Restoration of Rights & Record Relief
Last updated: July 27, 2023
I. Loss & restoration of civil/firearms rights
A. Civil Rights
A person convicted of a felony loses the right to vote, to hold office, and to serve on a jury. Kan. Stat. Ann. § 21-6613(a). These rights are automatically restored upon completion of the authorized sentence, § 21-6613(b), whih has been administratively intgerpreted to include payment of court debt,1except that jury eligibility is lost for a minimum of ten years after conviction. § 43-158(c).2 Upon satisfaction of conditional release or parole (or sooner if the sentence expires sooner), a state offender receives from the parole board a “certificate of discharge,” which restores civil rights. § 22-3722.
In 2021, enactment of HB2058 (overriding the governor’s veto) substantially modified (and relaxed in many respects) Kansas law on felony dispossession. Kan. Stat. Ann. § 21-6304 now provides that conviction of a “person felony” where no firearm was used, or juvenile adjudication of a similar crime, results in loss of firearm rights either for three years or eight years, depending on the seriousness of the offense. Kan. Stat. Ann. § 21-6304(a)(2), (3). If a firearm was used in commission of a person felony, the loss is permanent. § 21-6304(a)(1). Some serious nonperson felonies also result in loss for eight years, but other less serious nonperson felonies the loss is only for three months. § 21-6304(a)(3), (4). Previously, the periods of dispossession were ten and five years.
The 2021 amendments also made clear that either a pardon or an expungement restores firearms rights for all but those who lose rights for eight years. See HB2058, adding § 21-6304(c). This retained the provision in existing law in connection with the 10-year dispossession for those convicted of a person felony without the aggravating factor of a firearm, which is now the category of crime subject to the 8-year dispossession, the only one to which pardon and expungement do NOT apply (other than permanent loss). § 21-6304.
II. Pardon policy & practice
The pardon power is vested in the governor, subject to regulations and restrictions by law. Kan. Const. art. I, § 7. The governor is required to seek the advice of the Kansas prisoner review board before acting, though he is not bound to follow it. See Kan. Stat. Ann. § 22-3701(4).3 The governor must report to the legislature on each pardon application granted during the preceding year, but is not required to give his reasons. § 22-3703.
The prisoner review board is established within the Kansas department of corrections, administered under the supervision of the secretary of corrections, and composed of three “existing employees of the department of corrections,” who serve at the pleasure of the secretary. The chair and vice-chair of the prisoner review board shall be designated by the secretary of corrections (not the governor). Kan. Stat. Ann. §§ 75-52,152 and 75-52,153.4. The Kansas Department of Corrections website contains a historical overview of Kansas paroling authorities at http://www.doc.ks.gov/prb/overview.
No eligibility restrictions, except that only Kansas state convictions are eligible to be pardoned or commuted. Kan. Stat. Ann. § 22-3701(1).
In general a pardon removes disabilities imposed under state law, but does not erase or expunge conviction. See http://www.doc.ks.gov/prb/clemency (“a pardon does not erase the conviction from the record, remove responsibility for the crime, nor can it be the basis for a negative response to the question: ‘Have you ever been convicted of a crime?’”). In particular, it does not lift the bar to service as law enforcement officer. Kan. Att’y Gen. Op. No. 85-165, 1985 WL 204857 (Nov. 26, 1985) (Texas pardon, construed under Texas law, does not lift the bar under Kansas law to service as law enforcement officer). It also does not preclude increased sentencing in subsequent offense. State v. Zumalt, 451 P.2d 253, 256 (Kan. 1969).
An applicant for pardon must publish a copy of the application in a newspaper of general circulation in the county of conviction at least 30 days before pardon is granted or pardon is void. Kan. Stat. Ann. § 22-3701(3). An applicant must also provide written notice of the application to: (a) the prosecuting attorney and the judge of the court in which the defendant was convicted; and (b) any victim of the person’s crime or the victim’s family. Id. “All applications for pardon or commutation of sentence shall be referred to the board.” § 22-3701(4). The board “shall examine each case and submit a report, together with such information as the board may have concerning the applicant, to the governor within 120 days after referral to the board.” Id. The governor “shall not grant or deny any such application until the governor has received the report of the board or until 120 days after the referral to the board, whichever time is the shorter.” Id. The Board may seek a personal interview with an applicant in a particular case, but it is not required to do so. See Kan. Admin. Regs. § 45-900-1(c). Additional information about applying for pardon, including an application form, can be found on the board’s website, http://www.doc.ks.gov/prb/clemency. This website contains a copy of the notice that needs to be sent to the judge, prosecuting attorney, and applicable law enforcement officer; a request for publication form to the newspaper; and the application form. See id.
F. Frequency of Grants
In June 2021, Governor Laura Kelly granted three pardons and five commutations, the first Kansas pardon grants in many years. One of the pardons went to a Vietnamese national seeking to become a citizen, and the other two pardons were for licensing and reputational purposes.
Pardons have been rare in Kansas, and granted primarily for miscarriage of justice, with expungement traditionally the preferred method of dealing with disabilities associated with conviction.. The board’s website indicate that, between 2015 and 2018, 84 applications for pardon were filed, and only eight were recommended favorably. https://www.doc.ks.gov/prb/clemency. In recent years the number of applications has grown.
For a summary of the pardoning practices of past governors see Shaun Hittle, Brownback has no plans to pardon any Kansas inmates, Lawrence Journal-World, Dec. 11, 2011, http://www2.ljworld.com/news/2011/dec/11/brownback-has-no-plans-pardon-any-kansas-inmates/.
Prisoner Review Board
Office of the Governor
300 SW 10th Ave., Ste. 212S
Topeka, KS 66612-1590
III. Expungement, sealing & other relief
Kansas has had a procedure for expunging conviction and arrest records for many years, and it is modified regularly. See § 21-6614 of the Kansas statutes. A convicted person may petition the court after discharge from probation or parole, after a waiting period of three years for misdemeanors and minor felonies, and five years for eligible felony offenses, Kan. Stat. Ann. § 21-6614(a)-(b). Serious violent offenses (murder, rape, sex offenses) are ineligible for expungement. § 21-6614(d). DUI with a commercial driver’s license is also not eligible. At the hearing on the petition, the court must find that the petitioner has not been convicted of a felony in the past two years and no proceeding involving any such crime is presently pending or being instituted against the petitioner. § 21-6614(h). In 2023, expungement was authorized upon completion of specialty court programs.
In 2012, the legislature amended this law to provide that expungement is unavailable for any conviction or any part of an offender’s criminal record if and while the offender is required to register per the Kansas offender registration act (i.e., Kan. Stat. Ann. § 22-4901 et seq.), which applies to people convicted of sex offenses, violent offenses, and drug offenses. See § 21-6614(e). A person must be informed at each stage of the criminal process about the possibility of obtaining expungement, including upon release from prison. § 21-6614(i). In 2022, the provisions requiring registration of drug offenders were relaxed to permit relief from registration and expungement. See SB 366. At the same time, by this same bill, provisions requiring registration for certain child sex crimes were added to the law. § 21-6614(f).
B. Process and criteria
Expungement forms and instructions are available for each county. See, e.g., http://www.snco.us/da/document/expungement_instructions.pdf (Shawnee County). See also http://www.doc.ks.gov/kdoc-policies/impp/chapter-5/05102.pdf (internal Kansas Department of Corrections policies and procedures for expungement, reissued July 15, 2011). Petition must be filed in the county of conviction, and is made part of the original criminal docket. Kan. Stat. Ann. § 21-6614(f)(3). A docket fee of up to $195 is required. § 21-6614(g)(2). The court notifies prosecutor and arresting law enforcement agency, and may inquire into petitioner’s background and shall have access to any reports or records relating to the petitioner that are on file with the secretary of corrections or the Kansas prisoner review board. §§ 21-6614(f)(1), (3). Any person who may have relevant information about the petitioner may testify at the hearing. § 21-6614(f)(3). At the hearing on the petition, the court is required to order the petitioner’s arrest record, conviction or diversion expunged if the court finds that: (1) the petitioner has not been convicted of a felony in the past two years and no proceeding involving any such crime is presently pending or being instituted against the petitioner; (2) the circumstances and behavior of the petitioner warrant the expungement; and (3) the expungement is consistent with the public welfare. § 21-6614(g). Parole (in another jurisdiction) is not a “pending proceeding” for expungement purposes. State v. Gamble, 891 P.2d 472, 474 (Kan. Ct. App. 1995).
After expungement, a person “shall be treated as not having been arrested, convicted or diverted of the crime,” except that the expunged conviction may be considered as a prior conviction for sentencing purposes related to a conviction for a subsequent crime and it may be disclosed in a subsequent prosecution for an offense which requires a prior conviction as an element. Kan. Stat. Ann. §§ 21-6614(h)(1), (4). Additional circumstances requiring disclosure are set forth in § 21-6614(h). Additionally, the expungement may be disregarded by the secretary of corrections for purposes of a new commitment to the custody of the secretary, and the court ordering the expungement may specify other circumstances under which the conviction is to be disclosed. §§ 21-6614(h)(3), (5). Also, the conviction must be disclosed in connection with certain licensing and public employment applications (health, security, gaming, commercial driver or guide, investment adviser, law enforcement). § 21-6614(h)(2); see also § 21-6614(k).
Effective May 2021, an expungement is effective to remove state firearms restrictions (which are generally time-limited in any event, see Part I above). § 21-6614(j). In 2012, in response to the Kansas Supreme Court’s holding that an expungement terminates the obligation to register as a sex offender, State v. Divine, 291 Kan. 738 (2011), the legislature amended § 21-6614 to make clear that no expungement is available for any conviction or any part of an offender’s criminal record if and while the offender is required to register per the Kansas offender registration act (i.e., Kan. Stat. Ann. § 22-4901 et seq.).5See § 21-6614(e).
Other than the contexts specified in § 21-6614(h) and (k), a person may respond that he has not been convicted in response to questions on applications for a license or employment or benefit. § 21-6614(j).
D. Expungement for victims of human trafficking
Any person convicted of prostitution, or who entered into a diversion agreement in lieu of further criminal proceedings for such violation, may petition the convicting court for the expungement of such conviction or diversion agreement and related arrest records if one or more years have elapsed since the person satisfied the sentence imposed or the terms of a diversion agreement, and the person can prove they were acting under coercion caused by the act of another. “For purposes of this subsection, ‘coercion’ means: Threats of harm or physical restraint against any person; a scheme, plan or pattern intended to cause a person to believe that failure to perform an act would result in bodily harm or physical restraint against any person; or the abuse or threatened abuse of the legal process.” Kan. Stat. Ann. § 21-6614.
Under Kan. Stat. Ann. § 22-2907 et seq., diversion may be agreed to by the prosecutor if the prosecutor determines, after considering a series of factors, that “diversion of the defendant would be in the interests of justice and of benefit to the defendant and the community.” § 22-2907(a). Individuals charged with series felonies and serious drug crimes are ineligible, as are those who have previously been convicted of or granted diversion for the same crime in Kansas or elsewhere. § 22-2908. The diversion agreement may require payment of restitution and court costs, residence in a specified facility, maintenance of gainful employment, and participation in programs offering various rehabilitative services. The requirement of a guilty plea is specifically prohibited by § 22-291o. The agreement is filed with the court, and upon successful completion of the terms of the agreement the court “shall dismiss with prejudice the criminal charges filed against the defendant.” § 22-2911.
Courts are authorized to establish their own diversion programs by adopting rules for the administration of diversion procedures. § 22-2912. In judicial districts where the district court adopts such rules the provisions governing prosecutor-managed diversion do not apply. Eligibility exclusions: in considering whether or not to allow diversion to a defendant the court “shall consider, but is not limited to, the factors enumerated in§ 22-2908.”
Speciality courts: In 2022, HB 2361 established a centralized system of specialty courts under rules promulgated by the state Supreme Court, including but not limited to drug and alcohol addiction and mental illness, with the possibility of expungement upon successful completion of the program.
F. Non-conviction records
Under Kan. Stat. Ann. § 22-2410, upon petition a court “shall” order expungement of the arrest record and subsequent court proceedings, if any, upon finding that: (1) the arrest occurred because of mistaken identity; (2) a court has found that there was no probable cause for the arrest; (3) the petitioner was found not guilty in court proceedings; or (4) the expungement would be in the best interests of justice and charges have been dismissed or no charges have been or are likely to be filed. §§ 22-2410(a)(1) and (c). Filing fee of up to $195 except in cases where expungement based on mistaken identity.6 Hearing required by § 22-2410(b):
When a petition for expungement is filed pursuant to subsection (a)(1), the court shall set a date for hearing on such petition and shall cause notice of such hearing to be given to the prosecuting attorney and the arresting law enforcement agency. Any person who may have relevant information about the petitioner may testify at the hearing. The court may inquire into the background of the petitioner.
Expungement of dismissed charges or uncharged arrests is subject to various court-ordered exceptions to nondisclosure, including certain peace-keeping or gambling employment. § 22-2410(e). “Subject to any disclosures required under subsection (e), in any application for employment, license or other civil right or privilege, or any appearance as a witness, a person whose arrest records have been expunged as provided in this section may state that such person has never been arrested.” § 22-2410(g). Per 2012 legislation, the statute was amended to provide that the court shall make all expunged records and related information in the court’s possession available to the Kansas bureau of investigation for the purposes of (1) completing a criminal history record information within the central repository or (2) providing information to the FBI for purposes of a background check to determine a person’s qualification to possess a firearm. § 22-2410(f) (as amended by 2012 Kansas Laws Ch. 66 (S.B. 322)). See also Kan. Stat. Ann. § 12-4516 (similar authority for expungement under city ordinances).
F. Juvenile records
Kan. Stat. Ann. § 38-2312. Juveniles may have both arrest and court records expunged, and a juvenile’s parent or guardian may expunge records if the juvenile is under the age of majority. § 38-2312(a). Expungement is unavailable for certain serious or violent offenses. § 38-2312(b). To expunge, a juvenile must petition the court, which holds a hearing. § 38-2312(c). The court will grant expungement upon a finding that the person is at least age 23 or two years have passed since final discharge, there have been no subsequent convictions or adjudication, no charges are pending, and the petitioner’s circumstances and behavior warrant expungement. §§ 38-2312(d)(1)(A)–(C). Upon expungement, the custodian of records must disclose existence of the records to various state agencies upon request.
G. Penalties for improper disclosure of information
Under Kan. Stat. Ann.§ 22-4707(a), a criminal justice agency and the central repository “may not disseminate criminal history record information except in strict accordance with laws including applicable rules and regulations adopted pursuant to this act,” and may not request such information from the central repository or another criminal justice agency unless it has a legitimate need for the information.” Under § 22-4707(c), “any individual violating or causing a violation of the provisions of this section shall be deemed guilty of a class A nonperson misdemeanor. If the person is employed or licensed by a state or local government agency, a conviction shall constitute good cause to terminate employment or to revoke or suspend a license.” See Patrick v. City of Overland Park, 937 F. Supp. 1491 (D. Kan. 1996) (suit under § 1983 against police chief for unauthorized use of criminal history information in political campaign, in violation of Stat. Ann. § 22-4707; court held that defendant failed to keep private information that plaintiff “legitimately expected would remain confidential while in the state’s possession”).
IV. Criminal record in employment & licensing
A. Employer inquiry and use of criminal records
Section 22-4710(a) of the Kansas Statutes Annotated makes it a misdemeanor for an employer to inquire into an applicant’s criminal history record without the applicant’s consent, although an employer may require an applicant to sign a release allowing inquiry. See §§ 22-4710(a)-(c). Under a 1996 amendment to this law:
No employer shall be held liable for any employment decision or decision to enter into a contract with an independent contractor based upon knowledge of such criminal history record information, provided the information reasonably bears upon the independent contractor’s, applicant’s or employee’s trustworthiness, or the safety and well-being of the employer’s employees or customers.
22-4710(f). See Brent N. Coverdale, Practical Use of Criminal History Information by Kansas Employers, 75 J. Kan. B. Ass’n 16 (2006).
Ban-the-box in executive branch employment: On May 2, 2018, Governor Jeff Colyer signed E.O. 18-12, directing that all Executive Branch departments, agencies, boards, and commissions take action to ensure that “during the initial stage of a state employment application, job applicants shall not be asked whether they have a criminal record, and a criminal record shall not automatically disqualify an applicant from receiving an interview,” except in circumstances when a criminal history would render an applicant ineligible for a position by law or regulation. The order does not prevent the use of a criminal background check as a condition of employment.
B. Occupational and professional licensing
Kan. Stat. Ann. § 74-120:
Notwithstanding any other provision of law, any person, board, commission or similar body who determines the qualifications of individuals for licensure, certification or registration may consider any felony conviction of the applicant, but such a conviction shall not operate as a bar to licensure, certification or registration.
In May 2018 this general licensing statute was amended to add several additional provisions. See HB 2386, available here: http://www.kslegislature.org/li/b2017_18/measures/documents/hb2386_enrolled.pdf. The 2018 amendments require licensing boards to “list the specific civil and criminal records that could disqualify an applicant from receiving a license, certification or registration.” Kan. Stat. Ann. § 74-120(b)(1). Importantly, boards “may only list any disqualifying criminal records or civil court records that are directly related to protecting the general welfare and the duties and responsibilities for such entities.” Moreover, “in no case shall non-specific terms, such as moral turpitude or good character, or any arrests that do not result in a conviction be used to disqualify an individual’s application for licensure, certification, or registration.” Id.
What the “direct relationship” and “no vague terms or non-conviction records” give in (b)(1) is taken away in (b)(2): Licensing boards are prohibited from considering an otherwise disqualifying criminal record or civil court record if five years have passed since the individual satisfied the sentence imposed and the individual has had no other convictions during that time, except that this does not apply if the crime is a felony or a Class A misdemeanor or one for which licensure “could conflict with federal law” without regard to how much time has passed since the conviction. Kan. Stat. Ann. § 74-120(b)(2).
The amendments also provide individuals the opportunity to petition a licensing board at any time for a preliminary “informal, written advisory opinion concerning whether the individual’s civil or criminal records will disqualify the individual from obtaining such license, certification or registration.” Kan. Stat. Ann. § 74-120(b)(3). The board must respond to the petition within 120 days of receipt, and may not charge more than $50 for the response; however, the advisory opinion is not binding. Id.
There are 13 enumerated exceptions that cast a broad carve-out from the 2018 amendments, including: law enforcement and highway patrol officers, accountants, behavioral scientists, doctors and pharmacists, emergency medical personnel and nurses, realtors, the office of the attorney general, municipalities, and “any profession that has an educational requirement for licensure that requires a degree beyond a bachelor’s degree.” Kan. Stat. Ann. § 74-120(c).
C. Health care licensure and employment
In 2018, the legislature amended several laws relating to specific forms of licensure, employment and background checks involving adult care homes, home health agencies, and other centers, hospitals, and facilities offering behavioral and disability services. See HB 2386, available here: http://www.kslegislature.org/li/b2017_18/measures/hb2386/; see also Kan. Stat. Ann. §§ 39-970, 39-2009, 65-5117. In general, people with certain specified convictions may not be employed by the entities in question for a period of five years after completion of sentence, although this period of disqualification may be waived by the secretary for aging or disability services.
- See Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55, 180 n.44 (2019) (reporting that the Assistant Director of Elections for the Kansas Secretary of State has interpreted Kansas’s statute to include full payment of court debt).
- Until 1996, only persons sentenced to a term of imprisonment lost their civil rights, giving the 10-year jury bar independent force in cases not involving a prison sentence.
- Prior to 2011, the governor was required to see the advice of the Kansas parole board before acting on a pardon, per Kan. Stat. Ann. § 22-3701(4) (2010). In January 2011, however, Governor Brownback issued Executive Reorganization Order No. 34, replacing the senate-confirmed parole board with a prisoner review board in the corrections department. Executive Reorganization Order No. 34 [hereinafter ERO 34], available at http://www.kslegislature.org/li/m/pdf/ero_34.pdf. The abolition of the old parole board and the transfer of its powers to the new prisoner review board, codified in Kan. Stat. Ann. §§ 75-52,152 and 75-52,153, was criticized as diluting the authority of the governor. However, some news articles noted that this change in effect consolidated authority within the executive branch, replacing a somewhat independent agency (one whose members were appointed by the governor but confirmed by the senate), with a board composed of corrections department employees. See, e.g. http://midwestdemocracy.com/articles/brownbacks-agenda-government-efficiency-or-power-grab. Potential conflicts of interest were also raised: http://blogs.kansas.com/gov/2011/02/04/skeptical-senators-press-corrections-secretary-on-abolishing-parole-board/.
- See note 2, supra.
- Offenders required to register under Kansas’s offender registration act include sex offenders, violent offenders, and drug offenders as defined in Kan. Stat. Ann. § 22-4902. See generally §§ 22-4901 et seq. (as amended by 2012 Kansas Laws Ch. 149 (H.B. 2568)).
- Separate authority for expungement of arrest based on mistaken identity, where burden on government to petition court for expungement, and record is “purged.” §§ 22-2410(a)(2) and (d).