Restoration of Rights & Record Relief
- I. Loss & restoration of civil/firearms rights
- II. Pardon policy & practice
- III. Expungement, sealing & other record relief
- IV. Criminal record in employment & licensing
Last updated: December 19, 2021
I. Loss & restoration of civil/firearms rights
A. Civil Rights
Voting rights: Persons convicted of a felony lose the right to vote and it is restored only by personal action of the governor. See Ky. Const. § 145(1) (“Persons convicted in any court of competent jurisdiction of treason, or felony, or bribery in an election, or of such high misdemeanor as the General Assembly may declare shall operate as an exclusion from the right of suffrage, but persons hereby excluded may be restored to their civil rights by executive pardon.”); see also Ky. Rev. Stat. Ann. § 27A.070 (court shall send notice of a felony conviction to the state board of elections when conviction is final). In addition, people who are “in confinement under the judgment of a court for some penal offense” at the time of the election, whether convicted of felony or misdemeanor, are not allowed to vote. Ky. Const. § 145(2). The legislature has chosen not to extend disenfranchisement to those convicted of “high misdemeanors,” except those “in confinement under the judgment of a court” at the time of an election. Id.
The statutory route to restoration is through submission by the corrections department to the governor of the names of those who have completed their sentences and paid restitution, to be considered for a “partial pardon.” See Ky. Rev. Stat. Ann. §§ 196.045(1), 2(c) The pardon application also refers to payment of fines. See Ky. Div. of Probation & Parole, Application for Restoration of Civil Rights 2, https://corrections.ky.gov/Probation-and-Parole/Documents/Civil%20Rights%C20Application%C20Rev%2011-25-2015.pdf. But see Executive Order of 2019, below.
Set-aside and expungement for Class D felonies may also restore the vote. See Ky. Rev. Stat. Ann. § 431.078(6) and Part IIB, below.
People with federal and out-of-state offenses may have voting rights restored by the governor, Arnett v. Stumbo, 153 S.W.2d 889 (Ky. 1941), except that those with out-of-state convictions may vote in Kentucky if their rights were restored in the jurisdiction of conviction. Source: Office of the Governor.1
Office: A person convicted of a felony “or of such high misdemeanor as may be prescribed by law” loses the right to hold office, unless pardoned. See Ky. Const. § 150.
Jury eligibility: A person who has “been previously convicted of a felony and has not been pardoned or received a restoration of civil rights by the Governor or other authorized person of the jurisdiction in which the person was convicted” is disqualified from jury service. See Ky. Rev. Stat. Ann. § 29A.080(2)(e). Also pending felony charges. Id.
Executive Order of 2019: On December 12, 2019, Governor Andy Beshear signed an executive order restoring the vote and the right to hold office to more than 140,000 individuals who had completed the sentence imposed for a non-violent Kentucky felony. See Executive Order 2019-003, Dec, 12, 2019, https://civilrightsrestoration.ky.gov/Documents/Civil%20Rights%20Restoration%20Executive%20Order.pdf. Michael Wines, Kentucky Gives Voting Rights to Some 140,000 Former Felons, N.Y. Times, Dec. 13, 2019. Those eligible for automatic restitution must have completed any term of parole or probation, but are not required to pay fines or restitution.2 The order does not extend to people convicted of specified crimes involving violence, sex offenses, bribery or treason, or to anyone who has charges pending. Persons convicted of excepted crimes will still have to apply for discretionary restoration, as will those with federal and out-of-state convictions. Individuals can verify if their civil rights have been restored at this website: https://civilrightsrestoration.ky.gov/Pages/home.aspx.
The order in effect revives a similar order that Governor Steve Beshear, Andy’s father, had signed in the last days of his own term as governor in 2015. His Republican successor, Matt Bevin, revoked it. See David Weigel, Kentucky’s new governor reverses executive order that restored voting rights for felons, Washington Post, https://www.washingtonpost.com/news/post-politics/wp/2015/12/23/kentuckys-new-governor-reverses-executive-order-that-restored-voting-rights-for-felons (Dec. 23, 2015). This action did not affect those whose rights had been recognized in the intervening two weeks.
A person convicted after January 1, 1975 is prohibited from possessing a handgun, and a person convicted after July 15, 1994 is prohibited from possessing any firearm, unless pardoned. Ky. Rev. Stat. Ann. § 527.040(1). See Posey v. Commonwealth, 185 S.W.3d 170, 181 (Ky. 2006) (state constitutional right to bear arms did not limit legislature’s authority to prohibit possession of firearms by convicted felon).
D. Collateral consequences
Kentucky’s collateral consequences have been compiled and analyzed in two law review articles: Troy B. Daniels, Dawn L. Danley-Nichols, Kate R. Morgan and Bryce C. Roades, Kentucky’s Statutory Collateral Consequences from Felony Convictions: A Practitioner’s Guide, 35 N. Ky. L. Rev. 413 (2008), available at http://chaselaw.nku.edu/content/dam/chaselaw/docs/academics/lawreview/v35/nklr_v35n4.pdf; Sara M. Caudill and Ashley England-Huff, Collateral Consequences of Felony Convictions Established in the Kentucky Administrative Regulations, 35 N. Ky. L. Rev. 453 (2008).
II. Pardon policy & practice
The power to pardon is vested in the governor. Ky. Const. § 77. The governor may also act to restore certain rights of citizenship to a person, including the right to vote or to hold office. §§ 145 (right to vote), 150 (eligibility to hold office). For full pardons, the governor must file with the legislature a statement of reasons with each pardon grant, which must be available to the public. § 77. The governor may ask the Kentucky Parole Board to investigate and make recommendations on pardon cases, but he is not bound by its advice. Ky. Rev. Stat. Ann. § 439.450 (“On request of the Governor the board shall investigate and report to him with respect to any case of pardon…”). The governor may also issue “partial pardons” to restore civil rights, and he is informed of the names of those eligible by the corrections department.
The Kentucky Parole Board is composed of nine full-time members appointed by the governor to four-year terms. Ky. Rev. Stat. Ann. § 439.320. The governor must make each appointment from a list of three names provided by the Kentucky State Corrections Commission. §439.320(1). No more than six Board members may be of the same political party. Id. Full-time members are salaried employees. The governor designates one Board member to serve as chair. § 439.320(2).3
For restoration of rights, expiration of sentence or discharge, with no pending charges. For pardon, governor requires a seven-year waiting period. People with federal and out-of-state offenses are eligible only for restoration of rights (called “partial pardon”). Stumbo, 153 S.W.2d at 891-92.
Restoration of citizenship restores a person’s right to vote and eligibility for jury service. A full pardon relieves additional legal disabilities. See Leonard v. Corrections Cabinet, 828 S.W.2d 668, 672-73 (Ky. Ct. App. 1992) (Governor’s pardon would at least open the door for convicted person’s consideration as peace officer, but restoration of rights does not). The governor’s pardon document may limit rights being restored. See Anderson v. Commonwealth, 107 S.W.3d 193 (Ky. 2003) (governor’s order restoring a convicted person’s civil rights did not restore eligibility to serve as a juror, where order specifically limited the restoration to rights to vote and to hold office). With the enactment of HB40 in 2016, a full pardon is now grounds for vacatur and expungement. See Ky. Rev. Stat. Ann. § 431.073; Part II-B-1, infra.
Restoration of rights
In 2001, the legislature directed Department of Corrections to implement a “simplified” process for restoration of civil rights (vote and office), including informing all eligible persons of their right to apply, generating a monthly list of all eligible persons who have asked for their rights back, conducting investigations, giving notice to prosecutor in county of conviction and county of residence, and forwarding to Governor’s office on a monthly basis a list of all eligible persons for consideration for restoration of rights or “partial pardon.” See Ky. Rev. Stat. Ann. § 196.045. Application form is available on the DOC website at https://corrections.ky.gov/Probation-and-Parole/Pages/CivilRights.aspx.
Pardon applications are sent directly to the governor’s office, along with a statement of the reasons for seeking relief and three letters of recommendation. Each completed application is sent to the prosecutor for recommendation (if no response within 30 days, assumes no objection).
F. Frequency of grants
Restoration of rights
On December 12, 2019, newly installed Governor Andy Beshear signed an executive order restoring voting rights to 140,000 people disenfranchised because of a felony conviction. See AP, Kentucky Restores Voting Rights to Non-Violent Felons, https://www.nytimes.com/aponline/2019/12/12/us/ap-us-voting-rights-kentucky.html. By this act, he replicated an executive action taken by his own father when governor in 2015, two weeks before leaving office, an action that had been almost immediately rescinded by the governor that followed him, Matt Bevin. See David Weigel, Kentucky’s new governor reverses executive order that restored voting rights for felons, Washington Post, https://www.washingtonpost.com/news/post-politics/wp/2015/12/23/kentuckys-new-governor-reverses-executive-order-that-restored-voting-rights-for-felons (Dec. 23, 2015);See also Part I-A, supra. 4
Governor Fletcher, Steve Beshear’s predecessor, imposed strict limits on restoration, including payment of an application fee and requirement of a written essay from applicants.5
Between his defeat at the polls and his final days in office in December 2019, Governor Matt Bevin issued more than 400 pardons and commutations, many of which were controversial. See AP, Bevin Pardons Include Man Whose Brother Held Fundraiser, https://www.nytimes.com/aponline/2019/12/12/us/ap-us-kentucky-governor-pardons.html. Previously, Governor Bevin had issued a total of 28 pardons on three separate occasions, departing from the custom of Kentucky governors in recent years of reserving pardons until the end of their terms. The most controversial of Bevin’s grants went to a woman convicted in 2016 of child abuse in connection with the death of her 5-year old child. See http://www.courier-journal.com/story/news/crime/2017/07/04/gov-bevin-pardons-10-including-3-louisville-men/448989001/. Governor Steve Beshear (2007-2015) issued all 201 of his pardons and commuted six prison sentences on December 8, 2015, his last day in office. Ten of the grants went to women convicted of violent acts stemming from domestic violence. The grants are listed at http://www.kentucky.com/news/politics-government/article48539005.html. Beshear received approximately 3400 applications during his eight years in office. Governor Fletcher issued about 100 pardons on his last day in office. He also caused a sensation in August of 2005 by issuing blanket pardons to nine of his aides who were being investigated by a grand jury for merit system personnel violations, but had not been convicted. See Associated Press, “Kentucky Governor Issues Pardons in Hiring Probe,” August 29, 2005, available at http://www.msnbc.msn.com/id/9121273/ns/politics/t/ky-governor-issues-pardons-hiring-probe/.
Office of the Governor
700 Capitol Avenue, Frankfurt, Kentucky, 40601
III. Expungement, sealing & other record relief
A. Set-aside and expungement of minor felonies, pardoned convictions
On April 1, 2016 the Kentucky legislature passed HB40, adding new sections to KRS Chapter 431 that authorize courts upon petition to vacate specified Class D felony convictions and pardoned convictions, dismiss the charges, and expunge the record. See Ky. Rev. Stat. Ann. § 431.073 (added by HB40 (2016)). Until the passage of HR 40 in 2016, the only felony cases eligible for expungement were Class D felonies in which adjudication was deferred. See §§ 533.250-533.262, discussed infra. On March 26, 2019, Kentucky enacted SB 57 (effective June 26, 2019), which makes any Class D felony—or series of such felonies—eligible, with the exceptions described below.
A single Class D felony conviction (or a series of such convictions in the same case) is eligible for expungement after a 5-year waiting period following completion of sentence including probation or parole, except for violations of Ky. Rev. Stat. Ann. §§ 189A.010 (DUI), 508.032 (domestic assault), or 519.055 (impersonating a peace officer), abuse of public office, a sex offense, an offense committed against a child, or an offense that resulted in serious bodily injury or death. § 431.073(1)(D).6 Multiple Class D felonies stemming from a single incident may be vacated in a single application. A person can only apply for vacatur under this authority once, but effective June 26, 2019, this limitation will restart, so that a person who had a felony conviction vacated and expunged prior to that date will again become eligible. A 5-year waiting period from completion of sentence (including any period of probation and parole) applies, during which time a person must remain conviction-free. A person with pending criminal charges may not apply.
All petitions for expungement must include a certificate of eligibility for expungement, in which the Kentucky State Police certify an individual’s eligibility. Ky. Rev. Stat. Ann. § 431.079. Effective June 26, 2019, this requirement only applies to conviction records. The vacatur and expungement application shall be filed as a motion in the original criminal case, and defendants “shall be informed of the right at the time of adjudication.” § 431.073. The court must hold a hearing within 120 days of filing. Prosecutors have 60 days to respond, and no hearing is required if the prosecutor either indicates no objection or does not respond within the 120 days.
As originally enacted, there was a filing fee of $500. Effective June 26, 2019, the filing fee to secure access is reduced to $50, and upon issuance of an order vacating the conviction and expunging the record, an “expungement fee” of $250 is charged, payable by installment, which must be paid in full before expungement can be completed. In December 2021, the Kentucky Supreme Court ruled that an applicant for expungement could take advantage of the state IFP statute, holding that the statute should be construed broadly in expungement cases to allow individuals access to courts, and that it applies equally the $50 filing fee and the $250 expungement fee that allows effectuation of relief granted, a unique feature of KY law. See Jones v. Commonwealth, slip op. at 8, http://opinions.kycourts.net/sc/2019-SC-0651-DG.pdf (“We can identify no other situation in our Commonwealth where a judge renders a judgment that a litigant is entitled to a benefit under the law, but that litigant cannot obtain the benefit of that judgment unless and until he pays a fee. Because of this, the IFP statute applies to both the $50 filing fee and the $250 expungement fee. Any other holding would be contrary to the purpose of the IFP statute.”)
If all eligibility requirements are met, the court may order the conviction vacated, upon which
the court shall dismiss with prejudice any charges which are eligible for expungement . . . and order expunged all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records ….
Where a person is seeking to expunge a newly eligible Class D felony (or felonies), the court must find that “the person has been rehabilitated and poses no significant threat of recidivism.” § 431.073(1). And if the prosecutor objects to the petition, the applicant must show at the hearing by clear and convincing evidence that vacating the judgment and expunging the record is “consistent with the welfare and safety of the public”; supported by the applicant’s behavior since conviction as evidenced by his participation in rehabilitative activities in prison and has been living a law-abiding life since release; that relief is in “the interests of justice”; and any “other matter deemed appropriate or necessary by the court.” Id. If the court determines that circumstances warrant vacation and expungement and “that the harm otherwise resulting to the applicant clearly outweighs the public interest in the criminal history record information being publicly available,” then the conviction(s) shall be vacated and the records expunged, but the order does not preclude a prosecutor’s office from retaining a nonpublic record for law enforcement purposes only. Id.
Upon entry of an order vacating and expunging a conviction, the original conviction shall be vacated and the record shall be expunged. The court and other agencies shall cause records to be deleted or removed from their computer systems so that the matter shall not appear on official state-performed background checks. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application. If the person is not prohibited from voting for any other reason, the person’s ability to vote shall be restored and the person may register to vote.
Ky. Rev. Stat. Ann. § 431.078(6).
Index of expungement orders
The Administrative Office of the Courts shall retain an index of expungement orders entered under Section 1 of this Act. The index shall only be accessible to persons preparing a certification of eligibility for expungement pursuant to Section 4 of this Act. If the index indicates that the person applying for expungement has had a prior felony expunged under Section 1 of this Act, the person preparing the report may, notwithstanding the provisions of Section 1 of this Act, access the expunged record and include information from the expunged record in the certification.
A guide to felony expungement created by the The Kentucky Courts is available at http://courts.ky.gov/Expungement/Pages/felonyexpungement.aspx. See also this survey from a local law firm: https://www.bryantpsc.com/felony-expungement-kentucky/.
B. Expungement of misdemeanors
Most misdemeanors and violations are eligible for expungement, upon petition to the court of conviction, five years after completion of sentence or probation, whichever is later.7 Ky. Rev. Stat. Ann. § 431.078(2). Expungement is mandatory if the individual has no other convictions for a misdemeanor or violation (a series of misdemeanors or violations arising out of the same incident counts as single offense), § 431.078(1)(a), and discretionary if the individual has been convicted of multiple misdemeanors or violations not arising from the same incident, § 431.078(1)(b). In either case, the individual must not have been convicted of a felony or misdemeanor within the preceding five years and must have no pending charges. § 431.078(4) – (5). Sex offenses or offenses against a child are ineligible. Id. The fee for expunging a misdemeanor conviction is $100.
Upon receiving the petition, the court must notify the prosecutor, identified victims, and “any other person whom the person filing the petition has reason to believe may have relevant information related to the expungement of the record.” § 431.078(3). A hearing is required for both mandatory and discretionary expungement. No standards for consideration of discretionary expungement are set forth in the law. Individual must be informed of right to expunge conviction at time of conviction. § 431.078(1). The section is retroactive to offenses committed prior to July 14, 1992. § 431.078(8).
All petitions for expungement (effective June 26, 2019, only of convictions) must include a certificate of eligibility for expungement, in which the Kentucky State Police certify an individual’s eligibility. Ky. Rev. Stat. Ann. § 431.079.8
Upon the entry of an order to expunge the records the proceedings in the case shall be deemed never to have occurred; the court and other agencies shall cause records to be deleted or removed from their computer systems so that the matter shall not appear on official state-performed background checks; the persons and the court may properly reply that no record exists with respect to the persons upon any inquiry in the matter; and the person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.
Ky. Rev. Stat. § 431.078(6).
C. Expungement for victims of human trafficking
Persons convicted of prostitution not involving violence may move the convicting court, 60 days after final judgment, to expunge all records if they can show that their participation in the offense is the direct result of being a victim of human trafficking. Ky. Rev. Stat. § 529.160.
D. Pretrial diversion (deferred adjudication)
Ky. Rev. Stat. Ann. §§ 533.250-533.262. Pretrial diversion is available to a person charged with a Class D felony offense who has had no prior felony convictions within a ten-year period, who has not been under felony sentence within the ten year period immediately preceding the commission of the offense, and whose offense is not one for which probation or parole is prohibited. § 533.250(1)(a). No person shall be eligible for pretrial diversion more than once in a five (5) year period. § 533.250(1)(c). Persons must demonstrate treatment compliance as a precondition of participation in the pretrial diversion program, if indicated, though this requirement may be waived. §§ 533.251(1)-(2). The court may permit people with Class C felonies to participate. § 533.251(4). Prosecutor must make a recommendation on each request for admission to diversion, and the court cannot grant diversion without the prosecutor’s approval. § 533.250(6). See also Flynt v. Commonwealth, 105 S.W.3d 415 (Ky. 2003).9 A guilty plea is a precondition for participation, but upon successful completion of the probationary period the charges are listed as “dismissed-diverted” and “shall not constitute a criminal conviction.” § 533.258(1). Expungement is available under Ky. Rev. Stat. Ann. § 431.076 (see supra). The defendant shall not be required to list this disposition on any application for employment, licensure, or otherwise unless required to do so by federal law. § 533.258(2).
E. Expungement of non-conviction records
In 2020, HB327 substantially amended the law governing expungement of non-conviction records. For cases disposed after March 27, 2020, expungement of misdemeanor or felony charges resulting in acquittal or dismissal with prejudice (“and not in exchange for a guilty plea to another offense”) is automatic upon disposition (“The order expunging the records shall not require any action by the person.”). Ky. Rev. Stat. Ann. § 431.076(1)(a). Cases disposed prior to that date, and felony cases in which charges have not resulted in an indictment, may be expunged on petition after 60 days. §§ 431.076(1)(b), (c), (2)(a). Cases in which charges were dismissed without prejudice are eligible for expungement three years after disposition in the case of felony charges, and one year after disposition in the case of misdemeanor charges, reduced in both cases from five years. § 431.076(2)(c). Expungement is mandatory without a hearing for dismissed cases under (1)(b); a 90-day response period is given to the district attorney for cases under (1)(c). If a response if filed, 90 days after that, if no indictment has been filed, dismissal without prejudice and expungement is mandatory. The court must order expungement of all records in the custody of the court and any records in the custody of any other agency, including law enforcement records. § 431.076(4). See also § 17.142 (segregation of records). In contrast to statutes authorizing expungement of conviction records, no filing fee is indicated. Under preexisting law a hearing was required and expungement was discretionary. After expungement, inspection of the records “may thereafter be permitted by the court only upon petition by the person who is the subject of the records and only to those persons named in the petition.” § 431.076(7).
In spousal abuse cases judges “shall” expunge if the charges are dismissed or end in acquittal. Id. § 510.300.
F. Juvenile expungement
Kentucky significantly revised its juvenile expungement authority in 2017. See SB-195 (2017) amending Ky. Rev. Stat. Ann. § 610.330. Expungement is now available for all juvenile offenses, excluding sex crimes and those that would result in “violent offender” classification. § 610.330(1)(a), (c). Previously, offenses that would have been felonies if committed by an adult were ineligible. Only a single felony (or “a serious of felonies arising from a single incident”) may be expunged, while there is no limitation of the number of misdemeanors, violations, or status offenses that may be expunged. § 610.330(2). Individuals with charges pending are ineligible. § 610.330(1(c). Expungement proceedings may be initiated by motion from “any interested person,” a probation officer, a representative of the Department of Juvenile Justice, or upon the court’s own motion. § 610.330(1)(b). The petition must be filed no sooner than two years after the ending of the court’s jurisdiction over the juvenile or two years after the juvenile’s unconditional release from commitment, with waiver of the waiting period available in extraordinary circumstances. § 610.330(2). Under the new amendments, expungement is discretionary, and a juvenile’s record may be vacated and expunged so long as the eligibility requirements described above are met. § 610.330(5). Upon expungement, “the case shall be deemed never to have occurred and all index references shall be deleted and the person and court may properly reply that no record exists with respect to such person.” § 610.330(6). Only the person or those named in the sealing order may inspect the records, and the juvenile may deny the existence of any record, and may not be required to disclose the record on “an application for employment, credit, or other type of application.” § 610.330(6), (9). The court must inform the juvenile of the right to expungement at the time of adjudication. § 610.330(1)(a).
Expungement is now automatic at the time of disposition if a juvenile petition is dismissed, or results in a finding of not-delinquent. § 610.330(7).
In 2005, an investigative article from the Louisville Courier-Journal reports that 12,000 expungements were granted in Kentucky in the two-year period prior to May 2005. Jason Riley & Kay Stewart, Confusing laws allow abuse and inequality: Filing errors also leave some sealed cases open, Courier-Journal, May 15, 2005. The Courier-Journal article also documents confusion among judges as to whether they have discretion to deny expungement under these statutes. Uncertainty expressed about court authority to expunge records in diversion cases. When a case is expunged, several agencies—including Metro Corrections, the commonwealth’s attorney’s office, metro police and sometimes the state police and the FBI—are ordered to seal their records. They are supposed to certify to the court within 60 days that they have done so. The FBI, which runs the National Crime Information Center, is not bound by the state order but routinely erases the requested records.
IV. Criminal record in employment & licensing
A. Public employment and licensing, generally
Consideration of criminal record in public employment and licensing is covered in Ky. Rev. Stat. Ann. §§ 335B.020-.070. Conviction may not be the sole grounds for denial, but employers and licensing agencies must determine if a prior conviction is “directly related” to the opportunity:
No person shall be disqualified from public employment, [or from] . . . any occupation for which a license is required, solely because of a prior conviction of a crime, unless the crime for which convicted directly relates to the position of employment sought or the occupation for which the license is sought.
§ 335B.020(1). The “direct relationship” standard is explained in § 335B.020(2):
In determining if a conviction directly relates to the position of public employment sought or the occupation for which the license is sought, the hiring or licensing authority shall consider:
(a) The nature and seriousness of the crime for which the individual was convicted and the passage of time since its commission.
(b) The relationship of the crime to the purposes of regulating the position of public employment sought or the occupation for which the license is sought;
(c) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position of employment or occupation.
See also 1980 Ky. Op. Atty Gen. 80-388 (1980), 1980 WL 102528 (Ky.A.G) (explaining that a felony conviction is not an absolute bar to an occupational license, and that Ky. Rev. Stat. Ann. Ch. 335B supersedes all other statutes and regulations as to licensing convicted persons, and the licensing board should consider if an applicant has been rehabilitated).
In 2017, SB-120, § 31 made significant amendments to § 335B.030, further defining the scope of discretion granted to public employers and licensing boards, and adding to the obligations of the latter. It also repealed § 335B.040, which permitted denial of a license on grounds of absence of good moral character. Under § 335B.030(1), which was revised to apply only to public employers, unsuccessful applicants must be provided with written reasons for a decision to deny and an opportunity to be heard. They must also be notified of the earliest date they may reapply, and that “evidence of rehabilitation may be considered upon reapplication.” § 335B.030(1)(a).
Under a new § 335B.030(2) that applies only to licensing boards, an otherwise qualified applicant may not be denied a license based on criminal record unless they are first provided notice that the conviction “may disqualify” them, written notice “demonstrat[ing] the connection” between the conviction and the license, and giving them an opportunity to be “personally heard before the board” before it reaches a final decision. § 335B.030(2)(a). If the conviction was for a serious felony, there is a “rebuttable presumption” that “a connection exists” between the prior conviction and the license being sought. § 335B.030(2)(b).
Rejected applicants for employment and for licensure have a right to judicial review of the decision. §§ 335B.030(1)(b), (2)(c).
B. Ban-the-box in public hiring (executive branch)
On February 1, 2017, Governor Matt Bevin signed Executive Order 2017-064, removing questions about criminal history and convictions from executive branch job applications. The Order also prohibits agencies from inquiring “into an applicant’s criminal history until the applicant has been contacted to interview for a position, unless required by law to do so.” The order does not apply to other public employers in the state, or to private employers.
C. Certificate of Employability
In 21021, SB 497 created new sections of Chapter 196 to require the Department of Corrections (DOC) to issue to released prisoners documentation of their criminal history, institutional history, other relevant information, and a certificate of employability; to require DOC to assist prisoners with writing resumes, and to require the Cabinet for Health and Family Services to prioritize provision of Medicaid benefits to prisoners 30 days prior to release upon receipt of a Medicaid Section 1115 waiver. Also exempted all individuals residing in Kentucky from the disqualification from SNAP benefits.
- Efforts have been made in the Kentucky legislature to restore the vote automatically upon completion of sentence; The Democratic-led House repeatedly has approved a proposed constitutional amendment to that effect, but it has been blocked in the Republican-led Senate.
- The order restores the vote to persons “who have satisfied the terms of their probation, parole, or service of sentence (hereinafter collectively referred to for purposes of this Order as “Final Discharge”), exclusive of restitution, fines, and any other court-ordered monetary conditions.”
- Note that prior to 2010, the Parole Board consisted of 9 full-time and 2 part-time members, and each of the part-time members had to be from a different political party. In 2010, legislation was passed that deleted reference to part-time Board members. See 2010 Ky. Laws Ch. 107 (H.B. 564).
- According to the Office of the Secretary of State, prior to the issuance of the executive order Governor Beshear acted to restore rights on a case-by-case basis to more than 5000 individuals. (Phone: 502-564-3490).
- See Elizabeth A. Wahler, Losing the Right to Vote: Perceptions of Permanent Disenfranchisement and the Civil Rights Restoration Application Process in the State of Kentucky, The Sentencing Project (Apr. 2006), available at http://www.sentencingproject.org/publications/losing-the-right-to-vote-perceptions-of-permanent-disenfranchisement-and-the-civil-rights-restoration-application-process-in-the-state-of-kentucky/; Marc Mauer & Tushar Kansal, Barred For Life: Voting Rights Restoration in Permanent Disenfranchisement States, Sentencing Project (Feb. 2005) at 14, available at http://www.sentencingproject.org/publications/barred-for-life-voting-rights-restoration-in-permanent-disenfranchisement-states/.
- Prior to 2019 enlargement of eligibility, the only eligible Class D felonies were third-degree burglary, drug possession, prescription forgery, theft by unlawful taking, theft by deception, stealing credit card information, stealing computer data, filing falsified financial records, conspiracy to promote gambling, bigamy and selling real estate without a license, among several others.
- The petition form is available at http://courts.ky.gov/resources/legalforms/LegalForms/4962.pdf.
- The website of the Kentucky courts describes certification procedures and allows petitioners to begin the certification process of line. See http://courts.ky.gov/expungement/Pages/default.aspx. As of February 2016, a $40 fee is required for certification — this is in addition to the $100 fee required to file the petition itself.
- In Gibson v. Commonwealth, 291 S.W.3d 686, 690 (Ky. 2009), the Kentucky Supreme Court explained its reasoning in Flynt as follows:
The issue presented in Flynt, was whether a trial court could place a criminal defendant on a pretrial diversion program without the consent of the prosecuting attorney. Id. at 426. A criminal defendant who successfully completes a Pretrial Diversion Program is entitled to dismissal of his charges under circumstances that ‘shall not constitute a criminal conviction.’ KRS 533.258(1). Upon completion of the program, RCr 8.04(5) provides for the charges to be ’dismissed with prejudice.’ In holding that the prosecuting attorney’s consent was required, we said:
‘[t]o interpret KRS 533.250(2) as permitting a trial court to approve pretrial diversion applications over the Commonwealth’s objection – and thus conferring upon circuit courts the discretionary authority that we have previously held to be within the exclusive province of the executive branch – would construe it in a manner inconsistent with Kentucky’s constitutional separation of powers provisions …. (W)here the Commonwealth objects to pretrial diversion, circuit courts cannot unilaterally approve a defendant’s diversion application.’
Id. at 426. Critical to our holding in the Flynt case is the fact that, unlike other ‘pretrial diversion’ schemes, the program established by the General Assembly enables a criminal defendant to avoid a felony conviction entirely, and potentially, if the Program is satisfactorily completed, results in a dismissal of the case ‘with prejudice,’ barring future prosecution for that offense. Thus, we held that our Constitution’s provision for separation of powers requires the agreement of the executive branch (‘the Commonwealth’) before entry into the Program may be ordered by the court.