Restoration of Rights & Record Relief
Last updated: August 27, 2023
I. Loss & restoration of civil/firearms rights
A. Civil rights
Voting: Persons convicted of any felony offense may not vote while incarcerated or while on parole or probation, but the right to vote is automatically restored when “finally discharged” from probation or parole. Mo. Rev. Stat. § 115.133.2. Missouri disenfranchises a person “while confined under a sentence of imprisonment,” or “while on probation or parole after conviction of a felony, until finally discharged from such probation or parole.” Mo. Stat. Ann. § 115.133. Probation and parole conditions may include payment of restitution and other court debt, and the court may extend supervision, including for violation of conditions. Id. §§ 559.016, 559.021, 559.036, 559.100. Failure to pay restitution may result in an extension of probation or parole up to the “maximum term” allowed. Id. § 559.105.
Misdemeanants are also disenfranchised while serving a prison sentence. § 115.133.2(1). Persons convicted of “a felony or misdemeanor connected with the right of suffrage” are permanently disenfranchised unless pardoned. § 115.133.2(3). See also Mo. Const. art. VIII, § 2 (persons convicted of felony or crime connected with suffrage may be excluded from voting); Mo. Rev. Stat. § 561.026.
Office and Jury: A felony offender or offender convicted of misconduct in office or dishonesty forfeits any elective or appointive public office. Mo. Rev. Stat. § 561.021.1. The right to hold office is restored upon completion of sentence (unless the crime was “connected to the exercise of the right of suffrage,” in which case disqualification is permanent). §§ 561.021.2; 561.021.3. A felony offender is permanently disqualified from jury service unless pardoned. § 561.026(3). See also § 494.425(4) (person convicted of felony disqualified from serving as petit or grand juror unless person’s civil rights have been restored).
Possession of firearms is unlawful for a person “convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony.” Mo. Rev. Stat. § 571.070.1(1).1 Antique weapons are not prohibited. § 571.070.3.2 See infra Part II.
A pardon will restore firearms privileges. Expungement (sealing) pursuant to Mo. Rev. Stat. § 610.140, also restores firearms rights. See infra, Part II. In 2021 a phrase was added to this section purporting to confirm that “[F]or purposes of 18 U.S.C. 921(a)33(B)(ii) [loss of firearms rights on conviction of domestic violence], an order or expungement granted pursuant to this section shall be considered a complete removal of all effects of the expunged conviction.” See SB 53.
C. Other collateral consequences
State collateral consequences are catalogued in United States v. Brown, 408 F.3d 1016 (8th Cir. 2005) (holding that because Missouri does not restore all civil rights automatically, state offender subject to prosecution under federal firearms statute).
II. Pardon policy & practice
The pardon power is vested in the governor, except in cases of treason or impeachment, under rules and regulations prescribed for the manner of applying. Mo. Const. art. IV, § 7. The governor may grant pardons under conditions and with restrictions as he deems proper. Id. Pursuant to Mo. Rev. Stat. § 217.800.2, all pardon applications must be referred to the Board of Probation and Parole for investigation and recommendation. The Board’s advice is not binding on the governor, and his power is not dependent upon a favorable Board recommendation. See James G. Lindsay, Pardons in Missouri: Procedure and Policy, 48 UMKC L. Rev. 33 (1979).
The Board of Probation and Parole consists of seven members appointed by the governor to six-year terms, no more than four from the same political party. Mo. Rev. Stat. § 217.665. All members are full-time salaried employees. Id. Chair is designated by the governor. Id.
The website of the Missouri Department of Corrections explains procedures applicable to clemency applications. See https://doc.mo.gov/divisions/probation-parole/executive-clemency. Pardon is available three years after discharge from sentence, without intervening convictions or charges pending. Those denied must wait three years to reapply. Id. Applicants whose sentences were suspended pursuant to Mo. Rev. Stat. § 610.105 are not eligible to apply for pardon, since they are not regarded as having been convicted (see below). Id. Persons convicted under the law of another state are ineligible for a gubernatorial pardon. The Board has not established substantive criteria for pardon.
The website of the Missouri Department of Corrections states: “A full pardon does not remove the conviction from the individual’s criminal record. A full pardon restores all rights of citizenship and removes any disqualification or punitive effect stemming from the conviction.” See https://doc.mo.gov/divisions/probation-parole/executive-clemency. The record of a pardoned offense is not expunged, but remains available to the public. Id. On the other hand, a prior conviction that is the subject of a pardon cannot be used as the basis for subjecting a person to an extended term of imprisonment under Missouri’s persistent offender law (see Mo. Rev. Stat. § 558.016). See Guastello v. Dep’t of Liquor Control, 536 S.W.2d 21 (Mo. 1976) (analyzing prior version of law; also noting that while fact of conviction obliterated by pardon, fact of guilt remains). A convicted person who is required to register as a sex offender for life because of his conviction can be released from the registration requirement if he is pardoned of the offense(s) that required registration. § 589.400.3(2). A bill that would have required that a pardon explicitly state that the person is relieved of his/her duty to register as a sex offender passed the House in 2016 but was not acted on in the Senate.
“All applications for pardon, commutation of sentence or reprieve shall be referred to the board for investigation.” Mo. Rev. Stat. § 217.800. The board “shall investigate each such case and submit to the governor a report of its investigation, with all other information the board may have relating to the applicant together with any recommendations the board deems proper to make.” Id. A copy of the one-page Application for Executive Clemency (which is used for both commutations as well as pardons) can be found online at: https://doc.mo.gov/sites/doc/files/2018-01/CLEMENCY_APPLICATION.pdf. The application should be mailed to the Missouri Board of Probation and Parole, P.O. Box 236, Jefferson City, MO, 65102. The Board’s website outlines eligibility requirements and explains investigative procedures, noting that investigation of persons not incarcerated will include reason(s) for requesting clemency, including specific collateral consequences of conviction; circumstances of present offense; other criminal record information; victim impact information; conduct since discharge in social, employment, and financial areas; significant positive achievements; testimonials from friends, employers, and general references; and comments/recommendations from the judge, prosecuting attorney, and law enforcement agency. See https://doc.mo.gov/divisions/probation-parole/executive-clemency. There is no provision for a public hearing. The Board recommendation is communicated in writing to the governor. See § 217.800.2 (report of investigation and recommendation submitted). Board meetings on clemency matters may be closed to the public. § 217.670.5. No fees are charged for filing for clemency.
Information on the Board website indicates that the clemency process takes a minimum of 18-24 months to complete. However, the Board’s website no longer contains any statistics on applications filed. https://doc.mo.gov/divisions/probation-parole/executive-clemency.
F. Frequency of grants
In December 2020, shortly after his reelection, Governor Mike Parson began a regular practice of pardoning, responding to an increase in applications and calls in the press for greater use of the power.3 He had inherited nearly 3,700 pending clemency applications when he was sworn in, and made issuing pardons a regular monthly occurrence. In September 30, 2021, the governor’s office issued a summary of his pardoning to that date, noting that he intended to keep pardoning to reduce the backlog of 3500 applications that existed when he took office. As of the end of 2022 he had granted 434 pardons, approved 20 commutations, and denied or closed more than 1,800 applications. The governor’s office posts the names of those pardoned or commuted on its website, but these lists do not provide any information about the cases.
Governor Pardon is far the most prolific pardoner in the state in more than 40 years. Until these grants, pardoning in Missouri had been irregular and sparing in recent years, despite a dramatic increase in applications as a result of heightened employment restrictions since 9/11 and extension of firearms restrictions to long guns in 2008. However, Governor Parson was criticized for failing to prioritize the case of a man who had spent three decades in prison for a crime prosecutors now say he did not commit. See Considering pardon for man prosecutors say was wrongfully convicted isn’t a priority for Missouri governor, AP, June 9, 2021, https://www.nbcnews.com/news/us-news/considering-pardon-man-prosecutors-say-was-wrongfully-convicted-isn-t-n1270273.
Governor Greitens, who was driven from office in June 2018 after about 18 months, pardoned five people before he departed, and commuted four sentences. Jay Nixon (2009-2017) granted 110 pardons, 65 of them in his final year, the most in several decades. Missouri governor tops 100 pardons, absolves clergy protest, http://www.sfgate.com/news/article/Missouri-governor-sets-three-decade-high-mark-for-10839848.php. Most of the pardoned convictions were minor offenses committed decades before, but 16 of his final grants went to religious leaders who had been convicted of trespassing for protesting in the Missouri Senate in support of Medicaid expansion. (He also commuted the sentence of one person, raising his total to 110 clemency actions.)
Applications have increased . Earlier governors had pardoned sparingly. For example, Governor Blunt (2005-2009) issued 14 pardons in four years, all to people convicted of minor offenses decades in the past, and denied 1338 pardon applications. Source: Board of Probation and Parole.4
Administrative Assistant, Board of Probation and Parole
1511 Christy Drive
Jefferson City, MO 65101
Phone: (573) 751-8488, 573-526-6551
Fax: (573) 751-8501
III. Expungement, sealing & other record relief
A. Expungement of convictions
Effective January 1, 2018, the availability of “expungement” (sealing) was greatly expanded. Mo. Rev. Stat. § 610.140.5 The legislature proposed to expand eligibility further in 2023, but the bill was vetoed by the governor. See SB 189, and the governor’s veto message.
As last amended in 2018, the law allows expungement of all non-Class A felonies and all misdemeanors, subject to a lengthy list of exceptions for violent offenses, sex offenses, and other more serious crimes, and driving offenses involving liquor or by individuals holding commercial drivers licenses. Mo. Rev. Stat. § 610.140(2) (as revised and reenacted by SB-588 (2016)). Effective August 28, 2018, convictions for unlawful use of a weapon by the carrying of a concealed weapon under § 571.030 (except under subdivisions (1) or (4) of subsection 1), where the person was convicted or found guilty before January 1, 2017, are eligible for expungement. Id. § 610.140; SB 954; SB 53.
The waiting period for misdemeanors was reduced from 10 to three conviction-free years after completion of sentence (including payment of any financial obligations), and for felonies from 20 to seven years. Id. § 610.140(5). In 2021 the waiting periods were further reduced to three years for felonies and one year for misdemeanors. See SB 53.
A person may expunge one felony and two misdemeanors in their lifetime, regardless of the court in which expungement is sought. Id. § 610.140(12). Several additional offenses were struck from the list of ineligible offenses in 2019 by HB1: property damage in the first degree, stealing, possession of a forging instrumentality, and fraudulent use of a credit device or debit device. HB1 also amended § 610.140(1) to make clear that if offenses “were charged as counts in the same indictment or information or were committed as part of the same course of criminal conduct, the person may include all the related offenses” in the petition, regardless of the limits of subsection 12.
A person may apply to have one or more offenses expunged so long as such person lists all the offenses he or she is seeking to have expunged in the same petition and so long as all such offenses are eligible. A person may be granted more than one expungement under this section provided that no person shall be granted more than one order of expungement from the same court. Id. § 610.140(10).
In addition, first-time alcohol-related misdemeanor offenses may be expunged after 10 years (except for those related to driving commercial motor vehicles while under the influence). Mo. Rev. Stat. § 610.130(1); see also §§ 217.360(3) (person convicted of delivery/concealment of intoxicating liquor may seek to expunge the record, unless delivery/concealment occurred in or about correctional facility); 311.326 (purchase/possession of liquor by a minor, can seek expungement one year after age 21).
The petitioner must name as defendants all courts and agencies “who the petitioner has reason to believe may possess the records subject to expungement for each of the offenses” listed in the petition, and the court’s order of expungement “shall not affect any person or entity not named as a defendant in the action.” § 610.140(3). “The clerk of the court shall give notice of the filing of the petition to the office of the prosecuting attorney,” and no hearing is necessary if the parties agree. § 610.140(4). At any hearing, the court may accept evidence and hear testimony on, and may consider a variety of criteria in determining whether the “petitioner’s habits and conduct demonstrate that the petitioner is not a threat to the public safety,” and that “expungement is consistent with the public welfare.” § 610.140(5). One of those criteria is whether “the person has satisfied all obligations relating to any such disposition, including the payment of any fines or restitution.” A pleading that these requirements are met “shall create a rebuttable presumption that the expungement is warranted” so long as the more objective eligibility criteria are satisfied. The burden then shifts to the prosecutor. The victim may also testify. If the presumption is not rebutted by the prosecutor, the court “shall” order expungement. A petition for expungement must be acted on within six months of its filing.
Effective January 2018, expunged records, including court records, “shall be confidential and only available to the parties or by order of the court for good cause shown.” Mo. Rev. Stat. § 610.140(7) (as amended by SB-588 (2016)).6 Expunged records are considered “confidential,” and are only available to the parties or by court order.
Entries of a record ordered expunged shall be removed from all electronic files maintained with the state of Missouri, except for the files of the court. The records and files maintained in any administrative or court proceeding in a municipal, associate, or circuit court for any offense ordered expunged under this section shall be confidential and only available to the parties or by order of the court for good cause shown. The central repository shall request the Federal Bureau of Investigation to expunge the records from its files.
Expunged records are generally not available to the public, but will remain available to criminal justice agencies and to a number of public entities for use in screening out applicants for professional licenses or employment in sensitive areas such as private security, law enforcement, and care of children, the elderly, and the disabled. § 610.140(9). While the new law retains the provision stating that conviction shall not be grounds for automatic disqualification, it does not apply in connection with employment with banks, insurers, and any employer that is required by state or federal law to exclude applicants with certain convictions. § 610.140(9), subsections 4 through 6. The expunged offense, violation, or infraction may be considered a prior offense in determining a sentence to be imposed for any subsequent offense that the person is found guilty of committing. § 610.140(8)
Expunged records will also be available to law enforcement for use in issuing firearm purchase and possession permits. § 610.120. However, per both the old and new laws, “[t]he [expungement] order shall not limit any of the petitioner’s rights that were restricted as a collateral consequence of such person’s criminal record, and such rights shall be restored upon issuance of the order of expungement.” § 610.140(8). So, notwithstanding the fact that expunged records may be accessed for firearm permitting purposes, it appears that expungement is effective at restoring firearm rights lost as a result of conviction.
B. Deferred sentencing
Any felony or misdemeanor for which probation may be imposed is eligible for suspended imposition of sentence. See § 557.011.2(3). If sentence and judgment are suspended after a guilty plea, there is no conviction for purposes of collateral consequences. Upon successful completion of probation, the record becomes a “non-conviction record” and need not be reported as a conviction. § 610.110. See also Yale v. City of Independence, 846 S.W.2d 193, 195 (Mo. 1993):
The obvious legislative purpose of the sentencing alternative of suspended imposition of sentence is to allow a defendant to avoid the stigma of a lifetime conviction and the punitive collateral consequences that follow. That legislative purpose is further evidenced in statutes concerning closed records. . . . [I]f imposition of sentence is suspended, the official records are closed following successful completion of probation and termination of the case. Closed records are made available only in limited circumstances and are largely inaccessible to the general public. . . . Thus, with suspended imposition of sentence, trial judges have a tool for handling offenders worthy of the most lenient treatment. Worthy offenders have a chance to clear their records by demonstrating their value to society through compliance with conditions of probation under the guidance of the court.
C. Legalization of marijuana and expungement of marijuana convictions
Ballot initiative No 3 (2022): Subsection 10 of Section 2 of a ballot initiative approved by Missouri voters in November 2022 (“Personal Use of Marijuana”) legalizes personal use of up to three ounces of marijuana by persons aged 21 and older; provides civil penalties for the possession or use of up to three ounces by those under 21; and provides civil penalties for possession and distribution (including distribution to those under 21 without compensation) of up to six ounces of marijuana. See Section 10(1), (5), and (6). A third offense of possession or distribution of six ounces is a misdemeanor.
The initiative also provides in Section 10(7) and(8) for
vacatur and expungement by petition with no filing fee for those incarcerated for offenses that are no longer criminal, for misdemeanors and Class E felonies, and for Class D felonies for possession of up to three pounds of marijuana with certain exceptions (offenses involving violence, delivery to a minor, and operating a motor vehicle under the influence of marijuana);
automatic vacatur, termination of supervision, and expungement by the court for those under supervision for the same marijuana offenses, excepting Class D felonies for delivery to a minor and operating a motor vehicle under the influence of marijuana); and,
automatic expungement of all misdemeanor marijuana convictions, and most felony marijuana convictions after completion of sentence.
The courts are directed to complete adjudication of all prisoner petitions for misdemeanor cconvictions within 90 days of the initiative’s effective date (30 days after the election), and of all other eligible prisoner cases within 180 days. The office of the state public defender is directed to prepare form pleadings that may be filed by individuals pro se, and the courts are directed to make these forms “readily available and accessible.”
In addition, under Section 10(8)(a), the courts are directed to automatically expunge, within six months, all misdemeanor marijuana convictions for those no longer under correctional supervision; and, within twelve months, all felony marijuana convictions upon completion of sentence (except those involving violence, delivery to a minor, and operating a motor vehicle under the influence of marijuana):
Within six months of the effective date of this section, the circuit courts of this state shall order the expungement of the criminal history records of all misdemeanor marijuana offenses for any person who is no longer incarcerated or under the supervision of the department of corrections. Within twelve months of the effective date of this section, the circuit courts of this state shall order the expungement of criminal history records for all persons no longer incarcerated or under the supervision of the department of corrections but who have completed their sentence for any felony marijuana offenses and any marijuana offenses that would no longer be a crime after the effective dates of sections 1 and 2 of this Article, excluding distribution or delivery to a minor, any such offenses involving violence, or any offense of operating a motor vehicle while under the influence of marijuana. For all class A, class B and class C, or successor designations, felony marijuana offenses, and for all class D, or successor designation, felony marijuana offenses for possession of more than three pounds of marijuana, the circuit courts of this state shall order expungement of criminal history records upon the completion of the person’s incarceration, including any supervised probation or parole.
The final quoted sentence dealing with expungement of more serious marijuana felonies appears to be surplusage, in light of the direction in the preceding sentence to expunge “any felony marijuana offenses” upon completion of sentence, with the stated exceptions.
D. Non-conviction records
Record closure: If a person arrested is charged but the case is subsequently nolle prossed, dismissed, or the accused is found not guilty or imposition of sentence is suspended in the court in which the action is prosecuted, “official records pertaining to the case shall thereafter be closed records when such case is finally terminated . . . except that the court’s judgment or order or the final action taken by the prosecutor in such matters may be accessed.” Mo. Rev. Stat. § 610.105(1). See also Mo. Op. Att’y Gen. No. 101 (Sept. 28, 1977), available at https://www.ago.mo.gov/docs/default-source/opinions/1977/101_1977.pdf?sfvrsn=2. Moreover, the complete record remains available to law enforcement and other governmental entities (e.g., department of revenue for driver license administration and the department of health and senior services facilities for licensing decisions). Mo. Rev. Stat. § 610.120.
Record expungement: Effective January 1, 2018, SB-588 (2016) (discussed above) made some non-conviction records eligible for expungement, but subject to the same eligibility rules and procedures that apply to convictions.
[A] petition to expunge records related to an arrest for an eligible offense, violation, or infraction may be made in accordance with the provisions of this section to a court of competent jurisdiction in the county where the petitioner was arrested no earlier than three years from the date of arrest; provided that, during such time, the petitioner has not been charged and the petitioner has not been found guilty of any misdemeanor or felony offense. (§ 610.140(6).)
In addition, arrest records may be expunged under § 610.122, as long as no civil action is pending related to the records i:
(1) The court determines that the arrest was based on false information and the following conditions exist: (a) There is no probable cause, at the time of the
action to expunge, to believe the individual committed the offense; (b) No charges will be pursued as a result of the arrest; and (c) The subject of the arrest did not receive a suspended imposition of sentence for the offense for which the arrest was made or for any offense related to the arrest; or
(2) The court determines the person was arrested for, or was subsequently charged with, a misdemeanor offense of chapter 303 or any moving violation as the term moving violation is defined under section 302.010, except for any intoxication–related traffic offense as intoxication–related traffic offense is defined under section 577.023 and (a) Each such offense or violation related to the arrest was subsequently nolle prossed or dismissed, or the accused was found not guilty of each offense or violation; and (b) The person is not a commercial driver’s license holder and was not operating a commercial motor vehicle at the time of the arrest.
Prior to 2021, a person also was required to have no prior or subsequent convictions to benefit from § 610.122, but that requirement was repealed by SB 53.
For effect of expungement, see § 610.140(6), discussed above. Arrest records not eligible for expungement under the new law may still be “closed” under the old authority in § 610.105.
Treatment courts: Missouri also provides for diversion to treatment court for drug cases and for specific categories of defendant (family, juvenile, veterans) in the discretion of the prosecutor, and a period of probation that may end with dismissal of the charges and eligibility for expungement. Mo. Rev. Stat. § 556.765, 478.001, 557.014.
E. Arrests based on false information; motor vehicle cases
An arrest record may be expunged pursuant to Mo. Rev. Stat. § 610.122 if (1) the court determines that the arrest was based on false information and there is no probable cause, at the time of the action to expunge, to believe the individual committed the offense; no charges will be pursued as a result of the arrest; and the subject of the arrest did not receive a suspended imposition of sentence for the offense for which the arrest was made or for any offense related to the arrest; or (2) The court determines the person was arrested for, or was subsequently charged with, a misdemeanor driving offense (except for DUI), and each such charge was subsequently nol prossed or dismissed, or the person was found not guilty. Expungement under this section results in the destruction of the record and removal from state electronic databases and FBI files. § 610.124. This relief is not available to a person holding a commercial driver’s license. A record of arrest shall only be eligible for expungement under this section if the person has no prior or subsequent misdemeanor or felony convictions, and no civil action is pending relating to the arrest or the records sought to be expunged.
F. Sealing of juvenile records
Records of juvenile court proceedings are generally not open to inspection or disclosure except by order of the court to persons having a legitimate interest therein, unless a child charged with class A felony or murder. Mo. Rev. Stat. § 211.321.1. The court may, on its own motion or upon application, order destruction of records and seal the official court file and peace officers’ records at any time after the child has reached his seventeenth birthday if the court finds that it is in the best interest of the child (or at any time after the closing of the child’s case if court’s jurisdiction extends beyond the child’s age 17). § 211.321.5. Records of suspension or revocation of a juvenile’s driving privileges may be expunged two years after suspension/revocation or when the person reaches age 21 under certain circumstances (e.g., first-time offense, blood alcohol content of 0.02%, not driving commercial motor vehicle). § 302.545.
Expungement of prostitution offenses for minors under coercion:
If a person has pleaded guilty to or been convicted of prostitution, and the person was under 18 years old at the time of the offense, the person may apply for expungement (sealing)—which the court must grant after a hearing, upon determining that the person was “acting under the coercion . . . of an agent when committing the offense . . . .” Mo. Ann. Stat. § 610.131; SB 793 (2018).
IV. Criminal record in employment & licensing
A. Collateral consequences in public employment
Mo. Rev. Stat. § 561.016.1 generally adopts the approach of the Model Penal Code in limiting the collateral consequences of a conviction to those imposed by the constitution or statute, embodied in the judgment of the court, or (in the case of discretionary consequences) those “reasonably related to the competency of the individual to exercise the right or privilege of which he is deprived:”
No person shall suffer any legal disqualification or disability because of a finding of guilt or conviction of a crime or the sentence on his conviction, unless the disqualification or disability involves the deprivation of a right or privilege which is: (1) Necessarily incident to execution of the sentence of the court; or (2) Provided by the constitution or the code; or (3) Provided by the statute other than the code, when the conviction is of a crime defined by such statute; or (4) Provided by the judgment, order or regulation of a court, agency or official exercising a jurisdiction conferred by law, or by the statute defining such jurisdiction, when the commission of the crime or the conviction or the sentence is reasonably related to the competency of the individual to exercise the right or privilege of which he is deprived.7
This provision has been successfully applied to challenge denial of public employment. See, e.g., Hardy v. Fire Standards Comm’n of St. Louis Cnty., 992 S.W.2d 330 (Mo. App. 1999) (county rules denying employment as a firefighter to any person convicted of a felony or misdemeanor involving moral turpitude conflicted with statute limiting the disqualifications of convicted felons to those where the crimes convicted of reasonably relate to the felon’s competency to do the job at issue, and thus, rules were void unless they could be enforced in such a way as to be in compliance with the statute); Mager v. City of St. Louis, 699 S.W.2d 68 (Mo. App. 1985) (municipal ordinance prohibition against employment of convicted felons by liquor licensees was contrary to limitations in § 561.016 insofar as it sought to disqualify convicted felons from employment when their crimes, convictions, or sentences were not reasonably related to their competency to be employed by liquor licensees). The Statute is intended to remove much of the stigma of conviction, and increase the legitimate discretion of licensing boards by eliminating arbitrary or inflexible barriers imposed by criminal conviction. See Chandler v. Allen, 108 S.W.3d 756 (Mo. App. 2003) (sex offender properly dismissed from job in deli on public safety grounds; Section 561.016 only relates to employment in certain regulated areas where license is required, which was not applicable to employment in deli).
B. Ban-the-box in public employment
In April 2016, Governor Nixon signed an executive order directing “all departments, agencies and boards and commissions in the Executive Branch subject to the authority of the Governor” to remove from all initial employment applications “questions relating to an individual’s criminal history unless a criminal history would render an applicant ineligible for the position.” See Executive Order 16-04 (April 11, 2016), available at https://governor.mo.gov/news/executive-orders/executive-order-16-04. It would appear that this order limits initial inquiries about criminal history to situations where it would disqualify an applicant from employment under statute or regulation.
C. Occupational licensing
In 2020, Missouri passed the Fresh Start Act, HB2046, codified at Mo. Rev. Stat. § 324.012. Previously, that state provided very little protection to a person with a criminal record in the licensing process.8 The new law does not apply to significant classes of licenses, including teachers, various health professionals, accountants, real estate brokers and agents, and peace officers. The new law establishes a “direct relationship” standard, § 324.012(3), and specifies that certain violent crimes “shall” be considered “directly related” to whatever license is involved even if sentence is not imposed. §§ 324.012(4)(1) through (3). Drug crimes “may” be disqualifying for certain occupations, while fraud offenses may be disqualifying for other occupations. §§ 324.012(4)(4), (5). If convicted of a lesser included offense, the period of disqualification as “directly related” lasts only for four years after release from incarceration. “Direct relationship” is determined by a multi-factor test. §§ 324.012(5), (6).
Applicants may apply for a preliminary determination that is binding on the agency. § 324.012(7). In 2021, this provision was amended to add a provision that in the event of a determination that the individual would be disqualified, “the individual shall be notified in writing of the grounds and reasons for disqualification.” See HB 273.
If a person is denied a license they have a right to a hearing and written findings addressing each factor on which the agency relied, sufficient for a reviewing court. “In any administrative hearing or civil litigation authorized under this subsection, the licensing authority shall carry the burden of proof on the question of whether the applicant’s criminal conviction directly relates to the occupation for which the license is sought.”§ 324.012(8)(3).
- Prior to 2008, only persons convicted of a “dangerous felony” were prohibited from possessing a firearm; only “concealable” weapons were banned; and only for five years after conviction or release from confinement. See L. 2008, H.B. No. 2034, § A. A bill was introduced in the Missouri legislature in January 2012 (HB 1482) that would create an exception to the unlawful possession law for those in possession of a rifle or shotgun who were not convicted of a “violent felony” (ie, one that involved a weapon, use of force, or arson), but there does not appear to be much support for this bill.
- The Missouri court of appeals has held that a guilty plea separately bars an individual from possessing a concealed weapon, even if pardoned. See Stallsworth v. Sheriff of Jackson County, Ct. App. W. Dist. May 31, 2016, http://www.courts.mo.gov/file.jsp?id=101635.
- When Governor Parson succeeded the disgraced Eric Greitens in June 2018, there were calls in the press for more frequent use of the power. In January 2019, the St. Louis Post-Dispatch editorial board urged Governor Parson to restore the pardon power to respectability and deal with a decades-old backlog of clemency requests. See Outlining the Case for Clemency, January 27, 2019, https://www.stltoday.com/opinion/editorial/editorial-outlining-the-case-for-clemency/article_16182efc-86e7-5fb2-bfe8-97a9cbb00e09.html However, twelve months later, the Kansas City Star editorialized that “Gov. Mike Parson is sitting on a backlog of 3,500 clemency cases. Why won’t he act?” See https://www.kansascity.com/opinion/editorials/article238720168.html.
- Earlier governors’ pardoning records are also available from the Board: Holden (2001-2005) issued 45 pardons, denied 840; Wilson (2000-01) granted 46 pardons and denied 347; Carnahan (1993-2000) granted 42 pardons and denied 607; Ashcroft (1985-1993) granted 34, denied 985; and Bond (1981-85) granted 73, denied 436.
- Prior to January 1, 2018, the only offenses eligible for record-sealing were bad check convictions (both felony and misdemeanor) and certain public order misdemeanors (trespassing, gambling, disturbing the peace). Mo. Rev. Stat. § 610.140 (2015).
- Prior to passage of the 2016 law, the analogous provision of § 610.140 stated that entities holding any expunged records were to “destroy” the record, and if that was “not feasible because of the permanent nature of the record books, such record entries shall be blacked out.” § 610.140(6)(2015).
Comments to the 1973 Proposed Code, included in § 561.016, explain that “reasonable relationship” test is the “most important provision” in the section:
The present law sometimes contains blanket restrictions against employment in certain regulated areas of persons convicted of crimes. Sometimes conviction is relevant to the public safety interests underlying the regulation, but often it is not. By eliminating irrational barriers to employment, we assist offenders in reintegrating themselves into the community. Thus, instead of providing that no liquor license shall be issued to any [convicted] person . . . the Code provides a reasonable rule which would authorize a licensing agency to refuse to grant a license to an applicant whose criminal record and other circumstances indicate that he would endanger the particular group or industry protected by the agency’s licensing power.
The Commentary goes on to opine that “there should be very few of these statutes containing special penalties [referred to in subsection (3)] if the Code is enacted and the present disqualification and disability statutes are repealed and replaced by the Code provisions.”
- Missouri law prohibited denial of licensure “solely” because of a felony conviction, Mo. Rev. Stat. § 324.029, or “primarily upon the basis that a felony or misdemeanor conviction of the applicant precludes the applicant from demonstrating good moral character.” §314.200. The latter provision, enacted in 1981, went on to say that “a board or other agency may consider the conviction as some evidence of an absence of good moral character, but shall also consider the nature of the crime committed in relation to the license which the applicant seeks, the date of the conviction, the conduct of the applicant since the date of the conviction and other evidence as to the applicant’s character.” See also United States v. Brown, 408 F.3d at 1019 (citing Mo. Rev. Stat. § 314.200 and stating “good moral character’ determination may not be primarily based on felony conviction”). The “reasonable relationship” standard in Mo. Rev. Stat. § 561.016, discussed above in connection with public employment, does not appear to have been applied by licensing boards. Section IIIB (1) notes that expunged record remain available to licensing boards.