Jury:  Effective August 1, 2021, a lifetime bar on jury service for people convicted of a felony (unless pardoned) or under indictment, was replaced by a bar for those “under indictment, incarcerated under an order of imprisonment, or on probation or parole for a felony within the five-year period immediately preceding the person’s jury service.”  See HB84, amending La. Code Crim. Proc. Ann. art. 401(A)(5). See also State v. Baxter, 357 So. 2d 271 (La. 1978) (includes federal convictions).

D.  First offender pardon

A first offender (defined in La. R.S. § 15:572(C) as a person “convicted within this state of a felony but never previously convicted of a felony” under federal law or the law of any state or country) “shall be pardoned automatically upon completion of his sentence without a recommendation of the Board of Pardons and without action by the governor.”  La. Const. art. IV, § 5(E)(1); La. R.S. § 15:572(B)(1).  Entitlement to first offender pardon for those eligible is guaranteed by the constitution and may not be infringed by statute.  Op. La. Att’y Gen. No. 04-0080 (2005).    A person is entitled to only one first offender pardon.   § 15:572(C).    

Eligibility

Applies to state convictions on or after January 1, 1975.  Since a 1999 amendment to the Louisiana Constitution, first offender pardon is available only to persons convicted of “non-violent crime, or convicted of aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities.” La. Const. art. IV, § 5(E)(1), as amended by Acts 1999, No. 1398, § 1, approved Oct. 23, 1999, eff. Nov. 25, 1999.  All others must apply for full pardon.   Under La. R.S. § 15:572(B)(3), payment of court debt is required in order to qualify for a first offender pardon. 

Effect

First offender pardon restores “all rights of citizenship and franchise,” La. R.S. § 15:572(D), but not the right to run for office, Touchet v. Broussard, 31 So.3d 986 (La. 2010), or privileges such as liquor license.  See State v. Adams, 355 So. 2d 917 (La. 1978).  Unlike a gubernatorial pardon, a first offender pardon does not preclude use of a conviction in subsequent prosecution or sentencing, see Touchet v. Broussard, 31 So. 3d at 993–94, or to disqualify for occupational licensing.   La. R.S. § 15:572(E). It does not restore firearms rights, State v. Wiggins, 432 So. 2d 234 (La. 1983), or relieve of obligation to register as sex offender. La. R.S. § 15:572(B)(2). A person receiving a first offender pardon may be charged and punished as a second or multiple offender if they commit another offense.  § 15:572(D). 

Finally, a first offender pardon is not regarded as “full and unconditional” under federal immigration law for purposes of avoiding deportation, or of demonstrating good moral character for naturalization.  See Hang Thuy Nguyen v. USCIS, No. 16-30904 (5^th Cir. Feb. 9, 2017) (in contrast to unconditional gubernatorial pardon, Louisiana’s automatic first offender pardon does not qualify as “full and unconditional” so as to enable petitioner to demonstrate good moral character for naturalization).   

Eligibility for expungement:  In 2019, SB98 amended La. C.Cr.P. art. 978 to make entitlement to a first offender pardon one of three grounds for applying for expungement of the arrest and conviction, with the exception of crimes of violence and sex crimes.   See Part III, below. 

E.  Firearms 

Restriction on possessing firearms or carrying concealed weapons applies to any person convicted of a crime of violence, felony weapons or drug offense, or sex offense, and terminates ten years after completion of sentence so long as no other felony conviction occurs during that period.  La. R.S. § 14:95.1(C).  A governor’s pardon will restore firearms rights prior to the ten years, but a first offender pardon will not.   Wiggins, supra, 432 So. 2d 234.  The federal government takes the position, based on the holding in Caron v. United States, 524 U.S. 308 (1998), that a person who is ineligible for a concealed carry permit, as described in the paragraph below, is prohibited from possessing firearms under 18 U.S.C. § 922(g)(1).  See Complaint filed in Lynch v. Lee, No. 3:16-cv-00089-BAJ-EWJ (M.D. La.)     

Concealed carry permits:  In addition, persons who have been convicted of, or pled guilty or nolo contendere to, a crime of violence or any crime punishable by a term of one year or more may not obtain a concealed carry permit.  La. Rev. Stat. § 40:1379.3(C)(10).  “A conviction, plea of guilty, or plea of nolo contendere under this Paragraph shall include an expungement of such conviction or a dismissal and conviction set-aside under the provisions of Code of Criminal Procedure Article 893.”  Conviction of or plea to a misdemeanor crime of violence (as defined in R.S. 14:2) will result in loss of concealed carry privileges for five years after completion of sentence, unless the conviction was set aside and the prosecution dismissed.  Persons convicted of federal counterfeiting or forgery charges under 18 U.S.C. § 491(a) may obtain such a permit 15 years after completion of sentence.  Id.   

F. General collateral consequences issues

Notification of collateral consequences:  In 2021, HB 106 amended La. C.Cr.P. art. 556.1(A)(5) to require the court or defense counsel to notify a criminal defendant, prior to a felony guilty plea, of various specified collateral consequences, including deportation, civil rights loss, firearms loss, due process, and equal protection, and the court or defense counsel may also notify them about additional consequences such as education, employment, housing, etc.

Study of collateral consequences:  Also in 2021, SR100 requested the Louisiana State Law Institute to study collateral consequences affecting employment and licensure, including the exemption in existing law of 27 professions from licensing law, to align with public safety.  The resolution commented on the need for short-term relief prior to expungement eligibility (like judicial certificate), noting that expungement is not routinely available and that in any event many licensing agencies have access to expunged records.

II.  Pardon policy & practice

A.  Authority

The governor’s constitutional power to pardon depends upon prior favorable recommendation of the Board of Pardons.  See La. Const. art. IV, § 5(E)(1)(“Upon favorable recommendation of the Board of Pardons, [the governor] may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses.”)  See also La. R.S. § 15:572(A).  Notwithstanding any provision of law to the contrary, the governor shall not grant any pardon to any person unless that person has paid all of the court costs which were imposed in connection with the conviction of the crime for which the pardon is to be issued.  Id.  As discussed in Part I, pardon is automatic upon completion of sentence for certain first felony offenders, without action by the governor or the board.  In 2012, Act 714 merged the functions and duties of the Board of Pardons and the Parole Board.

The Board consists of five appointees of the governor confirmed by the Senate, whose terms run concurrent with Governor’s, and one of which shall be chosen from a victims group. See https://doc.louisiana.gov/imprisoned-person-programs-resources/pardons-parole/  (providing general information on the Board of Pardons). The governor chooses the chair.  Const. art. IV, § 5(E)(2); La. R.S. § 15:572.1.  Any board action requires four favorable votes.  La. R.S. § 15:572.1(e).

First Offender Pardon – See Part I(D) above. A first offender (defined in La. Rev. Stat. Ann. § 15:572(C) as a person “convicted within this state of a felony but never previously convicted of a felony” under federal law or the law of any state or country) “shall be pardoned automatically upon completion of his sentence without a recommendation of the Board of Pardons and without action by the governor.”  La. Const. art. IV, § 5(E)(1); La. Rev. Stat. Ann. § 15:572(B)(1). 

B.  Eligibility

An applicant for pardon must have completed their sentence, including court costs.  La. Rev. Stat. Ann. § 15:572(A); see Op. La. Att’y Gen. No. 04-0080 (2005).  The Rules of the Louisiana Board provide standards and procedures.  

Court debt:  Under La. Code. Crim. Proc. Art. 875.2, enacted in 2021 by HB288, a sentencing court is required to consider a defendant’s financial situation in imposing fines and other court costs, and may reduce or waive court debt at any time.  At the conclusion of supervision unpaid restitution is converted to a civil obligation in favor of the victim.     

See also Part I above on automatic “First Offender Pardons” authorized by the state constitution.

Federal offenses have in the past been considered eligible for a Louisiana pardon.   See Malone v. Shyne, 937 So. 2d 343 (La. 2006) (holding that a pardon issued by the Louisiana governor to a federal offender was sufficient to restore the person’s right to hold a municipal or state office). In holding that the phrase “offenses against the state” in art. IV, § 5 includes federal offenses, the court referred to “the historical practice of Louisiana governors to issue pardons to federal offenders. See La. Atty. Gen. Op. 103, 97-878 (3/13/80), which recites the fact that Louisiana governors issued 87 pardons to persons convicted of federal felonies in the 15 years preceding 1980.”  937 So. 2d at 351.  Prior to the Shyne decision, the Board of Pardons had announced in 1996 and again in 2005 that it would no longer accept applications from federal offenders.  See http://www.insurancejournal.com/magazines/editorsnote/2005/08/22/59579.htm. The Board’s website now states that applications from federal offenders will not be accepted.  

C.  Effect

Where a convicted person receives a full executive pardon by the governor upon recommendation of the Board of Pardons (“Gold Seal” Pardon), he is restored to “status of innocence.”  State v. Riser, 704 So. 2d 946 (La. App. 2 Cir. 1997).  After a pardon, the conviction cannot be used to enhance punishment for a subsequent crime, though it may be used at trial to impeach.   (By contrast, an automatic first offender pardon does not preclude use of the conviction in subsequent prosecution, or to disqualify for occupational licensing.  See cases cited in Part I D.)  A full pardon also is effective under federal immigration law to avoid deportation and to lift the bar to establishing good moral character for purposes of naturalization.  See Hang Thuy Nguyen v. USCIS, supra.   

D.  Process

La. R.S. § 15:572.4(B)(1).  The Board’s policies and procedures are available on its website.  All applications must be made on the official form. “Before considering the application for pardon of any person, the board shall give written notice of the date and time at which the application will be heard and considered, at least thirty days prior to the hearing,” to the district attorney, the victim (if any), and any other person who has indicted an interest and has a legal right to present testimony.  La. R.S. § 15:572.4(B)(1).  In addition, the applicant must notify the district attorney and victims of his application, and place public notice in a newspaper on three separate days in a 30-day period.  § 15:572.4(C).  Information relating to a pardon request must be made available to the public.  The district attorney, injured victim, spouse or next of kin, and any other persons who desire to do so shall be given a reasonable opportunity to attend the hearing, and both the district attorney and victim must be given an opportunity to respond to the application, either telephonically or in person.  La. Rev. Stat. Ann. § 15:572.4(B)(2) and (3).  See also Rule 6(C) of the Board Rules.  No more than three persons may speak in favor of an application, and no more than three against.  All actions of the Board require the favorable vote of at least four members of the Board.  See Rule 1(C).

In recent years the legislature has erected more and more procedural barriers to pardon, generally permitting greater public scrutiny of the process, and making formal provisions for input by officials and victims.  Because a favorable Board recommendation is necessary for the governor to act, recent amendments create obstacles to pardon.  See generally Berrigan, supra.

E.  Frequency of grants

In addition to First Offender Pardons, the Board hears 20-25 cases of full pardon every two months, or about 120 cases annually, and in recent years has recommended favorably in about 30-40% of these.  Dockets and decisions can be viewed at https://doc.louisiana.gov/offender-programs-resources/pardons-parole/.

Governor John Bel Edwards (2016 to 2024) has revived a pardon process that had languished under his predecessor Bobby Jindal, pardoning 168 people during his first term, and 113 individuals during his second term, a substantial majority of applications that reached his desk.  Governor Edwards’ pardoning record is reported in the 2023 report of the Board of Pardons at p.11, See the 2023 report of the Board of Pardons at p.11, https://doc.louisiana.gov/wp-content/uploads/2024/02/2023-Annual-Report.pdf.  His grants were made fairly evenly across the years, with no bunching at the end of his term.  Governor Edwards also used his power to commute some prison sentences. See PBS News, Departing governor races to move prisoners off death row in Louisiana, August 31, 2023, https://www.theadvocate.com/baton_rouge/news/article_9769c546-4440-11ea-a045-87b5ee818f05.html.

Bobby Jindal issued only 83 pardons during his 8 years in office, acting favorably on only about 10% of the Board’s recommendations, and leaving a substantial backlog of cases unacted on for his successor. See Kevin Litten, Bobbly Jindal Grants Clemency to 21 in Final Days in Office (Jan. 6, 2016), https://www.theadvertiser.com/story/news/local/louisiana/2016/01/07/jindal-grants-clemency-final-days-office/78409556/. Previous governors Blanco and Foster issued few pardons early in their terms, but ended by pardoning over 331 individuals (in four years) and 476 individuals (in eight years), respectively.  Governor Edwin Edwards approved more than 3000 clemency recommendations in 16 years in office.

F.  Contact

Board of Pardons
504 Mayflower St.
Baton Rouge, LA 70802
Phone: (225)342-5421
Fax: (225)342-2289
paroleboard@corrections.state.la.us

III.  Expungement, sealing & other record relief

Automated expungement process

In 2023, the legislature established an automated expungement process applicable to all cases currently authorized for relief under Articles 976 (non-convictions), 977 (misdemeanors) and 978 (felonies) of the Code of Criminal Procedure, back to 1/01/2006. See SB 111.  This law was effectively a compromise after opposition from law enforcement and the courts twice defeated previous efforts to authorize an automatic “clean slate” process.³ The law directs the Louisiana Bureau of Criminal Identification and Information (BCII) to inventory all crimes for which expungement is authorized, and to develop a simplified online process whereby individuals can submit basic information about their case to obtain expungement relief.  If a record is eligible, the Bureau must expunge it within 30 days and then notify the Louisiana Supreme Court case system, which in turn will notify law enforcement and district courts about the expungement. Once the system is fully implemented after January 1, 2025, state lawmakers also aim to eliminate the filing fee, though implementation is still contingent on the state legislature funding the automated expungement process. One potential model would be New Jersey, which introduced a similar electronic expungement system, eCourts, in 2019. See Akil Roper, “New Jersey Launches Electronic Filing System for Expungements,” Collateral Consequences Res. Ctr., Jan. 28, 2021.  Another would be e-filing system established by the Oregon courts to facilitate applications for set-aside.  

NB: Because the data in the BCII system does not include disposition data for as many as 2/3 of court cases, even if implemented the new system will not benefit most individuals.  Advocates hope that the law will be funded in the near future so that the two records systems can be made compatible.

A. Expungement of convictions

Until 2014, there was no provision for expungement or sealing of adult felony convictions in Louisiana.  In May 2014, a comprehensive set of provisions for expunging criminal records was enacted as Chapter 34 of the Code of Criminal Procedure, and previous provisions for expunging non-conviction records (L.S. § 44:9) were repealed.   See La. Code Crim. Proc. Art. 971 et seq. The purpose of the new chapter is “to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.”  Id.

Article 977 La. C. Cr. Proc. provides for expungement of misdemeanor conviction records “if either of the following apply:

However, expungement is not available if the misdemeanor conviction either “arose from circumstances involving or is the result of an arrest for a sex offense as defined in R.S. 15:541, except that an interim expungement shall be available as authorized by the provisions of Article 985.1″; or was for domestic abuse battery or stalking (R.S. 14:40.2).

Article 978 La. C. Cr. Proc. provides for expungement of felony conviction if any of the following apply:

(1) The conviction was set aside and the prosecution was dismissed pursuant to Code of Criminal Procedure Article 893(E).
(2) More than ten years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole based on the felony conviction, and the person has not been convicted of any other criminal offense during the ten-year period, and has no criminal charge pending against him. The motion filed pursuant to this Subparagraph shall include a certification obtained from the district attorney which verifies that, to his knowledge, the applicant has no convictions during the ten-year period and no pending charges under a bill of information or indictment.
(3) The person is entitled to a first offender pardon for the offense pursuant to Louisiana Constitution Article IV, Section 5(E)(1), provided that the offense is not defined as a crime of violence pursuant to R.S. 14:2(B) or a sex offense pursuant to R.S. 15:541.

978(A). Note the inclusion of deferred adjudication in this authority rather than in non-conviction records. However, there are various ineligible offenses: violent offenses, crimes against minors, drug trafficking offenses (though mere possession with intent to distribute is eligible), and sex offenses (though expungement is available for conviction under pre-2001 statutory rape law if the offense would be a misdemeanor today). Certain controlled substance offenses are also ineligible. 978(B).  Certain violent offenses may also be expunged if eligibility criteria above are met. 978(E) (an additional requirement that the person “has been employed for a period of ten consecutive years” was repealed in 2020 by HB 179).

In 2020, eligibility was further expanded by limiting disqualification in connection with an earlier expungement.  Article 978(D) was repealed by HB 241 and Art. 992 (expungement application form) was amended to delete a requirement that no felony conviction have been expunged in the last 15 years and no misdemeanor expunged in the last 5 years.  Also omitted was a requirement, where expungement is sought for DUI, that the person have had no arrest or conviction expunged in the past 10 years.  Art. 992.  (In 2018, deferred adjudication cases were exempted from the 15-year waiting period in prior 978(D).  See below.)  This law also amended Art. 975 to provide that expungement may be sought when a person is on parole. 

Court debt:  See procedure section below.  Under La. Code. Crim. Proc. Art. 875.2, enacted in 2021 by HB288, a sentencing court in a felony case is required to consider a defendant’s financial situation in imposing fines and other court costs, and may reduce or waive court debt at any time, offer specific payment plan, including alternative service.  If a defendant is ordered to make monthly payments under a payment plan “the defendant’s outstanding financial obligations resulting from his criminal conviction are forgiven and considered paid-in-full if the defendant makes consistent monthly payments for either twelve consecutive months or consistent monthly payments for half of the defendant’s term of supervision, whichever is longer.” Art. 875.2(E).  If restitution is still owed by the end of supervision, it is converted to a civil obligation.  Art. 875.2(F). 

In 2021, courts were prohibited from extending supervision because of outstanding court debt (this authority was unlimited until 2018, reduced to one-time 6 months in 2020).  Art. 894.4.   

Human trafficking victims: In 2022, Louisiana enacted a law for victims of human trafficking to seek expungement for any offense under the state’s general expungement statutes. See SB 148. The person must establish by a preponderance of the evidence that the offense was committed, in substantial part, because the person was a victim of human trafficking. La. Code Crim. Proc. Art. 983(H) (2022). Before petitioning for expungement, an applicant may request certification from a prosecutor. Id. Certification is prima facie evidence that similar eligible crimes committed in Louisiana were also the result of being a victim. Id. Once certification is granted, any fees and waiting periods are waived. Id.

B.  Expungement following first offender pardons

In 2019, SB98 amended Art. 978 to make entitlement to a first offender pardon the basis for filing a motion for expungement, except for crimes of violence or of a sexual nature, without waiting 10 years.  First offenders convicted of controlled substance offenses were specifically made eligible for expungement.  See La. C. Cr. Proc. Art. 978(A)(3), (B)(3)(e).  

C.  Deferred adjudication and expungement 

Felonies and misdemeanors that are eligible for suspension and deferral of sentence may be expunged if set aside pursuant to deferred sentencing options provided under La. C. Cr. Proc. Arts. 893 (felonies) and 894 (misdemeanors). See Art. 977 (misdemeanors) and Art. 978 (felonies), discussed above.  Felony charges may be expunged 10 years after discharge and dismissal of the prosecution if no intervening criminal conviction, and misdemeanors after five years if no intervening felony conviction.  Eligibility criteria for discharge and dismissal, and eligibility criteria for expungement, are complex and not always entirely consistent. 

Until 2021, discharge and dismissal could be offered in misdemeanor cases only once every five years, a limit removed by HB232.  A ten-year limit for DUI convictions was retained. Art. 894(B)(2). Also in 2021, HB 77 extended the court’s authority to offer suspension of imposition or execution of sentence to fourth and subsequent felonies under Art. 893(B)(1), with the permission of the district attorney.   

Authority for first offenders. Art. 893(E)(1) provides for expungement at disposition for first offenders: “When it appears that the best interest of the public and of the defendant will be served,” the court may place certain first offenders on probation, at the successful conclusion of which charges are dismissed.  Expungement may then be sought under Art. 976: “Dismissal under this Paragraph shall have the same effect as an acquittal for purposes of expungement under the provisions of [Art. 976] and may occur only once with respect to any person.” Art. 893(E)(3)(c).

Eligibility criteria are complex, but in general no more than one prior felony unless the prosecutor consents.  The offense may still be used as a predicate offense.  See also State v. Jones, 539 So. 2d 866 (La. App. 1989) (conviction expunged after completion of deferred adjudication probation could be considered for the purposes of the felon in possession charge).  Sex offenses involving children, violent offenses, and serious drug trafficking offenses are not eligible for deferred adjudication.

D. Non-conviction records

La. C. Cr. Proc. Art. 976 provides that a person may at any time file a motion to expunge records if the person was not prosecuted and prosecution is barred, if the DA declined to prosecute, including because the person successfully completed a pretrial diversion program, or if the proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.  Expungement of non-conviction records is subject to the same procedural requirements as expungement of convictions, with the possibility of a hearing if any entity served (including the prosecutor) objects.   Note that Art. 978(A) provides for expungement of deferred adjudication records after 10 years, same as for conviction records.  See above.  

E.  Effect of expungement

Article 973 provides that persons with expunged records are not required to disclose the expunged arrest or conviction, or the fact that a record has been expunged. La. C. Cr. Proc. 973(C).  Expunged records are not available to the public but are available to law enforcement/prosecutors and to a number of licensing boards (mostly medical-related, but also the bar, social work, insurance, and other boards).  973(A), (B).  Expunged records may be used as a predicate offense in recidivist schemes. 973(E).  Expungement of a record does not relieve sex offender registration/reporting obligations. 973(H). Nor does expungement relieve handgun permit restrictions, though it does relieve firearm disabilities imposed as a result of a domestic battery abuse conviction. La. R.S. § 40:1379.3, 14:95.10, discussed in Part I(E), supra. 

Dissemination by background screeners:  Louisiana law prohibits private data-gatherers from disseminating expunged information:  See La. C. Crim. Proc. art. 974(A): “A private third-party entity, excluding a news-gathering organization, that compiles and disseminates criminal history information for compensation shall not disseminate any information in its possession regarding an arrest, conviction, or other disposition after it has received notice of an issuance of a court order to expunge the record of any such arrest or conviction.”

F.  Expungement by redaction

Article 985 – If a record includes the name of more than one individual and one or more of the individuals is entitled to an expungement of an arrest or conviction, any individual entitled to an expungement may petition the court to have records related to the arrest or conviction of the individual expunged by redaction.

Interim expungement of felony arrest records resulting in misdemeanor conviction:  Article 985.1 – Apart from the other expungement provisions, a felony arrest record can be expunged at any time if the arrest resulted in a misdemeanor conviction. Only the felony arrest record is expunged; the misdemeanor conviction record remains (unless otherwise eligible). There is no limit on the number of times this may be done.

G.  Juvenile records

Immediately upon turning age 17, a person may apply to expunge non-adjudication records. La. Child. Code Art. 918(A).  Upon a person’s motion to the court, misdemeanor adjudication records may be expunged only if two or more years have passed since satisfaction of the most recent judgment.  Id. at (B).  Felony adjudication records may only be expunged if the offense was not murder, a sex crime, kidnapping, or armed robbery; five or more years have elapsed since the satisfaction of the most recent judgment against the person; there are no subsequent convictions for a felony or misdemeanor involving a weapon; and there are no pending charges against the person.  Id. at (C).  If the court finds that grounds for expungement exist, it may order expungement.  Id. at (F).  Expungement results in destruction of records and prohibition against release of non-destroyable items; the person may deny any existence of the record, with certain exceptions.  La. Child. Code Arts. 920–22.

Human trafficking victims – set-aside and expungement authorized for prostitution adjudications. La. Child. Code Art. 923.

H.  Expungement procedure

See the paragraph at the beginning of this section for the new automated process enacted by SB111.  

Note: The Justice & Accountability Center of Louisiana has an Expungement App that can help determine whether or not a person can get their criminal record expunged under Louisiana law, and it can generate pre-filled expungement forms for $20.  

Article 980 calls for “contradictory hearing” if the district attorney, Bureau of Criminal Identification and Information, or arresting agency object to a motion to expunge within 60 days after receiving notice from the clerk (though court may grant another 60-day extension). La. C. Cr. Proc. Art. 980(A)(B).  If there is an objection, a contradictory hearing is held at which the entity must show cause for denial by a preponderance standard. 980(E).  Otherwise, the court will grant if requirements are met.

Fees and other financial barriers

Fees: Fees are capped at $550. La. C. Cr. Proc. Art. 983(A)(B).⁴

In 2019, a law made clear that if more than one offense arises out of an arrest, only one filing fee will be required.   No cost for expungement following acquittal, wrongful conviction, dismissal/non-charge (so long as district attorney consents), or in cases where juvenile has completed drug court. 

Court debt:  Under La. C. Cr. Proc. Art. 875.1, as revised and reenacted in 2021 by HB288, a sentencing court in a felony case is required to consider a defendant’s financial situation in imposing fines, restitution and other court costs.  The purpose section on HB288 states that “These financial obligations should not create a barrier to the offender’s successful rehabilitation and reentry into society. . . . Financial obligations that cause undue hardship on the offender should be waived, modified, or forgiven.”  As revised, the law provides: “Notwithstanding any provision of law to the contrary, prior to ordering the imposition or enforcement of any financial obligations as defined by this Article, the court shall determine whether payment in full of the aggregate amount of all the financial obligations to be imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents.”  If the court makes such a finding, the court may waive the obligations or direct a monthly payment plan that may not exceed one day’s wage, half of which shall go toward restitution.

In addition, if at any time, on motion of the defendant, the court determines that “the defendant’s current circumstances would cause substantial financial hardship to the defendant or his dependents,” the court may either waive or modify the obligation or recalculate the amount of the monthly payment made by the defendant under the payment plan. Art. 875.1(D). “[T]the defendant’s outstanding financial obligations resulting from his criminal conviction are forgiven and considered paid-in-full if the defendant makes consistent monthly payments for either twelve consecutive months or consistent monthly payments for half of the defendant’s term of supervision, whichever is longer.” If at the termination or end of the defendant’s term of supervision, any restitution ordered by the court remains outstanding, the balance of the unpaid restitution shall be reduced to a civil money judgment.  Art 875.1(E) and (F).   

Payment of court debt as qualification for expungement:  Louisiana is unique among states in not allowing courts to consider court debt in connection with eligibility for expungement.  See CCRC & The National Consumer Law Center, The High Cost of a Fresh Start (Feb. 2022). The eligibility waiting period runs from when “the person completed any sentence . . . or period of probation or parole.” La. C. Cr. Proc. Art. 977 (misdemeanors) and Art. 978 (felonies)(emphasis added). For persons who satisfy eligibility waiting period, relief appears to be mandatory. See id. Art. 980(“The objecting agency must show by a preponderance of the evidence why the motion of expungement should not be granted. If no objection is filed by an agency listed under Article 979 of this Code, the defendant may waive the contradictory hearing, and the court shall grant the motion to expunge the record if the court determines that the mover is entitled to the expungement in accordance with law.”) (emphasis added); State v. Kosden, 34 So.3d 521, 524 (La. App. 2 Cir., 2010) (under a previous non-conviction expungement statute, with language similar to the current conviction expungement statutes regarding entitlement to relief, the trial court was found to lack authority to deny expungement to a eligible petitioner on the grounds that “it would be contrary to public policy . . . [to deny based on] the circumstances and egregious nature of his involvement in the crime”).

Regulation of background screeners:  Article 974 provides that a private entity “that compiles and disseminates criminal history information for compensation,” excluding news-gathering organizations, may not disseminate information on expunged records once they have received notice of the expungement from the affected person.  La. C. Crim. Proc. Art. 974(A).  An action for damages is available against entities that violate this provision.  974(C). The provisions of this paragraph do not apply to private third-party credit reporting companies regulated by the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) or financial institutions regulated by Graham-Leach-Bliley Act (15 U.S.C. §6801 et seq.).  La. Code Crim. Proc. Ann. Art. 974.

I.  Administrative restoration

The Louisiana Bureau of Criminal Identification may purge records of individuals over 60 who have not been arrested for 15 years.  La. R.S. § 15:586

 J. Certificate of Employability

A Certificate of Employability, available from the court upon successful completion of sentence, insulates an employer from liability from negligent hiring. See La. R.S. § 23:291.

           A.(1) Any judge presiding over a reentry division of court created pursuant to R.S. 13:5401 shall issue a temporary certificate of employability to an offender under the intensive supervision of the reentry division of court.

            (2) Any judge presiding over a reentry division of court created pursuant to R.S. 13:5401 shall issue a permanent certificate of employability to an offender who has successfully completed his sentence under R.S. 13:5401.

            B.(1) A temporary certificate of employability shall be deemed null and void if the offender fails to successfully complete his sentence under R.S. 13:5401 and is revoked from probation.

            (2) A certificate of employability shall be deemed null and void if the offender is convicted of any felony offense subsequent to the issuance of the certificate of employability.

            C. Any employer, general contractor, premises owner, or other third party shall not be subject to a cause of action for negligent hiring of or failing to adequately supervise an offender certified to be employed due to damages or injury caused by that employee or independent contractor solely because that employee or independent contractor has been previously convicted of a criminal offense.

            D. Nothing in this Subsection shall affect the vicarious liability of the employer pursuant to Civil Code Article 2320.

IV.  Criminal record in employment, licensing & housing

A.  Licensing

The Licensing for Ex-Offenders Act of 2017, La. R.S. § 37:31 through 36, was substantially rewritten in 2022 by SB639, Act 486. The 2017 law replaced a 2014 law that authorized “provisional licenses” for persons with a criminal history.  The 2022 law establishes a binding pre-application determination process with a “directly related” standard and individualized consideration.  § 37:33 through 36.  A decision must be given within 45 days, and it must be in writing.  If a denial, it must specify the factors listed in § 37:2950(A)(2) (see below).  It repealed a list of crimes that could not qualify for licensure.  “A final determination that a criminal conviction will prevent a person from receiving a license shall be in writing and include notice of the right to appeal the determination and notice of the earliest date the application may
10 reapply for a license.” § 37:34. It also repealed a provision “requiring” a licensing agency to issue a license to an “otherwise qualified” individual, § 37:32.

Standards and procedures for licensure: The new law revised a more general preexisting provision dealing with the effect of a criminal record on licensure, which provides that a person may not be disqualified from licensure based on a conviction unless it “directly relates to the position of employment sought, or to the specific occupation, trade or profession for which the license, permit or certificate is sought.” § 37:2950(A)(1).  The new law specifies for the first time the factors that must be taken into account in determining “direct relationship:”  The nature and seriousness of the offense, the nature of the specific duties and responsibilities for which the license, permit, or certificate is required, the amount of time that has passed since the conviction, facts relevant to the circumstances of the offense, including any aggravating or mitigating circumstances or social conditions surrounding the commission of the offense, and evidence of rehabilitation or treatment undertaken by the person since the conviction. § 2950(A)(2).  A provision requiring that reasons for denial by in writing was repealed, and a new provision added allowing any complaints to be adjudicated under the state’s APA. § 2950(B). 

Significantly, the 2022 law substantially narrowed the lengthy lists of exempt agencies in both § 37:36 and §2950(D) so that they now include only gambling and racing agencies, including the gaming enforcement division of the state police — but not other law enforcement licenses.⁵  

The new law thus represents a substantial improvement over the 2017 law, both in the scope of coverage and in the standards and procedures applicable to licensure. ⁶  

By virtue of a law passed in 2018, the governor is required to conduct regular periodic reviews of the standards applied by occupational licensing agencies.  As finally enacted, this last-mentioned law substantially watered down provisions in earlier versions of the legislation that would have limited agency consideration of criminal records in licensing actions. 

B.  Non-discrimination in public and private employment

In 2021, Louisiana enacted La. R.S. § 23:291.2 (HB 707) which prohibits discrimination in hiring by public and private employers based on criminal history records, and which provides criteria in conjunction with criminal history records. Specifically, unless otherwise provided by law, an employer may not request or consider an arrest record or charge that did not result in a conviction, if such information is received in the course of a background check. The statute further provides that when considering other types of criminal history records, an employer can make an individual assessment of whether an applicant’s criminal history record has a “direct and adverse relationship” with the specific duties of the job that may justify denying the applicant the position. To make that assessment, the employer must consider: 1) The nature and gravity of the offense or conduct; 2) the time that has elapsed since the offense, conduct, or conviction; and 3) the nature of the job sought. The statute also requires the employer to make available to the applicant any background check information used during the hiring process upon receipt of a written request by the applicant.  There are no other procedural protections written into the bill, and no provisions for enforcement. 

Negligent hiring protection:  In 2014, La. R.S. § 23:291(E) was enacted, protecting employers from negligent hiring and supervision liability in many claims based solely on an employee’s past criminal convictions.  However, that protection does not extend to acts that are “substantially related to the nature of the crime for which the employee was convicted and the employer, general contractor, premises owner, or other third party knew or should have known of the conviction.”  § 23:291(E)(2)(a).  It also does not extend to a past conviction for enumerated crimes of violence or sex offenses of which the employer “knew or should have known.”  § 23:291(E)(2)(b). 

In addition, a Certificate of Employability insulates an employer from liability from negligent hiring. See La. R.S. § 23:291, described in Part III(J). 

C.  Ban-the-box in public employment and college admission

Ban-the-box in public employment:  Effective August 1, 2016, state employers may not inquire into the criminal history of applicants for “unclassified” state service positions until after the applicant has been interviewed for the position, or, if no interview is conducted, until the applicant is extended a conditional offer of employment.  See La. R.S. § 42:1701 (added by Act No. 398 (2016)). The law does not apply to law enforcement or corrections positions or to positions “for which a criminal background check is required by law.” § 42:1701(D).  

The law permits the consideration of an applicant’s criminal history once it is disclosed and provides that:

In considering the criminal history of the prospective employee, the state employer may consider the following:

1) The nature and gravity of the criminal conduct.

2) The time that has passed since the occurrence of the criminal conduct.

3) The specific duties and essential functions of the position and the bearing, if any, that the criminal conduct will have on the ability of the prospective employee to perform one or more of those duties or functions.

§ 42:1701(B).  In 2017, “classified” state service positions were also covered by ban-the-box provisions adopted by the State Civil Service Commission.  See Civil Service Rule 22.4.1, see also http://www.civilservice.louisiana.gov/files/commission_actions/2017/commact17-05.pdf (adopting proposed rule).  Rule 22.4.1 provides as follows:

No state employer, when filling a position in the classified service, may inquire on an initial application form about a prospective employee’s felony criminal history unless it is for a position that has a legal restriction that prohibits employment due to a criminal conviction. However, during the candidate’s interview or after the candidate has been given a conditional offer of employment, the appointing authority or his or her designee may inquire about the candidate’s criminal history.

Ban-the-box in public college admissions

Effective July 2017, admission forms to public colleges in Louisiana will no longer require information about an applicant’s criminal history, with the exception of certain violent sexual offenses.  See La. R.S. § 17:3152.  Inquiries may be made after admission for specified educational purposes, but students may not be excluded from programs designed to prepare for occupational license or certification as teacher.  Applications to Health Sciences Center and School of Veterinary Medicine excepted.

D.  Housing

Effective Aug. 1, 2021, a lessor may not require an application fee unless, prior to accepting payment, the lessor gives written notice as to whether the lessor considers criminal history (HB 374). La. R.S. § 9:3258.1.  The law does not apply to owner-occupied buildings of four units or less. “No person shall have a cause of action” and lessors are immune from any causes of action for alleged violations. Id.