Restoration of Rights & Record Relief
I. Loss & Restoration of civil/firearms rights
A person convicted of a felony forfeits the right to vote. See Const. art. V, § 2; Del. Code Ann. tit. 15, § 1701. In addition, persons guilty of certain misdemeanor election law violations are prohibited from voting for ten years following completion of sentence. Del. Const. art. V, § 7; Del. Code Ann. tit. 15, § 1701. Under a 2013 amendment to the Delaware Constitution, most persons disenfranchised because of a conviction regain the vote upon “expiration of sentence.”1 Prior to 2016, Del. Code Ann. tit. 15, § 6102 required that outstanding fines and restitution be paid before rights could be restored, but that requirement has now been repealed. Individuals seeking to have voting rights restored may apply to their county department of elections and, following a review initiated by the State Election Commissioner, restoration is automatic upon a determination of eligibility. Del. Code Ann. tit. 15, §§ 6103-05. Convicted persons shall not be registered earlier than expiration of sentence unless pardoned. Del. Code Ann. tit. 15, § 6103(c). Persons convicted of certain serious offenses (murder, manslaughter, bribery or public corruption, sex offense) are constitutionally barred from voting unless pardoned.2
B. Public Office
Article II, section 21 of the Delaware Constitution states that no person convicted of “embezzlement of the public money, bribery, perjury or other infamous crime, shall be eligible to a seat in either House of the General Assembly, or capable of holding any office of trust, honor or profit under this State.” The governor may remove from office a public officer convicted of misbehavior in office or an “infamous” crime. See Del. Const. art. XV, § 6. See also Slawik v. Folsom, 410 A.2d 512 (Del. 1979) (power to remove from office includes removal for federal convictions). A pardon does not remove this bar. See Del. Code. Ann. tit. 11, § 4364 (even if granted pardon, person convicted of infamous crime is ineligible to hold a seat in the General Assembly or other office of honor, trust, or profit in the State). In In re Request of the Governor for an Advisory Opinion, 950 A.2d 651, 653 (Del. 2008), the court ruled that an offense committed when as a juvenile that was subsequently pardoned did not constitute an “infamous offense” so as to disqualify an individual from being appointed as a family court commissioner, citing State ex rel. Wier v. Peterson, 369 A.2d 1076, 1081 (Del. 1976) for the proposition that “the totality of the circumstances in each case must be examined before a determination may be made that a specific felony is infamous.” Because the constitutional disqualification depends upon “character,” it is not automatically relieved by a pardon.
People convicted of felony offenses may not serve on juries, unless pardoned. Del. Code Ann. tit. 10, § 4509(b)(6).
Persons convicted of “a felony or a crime of violence involving physical injury to another, whether or not armed with or having in possession any weapon during the commission of such felony or crime of violence crime of violence;” a drug offense; or a crime of domestic violence lose firearms rights, unless pardoned. Del. Code Ann. tit. 11, §§ 1448(a)(1), (3), (7); see also Op. Att’y Gen. 03-IB04, 2003 WL 1088725 (Feb. 4, 2003) (while a Delaware pardon does not remove guilt for the underlying criminal offense, it nonetheless restores the right to purchase and possess firearms). However, a prohibition based on a crime that is not a felony lasts only five years. § 1448(d).
II. Pardon policy & practice
The power to pardon, except in cases of impeachment, is vested in the governor. Del. Const. art. VII, § 1. The governor cannot grant a pardon or commutation in the absence of an affirmative recommendation of a majority of the Board of Pardons after a full hearing, but the governor is not bound to accept the Board’s affirmative recommendation, and exercises independent judgment in all cases submitted to him or her following an affirmative recommendation by the Board. Id. The governor must “fully set forth in writing the grounds of all reprieves, pardons and remissions, to be entered in the register of official acts and laid before the General Assembly at its next session.” Id. The Board of Pardons consists of the chancellor, lieutenant governor, secretary of state, state treasurer, and auditor of accounts. Del. Const. art. VII, § 2. Under the Board’s rules, the lieutenant governor is president of the Board, and the secretary of state acts as secretary. Del. Bd. of Pardons, Rules of the Board of Pardons, Rule 5(c)-(d) (re-adopted Apr. 2009), available at http://pardons.delaware.gov/rules/. The history of the Board’s establishment and its operations over the years are described in an article by former Lieutenant Governor Matthew Denn. See Clemency in the State of Delaware: History and Proposals for Change, 13 Del. L. Rev. 55 (2012).
“Except as otherwise provided by the Delaware Constitution, or expressly by any provision of the Delaware Code or any court rule, the granting of an unconditional pardon by the Governor shall have the effect of fully restoring all civil rights to the person pardoned.” Del. Code Ann. tit. 11, § 4364. Such civil rights include, but are not limited to, the right to vote, the right to serve on a jury if selected, the right to purchase or possess deadly weapons and the right to seek and hold public office provided however, that this section shall not limit or affect the Governor’s authority to place lawful conditions upon the granting of a pardon.” Id.; see also Heath v. State, 983 A.2d 77 (Del. 2009) (individual pardoned unconditionally allowed to deregister as a sex offender); Del. Op. Att’y Gen. 03-IB04 (2003), 2003 WL 1088725 (unconditional pardon restores right to possess firearms). According to the Board of Pardons, a pardon also relieves employment-related and other legal disabilities. However, the generally prevailing rule is that a pardon does not preclude consideration of the conviction in sentencing for a subsequent offense. State v. Robinson, 251 A.2d 552, 556 (Del. 1969). Moreover, a pardon does not remove the prohibition against persons convicted of “embezzlement of the public money, bribery, perjury or other infamous crime” from holding a seat in either House of the General Assembly or holding any office of trust, honor or profit in the State. Del. Code Ann. tit. 11, § 4364. See State ex rel. Wier v. Peterson, supra Part I.
Discretionary expungement following a pardon: Effective December 30, 2019, a person convicted of a crime, other than those specifically excluded involving serious violence, who is thereafter unconditionally pardoned may request a discretionary expungement pursuant to § 4374 (see below). Del. Code Ann. tit. 11, § 4375. Previously, only pardoned misdemeanors and violations were eligible for expungement, and an applicant had to prove manifest injustice by a preponderance of the evidence.
According to Board staff, a waiting period after conviction is informally imposed by Board: three to five years after sentence completed, depending on seriousness of offense, unless a legitimate hardship can be demonstrated (e., a need for employment, pending deportation, etc.). Applications from misdemeanants are accepted. See http://pardons.delaware.gov/frequently-asked-questions/. Out-of-state and federal convictions are ineligible for a pardon by the Delaware Governor.
Applications for a pardon or commutation are made in writing through the office of the Secretary of State, who acts as the secretary of the Board. See Rules of the Board of Pardons, supra, at Rule 3; Bd. of Pardons, Pardon Application Package, available at https://pardons.delaware.gov/wp-content/uploads/sites/42/2019/10/PardonApp-pack-102419_v3.pdf. The Board meets on the final Thursday of each month in Dover in open session (except for July and August), and hears every application it receives. Rules of the Board of Pardons, supra, at Rule 1; http://pardons.delaware.gov/meeting-calendar/. Before the Board may consider applications relating to certain crimes, including certain violent and sex offenses, such an applicant must have been recently examined by a psychiatrist and psychologist, who must submit an opinion to Board as to the applicant’s mental and emotional health, and likelihood of re-offending. Del. Code Ann. tit. 11, § 4362. The Board must also request a full report on each case, including an opinion concerning the state of rehabilitation, from the Board of Parole. Rules of the Board of Pardons, supra, at Rule 3(f) (citing Del. Code Ann. tit. 11, § 4363). A hearing is generally held within a year of filing. See Frequently Asked Questions, http://pardons.delaware.gov/frequently-asked-questions/. All applicants must appear at the hearing date assigned, though those convicted of minor crimes may not be required to make a presentation to the Board. If an application is denied, the applicant must wait for fifteen months before refiling, and a hearing will not be scheduled for a full eighteen months after denial, unless the Board agrees in advance to consider the new application sooner. Rules of Board of Pardons, at Rule 7(c).
The applicant must complete an application form that includes an explanation of the offense and reasons for seeking a pardon. Bd. of Pardons, Pardon Application Package, supra. As a requirement of filing a petition for pardon and commutation, the applicant must notify the judge who imposed the sentence on the applicant, the Attorney General, the chief of police having jurisdiction of the place where the crime occurred, and the Superintendent of the Delaware State Police. Rules of the Board of Pardons, supra, at Rule 2(d). The Attorney General’s office is responsible for notifying the victim (or, if deceased, surviving family members) and witnesses when a convicted felon applies for a pardon or commutation. Del. Code Ann. tit. 11, § 4361(d). If the victim or surviving family members wish, the Attorney General is responsible for presenting the position of the victims, and the Board requests that a legal representative from the Attorney General’s office attend all sessions of the Board. Rules of the Board of Pardons, supra, at Rule 8.
F. Public Record
The hearings of the Board are public hearings at which any person with an interest in the matter will normally be accorded an opportunity to speak. Del. Code Ann. tit. 11, § 4361(d). Individuals may and are encouraged to represent themselves before the Board when their cases are scheduled for presentation. The Board has full subpoena power and may require the attendance of witnesses and production of evidence. Id. § 4361(a). It may also administer oaths, and those who testify falsely are subject to criminal penalties. Id. §§ 4361(a), (c). Decisions of the Board with respect to an application are often made in executive session of the Board at which the Board may discuss and debate the record. The Board announces its recommendation from the bench. Rules of the Board of Pardons, supra, at Rule 5(a). A decision reached by majority is recorded and filed in the office of the Secretary of State, who in turn notifies the Governor. Del. Const. art. VII, § 1. The Governor’s decision may take several months. A detailed record of all pardon applications, proceedings and decisions going back to 1988 is available from the Board.
In reaching its decisions, the Board considers nature and age of crime, rehabilitation of applicant and contributions to the community, applicant’s remorse, employment-related need for a pardon, official support, and lack of opposition by the victim.
H. Frequency of Pardon Grants
Recent increase in pardon applications/grants
Statistics on Delaware pardon grants from 1988 through the first months of 2020 are at this link. Governor John Carney granted more than 800 pardons in his first two years in office, while his predecessor Jack Markell granted 1569 pardons during his 6-year tenure. In explaining the extraordinary increase in pardon applications, Governor Markell noted that there had been “50 different pieces of legislation” requiring a background check, and that people were seeking pardon to improve their job prospects. The board caseload has gone from about a dozen each month 20 years ago to over 50. The Attorney General’s office has begun providing some staff assistance to the board in briefing cases. See Cris Barrish and Jonathan Starkey, Dramatic Rise in Pardons in Delaware, http://www.delawareonline.com/story/news/local/2015/04/25/dramatic-rise-pardons-delaware/26374339/pcts./ See also Barrish and Starkey, Pardons Driven by Getting Jobs, http://www.delawareonline.com/story/news/local/2015/04/25/pardons-driven-getting-jobs/26354375/. According to Board staff, the increase in applications relates to more stringent employer background checks since 9/11. Sixty percent of applications come from misdemeanants.3
The major expansion of the state’s expungement law in the spring of 2019, described below, was projected to result in fewer applications for pardon, particularly from misdemeanants, many of whom are now eligible for automatic expungement upon application.
Diane M. Crockett
Board of Pardons
401 Federal Street
Townsend Building, Suite 3
Dover, DE 19901
Phone: (302) 739-4111
Fax: (302) 739-7654
III. Expungement, sealing & other record relief
In 2019 Delaware enacted a major expansion of its expungement laws (Del. Code Ann. tit. 11, §§ 4372, et seq.), to revise the provisions applicable to non-conviction records and to make certain misdemeanor and felony convictions eligible for expungement for the first time. See The Adult Expungement Reform Act (June 30, 2019).4 An existing scheme of dividing authorized expungement into categories of mandatory and discretionary expungement originally enacted in 20085 was continued, with the State Bureau of Investigation responsible for expunging records in the mandatory category upon an individual’s request, and courts responsible for acting on petitions for discretionary expungement. See sections III(B) and III(C) below.
Automatic “clean slate” expungement: In 2021, two new laws expanded the category of records eligible for mandatory expungement, effective January 1, 2022, and authorized automatic expungement of records in that category effective August 2024. See SB 111 and SB 112. See subsection III(I) below.
Fines and fees: To be eligible for an expungement, whether mandatory or discretionary, “all fines, fees, and restitution associated with the conviction must be paid. However, if an outstanding fine or fee is not yet satisfied due to reasons other than willful noncompliance, but the person is otherwise eligible for an expungement, the court may grant the expungement and waive the fines or fees or convert outstanding financial obligations to a civil judgement.” Del. Code Ann. tit. 11, § 4372 (l). The new law went into effect December 30, 2019. In 2021, SB 38 clarified that this requirement only applies to court debt associated with the conviction sought to be expunged.
Effect of prior relief: As amended in 2021 by SB38, a felony conviction entered after a prior expungement of a felony is ineligible for expungement. Otherwise, however, a person who has had a conviction previously expunged may be eligible for a subsequent expungement after a 10-year waiting period. § 4372(f)(4).
The process is explained on the website of the Delaware courts, which include step-by-step instructions for applying, an 8-page FAQ, and links to the statutes. See https://courts.delaware.gov/forms/download.aspx?ID=118548. It also has contact information for a government office whose job it is to help applicants apply.6
The effect of expungement is explained in subsection III(J) below.
B. Mandatory expungement
Non-conviction records: Effective December 30, 2019, pursuant to SB 37, all records where the “case is terminated in favor of the accused” are eligible for mandatory expungement upon request. Del. Code tit. 11, § 4372(b).7 Cases “terminated in favor of the accused” include acquittals of all charges, a nolle prosequi on all charges, dismissal after probation before judgment, dismissal of all charges, and arrests that are not charged within 1 year of the arrest.
Non-conviction records are not eligible for mandatory sealing where a person has prior or subsequent convictions that are ineligible for expungement. Prior to 2021 these records could not be expunged at all, but in that year SB 38 clarified that the Attorney General or responsible prosecutor may seek expungement at the time of dismissal if they determine that dissemination of the record “may cause circumstances which constitute a manifest injustice to the defendant.” See § 4374(e).
Undisposed cases: In 2022, HB 447 expanded the category of dismissed cases eligible for mandatory expungement to include any charge that lacks a disposition after 7 years, unless the case has an active warrant or there is documented case activity within the last 12 months.§ 4373(a)(3).
Less serious conviction records: Under the 2019 law, records of one or more violations relating to the same case are eligible for mandatory expungement 3 years after the date of conviction even if the person has prior or subsequent convictions; and one or more misdemeanors, or a combination of misdemeanors and violations, relating to the same case, are eligible 5 years after conviction, if the person has no prior or subsequent convictions. § 4373(a). Prior to 2019, the only adult convictions that were eligible for expungement were misdemeanors that had been pardoned.
In 2021, SB 112 expanded the category of records eligible for mandatory expungement to include a handful of felony convictions, if the person has no prior or subsequent convictions, effective January 1, 2022. Specifically, SB 112 made felony drug possession eligible five years after conviction, and a handful of other minor felony convictions (including certain drug trafficking, forgery, and credit card fraud) eligible after 10 years. See § 4373(a)(2). Senate Bill 112 also allowed for the expungement of convictions or adjudications for underage possession or consumption of alcohol; possession of marijuana; or possession of drug paraphernalia to be always expunged, regardless of a person’s prior criminal history. Most juvenile arrests and adjudications were also made eligible for mandatory expungement after certain timeframes. In general, the juvenile expungement statutes are more expansive than the adult statutes.
Clean Slate: In 2021, SB 111 made expungement automatic for records authorized for mandatory relief (or “Clean Slate”) by August 2024. See Del. Code tit. 11, § 4373A, and subsection III(I) below. Until that time, mandatory expungement will continue to be managed by the State Bureau of Investigation, which must grant relief if an eligible individual applies, and may charge a “reasonable fee.” Those seeking expungement under this authority must establish their eligibility, which includes being fingerprinted and obtaining documents relating to their criminal case.
The enactment of the Clean Slate law as well as SB 112 laws is discussed in John Reynolds & Jon Offredo, Delaware governor signs automatic record-clearing law, Nov. 10, 2021.
C. Discretionary expungement by petition
Misdemeanors and a single felony: As noted, prior to 2019 there was no authority to seal adult conviction records (except pardoned misdemeanors). Under SB 37, effective December 30, 2019, the court may upon petition expunge certain records relating to misdemeanor or felony convictions if it finds that “the continued existence and possible dissemination of information relating to the arrest or conviction of the petitioner causes, or may cause, circumstances which constitute a manifest injustice to the petitioner.” Del. Code tit. 11, § 4374. The burden is on the petitioner to prove “manifest injustice” by a preponderance of the evidence.
Records eligible for discretionary judicial expungement are a single non-violent felony after a seven-year waiting period, with no prior or subsequent convictions; and, “one or more” misdemeanors relating to the same case (not under the mandatory umbrella), some after three years (e.g., domestic violence) and some after seven years, also with no prior or subsequent convictions. In 2022 eligibility was expanded to allow expungement of certain less serious misdemeanors in multiple cases after a five-year waiting period, so long as the person has no other convictions that would not be eligible for expungement. See HB 447 (2022). To be eligible, the entire case in which each misdemeanor conviction appears must be eligible for expungement. § 4374(a)(4). Unless the Court believes a hearing is necessary, petitions are to be disposed of without a hearing. § 4374(f).
Discretionary expungement following a pardon: A person convicted of a crime, other than those specifically excluded (murder and rape), who is thereafter unconditionally pardoned may request a discretionary expungement pursuant to § 4374. Del. Code Ann. Tit. 11, § 4375. Previously, only pardoned misdemeanors and violations were eligible for expungement.
D. Deferred adjudication (“probation before judgment”)/diversion
Expungement may be ordered by the court where misdemeanor and other minor charges have been dismissed pursuant to the Probation Before Judgment program, Del. Code Ann. Tit. 11, § 4218, or the first offenders controlled substances diversion program, id., tit. 16 § 4767. See Ryan v. State, 791 A.2d 742, 744 (Del. 2002) (even if the petitioner was not innocent in fact, his completion of probation before judgment and subsequent dismissal of charges rendered him “innocent as a matter of law”). A 2010 amendment eliminated the five-year waiting period for people who received probation before judgment, and the two-year waiting period for people with first offenses who completed a controlled substance diversion program to apply for expungement. See 77 Del. Laws 348 (2010), § 7 (repealing Del. Code Ann. Tit. 11, § 4378 in its entirety).
In 2014, Del. Code Ann. Tit. 10, § 1025 and tit. 11, § 4372 were amended to add cases resolved by probation before judgment to the list of cases “terminated in favor of the accused,” making them eligible for expungement subject to the same criteria and procedures applicable to other non-conviction records. See “Non-conviction records” infra.
E. Pardoned offenses
Until 2019, only less serious misdemeanors and violations that had been pardoned could be expunged in the discretion of the court, with petitioner required to prove manifest injustice by a preponderance of the evidence. Del. Code Ann. Tit. 11, § 4375.8 Effective December 30, 2019, all pardoned offenses are eligible for expungement, and references to manifest injustice for pardoned offenses were deleted. See
F. Old age expungement
The State Bureau of Identification may not destroy information identifying a person until the person reaches age 80, or reaches age 75 with no criminal activity listed on the person’s record in the past 40 years. Del. Code Ann. Tit. 11, § 8506I.
G. Non-violent convictions or adjudications of victims of human trafficking
A person convicted of any nonviolent crime or adjudicated delinquent as a direct result of being a victim of human trafficking, may (1) file a petition for pardon and for expungement under § 4371 (see above); or (2) file a petition for vacatur and expungement with the court in which the conviction was obtained. Del. Code. Ann. Tit. 11, § 787(j). The law was amended in 2021 to apply to juvenile delinquency adjudications.
H. Decriminalized marijuana possession convictions
In 2015, as part of the legislation decriminalizing possession, use or consumption of a personal use quantity of marijuana, expungement was authorized for persons convicted under the age of 21 of a single such decriminalized offense. See Del. Code Ann. Tit. 16 § 4764(i)(2015). In 2018, subjection (i) was repealed and subsection (j) was added to § 4764 to authorize application for expungement of any single conviction of decriminalized marijuana possession, use or consumption under the provisions of Del. Code Ann. Tit. 11 § 4373 (see above), as long as the conviction is the applicant’s only offense. The procedure for obtaining expungement under § 4373 was changed in 2019 by SB37, and relief is now mandatory and will become automatic when that system becomes operational after August 1, 2024. In the meantime, mandatory expungement is upon request to the SBI.
I. “Clean Slate” expungement
After August 1, 2024, every record eligible for mandatory expungement is also eligible for Clean Slate. See SB 111, enacting Del. Code tit. 11, § 4373A. “This means that following the completion of an individual’s case or sentence Delaware will automatically expunge cases terminated in one’s favor, all violation convictions, certain misdemeanor convictions, and certain felony cases with a single conviction after a set period. Most juvenile arrests and adjudications are also eligible for mandatory expungement after certain timeframes. In general, the juvenile expungement statutes are more expansive than the adult statutes.” John Reynolds & Jon Offredo, supra, describing provisions of SB 111.
J. Effect of expungement
Expungement means that “all law-enforcement agency records and court records relating to a case in which an expungement is granted, including any electronic records, are destroyed, segregated, or placed in the custody of the State Bureau of Identification, and are not released in conjunction with any inquiry beyond those specifically authorized under this subchapter.” § 4372(c). These exceptions essentially involve law enforcement and the courts. § 4376.9 In addition, “a person is not required to disclose, nor should the person be asked to disclose, to anyone for any purpose that the person was arrested for, charged with, or convicted of an offense for which records have been expunged under this subchapter or any other provision of this Code.” § 4372(e)(1). All criminal records related to the case must be removed from the court’s files within 60 days of the order and placed in the control of the Supervisor of the State Bureau of Identification “or otherwise segregated and kept in a manner that ensures that they are not open to public inspection or disclosure.” The Bureau shall retain control over all expunged records and shall ensure that the records or information contained in the records are not released for any reason.
The Bureau shall promptly notify all courts and law-enforcement agencies where records pertaining to the case are located or maintained, and any court where the case was terminated, disposed of, or concluded. A court or law-enforcement agency which receives a notice of expungement from the Bureau shall provide the Bureau with written confirmation of the completion of the expungement. Where an expungement of a conviction is granted, all arrest records associated with any charge in that case must also be expunged.
With the exception of the authorized law enforcement uses, it is unlawful (Class B misdemeanor) for any person having or acquiring access to an expunged court or police record to open or review it or to disclose to another person any information from it without an order from the court that ordered the record expunged. Del. Code Ann. tit. 11, § 4376(a)(f). State records repositories must respond to non-law enforcement requests for records “that there is no record.” § 4376(b).
K. Juvenile records
The laws on expungement of juvenile delinquency records were significantly revised in 2017 and 2018. Del. Code Ann. tit. 10, §§ 1014-1020. The purpose of these laws is to “protect children and citizens from unwarranted damage which may occur as a result of a juvenile arrest record[.]” Id. § 1014. The scheme mirrors the one applicable to expungement of adult non-conviction records, i.e., some records “must” be expunged after a one-year waiting period, and others “may” be expunged after longer graduated waiting periods. Id. §§ 1017, 1018. Under § 1017, expungement is mandatory at disposition in cases where no adjudication resulted, and after a crime-free one-year waiting period in cases of a single nonviolent felony/nonsexual adjudication. (Prior to the 2018 amendments, there was a one-year waiting period for non-adjudication records as well.)
Under § 1018, discretionary expungement is available for other adjudications after a crime-free waiting period of seven years, including most violent felony/sexual adjudications. However, adjudication is prohibited if the juvenile has ever been adjudicated for certain serious violent offenses, including murder, rape, and first-degree arson. § 1015(b)(1)(“Prohibitions to expungement”). A subsequent adult conviction is also disqualifying. Traffic offenses do not constitute disqualifying subsequent adjudications. See Fuller v. State, 2014 Del. LEXIS 504 (Del. 2014).10
L. General availability of records
State criminal records are not generally available to the public. Del. Code Ann. tit. 11, § 8513. However, criminal history information may be provided for “any purpose authorized by Delaware state statute” or executive or court order, § 8513(b). Conviction information only may be provided to employers and news media. § 8513(c). Civil and criminal penalties are authorized for knowingly providing criminal history records information for profit (felony), or to unauthorized persons (misdemeanor), and may be grounds for dismissal from public employment. § 8523(c)-(e).
IV. Criminal record in employment & licensing
A. Ban-the-Box in Public Employment amd Higher Education
Public employment: In May 2014 the legislature amended § 711 of Title 19 of the Delaware Code to make it an unlawful employment practice for public employers to inquire into or consider the criminal record, criminal history or credit history or score of an applicant “during the initial application process, up to and including the first interview.” Del. Code Ann. tit. 19, § 711(g)(1). In addition, a public employer may inquire into or consider an applicant’s criminal record “only after it has determined that the applicant is otherwise qualified and has conditionally offered the applicant the position.” § 711(g)(2). A public employer “may disqualify an applicant from employment based on criminal history where the exclusion is job related for the position in question and consistent with business necessity.” § 711(g)(3). In connection with any hiring decision, a public employer “shall consider” the following factors: “a. The nature and gravity of the offense or conduct; b. The time that has passed since the offense or conduct and/or the completion of the sentence; and c. The nature of the job held or sought.” Id.11 The law does not apply to police forces, the Department of Correction, the Department of Justice or Public Defender, or “any position where federal or state law requires or expressly permits the consideration of an applicant’s criminal history. § 711(g)(4).
Higher education: In 2022, Delaware enacted a law prohibiting higher education institutions from inquiring into an applicant’s criminal conviction history, with limited exceptions for inquiries into certain types of offenses such as stalking and sexual assault. If the institution elects to deny an applicant because of a conviction for such an offense, it must disclose that fact to the applicant. After an applicant has been admitted, an institution may inquire into the applicant’s criminal conviction history for the limited purposes of offering counseling and making decisions concerning the applicant’s participation in campus life. In addition, the Act requires the Department of Education to compile and complete an annual report on admissions from each academic institution, including the race and gender of the applicants and of the accepted students. See SB 13.
B. Occupational licensing
1. Uniform Licensing Policy
In 2004, the Delaware legislature created a uniform approach throughout Title 24 of the Delaware Code relating to professions and occupations, regarding disqualification from licensure based on crimkinal history. 74 Del. Laws 262 (2004). The act required that the refusal, revocation or suspension of licenses for professions and occupations regulated under Title 24 must be based on conviction of crimes or pending prosecutions for crimes that are “substantially related” to the profession or occupation at issue, and not for crimes that are unrelated to the profession or occupation.12 The law provided that each licensing board should identify offenses that are substantially related to their license. See, e.g., Del. Code Ann. tit. 24, § 105(b) (requiring the Board of Accountancy to identify “those crimes which are substantially related to the practice of accountancy”). In 2009, licensing boards were authorized to establish standards for granting waivers for those convicted of offenses deemed substantially related.
In 2022 the Delaware Fair Chance Licensing Act, HB 404, fortified the state’s approach to occupational licensing with the following statement of purpose:
Because professional licensing requirements can be a substantial barrier to those with a criminal history who are attempting to enter and advance in the workforce and a potential limitation on a robust workforce, it is the policy of this State that criminal history records should disqualify applicants for professional licensure under chapters of Title 24 administered by the Division of Professional Regulation only in the limited circumstances set forth in this subsection.
The 2022 act replaced the board-specific discretionary waiver system described above with a uniform mandatory one. In considering whether to grant a waiver, licensing boards must consider specific factors related to the person’s offense and subsequent rehabilitation, and must grant the requested waiver “unless doing so would create an unreasonable risk to public safety.” Del. Code Ann. tit. 29, § 8735(x)(3). Conforming revisions to many of the sections applicable to specific licensing boards provide that sexual offenses will not be waivable.
Certain criminal history records may not be grounds for denial “unless an exception is specifically set forth in Title 24 for certain licenses.” Those records are non-conviction records, convictions that have been pardoned, sealed or expunged, juvenile adjudications, and convictions that are more than 10 years old with no intervening convictions. § 8735(x)(4). (Sexual offenses are excluded from these exceptions in some of the specific licensing provisions amended to conform to the Act (see below)). Before rendering a final determination adverse to the individual, the board must provide written notice of “the reason the individual’s conviction was determined to pose an unreasonable risk to public safety,” and an opportunity to present additional evidence for the board to consider before rendering a final decision. § 8735(x)(6).
Preliminary determination: The 2022 Act authorizes an individual convicted of an offense identified as “substantially related” by the relevant licensing board to petition the Department of Professional Regulation “at any time prior to applying for a license” for a binding official determination by the licensing board as to whether the individual’s criminal conviction will prevent the individual from receiving a license. §§ 8735(x)(5). Unlike many other provisions on preliminary determinations, no caps on time or fee are specified.
2. Additional limits for specific licensing schemes
In 2019, additional amendments were made to Title 24 to further limit how criminal record may be taken into account for massage therapy (§ 5308), plumbing/HVAC/refrigeration (§ 1808), and electricians (§ 1408) to preclude consideration of pending charges or convictions more than 10 years old as “substantially related” if no intervening convictions, excluding sexual offenses; and to reduce the waiting period for consideration of waiver, to three years for violent felonies, to two years for other felonies, and to reduce the level of disqualifying parole supervision.
- Article V, section 2 of the Delaware Constitution provides in pertinent part:
“[T]he General Assembly may impose the forfeiture of the right of suffrage as a punishment for crime. Any person who is disqualified as a voter because of a conviction of a crime deemed by law a felony shall have such disqualification removed upon being pardoned, or after the expiration of the sentence, whichever may first occur. The term “sentence” as used in this Section shall include all periods of modification of a sentence, such as, but not limited to, probation, parole and suspension. The provision [sic] of this paragraph shall not apply to (1) those persons who were convicted of any felony of murder or manslaughter, (except vehicular homicide); or (2) those persons who were convicted of any felony constituting an offense against public administration involving bribery or improper influence or abuse of office, or any like offense under the laws of any state or local jurisdiction, or of the United States, or of the District of Columbia; or (3) those persons who were convicted of any felony constituting a sexual offense, or any like offense under the laws of any state or local jurisdiction or of the United States or of the District of Columbia.”
Prior to the 2013 amendment there was a five-year waiting period before persons could register to vote. 78 Del. Laws c. 332 (2012) initially approved the deletion of “five years” following “pardoned, or” in the second sentence of Article V, a measure that was passed for a second time on April 16, 2013.
- See note 1, supra. Under title 11, section 4347(i) of the Delaware Code, “civil rights” are automatically restored by certificate from Board of Parole upon discharge of sentence, but not earlier than one year after release from prison except when the sentence expires earlier thereto. However, these rights have been ruled by Delaware Attorney General to include only “those commonly exercised in everyday life,” not the rights to vote, sit on jury, or hold office. See U.S. Dep’t of Justice, Office of the Pardon Att’y, Civ. Disabilities of Convicted Felons: A State-by-State Survey, at 37-38, n.2 (1996), available at https://www.ncjrs.gov/pdffiles1/pr/195110.pdf.
- The Board also hears a number of requests for sentence commutation, and recommends a handful to the governor each year. In 2006, the Board received twenty-one requests for commutation, recommended five favorably, of which the governor granted none; in 2007 the Board received twenty-five commutation requests, recommended three favorably, and two were granted by the Governor; in 2008, the Board received thirty-two commutation requests, recommended six, and one was granted; in 2009 the Board received thirty-seven requests, recommended thirteen favorably, and one was granted; in 2010, the Board received twenty-four requests, recommended thirteen favorably, of which seven were granted by the governor; in 2011 the Board received 54 requests, recommended 19 favorably, or which 10 were granted; in 2012 the Board received 65 requests, recommended 24, of which 2 were granted; in 2013 the Board received 73 requests, recommended 17 favorably, of which 2 were granted; in 2014 the Board received 73 requests, recommended 13, of which 3 were granted; in 2015 the Board received 75 requests, recommended 12, of which 4 were granted; in 2016 the Board received 89 requests, recommended 14, of which 3 were granted; in 2017 the Board received 97 requests, recommended 29, of which 19 were granted; in 2018 the Board received 113 requests, recommended 33, of which 11 were granted; and in 2019 (as of April 3), the Board received 29 requests, recommended 12, of which 4 were granted. Until recently the Board held an in-person hearing in every commutation requests, but it has now begun to dispose of some on a paper record.
- When these laws were last subject to major revision in 2008 it was to “protect innocent persons” from “unwarranted damage” from arrest and other non-conviction records, including deferred adjudication and first offense drug diversion (“charges are unfounded or unproven”). Delaware House Bill No. 496 (2008), at Synopsis, available at http://legis.delaware.gov/LIS/lis144.nsf/6073710c7262e49f85257426006e8626/f39d948b58119365852572de006d94b7?OpenDocument. Under the 2008 scheme, relief was mandatory in certain cases (e.g., cases where defendant acquitted or where no charges filed, decriminalized marijuana offenses) and discretionary in others (diversion and deferred adjudication, pardoned misdemeanors). The 2019 statement of policy is far more comprehensive: “The General Assembly finds that criminal history is a hindrance to a person’s present and future ability to obtain employment, obtain an education or to obtain housing, education, or credit. This subchapter is intended to protect persons from unwarranted damage when the existence of a criminal history continues indefinitely.”
- See note 4, supra.
Where can I go for help and additional information on the expungement process? APEX is a state program funded by the Division of Social Services and the Division of Vocational Rehabilitation. APEX can: • Provide an overview of pardons and expungements. • Guide you through the process. • Assist with obtaining documents and completing paperwork. • Offer preparation classes for Board of Pardons hearings. • Connect you to the Job Center’s free employment classes and resources. Additional information, including how to contact APEX, can be found at: https://apex.delawareworks.com/ind: adci.
- Under pre-existing law, only certain non-conviction records involving misdemeanors and violations (excluding PBJ) could be expunged, and a prior conviction was disqualifying. See Del. Code Ann. tit. 11 § 4373 (2018) (A prior conviction is “prima facie evidence that the continued existence and possible dissemination of information relating to the arrest in question does not constitute a manifest injustice to the petitioner.”)
- As to the standard for determining “manifest injustice,” “The fact that the petitioner was convicted of the criminal offense that is the subject of that petitioner’s expungement application shall be considered by the Court as prima facie evidence that the continued existence and possible dissemination of information relating to the arrest in question does not constitute a manifest injustice to the petitioner.” Id.
- Expunged records may be disclosed to law-enforcement officers acting in the lawful performance of their duties in investigating criminal activity, for the purpose of an employment application as an employee of a law-enforcement agency, or for the purpose of determining whether a person is eligible for probation before judgment or first offender controlled substance diversion. § 4376.
- In 2017, SB-54 significantly expanded eligibility for both mandatory and discretionary expungement of juvenile offenses by eliminating robbery and burglary as “prohibitions to expungement” under § 1015(b)(1), shortening waiting periods for discretionary expungement under § 1018, and creating a catch-all provision that allows discretionary expungement of all eligible offenses after 7 years, regardless of the number of adjudications. Previously, expungement was unavailable after exceeding a cap on the number of adjudications which varied depending on the types of offenses.
- Last-minute amendments to the law eliminated provisions that would have prohibited consideration of certain types of criminal records, including felony convictions more than ten years old and misdemeanor convictions more than five years old.
- The uniform regulatory scheme in Title 24 applies to the boards of Accountancy, Landscape Architecture, Architects, Podiatry, Chiropractic, Dentistry and Dental Hygiene, Electrical Examiners, Keepers of Hotels and Restaurants and Other Places of Entertainment, Adult Entertainment Establishments, Medical Licensure and Discipline, Plumbing/HVACR Examiners, Nursing, Occupational Therapy, Examiners in Optometry, Pharmacy, Physical Therapists and Athletic Trainers, Professional Land Surveyors, Real Estate Services, Mental Health and Chemical Dependency Professionals, Funeral Services, Veterinary Medicine, Psychologists, Geologists, Speech/Language Pathologists, Audiologists, and Hearing Aid Dispensers, Dietetics/Nutrition, Clinical Social Work Examiners, Real Estate Appraisers, Home Inspectors, Manufactured Home Installation, Cosmetologists, Barbers, Aestheticians, Nursing Home Administrators, and Massage and Bodywork. See generally Del. Code Ann. tit. 29.