Restoration of Rights & Record Relief
Last updated: August 12, 2022
I. Loss & restoration of civil/firearms rights
A. Voting rights
The Indiana Constitution authorizes the legislature to pass laws disenfranchising those convicted of an “infamous crime.” Ind. Const. art. 2, § 8 (“The General Assembly shall have power to deprive of the right of suffrage, and to render ineligible, any person convicted of an infamous crime.”).1 In addition, Indiana law provides that a person who has been imprisoned following conviction of a “crime” may not vote until release from incarceration or other lawful detention. Ind. Code § 3-7-13-4. See Snyder v. King, 958 N.E.2d 764, 785-86 (Ind. 2011) (holding that “the Indiana General Assembly has authority under its general police power to disenfranchise persons incarcerated upon conviction of a crime, so long as the disenfranchisement lasts only for the duration of incarceration”).
A person who “has had the right to vote revoked by reason of a felony conviction and the right has not been restored” is disqualified from jury service; the right to serve as a juror is automatically restored upon restoration of the right to vote. Ind. Code § 33-28-5-18.
A person convicted of a felony, or who pled guilty or nolo contendere, is disqualified from holding or being a candidate for elected office. § 3-8-1-5(c)(3). Whenever a person is convicted of misdemeanor violation of the laws against bribery, conflict of interest, and official misconduct, the sentencing court may include in the sentence an order rendering the person ineligible to hold office of profit or trust for a period not to exceed 10 years. § 35-50-5-1.1(a). Disabilities affecting the right to hold office may be removed by expungement under Ind. Code § 35-38-9 (see Part II, infra) or by pardon.
A person convicted of a felony cannot be a “proper person” allowed to possess a firearm. Ind. Code § 35-47-1-7(2). A separate provision bars possession of firearms by those convicted of a “serious violent felony,” a category defined to include a long list of crimes that includes some lower-level felonies and drug crimes. See § 35-47-4-5. A “firearm” is broadly defined in § 35-47-1-5. Persons convicted of a felony or of domestic battery are also specifically barred from handgun licensure. §§ 35-47-2-3(g)(1), 35-47-2-1(c), 35-47-4-7(a).
Expungement restores firearms rights, including handgun rights, to those whose dispossession was based on their loss of status as a “proper person,” whose conviction was not for a “serious violent felony.” See Attorney General Opinion 2019-6 (December 27, 2019), interpreting § 35-38-9-10(c). However, expungement relief may not extend to those dispossessed by virtue of conviction of a “serious violent felony.” See id., note 3.
Firearms rights may also be restored by pardon if 15 years have passed since commission of the offense. § 35-47-2-20(a). The governor may also issue a conditional pardon under § 11-9-2-4, which will remove the handgun disability “if the superintendent [of State Police] determines after an investigation that circumstances have changed since the pardoned conviction was entered to such an extent that the pardoned person is likely to handle handguns in compliance with the law.” § 35-47-2-20(b). A person convicted of domestic violence may petition the court five years after conviction to regain handgun privileges. § 35-47-4-7-(b).
Pardon policy & practice
The constitution gives pardon power to the governor, “subject to such regulations as may be provided by law.” It also authorizes the legislature to create a “council composed of officers of state, without whose advice and consent the Governor may not grant pardons.” Const. art. 5, § 17. In 1980, the legislature abolished the Commission on Clemency, and gave the Parole Board authority to review applications and make advisory recommendations to the governor regarding applications for pardons, commutations, and reprieves. See Ind. Code §§ 11-9-2-1 to 11-9-2-3. While there is a statutory requirement that all applications for pardon be filed with the Board, § 11-9-2-1, there is also a specific disclaimer of any intent to limit the constitutional power of the Governor. § 11-9-2-3.2 The constitution requires the governor to report to the legislature his pardons at next scheduled meeting. Ind. Const. art. 5, § 17.
The Parole Board consists of five members appointed by the governor to four-year terms. Not more than three of these members may be from same party. Code § 11-9-1-1(a). The Parole Board members are full-time salaried employees.
Recent governors have required a 5-year waiting period and evidence of rehabilitation. A person convicted under the laws of another state or by the federal government is ineligible for a pardon. Firearms disability relieved only after 15 years.
The Indiana Supreme Court has held that pardon essentially wipes out both the punishment prescribed for the offense and the guilt of the offender. Kelley v. State, 185 N.E. 453, 458-59 (Ind. 1933). Based on the Supreme Court’s holding in Kelley, the Indiana Court of Appeals has found that a pardon provides automatic grounds for judicial expungement. See State v. Bergman, 558 N.E.2d 1111 (Ind. Ct. App. 1990). A pardon removes firearm disabilities, except for crimes against the person, “if fifteen (15) years have elapsed between the time of the offense and the application for a license under this chapter.” Code § 35-47-2-20(a). In addition, a pardon may be issued that is conditional upon a determination by the Superintendent of State Police that the person is “likely to handle handguns in compliance with the law.” § 11-9-2-4. If that determination is made in conjunction with such a conditional pardon, the firearms disability is removed. §§ 11-9-2-4, 35-47-2-20(b).
The governor in recent years has relied on the Parole Board for all pardon investigations and accepts a majority of its recommendations (which, if true, suggests that it recommends very few). The pardon application package states prominently that pardons are “rarely granted.” Applications are filed in the first instance with the Parole Board. Instructions and application forms are at http://www.in.gov/idoc/files/online_pardon_packet.pdf.
By statute, the Parole Board must: 1) notify the victim, sentencing court, and prosecuting attorney; 2) conduct an investigation; and 3) conduct a hearing at which the petitioner and other interested parties are given an opportunity to present their position. Ind. Code § 11-9-2-2(b). Whenever the Parole Board is conducting an inquiry, investigation, hearing, or review, it may delegate that function to one or more members of the Board. § 11-9-1-3(a). If one or more member acts on behalf of the Board, he or she may exercise all the powers of the Board except the power to render a final decision. § 11-9-1-3(b). Upon completion of the inquiry, the member acting on behalf of the Board files the complete record of the proceedings together with his or her findings, conclusions, and recommended decision. Based upon the record and the findings, conclusions, and recommendations, the Board renders a final decision. Id. In making its recommendation to the governor, the board must consider: “1) the nature and circumstances of the crime for which the offender is committed, and the offender’s participation in that crime; 2) the offender’s prior criminal record; 3) the offender’s conduct and attitude during commitment; and 4) the best interests of society.” 220 Ind. Admin. Code 1.1-4-4(d). Additionally, in making its recommendation to the governor, the board may consider other issues relating to the offender and his rehabilitation. 1.1-4-4(e). This process takes six to eight months to complete.
F. Frequency of Grants
As the application form states, pardons in Indiana are “rarely granted.” Governor Eric Holcomb issued six pardons in his first year in office (2017), including one to a man whose conviction was found to be wrongful by the courts, but as of November 2019 had issued no more. Mike Pence granted his only three pardons in January 2015. Governor Mitch Daniels (2005-2013) granted 62 pardons during his eight years in office, generally pursuant to favorable Board recommendations. Several pardons went to non-citizens seeking to avoid deportation, and many to minor drug offenders (though only three to those convicted of selling drugs). See Executive Order archives, http://www.in.gov/gov/3635.htm. In the seven-year period between 1997 and 2004, 129 pardons were granted, and a high percentage of those who applied were granted.3 Source: Indiana Parole Board.
III. Expungement, sealing & other record relief
A. Expungement and sealing
A comprehensive new Indiana law enacted in May 2013, and revised on several subsequent occasions, authorized “expungement” of all but the most serious violent and sexual offenses, after graduated waiting periods, and the “sealing” of expunged non-conviction records and expunged records of less serious convictions. See Ind. Code § 35-38-9. The process leading up to enactment of this comprehensive and nuanced scheme is described by the legislation’s chief sponsor, Rep. Jud McMillin, in Indiana’s new law the product of ‘many many compromises,’” Collateral Consequences Resource Center, Dec. 15, 2014, https://ccresourcecenter.org/2014/12/15/indianas-new-expungement-law-product-many-many-compromises/. Experience in the first years of the law is detailed in Josh Gaines and Margaret Love, Expungement in Indiana: A radical experiment and how it is working so far, Collateral Consequences Resource Center, Dec, 21, 2017, https://ccresourcecenter.org/2017/12/21/expungement-in-indiana-a-radical-experiment-and-how-it-is-working-so-far/.
Expungement alone does not result in limiting public access to the record unless sealing is also specifically authorized; however, expungement does restrict the use of records, as further explained below. Individuals may apply to the sentencing court for expungement after a waiting period that varies depending upon the seriousness of the offense, and relief is mandatory in the case of non-conviction records, misdemeanors and less serious felonies, as long as eligibility criteria are met.4 Even where expungement is discretionary, relief may not be denied based on non-statutory criteria where “all evidence presented to the trial court militated toward expungement.” See Cline v. State, No. 38A04–1512–XP–2221 (Ind. Ct. App., 2016), discussed infra.
The Indiana Supreme Court recent held that the expungement statutes are inherently remedial and must be liberally construed, whether relief is mandatory or permissive. Allen v. State, 159 N.E.3d 580, 584-585 (Ind. 2020). See also Ball v. State, 165 N.E.3d 130, 136 (Ind. Ct. App. 2021). In Allen the court held that a person may be eligible for expungement unless the felony for which he stands convicted resulted in serious bodily injury to another person. That the facts of the incident leading to the conviction show serious bodily injury is not enough to exclude a person from eligibility for expungement.
Waiting periods for convictions are as follows: five years after the date of conviction for misdemeanors or Class D felonies educed to misdemeanors; eight years after conviction for Class D felonies; eight years after conviction or three years from completion of sentence for all other felonies; and, 10 years after conviction or five years after completion for elected officials and violent felonies. §§35-38-9-2 through -5. The DA may consent to a shorter period. There may be no new convictions during the waiting period.
In 2022, the one-year waiting period for non-conviction records in the expungement statute as originally enacted was eliminated by SB182, and the court was directed to expunge non-cconviction record upon disposition without petition. Violations are treated as non-convictions. See §35-38-9-1(a), (b). Uncharged arrests must be expunged after 180 days. §35-38-9-1(c). See below.
Certain offenses (including sexual or violent offenses, misconduct in office, or two or more separate felonies involving unlawful use of a deadly weapon) are ineligible for expungement. In addition, anyone convicted of an ineligible crime is not eligible for expungement of any otherwise eligible crimes. See Burton v. State, 10A01-1606-XP-1327 (Ind. Ct. App., 2017), interpreting § 35-38-9-3(b).
As explained below, non-conviction records and records of misdemeanors and minor felonies are “sealed” upon expungement, which limits public access without a court order. While the records of more serious felonies “remain public” after expungement, there are limits on the uses to which they may be put. The right to seek expungement is not subject to waiver as part of a plea agreement.
General eligibility requirements: A petitioner must have completed the terms of a court-imposed sentence, satisfied a conviction-free waiting period, and have no pending criminal charges or existing/pending drivers’ license suspensions. See, e.g., Ind. Code § 35-38-9-2(e).5 Expungement is not available to any person who has been previously convicted of two or more felonies involving unlawful use of a deadly weapon. §§ 35-38-9-2(b), -3(b)(6), -4(b)(6), -5(b)(4). The court to find that “the person has paid all fines, fees, and court costs, and satisfied any restitution obligation placed on the person as part of the sentence.” Ind. Code §§ 35-38-9-2(e)(3), 35-38-9-3(e)(3), 35–38–9–5(e)(3). See also https://www.wfyi.org/news/articles/indianas-second-chance-law-seals-criminal-records-but-fines-and-fees-can-stand-in-the-way. A person may be eligible for expungement unless the felony for which he stands convicted resulted in serious bodily injury to another person. That the facts of the incident leading to the conviction show serious bodily injury is not enough to exclude a person from eligibility for expungement. See Allen v. State, supra.
Expungement of conviction records may be sought only once in a person’s lifetime. If sealed records are unsealed upon request of a prosecutor to use in a subsequent prosecution of the person, or to a defense attorney, they must be resealed at the earliest possible time if the person is not convicted, but need not be resealed if a new conviction results. § 35-38-9-6(d).
The law has been amended almost every year since its enactment to modify eligibility requirements and add procedural provisions.6
Most serious felonies may be expunged, with certain exceptions (e.g., offenses involving sex or violence), after waiting periods of eight or ten conviction-free years from date of conviction, or three-to-five years from completion of sentence (also with no convictions within eight or ten years), but they are not sealed. See § 35-38-9-4, -5. The records of more serious felonies “remain public” after expungement, although they must be “clearly and visibly marked or identified as being expunged.” § 35-38-9-7. Expungement of these more serious felonies is discretionary, (and in the case of offenses committed while holding elective office and offenses “resulting in serious bodily injury,” may not be granted without the prosecutor’s consent, see § 35-38-9-5), although “[t]he expungement statutes are inherently remedial and, as such, should be liberally construed to advance the remedy for which they were enacted.” See Cline v. State, supra, quoting from Taylor v. State, 7 N .E.3d 362 (Ind. Ct. App.2014).7
C. Misdemeanors and low-level felonies
Records of most misdemeanors and Class D or Level 6 felonies may be expunged after a waiting period, and the record is then automatically sealed. Misdemeanors, and Class D or Level 6 felonies that have been rreduced to misdemeanors, must wait five years after conviction to apply, with no conviction in the interim; all other Class D or Level 6 felonies must wait eight conviction-free years. Ind. Code §§ 35-38-9-2, -3, -6(a). In 2020 the legislature amended § 35-38-9-2 to make clear that the waiting period in cases involving reduction of a felony to a misdemeanor runs from the date of original conviction.
D. Non-conviction records and vacated convictions
In 2022, the one-year waiting period for non-conviction records in the expungement statute as originally enacted was eliminated by SB182, and the court was directed to expunge non-cconviction records upon disposition without petition. Violations are treated as non-convictions. See §35-38-9-1(a), (b). Uncharged arrests must be expunged after 180 days. §35-38-9-1(c). The one-year waiting period continues to apply to juvenile proceedings not resulting in adjudications, unless the prosecutor gives permission. Records of convictions vacated on appeal may be expunged and sealed by the circuit or superior court in the county where the charges were filed, or, if no charges were filed, in the county of arrest. § 35-38-9-1. Records expunged under this provisions shall be sealed. Once records are sealed under this provision, no information concerning the arrest or charges may be retained in “any state central repository for criminal history information or in any other alphabetically arranged criminal history information system maintained by a local, regional, or statewide law enforcement agency,” with the exception of non-public internal law enforcement documents created at the time of arrest. § 35-38-9-1(h). All court records, including those of appellate courts, must be permanently sealed or redacted. Id. Official online versions of opinions and memorandum decisions of the supreme court and court of appeals must also be redacted.
While Indiana prosecutors have broad authority to withhold prosecutions under § 33-39-1-8, Indiana courts appear to have only limited authority to defer adjudication through drug and a few other “intervention” courts established on a county-by-county basis.
Automatic expungement: In 2022, SB 182 authorized automatic expungement, with certain exceptions, if 1) all pending charges or allegations against a person are dismissed; (2) the person is acquitted or the conviction or true finding is vacated; (3) one year has passed since allegations were filed against a juvenile and the state is not pursuing the case; or (4) the person is arrested for a crime and no charges have been filed within 180 days.
E. Vacatur for victims of human trafficking
Ind. Code § 35-38-10-2 – A person who committed an offense that did not result in bodily injury to another person is “entitled” to have the person’s conviction vacated if the person proves by a preponderance of the evidence that the person was a trafficked person and coerced at the time the person committed the offense. No mention of notice to prosecutor of hearing (unlike statute applicable to trafficked children, below.) This authority is considerably broader than in most states, where eligible offenses confined to prostitution and closely related offenses.
F. Expungement of pardoned convictions
The Indiana courts have recognized a court’s inherent power to expunge following a pardon (discussed above). See State v. Bergman, 558 N.E.2d 1111 (Ind. Ct. App. 1990).
G. Eligibility waiting periods
Persons convicted of misdemeanors or low-level felonies that have been rreduced to misdemeanors are eligible to petition for expungement five years after conviction (unless the prosecutor consents to a shorter period). Id.8 Low-level felonies that have not been reduced may apply for expungement eight years after conviction. § 35-38-9-3. More serious felonies A or three years after completion of sentence whichever is later (unless the prosecutor consents to a shorter period), if the crime was not committed while holding elective office and did not involve sex or violence. §§ 35-38-9-2 through -4. Felonies committed while holding elective office or involving serious bodily harm may be expunged ten years after conviction, or five years after completion of sentence. Offenses involving human/sex trafficking, sex crimes, and certain violent crimes are not eligible for expungement. § 35-38-9-5(b).
Procedures for filing an expungement petition with the sentencing court are set forth in Ind. Code § 35-38-9-8. Expungement may be granted without a hearing unless the prosecutor objects. § 35-38-9-9(a). Where expungement is sought for a conviction record, a petitioner may seek to expunge multiple convictions in multiple courts, but all petitions must be filed within one year — and after that year has passed, a person may not file another petition in their lifetime. § 35-38-9-9(h). Two exceptions apply:
1) If a petition for mandatory expungement is denied in whole or part, it may be amended and refiled at a later date once eligibility requirements are met, and amended petitions based on denial may only seek expungement of convictions included in the original petition. § 35-38-9-9(i) and
2) After the one year filing period has passed, a person may file an amended petition seeking expungement of an additional conviction if that conviction’s omission from the original petition was the result of “excusable neglect” or “circumstances beyond the petitioner’s control,” § 35-38-9-9(j).
Those filing for expungement must pay the filing fees required for filing a civil action ($141), though those fees may be reduced or waived for indigent petitioners. § 35-38-9-8(d). There is no filing fee for petitions to expunge non-conviction records. § 35-38-9-1(c). An expungement case, and all documents filed in the case become confidential only after the court issues the order granting the petition. § 35-38-9-10(i). In 2019, records of “collateral action” (e.g., civil forfeiture) were added to the effect of expungement, and successful past petitioners given the right to return for fuller relief.
The Indiana courts have published a manual of procedures for trial courts that is an instructive survey of applicable procedures. See https://www.in.gov/judiciary/iocs/files/courtmgmt-expungement-digest-for-courtstaffandclerks.pdf. Sample petitions for expungement at https://www.in.gov/judiciary/selfservice/2499.htm Possible sources of counsel to assist in filing for expungement are also listed at this court website.
I. Effect of expungement
Public access to expunged records: The records of convictions that have been expunged and sealed are not generally available to the public, or to prosecutors without a court order. The records of convictions that have been expunged but not sealed “remain public,” although they must be “clearly and visibly marked or identified as being expunged.” § 35-38-9-7. In 2019, records of “collateral action” (e.g., civil forfeiture) were added to the effect of expungement. Exceptions allow for records to be disclosed to the state board of law examiners, persons required to access the records under the federal Mortgage Licensing Act, certain state and federal motor vehicle agencies, and the FBI and Department of Homeland Security in certain situations. § 35-38-6(a)(2). Records are also accessible for law enforcement and correctional employment.
Restoration of rights: Civil rights, including voting rights and eligibility for public office and jury service, are restored upon expungement. § 35-38-9-10(c). Expungement also restores firearms rights, including handgun rights, to those whose dispossession was based on their loss of status as a “proper person.” See Attorney General Opinion 2019-6 (December 27, 2019). However, expungement relief may not extend to those dispossessed by virtue of conviction of a “serious violent felony.” See id., note 3. See Part I, supra.
Discrimination: “It is unlawful discrimination for any person to” refuse to employ, admit or license or “otherwise discriminate against” a person because of a conviction or arrest record that has been expunged or sealed. § 35-38-9-10(a). A person whose record is expunged shall be treated “as if the person had never been convicted of the offense,” except that an expunged conviction may be considered in imposing sentence in the event of a subsequent conviction. § 35-38-9-10(d). Any person that so discriminates commits a Class C infraction and may be held in contempt by the court issuing the order of expungement or by any other court of general jurisdiction. §35-38-9-10(e). The non-discrimination provisions have been held to apply to law enforcement as well as other employment. See H.M. v. State, No. 49A02-1604-MI-700 (Ind. Ct. App. 2016).
Conviction inquiry: In any application for employment, license or “other right or privilege, a person may be questioned about a previous criminal record only in terms that exclude expunged convictions or arrests, such as: ‘Have you ever been arrested for or convicted of a crime that has not been expunged by a court?’” § 35-38-9-10(c). In 2020, SB47 modified § 35-38-9-10(a) to provide that if a person whose records have been expunged seeks employment with a law enforcement agency or a probation or community corrections department, the law enforcement agency or the probation or community corrections department may (1) inquire about the person’s expunged records; and (2) refuse to employ the person.
Negligent hiring: In any action alleging negligence an expungement order may be introduced as evidence of due care, and expunged convictions are not admissible as evidence of negligence against a person who relied on the expungement order. § 35-38-9-10(f) and (g).
Credit reporting: Records that have been expunged may not be knowingly reported by “criminal history providers.” See § 24-4-18-6(a). The definition of this term was extended in 2021 beyond consumer reporting agencies to “persons who regularly publish criminal history information on the Internet.”
Exceptions: Expungement orders do not affect sex offender registration or driver’s license suspension. § 35-38-9-6(e), -7(b). Expungement orders do not automatically restore firearms rights to persons convicted of domestic violence, who must wait five years before petitioning the court for restoration.
J. Felony knocked down to misdemeanor
Certain Class D felonies committed prior to July 1, 2014, or level 6 felonies committed after that date, may be converted to Class A misdemeanors upon entry of judgment on a one-time basis (DV and child pornography offenses are ineligible). Ind. Stat. § 35-50-2-7(c). In addition, court may convert conviction of Class D felony (or level 6 felony) to a Class A misdemeanor upon petition of the convicted person three years after completion of sentence, upon satisfaction of certain conditions and with the agreement of the prosecutor, as long as there has been no intervening conviction. Ind. Code § 35-50-2-7(d). Sex offenses and offenses involving violence or official corruption are not eligible. If a person whose Class D felony conviction has been converted to a Class A misdemeanor conviction under subsection (c) is convicted of a felony within five (5) years after the conversion under subsection (c), the prosecuting attorney may petition a court to convert the person’s Class A misdemeanor conviction back to a Class D felony conviction. § 35-50-7-2 (e). Expungement and sealing of records that have been converted is governed by § 35-38-9-2, discussed above.
K. Deferred prosecution/adjudication for substance “abusers”
“A drug abuser or an alcoholic charged with or convicted of a felony may request treatment” and be referred by the court for treatment instead of prosecution or imprisonment, unless the defendant has been charged with a violent crime or “has a record that includes at least two (2) prior convictions for forcible felonies or a burglary classified as a Class A or Class B felony,” and has no other charges pending. See Ind. Code §§ 12-23-6.1-1, 12-23-7.1-1 et seq. The defendant “must waive a jury trial and consent to a trial by the court or must enter a guilty plea, with the general finding to be entered by the court to be deferred until the time that prosecution may be resumed.” § 12-23-7.1-2. If the treatment is completed successfully, the charges must be dismissed. § 12-23-7.1-11. See also State v. Nix, 833 N.E. 2d 541 (Ind. Ct. App. 2005).
In addition, with the consent of the defendant and the prosecuting attorney, a court may defer prosecution for up to one year for a defendant charged with a misdemeanor or infraction in which the use of alcohol or drugs was a contributing factor or material element of the offense or the defendant’s mental illness was a contributing factor. Ind. Code § 12-23-5-1 et seq. The court may order the defendant to satisfactorily complete an alcohol or drug treatment program, undergo treatment for mental illness, or satisfy other conditions imposed by the court during this deferral period. § 12-23-5-2. If the defendant fulfills the conditions set forth by the court, the court shall dismiss the charges. § 12-23-5-4. A defendant is not eligible for deferral under this section if the offense giving rise to the prosecution involved a death or serious bodily injury, the defendant has at least two prior felony convictions, or other criminal proceedings (not arising out of the same incident) alleging the commission of a felony are pending against the defendant. § 12-23-5-7.
L. Juvenile adjudications
Expungement of juvenile adjudications (“true bills”) is governed by Ind. Code § 31-39-8-2. (Juvenile proceedings not resulting in a “true bill” may be expunged under the provisions of § 35-38-9-1.) At any time, a person may petition the juvenile court to expunge all records pertaining to juvenile delinquency proceedings. Id. In reviewing the petition, the court considers numerous factors, including the nature of the offense, case disposition, and the person’s current status. § 31-39-8-3. Upon a court order of expungement, all records are destroyed or given to the petitioner. § 31-39-8-6. There exists no statutory authority to seal a juvenile record.
Automatic expungement. In 2021, the juvenile court was directed to expunge juvenile adjudications (except for felonies and weapons offenses) entered after June 30, 2021, automatically without requiring a petition, when the young person reaches age 19 or one year after discharge, whichever is later, within 60 days, “unless the court finds, based on the nature of the delinquent act and the needs of the child, that automatic expungement under this section would not serve the interests of justice.” § 31-39-8-3.5. See SB 368.
Minor victims of human trafficking: Ind. Code § 31-37-22-11 – Minor who was the victim of human trafficking may move to vacate an adjudication if he proves by a preponderance of the evidence that he was a trafficked child and coerced at the time he performed the delinquent act, and the act did not result in bodily injury to another person. Prosecutor must be informed, and a hearing must be held.
M. Administrative sealing
The state police may disclose “limited criminal history” records to noncriminal justice agencies for a variety of purposes, including where the subject of the records has applied for employment and licensing, or has been convicted of specified sexual offenses. Ind. Code § 10-13-3-27(a) and (b). “Limited criminal history” does not include arrest records that do not indicate a disposition more than one year after the arrest. § 10-13-3-11 (defining “limited criminal history”). Any person who knowingly or intentionally uses limited criminal history for any purpose not specified under this section commits a Class A misdemeanor. § 10-13-3-27(c).
Fifteen years after discharge from probation, imprisonment, or parole (whichever is later), a felony offender may petition the state police department to limit access to his criminal history to criminal justice agencies. Ind. Code § 35-38-5-5(b). “When a petition is filed [the state police department] shall not release limited criminal history to non-criminal justice agencies.” § 35-38-5-5(c). Records remain available if a person has volunteered services that involve contact with, care of, or supervision over a child who is being placed, matched, or monitored by a social services agency or a nonprofit corporation, or is being sought by the parent locator service of the child support bureau of the department of child services. § 35-38-5-5(a), citing § 10-13-3-27(a)(8) and (12).
IV. Criminal record in employment & licensing
A. Occupational licensing
“[A] license or certificate of registration that an individual is required by law to hold to engage in a business, profession, or occupation may not be denied, revoked, or suspended because the applicant or holder has been convicted of a crime,” except that specified drug offenses may be used to deny, revoke, or suspend a license, and certain serious drug offenses are grounds for mandatory suspension or revocation.9 Ind. Code §§ 25-1-1.1-1, -2, -3. Acts resulting in conviction “may, however, be considered as to whether the applicant or holder should be entrusted to serve the public in a specific capacity.” Id. Nonetheless, the consideration of acts resulting in conviction has been further limited, as described below.
2018 occupational and professional licensing reforms: Significant and comprehensive licensing reform was enacted in March 2018 by Public Law No. 182-2018 (HB 1245) and further amended in 2019 (HB 1569). Covered licensing boards and commissions are required to explicitly list in their licensing requirements all “crimes that may disqualify an individual”; a listed “conviction of concern” must “directly” relate to the duties and responsibilities of the occupation or profession. See Ind. Code § 25-1-1.1-6(d), (e). Home health, K-2 education, and childcare licenses are not covered. Licensing authorities may not “use nonspecific terms, such as moral turpitude or good character, as a licensing or certification requirement” and may not “consider an arrest that does not result in a conviction.” § 25-1-1.1-6(d). If an applicant has a listed “conviction of concern,” the agency shall consider the following in determining whether to deny a license to the applicant, based on “clear and convincing evidence”:
(1) The nature and seriousness of the crime for which the individual was convicted.
(2) The passage of time since the commission of the crime.
(3) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the occupation.
(4) Evidence of rehabilitation or treatment undertaken by the individual that might mitigate against a direct relation to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the occupation.
25-1-1.1-6(h), (i). The disqualification period for the listed convictions is limited to five years after the date of conviction, as long as the conviction was not a violent crime or criminal sexual act and the applicant was not convicted of a crime during the disqualification period. § 25-1-1.1-6(f).
It is not clear how specified drug convictions described above should be treated under these new laws, but a reasonable harmonization of the new and old law would apply to drug crimes the criteria for deciding to disqualify in (h) and the 5-year period of disqualification in (f).
Under the new authority, a person with a “conviction of concern” may seek at any time a determination from the licensing agency as to whether their convictions would be disqualifying. The agency may charge a fee for this review that does not exceed $25, and must render an opinion within 30 days. § 25-1-1.1-6(h), (j).
If a person is denied a license in whole or in part based on their conviction, the agency must make “written findings” for each of the mitigating factors set forth in § 25-1-1.1-6(h), “by clear and convincing evidence sufficient for review by a court.” § 25-1-1.1-6(i). Further, “[i]n an administrative hearing or a civil action reviewing the denial of a license, a board, commission, or committee has the burden of proof on the question of whether the individual’s criminal history, based on the standards provided in subsection (h), should lead to the denial of a license.” Id.
Local government licensing: Similar requirements are extended to licensing by units of county and municipal governments. Ind. Code § 36-1-26.
Under Rule 12 Section 2 of the Indiana Rules for Admission to the Bar and Discipline of Attorneys, “[a]nyone who has been convicted of a felony prima facie [unless proven otherwise] shall be deemed lacking the requisite of good moral character.”
B. Negligent hiring protection
Pursuant to section 4 of SB-312, enacted in April of 2017, an employee’s criminal history may not be introduced as evidence against an employer in a civil suit based on the employee’s actions if,
(1) the nature of the criminal history information of the employee or former employee does not bear a direct relationship to the facts underlying the civil action
(2) before the acts giving rise to the civil action occurred
(A) a court order sealed the record of the criminal case
(B) the criminal conviction has been reversed or vacated;
(C) the employee or former employee received a pardon for the criminal conviction; or
(D) the criminal conviction has been expunged under IC 35-38-9; or
(3) the criminal history information concerns an arrest or a charge that did not result in a criminal conviction.
Ind. Code § 22-2-17. The law explicitly states that it does not supersede any requirement to conduct background checks mandated by law or “consider criminal history information in hiring for particular types of employment.”
C. Ban-the-box in executive employment
In June of 2017, Governor Holcomb issued Executive Order 17-15, mandating that job applications for employment with the Executive Branch be amended to remove questions about criminal history unless “a particular crime precludes the person from employment in the particular job to which she or he applied.” See E.O. 17-15 (2017), available at http://www.in.gov/gov/files/Executive-Order-17-15-Fair-Chance-Hiring.pdf. The Order additionally states that criminal history background checks “typically will be conducted at a later point in the application and hiring process.” Two months earlier, the Governor signed SB-312, prohibiting localities from banning the box or limiting employer consideration of criminal history.
D. Nondiscrimination based on expungement
Under the broad expungement law enacted in 2013 (see above), “It is unlawful discrimination for any person to” refuse to employ, admit or license or “otherwise discriminate against” a person because of a conviction or arrest record that has been expunged or sealed. § 35-38-9-10(a). A person whose record is expunged shall be treated “as if the person had never been convicted of the offense,” except that an expunged conviction may be considered in imposing sentence in the event of a subsequent conviction. § 35-38-9-10(d). Any person that so discriminates commits a Class C infraction and may be held in contempt by the court issuing the order of expungement or by any other court of general jurisdiction. §35-38-9-10(e). The non-discrimination provisions have been held to apply to law enforcement as well as other employment. See H.M. v. State, No. 49A02-1604-MI-700 (Ind. Ct. App. 2016).
E. Fair Credit Reporting
In 2012 a new chapter 24-4-18 was added to the Indiana Code to restrict criminal history information that may be reported by a “criminal history provider” (background screening company). Following the passage of the new expungement law in 2013 (see above), this law was amended (twice in 2013 and again in 2014), and now prohibits reporting the following:
- A record that has been expunged, either by marking the record as expunged or by removing the record from public access (which may include non-conviction data after a year, see Code § 35-38-9-1, supra10);
- A record that is restricted by a court or the rules of a court and is marked as restricted from public disclosure or removed from public access.
- A record indicating a conviction of a Class D felony (for a crime committed before July 1, 2014) or a Level 6 felony (for a crime committed after June 30, 2014) if the Class D felony or Level 6 felony conviction that
(A) has been entered as a Class A misdemeanor conviction; or
(B) has been converted to a Class A misdemeanor conviction;11
- A record that the criminal history provider knows is inaccurate.
Ind. Code § 24-4-18-6(a). A criminal history provider may provide information described above if the requester is required by state or federal law to obtain the information; or if the requester is the state or a political subdivision, and the information will be used solely in connection with the issuance of a public bond. § 24-4-18-6 (b).
“A criminal history provider may not include criminal history data in a criminal history report if the criminal history data has not been updated to reflect changes to the official record occurring sixty (60) days or more before the date the criminal history report is delivered.” § 24-4-18-7.
The Attorney General may enforce sections 6 and 7 through injunction and fines, and a private individual injured by a violation of these sections may recover damages, court costs and attorney fees. See § 24-4-18-8.
- In 2011, the Indiana Supreme Court reversed the line of cases finding that an “infamous crime” for purposes of these authorities refers to any or all felonies. See Snyder v. King, 958 N.E.2d 764, 781 (Ind. 2011) (“infamous crime includes any crime involving an affront to democratic governance or the public administration of justice such that there is a reasonable possibility that a person convicted of such crime poses a threat to the integrity of elections”) “Prototypical examples of infamous crimes” under the Snyder v. King standard “are treason, perjury, malicious prosecution, and election fraud.” Id. Misdemeanor battery does not constitute an infamous crime, and the legislature may therefore disenfranchise someone convicted of this crime only under its general police power, and only if the person is sentenced to prison for the duration of the prison term. Id. at 785-86.
- The statutory requirement that all applications for clemency be filed with the Parole Board has evidently not been interpreted in practice as a limitation on the governor’s power to pardon without consulting the board. See “Frequency of Grants,” Part IIA.
- According to the Parole Board, there have been few commutations granted since 1989, since courts have sentence modification authority and prison administrators have generous good time authority. In 2004, two death sentences were commuted to life without parole, one on the recommendation of the Parole Board and one by the Governor without consulting the Board.
- The Indiana Court of Appeals has held that the word “shall” in § 35-38-9-2 left the court with no discretion to withhold expungement of a misdemeanor sex offense, notwithstanding the objections of the victim. Taylor v. State, 7 N.E. 3d 362 (Ind. Ct. App. 2014). The same mandatory term appears in §§ 35-38-9-1 (non-conviction records) and 35-38-9-3 (Class D felonies). The Taylor court pointed out that a victim’s objections may be weighed only where expungement is discretionary, as is the case with more serious felonies under §§35-38-9-4 and -5.
- See Marshall v. State, 52 N.E.3d 41 (Ind. Ct. App. 2016), interpreting § 35-38-9-8(b)(6) to make “commission” of a crime a disqualifying event, although the statute itself refers to “conviction.” The petitioner in Marshall had admitted to committing a driving offense as a condition of pre-trial diversion.
- The 2014 amendments specify where a petition for expungement must be filed, provide that expungement proceedings may be closed (including to victims), change a petitioner’s burden of proof from “clear and convincing” to “preponderance,” remove a prohibition against a waiver or reduction of the filing fee for an indigent person, grant a defense attorney and a probation department access to expunged records if authorized by court order, and allow a court to accept filing of a subsequent petition for expungement that includes convictions not named in the original petition under certain circumstances. The 2014 amendments reduce waiting periods while requiring a petitioner to have completed the terms of his court-imposed sentence, and add a prohibition on waiving the right to expungement as part of a plea agreement. They specify that access to expunged records will be granted to: (1) the supreme court and the state board of law examiners to determine a person’s fitness for admission to the bar; and (2) a person required to access expunged records to comply with the federal Secure and Fair Enforcement for Mortgage Licensing Act. Finally, they specify the procedure to regain the right to possess a firearm by a person convicted of a misdemeanor crime of domestic violence after five years.
The 2015 amendments disqualify any person convicted of two or more felonies involving a deadly weapon from seeking expungement of any conviction record; expand expungement eligibility to cover records of criminal charges and juvenile allegations instead of just arrest records; and expand protection of non-conviction records by requiring the courts to seal and redact their own non-conviction records . The 2015 amendments also added § 35-38-9-8.5, which clarifies the law’s application to older offenses that were subject to indeterminate sentences. Eligibility for those offenses is now determined by an offense’s current felony or misdemeanor classification. See P.L. 142-2015.
- In Cline, the petitioner sought to expunge her 13 year-old felony forgery and methamphetamine distribution offenses after she had been released from probation and remained crime-free for 5 years, been consistently employed, and achieved a number of job-related credentials. The lower court denied the petition based on the nature of the conviction, the severity of the offenses, and the “relatively short” duration since release, factors not identified in the statute. In rendering its decision, the lower court also expressed particular disdain for methamphetamine offenders such as Cline. While the Court of Appeals recognized that the lower court had discretion to deny a petition based on factors not listed in the statute, it found that the lower court abused that discretion since “all evidence presented to the trial court militated toward expungement,” and remanded the case:
Cline committed her offenses during her youth and has satisfied the statutory prerequisites for expungement. Beyond that, Cline has consistently been employed, and has obtained an Associate’s Degree in Business Administration, a CPR license, and a ServSafe certification. She testified that she had been promoted from food server to store management, but lost her job when store owners learned of her criminal record. Cline expressed a desire to return to management, a prospect more feasible with record expungement. The prosecutor offered no evidence or argument in opposition to expungement.
But see W.R. v. State of Indiana, 17A03-1703-XP-571 (Ind. Ct. App., 2017), affirming denial of expungement for two felony drug dealing convictions where the statutory requirements were met and the petitioner “led a generally successful life” but was subsequently convicted of a DUI misdemeanor, which was expunged in the same case. The court stressed the discretionary nature of the statute and distinguished the case from Cline, noting the “troubling articulation” of the lower court’s reasoning in Cline along with the fact that Cline had no subsequent convictions.
- In 2020, § 35-38-9-2 was amended to make clear that the 5-year waiting period applies to felonies that have been reduced, an issue that at the time was pending in the state supreme court. Naveed Gulzar v. State of Indiana, 19S-XP-673.
- Note that § 25-1-1.1-3, which covers convictions for serious drug offenses, does not authorize mandatory denial of a license, but only mandatory suspension or revocation. Contrast that with § 25-1-1.1-2, which covers less serious drug offenses, and authorizes discretionary denial, revocation, or suspension. While this discrepancy was perhaps an error in the drafting process, courts generally apply the text as it is written, even if the result seems counter-intuitive. The Indiana legislature might take the opportunity not to simply fix this issue, but to repeal these older provisions concerning specified drug offenses, and make clear that the comprehensive licensing standards enacted in 2018 and 2019 (discussed in the body text) also apply to these drug offenses.
- The law as originally enacted in 2012 would have permitted reporting only “criminal history information that relates to a conviction,” and 2013 amendments first deleted this provision then re-enacted it, with elaboration to specify the non-convictions records that were exempt from reporting. In 2014, P.L. 168-2014 restricted the prohibition on reporting to non-conviction data that has been expunged under § 35-38-9-1, which has an eligibility waiting period of one year. See supra.
- It appears that misdemeanors may not be reported even if they have not been expunged.