Restoration of Rights Project – Hawaii Profile
Guide to restoration of rights, pardon, sealing & expungement following a Hawaii criminal conviction
Related blog posts:
- Illinois set to become fifth state to cover criminal record discrimination in its fair employment law (2/13/2021) - NOTE: Governor Pritzker signed S1480 into law on March 23. In our recent report on criminal record reforms enacted in 2020, we noted that there were only four states that had fully incorporated criminal record into their fair employment law as a prohibited basis of discrimination. These states (New York, Wisconsin, Hawaii, and California) provide that employers can only disqualify a person based on their record if it meets a specific standard, such as being related to the work in question or posing an unreasonable risk to public safety. Illinois will become the fifth state to take this important step as soon as Governor Pritzker signs S1480. Illinois has been working up to this, having amended its Human Rights Act in 2019 to prohibit employment discrimination based on “an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded.” With S1480, Illinois has now taken the final step of incorporating criminal record fully into the law's structure, which includes authorization to file a lawsuit in the event administrative enforcement is unsatisfactory. A preliminary analysis of the new Illinois law indicates that it now offers more protection for more people with a criminal record in the employment context than any state in the Nation other than California. The provisions of the Illinois bill, enrolled and sent to the governor for signature on February 12, are described below. We then compare them with the laws in the four other states that incorporate criminal record into their fair employment law. This post notes the handful of additional states that have fortified their record-related employment protections in recent years, then summarizes relevant reforms that were enacted in 2020. The new Illinois law makes it unlawful for any employer, employment agency, or labor union to use a conviction record “as a basis to refuse to hire” or to take other employment related adverse action, unless “there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held” or “the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” 775 Ill. Comp. Stat. 5/2-103.1(A). “Substantial relationship” is defined to mean “a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur.” In making a determination under subsection (A), the employer must consider a variety of factors including the length of time since conviction, the extent of the record, the nature and severity of the conviction itself and its relationship to the safety and security of others, the age of the employee at the time of the offense, and evidence of “rehabilitation efforts.” 5/2-103.1(B). If the employer reaches a preliminary determination of disqualification or other adverse action, the employer must give written notice and an opportunity for respond, and in the event of a final determination an explanation of the reasons.” 5/2-103.1(C). The new Illinois law compares well with the laws in the four other states that incorporate criminal record into their fair employment law. Although the Illinois “substantial relationship” standard is not as protective as New York’s “direct relationship” standard, Illinois law elaborates the standard with the same public safety emphasis and offers more procedural protections in the form of reasons and an opportunity for reconsideration. Also, unlike New York, it prohibits any consideration of non-conviction records and sealed or expunged convictions. Hawaii has a weaker “rational relationship” standard and also excludes a large number of employments, although it bars inquiry into criminal record until after a conditional offer has been made and thereafter prohibits any consideration of non-conviction records, as well as any conviction more than seven years in the past for felonies and five years for misdemeanors (as reduced in 2020). California also bars inquiry until after a conditional offer has been made, prohibits consideration of non-conviction records and records that have been the subject of judicial relief, provides considerable procedural protections, and has the strongest standard for testing the relevance of a conviction (“direct and adverse relationship”). Wisconsin’s law is the weakest of the five: it applies a “substantial relationship” standard but does not elaborate it, and it offers no procedural protections to applicants or existing employees other than administrative enforcement of this substantive standard. The District of Columbia has also enacted robust fair chance employment protections that apply to both public and many private employers, but its law stops short of authorizing individuals dissatisfied with action by the Office of Human Rights to go to court. Colorado, Connecticut, and Nevada have recently prohibited some employers from considering certain criminal records, but those prohibitions are not fully integrated into a broader nondiscrimination law. Other states are still catching up, with many stalled at the "ban the box" stage. Our report on new legislation in 2020 documented comparatively modest but still noteworthy advances toward fair chance employment in 6 states last year. We reprint the discussion of 2020 reforms from our report below: In 2020, 6 states expanded access to employment for people with a record through 7 bills and one executive order. Two states (New Hampshire and Virginia) enacted a ban-the-box law applicable to public employment, while North Carolina’s governor issued a broad executive order that not only prohibited public employers from making application-stage inquiries, but also established standards for considering criminal record thereafter. Maryland’s legislature overrode a governor’s veto to apply application-stage limits on inquiry to private employers with more than 15 employees. Hawaii amended its venerable fair employment law to reduce the periods after which a conviction may not be considered by any employers. Overall, however, these 2020 laws had limited effect on the fair employment landscape. At the end of 2020, there were still only four states (California, Hawaii, New York, and Wisconsin) that included discrimination based on criminal record as part of their general fair employment scheme, and all but California’s law were enacted many years ago. Colorado, Connecticut, and Nevada have, like Illinois, more recently prohibited some employers from considering certain criminal records, but those prohibitions are not fully integrated into a broader nondiscrimination law. Most of the fair employment laws recently enacted involve fairly modest limits on application stage inquiry. The National Employment Law Project keeps a running tab of new “ban-the-box” laws, and reported in September 2020 that 36 states and more than 150 municipal and county ordinances now require public employers to consider applicants’ qualifications before their criminal histories, with 14 extending these limits to private employers. However, as noted in our Many Roads report, few of these laws include the kind of robust post-inquiry standards that make the 2020 North Carolina Executive Order described below stand out. The new employment laws and orders in 2020 are described briefly below: Hawaii shortened the lookback period in which a person may be disqualified based on conviction under its fair employment law, to seven years for felonies and five years for misdemeanors, excluding periods of incarceration (SB 2193). Hawaii includes discrimination based on conviction record in its more general fair employment practices law, and under preexisting law it is an unlawful employment practice to inquire into arrest and conviction records before the employee receives a conditional offer of employment, and an employer could withdraw an offer only if a conviction within the previous 10 years (exclusive of any period of incarceration) “bears a rational relationship to the duties and responsibilities of the position.” Under this new law, 10-year period is reduced to 7 years for felonies and 5 years for misdemeanors. Maryland enacted a ban-the-box law applicable to private employers with more than 15 employees, overriding Governor Hogan’s veto. The law prohibits inquiry into an applicant’s criminal record until the first interview; and authorizes civil penalties. Certain employment is excepted. The law specifically does not preclude local jurisdictions from imposed stricter standards (HB 994). Md. Code Lab. & Empl. § 3-1403. North Carolina’s governor issued an executive order (EO 158), which directs all state agencies to remove questions about criminal record from employment application forms, and to defer inquiries until “the completion of the initial job interview.” The order further prohibits agencies from considering the following: (i) expunged or pardoned convictions, (ii) charges or convictions that do not relate to the underlying employment matter, (iii) arrests not resulting in a conviction, or (iv) charges resulting in dismissal or not guilty. State employment decisions “shall not be based on the criminal history of an individual unless that criminal history is demonstrably job-related and consistent with business necessity associated with the position, or if state or federal law prohibits hiring an individual convicted of certain crimes for a particular position.” New Hampshire prohibited an application-stage inquiry into criminal record in public employment prior to the initial interview, “unless the public employer is required to screen applications for specific criminal convictions because it is prohibited from hiring those with such convictions under state or federal law” (HB 253). N.H. Rev. Stat. Ann. § 275:37-c(II). Utah removed an absolute barrier based on certain convictions for employment with vulnerable populations, if the applicant will be serving only adults whose only impairment is a mental health diagnosis. In addition, certain convictions cannot be disqualifying after 10 conviction-free years for felonies, and three years for misdemeanors (HB 436). Virginia prohibited inquiry into criminal record by public employers prior to interview. Excepts law enforcement employment and certain other sensitive employments (HB 757). Va. Code Ann. §§ 2.2-2812.1, 15.2-1505.3. Virginia added crimes to the list for which an exception is available for employment with a substance abuse or mental health program at community services boards and private providers of behavioral health services licensed by the Department of Behavioral Health and Developmental Services. This law also allows the Department to hire individuals convicted of various crimes at a state facility if the Department determines the individual has been rehabilitated successfully and is not a risk to those receiving services (HB 1540). Virginia also decriminalizes marijuana possession, restricted public access to records relating to past arrests, charges, or convictions for this offense, prohibited employers and educational institutions from inquiring about them, and prohibited state and local officials from requiring an applicant for a license, permit, registration, or governmental service to disclose information about them (SB 2 / HB 972). Va. Code Ann. §§ 18.2-250.1; 19.2-389.3.
- Legislative update: third quarter 2019 sees more new licensing and expungement laws (10/11/2019) - In July we reported on the extraordinary number of new laws enacted in the first half of 2019 aimed at restoring rights and status after arrest and conviction. A total of 97 separate pieces of legislation, some covering multiple topics, were enacted by 38 states and many broke new ground in their jurisdictions. Moreover, clear trends begun in 2018 accelerated in the first half of 2019, as state lawmakers continued to focus most of their attention on facilitating access to record-clearing. In addition, a significant number of new laws limited the authority of occupational licensing boards to disqualify a person based on criminal record. Another area of progress was restoring voting rights. Those trends continued over the summer, with 17 new laws, including significant laws enacted to regulate occupational licensing and expand record relief, including but not limited to marijuana convictions. Several states showed a keen interest in exploring the possibility of automating record relief, although only one state actually enacted an automatic relief system by the end of the quarter (New York, for marijuana convictions). (California enacted a "clean slate" law shortly after the beginning of the fourth quarter.) At the end of the third quarter, Arkansas, Colorado and Florida were studying the feasibility of automating relief, North Carolina was considering automatic expunction of non-conviction records, and the Governor of New Jersey was attempting to persuade his legislature to adopt an automated system for convictions as well as non-convictions.) By the end of the third quarter of 2019, 42 states had enacted an unprecedented total of 114 laws restoring rights and status, and more new laws on the horizon. All of the laws described briefly below are more fully analyzed in the context of the state's overall restoration scheme, in the detailed profiles of the Restoration of Rights Project. Occupational licensing Florida and North Carolina enacted impressive occupational licensing schemes. Florida's new licensing provisions added by H7125 appear targeted to trades learned in the state prison system, and also provide that: “A conviction, or any other adjudication, for a crime more than 5 years before the date the application is received by the applicable board may not be grounds for denial of a [specified] license.” Boards are permitted to consider violent and sexual offenses but only if they “relate to the practice of the profession.” Starting on October 1, 2019, and updated quarterly thereafter, the boards must compile a list identifying each crime used as a basis for a license denial. North Carolina’s new law prohibits disqualification from licensure unless a crime is “directly related” to the license involved, requires written reasons in the event of denial, and provides for a preliminary determination as to whether an individual will be favorably considered that is binding on the board when the applicant later applies. The new law also requires licensing boards to report annually to the legislature on their consideration of applications from people with a criminal record. In New Hampshire, HB 637 created two categories of criminal history information to be maintained by the state police records repository, one “confidential” and the other “public.” “Confidential criminal history information” (defined to include non-conviction records and records of convictions that have been annulled) will no longer be disseminated for employment and licensing purposes. Sealing and expungement Florida substantially reorganized its laws relating to sealing and expungement of non-conviction records in H7125, and the Department of Law Enforcement was directed to create an automatic process for sealing eligible non-conviction records. See Fla. Stat. § 943.0595. Four states (DE, HI, NH and NY) passed laws authorizing expungement or sealing of marijuana possession convictions. Of these new laws, New York's law setting up an automated relief system is by far the most significant, because it seals the record without requiring eligible individuals to apply to the court for relief. Individuals whose records are sealed may, further, apply later to have the record destroyed. As an important recent study by JJ Prescott and Sonja Starr established, where laws make relief depend upon a burdensome petition process, few eligible individuals will take advantage of them. (As the third quarter ended, a far broader "clean slate" bill was poised for enactment in California, and was signed on October 7.) Relatedly, in August, New Jersey's governor Phil Murphy refused to sign a bill substantially expanding expungement in that state, which included but was not limited to marijuana convictions, on grounds that its cumbersome petition process did not go far enough in addressing the problem of dated convictions. The governor cited with approval the "clean slate" law enacted by New Jersey's neighboring state Pennsylvania, and proposed a series of measures aimed at developing a similar automated system in his state. As of this writing, the governor has been unable to persuade the legislature to adopt it, but we may expect to see another pass at the problem before year's end. Two more states (HI and NC) expanded their provisions offering record relief to victims of human trafficking convicted of any non-violent offense linked to their victim status. Civil rights Finally, New Hampshire revised its law disqualifying people with a conviction from holding public office, making the restriction applicable only during actual incarceration, so that it is now coincident with the period of felony disenfranchisement (this limit on disenfranchisement to only during actual incarceration has been in place in the Granite State since 1965). Perhaps more significant, HB 486 requires the commissioner of the department of corrections to ensure that probation/parole officers receive instruction on the current state of the law regarding the civil rights of individuals convicted of a felony, and to direct that individuals serving a suspended sentence or on parole receive "written notice that he or she may vote during the period of the suspension or parole." Similar provisions were enacted earlier in the year in Colorado and Washington. In our experience, many people who have been convicted of a felony believe that they cannot vote long after their rights have been restored - and some (like those in New Hampshire not sentenced to prison) never lost the right to vote in the first place.
- New research report: Four Years of Second Chance Reforms, 2013-2016 (2/8/2017) - Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types. The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process. Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time. Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible. Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado's new "order of collateral relief" provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction. The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority. These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<
- Relief from sex offender registration and notification requirements (12/4/2014) - Update (5/14/15): We have published a 50 state chart detailing relief from registration requirements on the Restoration of Rights page. The chart is based in part on Wayne Logan's work. You can find the chart at this link. Wayne Logan has summarized his research on relief from sex offender registration and community notification requirements for a forthcoming Wisconsin Law Review article in an excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming). This is the first of many tidbits from the book that will appear in this space from time to time: 2:42. Sex offense-related collateral consequences -- Constitutional challenges to registration and community notification laws: post-application challenges Given the extended potential duration of registration and community notification (RCN) application, ranging from ten years to life, the question naturally arises over whether relief from its requirements and burdens can be attained at some point. While the federal Adam Walsh Act allows states to provide relief to registrants with a “clean record” for ten years,[1] states typically afford only very limited opportunity to registrants to exit registries. South Carolina is most limited, offering no opportunity to petition for relief from lifetime registration and community notification;[2] only a pardon will trigger removal, and then only if the pardon is based “on a finding of not guilty specifically stated.”[3] In other states, opportunity for relief is only somewhat broadened, to include such sub-populations as juvenile offenders and those convicted of less serious offenses.[4] In still others, the eligibility group is again broadened, and petition is allowed after a period of years (e.g., 25),[5] and in several states select registrant groups can seek early relief.[6] Early relief, however, can be less than it seems: in Hawaii, for instance, only lifetime registrants can petition for early relief—after forty years on the registry;[7] ten- and 25-year class registrants must satisfy their terms.[8] Petition criteria and procedures vary considerably among the states,[9] and to date the lack of opportunity for relief has not triggered constitutional concern. In In re Jimmy M.W.,[10] for instance, the petitioner was placed on the West Virginia registry in 1998 as a result of pleading no contest to sexual abuse in the third degree, a misdemeanor, for touching the breast of a fourteen-year-old girl. Because the conviction involved a minor, the state required that the petitioner register for his lifetime.[11] In 2012, after remaining compliant with registration requirements for fourteen years, and marrying the victim and raising children with her, petitioner’s effort to be removed from the registry was rebuffed by a state trial court.[12] The state’s highest court affirmed, reasoning that state law did not extend any opportunity for relief to lifetime registrants such as petitioner, and neither the U.S. nor West Virginia Constitutions required any such opportunity.[13] Finally, to date, courts have been disinclined to conclude that the effects of RCN qualify as “custody” sufficient to trigger federal habeas corpus coverage.[14] [1] Under the Adam Walsh Act, the following registrants can have their statutorily designated RCN periods reduced: (i) Tier I (usually subject to 15-year period) reduced by five years if “clean record” for ten years (ten-year total duration) and Tier III juveniles (usually subject to lifetime period) reduced to twenty-five years if “clean record” for twenty-five years (twenty-five year total duration). See 42 U.S.C.A. §16915(b)(2),(3). [2] S.C. Code § 23-3-460 (2014). [3] S.C. Code § 23-3-430(F). [4] See, e.g., Ala. Code § 15-20A-24 (2014); S.D. Code § 22-24B-19 (2014); Neb. Code § 29-4005(1)(b)(i) (2014). [5] See, e.g., Ariz. Stat. § 13-3821(D); D.C. Code 22-4002 (2014); Va. Code § 9.1-910 (2014). [6] See, e.g., Fla. Stat. § 943.0435(11) (2014); N.D. Stat. § 12.1-32-14(16); Wyo. Stat. § 7-19-304 (2014). [7] Haw. Rev. Stat. § 846E-10(e). [8]. Id. at § 846E-10(b). [9] See Wayne A. Logan, Database Infamia: Exit from the Sex Offender Registries, 2015 Wis. L. Rev.___ (2015)(forthcoming). [10] 2014 WL 24042298 (W. Va. 2014). [11] Id. at *1. [12] Id. at *3. [13] Id. [14] See Wayne A. Logan, Federal Habeas in the Information Age, 85 Minn. L. Rev. 147 (2000).