by SHB 1041 (2019).⁴

D.  Eligibility

The Board requires applicants to wait 10 years after conviction, and to be free of serious infractions for 2 years prior to submitting the petition. People with federal and out-of-state offenses are ineligible to apply for a pardon, but may apply to the Board for restoration of rights. See § 9.94A.885(2) (enabling State Clemency and Pardons Board to restore civil rights to those convicted of federal and out-of-state crimes). 

E.  Process

A petition must be filed with Clemency and Pardons Board, which cannot recommend clemency until a public hearing has been held on the petition.  Hearings are held on a quarterly basis, and are held in about one third of cases.  Information packet and the application form are available on the Board website, as is the Board’s Policy Manual, revised in 2018. In addition to factual information relating to the crime and the applicant’s circumstances, the application asks for a description of the “extraordinary” circumstances that would “justify” granting a pardon, and an account of the applicant’s rehabilitative efforts.  The applicant must attach a copy of the judgment and sentence for each conviction for which relief is sought; “if not provided the Petition will be deemed as incomplete.”

The board “shall not recommend that the governor grant clemency under subsection (1) of this section until a public hearing has been held on the petition.” Wash. Rev. Code § 9.94A.885(3). If a petition is selected for hearing before the full Board, the prosecuting attorney of the county where the conviction was obtained must be notified at least thirty days prior to the scheduled hearing, and the prosecuting attorney shall make reasonable efforts to notify victims, survivors of victims, witnesses, and the law enforcement agency or agencies that conducted the investigation, of the date and place of the hearing. Id.  The Board’s Information packet states respecting the role of the prosecuting attorney and sentencing judge:   

The prosecuting attorney is then given the opportunity to provide comments to the Board (and therefore to the Governor) on whether clemency is justified. Typically, a prosecuting attorney will be either neutral or unresponsive. However, when available, a prosecuting attorney’s adverse response may have a detrimental impact on the Board’s decision. Conversely, a favorable response oftentimes positively impacts the decision. While there is no requirement to notify the sentencing judge, his or her comments may also have a substantial impact on the petition. With these factors in mind, you may contact the prosecuting attorney who tried the case or the sentencing judge at your discretion and request support for the petition. 

F.  Restoration of rights

The Board has been delegated authority from the Governor to grant restorations of rights pursuant to Wash. Rev. Code § 9.94A.885.  It holds several dozen hearings each year, and grants most applications.  People with federal and out-of-state offenses may apply to Board for restoration of rights but not for pardon.

G.  Frequency of grants

About 35 petitions for pardon, commutation and restoration of rights are received each quarter, 8-10 of which go to hearing before the Board.  As of July 2023, Governor Inslee had granted about 85 pardons since taking office in 2013, distributed fairly evenly over the years. acting favorably on a majority of the cases received from the Board with an affirmative recommendation.  Inslee also pardoned a number of people convicted of marijuana possession offenses no longer criminal under state law, pursuant to his Marijuana Justice Initiative.  https://www.governor.wa.gov/marijuanajustice. A chart showing cases heard by the Board, the Board’s recommendation to Governor Inslee, and the Governor’s action, is published through July 2023.  

From 2006 through January 2011, Governor Gregoire granted 33 pardons in eight years in office, two of which were conditional, and two were to avoid deportation.  She also granted several sentence commutations.  Governor Locke issued 45 pardons and eight commutations in his four years in office, more than half of them in his final year in office.   Source: Office of the Governor.

H.  Contact

Washington State Clemency and Pardons Board
Office of the Attorney General
P.O. Box 40116
Olympia, WA 98504
360-586-0047
CPBoard@atg.wa.gov

III.  Expungement, sealing & other record relief

A.  Vacating certain misdemeanor & felony convictions

Vacatur of felonies

Under Washington’s Sentencing Reform Act of 1981, as amended in 2012, persons who have completed their sentences and been “discharged” by the court may apply to the sentencing court to  “vacate” the record of conviction, which “clears” the record by a set-aside or dismissal of the charges: 

Every offender who has been discharged under RCW 9.94A.637 may apply to the sentencing court for a vacation of the offender’s record of conviction. If the court finds the offender meets the tests prescribed in subsection (2) of this section, the court may clear the record of conviction by: (a) Permitting the offender to withdraw the offender’s plea of guilty and to enter a plea of not guilty; or (b) if the offender has been convicted after a plea of not guilty, by the court setting aside the verdict of guilty; and (c) by the court dismissing the information or indictment against the offender.

Wash. Rev Code § 9.94A.640(1).  Under § 9.94A.640(2), a person may be eligible to have the record of conviction vacated (or “cleared”) after a waiting period, unless there are any charges pending.  Violent offenses or crimes against the person (a Class A felony, some Class B felonies, and felony DUI offenses) were ineligible until 2019 (see below).  Eligible Class B convictions must wait 10 years after sentence or release from confinement and Class C convictions must wait five years.  Id.  If a “new crime” is committed during the waiting period it must be restarted.   

In 2019, SHB 1041 amended § 9.94A.640(2) to make additional offenses eligible for vacatur, and to remove some financial barriers to relief.   Specifically, effective June 7, 2019, certain previously ineligible violent felonies were made newly eligible for vacatur, if they did not involve a firearm or “sexual motivation.”⁵  In addition, the new law potentially shortens the period in which there must be no intervening conviction by making it coextensive with the otherwise applicable waiting period. 

Finally, importantly, the 2019 law provided that a person need not have satisfied financial obligations in order to satisfy the eligibility waiting period, or to qualify for a certificate of discharge, as long as five years had passed since completion of community custody or release from confinement. See Wash. Rev. Code § 9.94A.637(4), as added by SHB 1041.⁶. Thus outstanding court debt is no longer a barrier to vacatur relief in Washington State. On the other hand, the 2019 amendments provided that a vacated conviction may be considered for purposes of charging a recidivist crime. 

In 2021, § 9.94A.640 was further amended to authorize vacatur for victims of sex trafficking.  See SB5180, discussed below. 

Certain felonies sentenced to probation under the pre-1981 indeterminate sentencing law are also eligible for vacatur relief.  See Wash. Rev. Code § 9.95.200, authorizing deferred probationary sentences for “any crime.” under the pre-1981 indeterminate sentencing regime.  After successful completion of probation, or early discharge, a defendant may apply to the sentencing court for a vacatur of the defendant’s record of conviction under § 9.95.240.   Once the conviction has been vacated, the clerk of court must order the state police not to disseminate those records.  § 9.95.240(2)(b).  See State v. Breazeale, 31 P.3d 1155 (Wash. App. 2001) (courts after issuing a vacatur have authority under § 9.95.240 to order sealing of records in possession of an executive branch agency).  

While there is no specific obligation in § 9.94A.640 to notify law enforcement agencies of a vacatur analogous to the one in § 9.95.240(2)(b), the two authorities have been construed as providing similar relief.    

Vacatur of misdemeanors

Vacatur is available for many misdemeanor offenses under Wash. Rev. Code § 9.96.060, after a three-year waiting period following completion of sentence. § 9.96.060(2)(g).  Certain violent or sex crimes are ineligible, but a single domestic violence conviction may be vacated under certain circumstances, after a five-year waiting period.  § 9.96.060(2)(f).  By virtue of a 2019 law, the period in which there need be no subsequent conviction was made coextensive with the three-year waiting period, and the requirement of no previous vacaturs was removed.  See SHB 1041.  Thus, with a single exception, vacatur of misdemeanors is available on the same terms and to the same degree as for felony offenses under § 9.94A.640, including no pending charges and no convictions during a waiting period. § 9.96.060(2)(a).  

The exception relates to the obligationm to pay court debt, since misdemeanants are still anomalously required to pay all court debt before they may qualify for vacatur under § 9.96.060(2)(a).  This even after this financial barrier was partly removed by a 2024 law that allowed satisfaction of the waiting period before court debt is paid. See SSB 5998, amending § 9.96.060(2)(g) to allow the three-year waiting period to begin upon release from supervision or confinement.       

Also in 2019 misdemeanor marijuana convictions for conduct committed age 21 and older were specifically made subject to vacatur with no waiting period or other eligibility criteria. § 9.96.060(5).  “If an applicant qualifies under this subsection, the court shall vacate the record of conviction.”

Vacatur for victims of sex trafficking and related sexual abuses

In 2021, a new section (3) was added to § 9.94A.640 to authorize vacatur for “victim of sex trafficking, prostitution, or commercial sexual abuse of a minor, sexual assault, or domestic violence.” See SB5180. This section authorizes the victim or the prosecutor of the county where the victim was sentenced to apply to the sentencing court to vacate a Class B or Class C felony.  “When preparing or filing the petition, the prosecutor is not deemed to be providing legal advice or legal assistance on behalf of the victim, but is fulfilling an administrative function on behalf of the state in order to further their responsibility to seek to reform and improve the administration of criminal justice.”

An analogous authority was included in § 9.96.060(3) to authorize vacatur of misdemeanors of the same classes of victims, repealing an older authority that applied only to prostitution offenses by victims of human trafficking.  A provision in the earlier law prohibiting relief  if the person has been convicted of another crime other than prosecution, or if there are any criminal charges against the applicant pending for any crime other than prostitution, was omitted. § 9.96.060(3), as amended by SB5180.   

Effect of vacatur 

A vacatur releases the person “from all penalties and disabilities resulting from the offense,” and authorizes the person to deny the conviction.   

Once the court vacates a record of conviction under subsection (1) of this section, the fact that the offender has been convicted of the offense shall not be included in the offender’s criminal history for purposes of determining a sentence in any subsequent conviction, and the offender shall be released from all penalties and disabilities resulting from the offense. For all purposes, including responding to questions on employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime. Nothing in this section affects or prevents the use of an offender’s prior conviction in a later criminal prosecution.  

Wash. Rev. Code § 9.94A.640(3).  In addition, the Washington Administrative Code, WAC §110-04-0140, contains the following question and response:

Question: Will you license, contract, authorize my employment at a group care facility, or authorize me to have unsupervised access to children if my conviction has been expunged, vacated from my record, I have been pardoned for a crime, or I have obtained a CPI or CROP?

Response:  “If you receive a pardon or a court of law acts to expunge or vacate a conviction on your record, the crime will not be considered a conviction for the purposes of licensing, contracting, certification, authorization for employment at a group care facility, or authorization for unsupervised access to children.” However, for those who have received only a CROP there remains a process of inquiry into the facts of the crime and additional procedures to comply with.  

Effective June 7, 2019, this section was amended to provide that a vacated conviction “may not be disseminated or disclosed by the state patrol or local law enforcement agency to any person, except other criminal justice enforcement agencies.”  See SHB 1041. This statutory provision codifies the courts’ authority recognized by the Washington Supreme Court to direct the state patrol to seal records notwithstanding its discretionary authority under Wash. Rev. Code § 10.97.060.  See State v. Breazeale, 31 P.3d 1155 (Wash. 2001).  However, the 2019 amendments to this section curtail the relief afforded by a vacatur in two ways:  a vacated conviction may be used in a later criminal prosecution, and vacatur does not “affect[] the requirements for restoring a right to possess a firearm under RCW 9.41.040.”  Wash. Rev. Code § 9.94A.640(3).  Vacatur does not relieve the federal immigration consequences of a state conviction.  See State v. Cervantes, 282 P.3d 98, 100 (Wash. App. 2012).  

Dissemination of vacated records by law enforcement:  As noted above, the clerk of the court in which the vacation order is entered must immediately transmit the order vacating the conviction to the Washington state patrol identification section and to the local police agency, if any, which holds criminal history information for the person who is the subject of the conviction.  § 9.95.240(2)(b).  The record of a conviction that has been vacated may not be disseminated or disclosed by the state patrol or local law enforcement agency to any person, except other criminal justice enforcement agencies, or included in a person’s criminal history for purposes of enhancing a subsequent sentence.  The Washington state patrol and any such local police agency must immediately update their records to reflect the vacatur, and transmit the court’s order to the federal bureau of investigation.   See State v. Breazeale, supra.  SHB 1041 codified this rule in Wash. Rev. Code § 9.94A.640(3).  

The statutes providing for vacatur of pre-1981 deferred probationary sentences and misdemeanors specify that courts may order sealing of records held by state police.  While the felony vacatur statute does not contain similar language, it has been interpreted to include this authority.  See State v. Breazeale, supra, 31 P.3d  at 1162.  

Sealing of court records:  There is no statutory authority for sealing or otherwise limiting access to court records for convictions that have been vacated.  However, General Rule 15 of the Washington Courts authorizes sealing or redaction of court records of vacated convictions, if the court makes written findings that “that the specific sealing or redaction is justified by identified compelling privacy or safety concerns that outweigh the public interest in access to the court record.”  GR 15(c)(2); see also Seattle Times Co. v. Ishikawa, 640 P. 2d 716 (Wash. 1982) (constitutional right of access requires a finding of compelling circumstances before a court record may be sealed).  “Sufficient privacy or safety concerns that may be weighed against the public interest include findings that . . . The sealing or redaction is permitted by statute . . . . A conviction has been vacated . . . . [Or a]nother identified compelling circumstance exists that requires the sealing or redaction.”  GR 15(c)(2).  Court records in a criminal case may not be destroyed unless there is express statutory authority permitting the destruction.  GR 15(h).     

The summary prepared by the Washington courts described at the beginning of this section stresses that “Current law does not allow for destroying the court record of a criminal action against an adult that results in a conviction or some adverse findings.”  In addition, an order to seal and written findings remain accessible to the public, unless protected by statute; and the existence of a court file sealed in its entirety, unless protected by statute, is available for viewing by the public on court indices (which include, in cases where a conviction has been vacated, the case number, case type with the notification “DV” if the case involved domestic violence, the defendant’s name, and the notation “vacated.”).  GR 15(c)-(d).

B.  Deferred or suspended sentences

C.  Non-conviction records

In general, non-conviction criminal justice records may not be disseminated for a non-criminal justice purpose, excluding records pertaining to an incident that occurred in the previous 12 months that is currently being processed by the criminal justice system, or as otherwise authorized by law, executive order, or court order.  Criminal Records Privacy Act, Wash. Rev. Code § 10.97.050.  Under a statute enacted in 1977, non-conviction data in criminal justice agency files which are available and searched for the purpose of responding to inquiries concerning a person’s criminal history must be “deleted” at the request of its subject after two years in the case of a disposition favorable to the defendant, and after three years where no disposition is indicated (unless the person is in fugitive status or the case is under active prosecution).  § 10.97.060.  The state repository (State Patrol) maintaining the data may, “at its option,” refuse to make the deletion if the disposition was a deferred prosecution or similar diversion, if the person has had a prior conviction for a felony or gross misdemeanor, or if the individual who is the subject of the record has been arrested for or charged with another crime during the intervening period.  Id. However, the court may direct the repository to seal the record. State v. Breazeale, supra.

General Court Rule 15 provides authority to seal or redact non-conviction court records only if the “compelling circumstances” test is met.  See GR 15(c)(2)(A).  The summary prepared by the Washington courts implies that non-conviction records may be sealed under this authority, but does not make clear what “compelling circumstances” are in this context.   Nonetheless, the rule does specify that a vacated conviction may be a sufficient safety or privacy concern to weigh against the public interest in access, suggesting that a non-conviction may be as well. And presumably a person whose non-conviction data had been “deleted” pursuant to Wash. Rev. Code § 10.97.060 would have an even stronger argument that their circumstances were “compelling” as that term is used in General Rule 15 and under the Ishikawa standard.  However, the order to seal and written findings remain accessible to the public, unless protected by statute; and the existence of a court file sealed in its entirety, unless protected by statute, is available for viewing by the public on court indices (which includes case number, party names, notation “case sealed,” case type, and cause of action or charge, except where a conviction has been vacated, as discussed above).  GR 15(c)-(d).

D.  Sealing of juvenile records

The standards and procedures for sealing juvenile records are set forth in detail in the advisory prepared by the Washington courts cited in the preceding section. 

As revised in 2020, juvenile courts are required to schedule, at the time of disposition, a hearing to administratively seal the record of adjudication, which is to be held after the individual reaches age 18 (or after the individual has been discharged from confinement or supervision, if it extends beyond age 18).  See Wash. Rev. Code § 13.50.260(1).   If the court finds that individual is no longer on supervision and has paid restitution then sealing is mandatory without a court hearing.⁷  Serious violent offenses, sex offenses, and most felony drug offenses are ineligible for sealing pursuant to this provision.  

Individuals whose records have not been sealed pursuant to the authority described above may still petition for sealing if there are (1) no pending adult or juvenile criminal charges; (2) no pending diversions; (3) restitution has been paid; (4) the individual has remained crime free for either two or five years since the date of disposition or release from confinement, depending on the seriousness of the crime; and (5) the person is no longer required to register as a sex offender (and has not been convicted of certain sex offenses, if the subject of sealing is a Class A offense).  § 13.50.260(4).  Sealing is mandatory if the above eligibility requirements are met. 

Non-adjudication records: Sealing is immediate following acquittal or dismissal of charges, except for deferred dispositions under Wash. Rev. Code § 13.40-127, which are considered convictions and must therefore be sealed pursuant to the provisions described above.  § 13.50.260(2).    

Effect:

Thereafter, the proceedings in the case shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events, records of which are sealed. Any agency shall reply to any inquiry concerning confidential or sealed records that records are confidential, and no information can be given about the existence or nonexistence of records concerning an individual.

§ 13.50.260(6)(a). A subsequent juvenile adjudication, adult conviction, or adult felony charge will nullify the sealing order, § 13.50.260(8)(a). A provision added in 2020 states:

All criminal justice agencies must not disclose confidential information or sealed records accessed through the Washington state identification system or other means, and no information can be given to third parties other than Washington state criminal justice agencies about the existence or nonexistence of confidential or sealed records concerning an individual.

§ 13.50.260(12). 

E.  Certificate of Restoration of Opportunity

Effective June 9, 2016, courts were authorized to grant a Certificate of Restoration of Opportunity (CROP) that assist individuals in obtaining occupational licenses by lifting statutory bars based on criminal history.  See HB 1553, 2016 c. 81.  A CROP also protects employers and housing providers from negligent hiring/renting liability.  See Wash. Rev. Code §§ 9.97.010, 9.97.020.  The findings that accompanied HB 1553 are set out in detail in Part IV(B) below.      

Eligibility

Individuals are eligible to apply for a CROP if they have been convicted of a misdemeanor, gross misdemeanor, and certain less serious felonies (or adjudicated in juvenile court for equivalent offenses).  In order to qualify, 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.  §§ 9.97.010 (1)(b), (d); 9.97.010(2)(c). 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.  § 9.97.010 (1)(c).  “Qualification” for a certificate is determined by the following requirements related to the conviction (e.g., time since sentencing, payment of court debt), and other criminal record:  

• 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
• A person must have completed the sentence and paid all court-ordered legal financial obligations
• Has never been convicted of a class A felony or certain sex offenses. 
• Has not been arrested for nor convicted of a new crime and has no pending criminal charge.  

Effect

Under Wash. Rev. Code § 9.97.020, 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]….”  Certain professions for which a CROP does not limit the ability of an entity to disqualify an applicant included: accountants, assisted living facility employees, long-term care workers, nurses and physicians, private investigators, bail bond agents, teachers, security guards, vulnerable adult care providers, and law enforcement.  Id. 

Negligent hiring and renting:  Employers and housing providers are not required to consider a CROP in making hiring or rental decisions.  However, if an employer/provider hires or rents to a person who has received a CROP, then “evidence of the crime for which a certificate of restoration of opportunity has been issued may not be introduced as evidence of negligence or intentionally tortious conduct on the part of the employer or housing provider.” § 9.97.020(3). 

In 2021 the law was amended to give effect to a CROP for assisted living facility employees and long-term care workers. See 2021 Ch. 219 (HB1411).  See Part IVB for standards applicable to consideration of background screens for long-term care workers, contracted providers, or licensees.  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.”

2021 law:  Another law enacted in 2021 (which also enacted a preliminary determination provision, see below) provided that a licensing agency “may disqualify an individual from obtaining a professional license, government certification, or state recognition if it determines the individual’s conviction is related to the occupation or profession unless the individual has requested and received a certificate of  restoration of opportunity under RCW 9.97.020.” See Section 3 of 2021, ch. 194 (HB1399)(uncodified).  It is not clear whether this law was intended to lower the “direct relationship” standard in § 9.96A.020(2). 

2022 amendments:  In 2022, HB1874 amended this provision to provide that a licensing authority may not disqualify an individual based on a conviction that has been sealed, dismissed, expunged, or pardoned; or a juvenile adjudication. 

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

Procedure & criteria

Under Wash. Rev. Code § 9.97.020, applications for a CROP 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. 

Frequency of Grants

A researcher recently conducted 25 interviews with Washington state officials court staff and staff of nonprofit and legal aid organizations, but only three interviewees had heard of CROPs (two of whom worked for the State Police and were tasked with recordkeeping). This research was confirmed by a records request to the Washington State Patrol: Between 2016 and 2022 Washington courts issued 138 CROPs, or roughly 20 certificates per year on average, while during this same period courts issued an average of 2,330 vacaturs annually. While it is understandable that CROP certificates are a significantly less popular form of record relief than “vacatur,” given the far broader relief provided by vacatur (tantamount to expungement).  Still, they are available earlier in time (maximum five years for the most serious eligible offenses, compared to ten years for vacatur), and could have substantial benefits as far as licensing is concerned.

IV.  Criminal record in employment & licensing

A.  Ban-the-box in public and private employment

In March, 2018, HR 1298 added a new section to Title 49 (Labor Code) prohibiting public and private employers from inquiring about criminal record until after until “after the employer initially determines that the applicant is otherwise qualified for the position.”  Wash. Rev. Code 49.94.005 et seq.  An employer “may not implement any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position,” suggesting that automatic exclusion may be appropriate after this point.  Does not apply to employers required or permitted by law to conduct background checks, including financial institutions, to employers dealing with vulnerable populations, or to non-employee volunteers.    

B.  General public employment and licensing limitations

Washington law on “Restoration of Employment Rights” (1973) sets forth the state’s policy:

[I]t is the policy of the state of Washington to encourage and contribute to the rehabilitation of felons and to assist them in the assumption of the responsibilities of citizenship, and the opportunity to secure employment or to pursue, practice or engage in a meaningful and profitable trade, occupation, vocation, profession or business is an essential ingredient to rehabilitation and the assumption of the responsibilities of citizenship.

Wash. Rev. Code § 9.96A.010.  Most public employers and licensing agencies may deny employment of a license based on a felony conviction only 1) if it “directly relates” to the position of employment or to the specific occupation, trade, vocation, or business, and 2) “the time elapsed since the conviction is less than ten years.”  § 9.96A.020(2).  There are several important exceptions to this general rule:  Theft convictions are exempt from the 10-year look-back rule, and the law does not apply to any licenses subject to the Regulation of Health Professions – Uniform Disciplinary Act. § 9.96A.020(6)(exempting all health professions governed by Wash. Rev. Code Ch. 18.130).  School districts are required to conduct records checks of all employees, as is the Department of Social and Health Services. § 28A.400.303.  Vulnerable adults and children are protected by restrictions against employment of persons who have committed “crimes against persons” and “crimes of financial exploitation” by nursing homes, adult family homes, and child care facilities operated by the department of health and social services.  §§ 9.96A.060(3), 43.43.842.  Law enforcement agencies do not have to comply with standards governing other public employees.  § 9.96A.030.   

The most important addition to this law in recent years was the 2016 law authorizing courts to grant Certificates of Restoration of Opportunity, to provide broad authority to hire notwithstanding many (though not all) of these restrictions.  See Section III(D), above, and the findings accompanying the 2016 CROP law.⁸

A law enacted in 2021 states that a licensing agency “may disqualify an individual from obtaining a professional license, government certification, or state recognition if it determines the individual’s conviction is related to the occupation or profession unless the individual has requested and received a [CROP].” See Section 3 of 2021, ch. 194 (HB1399), Wash. Rev. Code §18.400.030.  It is not clear whether this law was intended to lower the “direct relationship” standard in § 9.96A.020(2). 

2022 amendments:  In 2022, HB1874 amended § 18.400.030 to prohibit a licensing authority from disqualifying an individual based on a conviction that has been sealed, dismissed, expunged, or pardoned; or a juvenile adjudication. 

    Preliminary determination for occupational licensure

A 2021 law provides that each licensing agency shall allow potential applicants for a license to receive a “preliminary determination” as to whether their criminal record will be disqualifying.  See 2021, ch. 194 (HB1399), codified at Wash. Rev. Code §18.400.020. No fee may be charged. This determination must be made within two months, and if it is negative it must be accompanied by a written statement of reasons:  “If the licensing authority determines that the individual’s criminal conviction would disqualify the individual, the licensing authority will provide a determination that includes findings of fact and conclusions of law and may advise the individual of any action the individual may take to remedy the disqualification.” An applicant dissatisfied with the result may appeal.  The law does not provide any binding effect of a favorable determination, and conviction of a subsequent offense permits the board to rescind a determination upon finding that the subsequent criminal conviction would be disqualifying. The individual may appeal a denial by the licensing authority.

In 2022 this law was fortified by adding multifactor standards binding on the licensing agency in making its determination, and directing the licensing agency to inform an applicant denied favorable consideration of the earliest time to reapply. See HB1874.

Health Care Licensure and Employment   

Another 2021 law, ch. 219 (HB1411) amended Wash. Rev. Code § 9.97.020 to expand access to health care employment (exempted frorm the general licensing law, see above) for individuals with a record in several ways. 1) It gives effect for the first time to a Certificate of Restoration of Opportunity for assisted living facility employees and long-term care workers; 2) It prohibits the Department of Social and Health Services from automatically disqualifying a long-term care worker, contracted provider, or licensee who has a criminal record that contains certain crimes from having unsupervised access to, working with, or providing care to vulnerable adults or children, after specified waiting periods; and 3) It creates a work group to identify recommendations on a process to allow older adults and people with disabilities to hire a trusted individual with a criminal record that would otherwise disqualify the person from providing paid home care services.

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1.  The law governing the right to vote following conviction underwent several successive relaxations between 2009 and 2021.  Prior to July 2009, § 29A.08.520 provided that the right to vote was restored to people with felony offenses only after they had  satisfied all requirements of their sentence, including all financial obligations, and obtained a certificate of discharge from the sentencing court. See Jill Simmons, Note & Comment, Beggars Can’t be Voters: Why Washington’s Felon Re-enfranchisement Law Violates the Equal Protection Clause, 78 Wash. L. Rev. 297, 305-07 (2003).  The requirement that an person pay all outstanding financial obligations before being permitted to vote was upheld by the Washington Supreme Court in Madison v. State, 163 P. 3d 757 (Wash, 2007), and in 2010 the 9^th Circuit rejected a challenge to the Washington scheme under the Voting Rights Act, holding that plaintiffs had presented no evidence of intentional discrimination in Washington’s criminal justice system, or in the adoption of the disenfranchisement provisions.  Farrakhan v. Gregoire, 623 F. 3d 990 (9^th Cir. 2010) (en banc). Between 2009 and 2019, “discharge” was available five years after completion of supervision even if court debt has not been paid.  In that year, a new subsection was added to § 9.94A.637 providing that a person need not have satisfied financial obligations in order to qualify for a certificate of discharge, as long as all other requirements of the sentence were satisfied and five years had elapsed since completion of supervision.  § 9.94A.637(4), as added by SHB 1041 (2019). In the 5-year interim, a person who was not “under the authority of the department of corrections” could have the vote “provisionally” restored as long as they were current with their payments.  See 2009 Wash. Legis. Serv. Ch. 325 (H.B. 1517), amending Wash. Rev. Code § 29A.08.520. The “provisional” restoration of voting rights may be revoked by the sentencing court if the recipient has “willfully failed to comply with the terms of his or her order to pay legal financial obligations.”  §§ 29A.08.520(2) and (3).
2. Prior to 2009, persons convicted in federal court in Washington State were able to regain their right to vote only by petitioning the Washington State Clemency and Pardons Board for an order restoring their right to vote.  For persons convicted in another state, including people with federal 0ffenses, their right to vote depends upon the law of the jurisdiction of conviction, except that if their right to vote was not restored under the laws of the state of conviction they too could petition the Clemency and Pardons Board for an order restoring their right to vote. 
3. Section 9.41.040(3) does not define the term “certificate of rehabilitation,” and Washington courts have been held to have no authority to issue such certificates. See State v. Masangkay, 91 P.3d 140, 141 (Wash. Ct. App. 2004) (holding that the “certificate of rehabilitation” provision cannot reasonably be interpreted as authorization for Washington courts to issue such a certificate).  On the other  hand, the Supreme Court of Washington gave effect to an out-of-state restoration provision, holding that an early discharge from supervision in Montana, combined with Montana’s automatic firearms restoration provision, was sufficient to satisfy the “other equivalent procedure” provision in § 9.41.040(3).  See State v. Radan, 143 Wn.2d 323, 21 P.3d 255 (Wa. 2001). 
4. The 2019 amendments to §§ 9.94A.030 (11)(b) and 9.94A.060(3)(c) restored the predicate effect given pardoned convictions by state courts prior to 1981.  See State v. Edelstein, 146 Wash. 221, 262 P. 622 (Wash. 1927) (prior conviction, though pardoned, is to be counted in determining sentence under multiple offender laws).
5. As enumerated in the amended § 9.94A.640(2), the newly eligible crimes are: “(i) Assault in the second degree under RCW 7 9A.36.021; (ii) assault in the third degree under RCW 9A.36.031 when not committed against a law enforcement officer or peace officer; and (iii) robbery in the second degree under RCW 9A.56.210.”  See § 9.94A.640(2)(b).
6. Note that it was not until 2024 that a similar dispensation for unpaid court debt was enacted to permit vacatur for misdemeanors. See following section.
7. Prior to enactment of the 2020 law, a court hearing was required if the state objected or if the court found “a compelling reason not to seal” — in which case a contested hearing was held, pursuant to which the court was required to find that “all terms and conditions of disposition” were completed and could deny sealing if it determined that sealing was “not appropriate.”
8.   The findings that accompanied HB 1553, 2016 c. 81, are instructive:     
   Occupational licensing and employment laws regulate many professions as well as unskilled and semiskilled occupations. Examples of regulated occupations include alcohol servers, barbers and cosmetologists, body piercers, commercial fishers, contractors, drivers, embalmers, engineers, health care workers, insurance adjusters, real estate professionals, tattoo artists, and waste management workers. Individuals with criminal histories may meet the competency requirements for these occupations through training, experience, or education, but may be disqualified from them based on their criminal history.
   Certificates of restoration of opportunity help reduce some barriers to employment for adults and juveniles by providing an opportunity for individuals to become more employable and to more successfully reintegrate into society after they have served their sentence, demonstrated a period of law-abiding behavior consistent with successful reentry, and have turned their lives around following a conviction. Applicants for a certificate must also meet all other statutory licensing requirements.

   Certificates of restoration of opportunity offer potential public and private employers or housing providers concrete and objective information about an individual under consideration for an opportunity. These certificates can facilitate the successful societal reintegration of individuals with a criminal history whose behavior demonstrates that they are taking responsibility for their
   past criminal conduct and pursuing a positive law-abiding future. A certificate of restoration of opportunity provides a process for people previously sentenced by a Washington court who have successfully changed their lives to seek a court document confirming their changed circumstances.