Restoration of Rights & Record Relief
Last updated: September 28, 2023
I. Loss and restoration of civil/firearms rights
A. Civil rights
Upon conviction of a felony, a person loses the right to vote, serve on a jury, or hold an office of “honor, trust, or profit.” However, a person may vote during a period of probation (“non-jail community control sanction”) or parole. Ohio Rev. Code § 2961.01(A)(1), (2).
Other civil rights are restored to most convicted persons upon a “final release” from parole or post-release control, or upon completion of the prison sentence if the person is not placed under post-release control. § 2967.16(C)(1). A final release is not available earlier than one year after release on parole or post-release control, and in the case of a person serving a minimum sentence of life, not earlier than five years after release on parole or post-release control. § 2967.16(A). A person sentenced to a “community control sanction” (including probation or a fine) regains the right to hold office and sit on a jury upon completion of the sanction. §§ 2961.01, 2967.16(C)(1). Those convicted of specified corruption offenses are not restored to office eligibility unless pardoned. § 2967.16(C)(2)(c).
A public servant convicted of a misdemeanor of soliciting or receiving improper compensation is disqualified from public office or employment for a period of seven years after the date of conviction. § 2921.43(E). A public servant or party official who is convicted of bribery or a theft offense is “forever disqualified” from holding any public office, employment, or position of trust in the state, unless pardoned. See §§ 2921.02(H) (bribery), 2921.41(C)(1) (theft).
The general restoration of rights includes only civil rights and not firearms privileges, which may be restored either by a pardon or by a court (see below).
A person may not carry or use any firearm if convicted of a felony offense of violence or any felony drug offense. See Ohio Rev. Code § 2923.13(A)(2)-(3). A license to carry a concealed handgun will not be issued to a person who has been convicted of a felony drug offense or of assault when the victim is a peace officer. See § 2923.125(D)(1)(e). A person subject to a firearms disability may apply to the court of common pleas in the county of his residence for relief from state firearms disabilities if he is fully discharged from the sentence, has led a law-abiding life since, and is not “otherwise prohibited by law” from having a firearm. See § 2923.14(D). This restoration provision appears to be available to Ohio residents with out-of-state convictions, but is unavailable to anyone who does not reside in the state. See State v. Cantwell, 2013-Ohio-1685 ¶ 10 (Ct. App., 5th Dist. 2013). In 2011, subsections (B) and (F) of § 2923.14 were amended to make clear that the “otherwise prohibited” language in subsection (D) does not include any prohibition based solely upon a criminal conviction. Relief granted pursuant to this section is intended to lift any firearms restriction under federal law for Ohio offenders.1
C. Collateral consequences
A narrative survey though rather dated list of the collateral consequences in Ohio can be found in Kimberly R. Mossoney and Cara A. Roecker, Ohio Collateral Sanctions Project, 36 U. Toledo L. Rev. 611 (2005). (Until 2022, Ohio had an on-line compilation of collateral consequences, prepared under the auspices of the Ohio Justice and Policy Center and the State Office of the Public Defender, but it has now been taken down for lack of funding. See Civil Impacts of Criminal Convictions under Ohio Law, formerly available at http://civiccohio.org/.) The Ex-Offender Reentry Coalition established by Ohio Rev. Code Ann. § 5120.07 was directed to identify and examine “social service barriers and other obstacles to the reentry of ex-offenders into the community.” § 5120.07 (C). See Part III, infra. The website of the Ohio Justice and Policy Center contains a variety of resources that will be useful to people seeking restoration of rights in Ohio. See https://ohiojpc.org/resource-center/.
II. Pardon policy & practice
Ohio Const. art. III, § 11: The pardon power, except for treason and cases of impeachment, is vested in the governor, “subject . . . to such regulations, as to the manner of applying for commutations and pardons, as may be prescribed by law.” Ohio Rev. Code Ann. § 2967.07 requires that all applications for pardon or other clemency be made in writing to the Adult Parole Authority (part of the Parole and Community Services Division of the Department of Rehabilitation and Correction), which is required by law to investigate and make a recommendation to the governor on every application, but whose recommendation is advisory only. The Ohio constitution provides that “[t]he Governor shall communicate to the general assembly, at every regular session, each case of reprieve, commutation, or pardon granted, stating the name and crime of the convict, the sentence, its date, and the date of the commutation, pardon, or reprieve, with the Governor’s reasons therefor.” Ohio Const. art. III, § 11.
“The Ohio Parole Board is the bureau of the Adult Parole Authority assigned to process clemency applications. The governor may also direct the Parole Board to investigate and examine any case for the propriety of clemency. Upon completion of its examination, the Parole Board sends a report to the governor providing a summary of the facts in the case, a recommendation for or against the granting of clemency, and the reasoning behind the recommendation.” http://www.drc.ohio.gov/clemency.
A person may apply for a pardon at any time, though ordinarily clemency is granted after a person has shown an ability to live a crime-free lifestyle. See Ohio Parole Board Application for Executive Clemency Instructions and Guidelines, available at http://drc.ohio.gov/clemency. A person who is denied clemency must wait two years to re-apply unless s/he presents significant new information that was not and could not have been presented in the earlier application. See Ohio Admin. Code 5120:1-1-15(H). Only Ohio state convictions are eligible for a pardon.
An unconditional pardon “relieves the person to whom it is granted of all disabilities arising out of the conviction or convictions from which it is granted.” Ohio Rev. Code Ann. § 2967.04(B). A “full and absolute pardon releases the offender from the entire punishment prescribed for his offense, and from all the disabilities consequent on his conviction.” State v. Boykin, 138 Ohio St.3d 97, 102 (2013), quoting from State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 650, 4 N.E. 81 (1885).
In 2023, anyone granted a pardon was authorized to apply to a court to have the record sealed, on the same basis as a non-conviction record. See § 2953.33(A)(3), as amended by SB288. The application may be filed at any time after the pardon is granted. This 2023 legislation is the most recent chapter in a long-running campaign to limit public access to the record of a pardoned conviction, and it may not be the last.2
Application is made to the Parole Board, which conducts an investigation. Ohio Rev. Code Ann. §§ 2967.03, 2967.07; Parole Board Instructions and Guidelines, supra. At least three weeks prior to making a recommendation, the Board must give notice to the court, prosecutor, victim and/or victim’s family. § 2967.12. The victim is invited to submit written comments, and make a recommendation. Id. Meritorious cases may or may not be granted a hearing, and a recommendation is then sent to the governor. See Ohio Admin. Code 5120:1-1-15. The governor reviews all clemency applications – even the Parole Board denials. The governor considers all factors (individuals are free to submit whatever information they believe is relevant). Obviously, factors like the nature of the crime, time served, institutional adjustment/programming, recommendations of judge/prosecutor, letters of support, and community service all factor into the decision, but everything is considered. The governor may grant a full pardon, or include reservations. According to an older version of the clemency application instructions, the entire process can take between 6-8 months.3
F. Expedited pardon review process
In December 2019, Governor Mike DeWine announced the Expedited Pardon Project, a collaboration between the Governor’s Office and the Drug Enforcement Policy Center at Ohio State University and the Reentry Clinic at The University of Akron School of Law. This project aspires to expedite the process by which people apply for a pardon under Ohio’s laws, and will enlist law students to assist in preparing pardon applications. The Ohio Department of Corrections will conduct background investigations of applicants referred by the Project, and the Parole Board will then hold a hearing for each applicant, during which victims, judges and prosecutors involved with his or her case can offer their thoughts. The Parole Board will then vote the same day about whether to recommend clemency to the governor. See Jeremy Pelzer, Gov. Mike DeWine creates streamlined pardon process to help Ohio offenders, Cleveland.com, Dec. 3, 2019, https://www.cleveland.com/open/2019/12/gov-mike-dewine-creates-streamlined-pardon-process-to-help-ohio-ex-offenders.html. Standards for applying, explained here, include a crime-free 10-year waiting period following completion of sentence, community service, a “compelling” need for a pardon, payment of court debt, and no conviction for a number of disqualifying violent (including domestic violent) and sexual offenses.
G. Frequency of grants
In December 2019, Governor DeWine initiated a program that promised to deliver hundreds of pardons. See Section IIH above. By fall 2022 he had pardoned about 80 people, about half of which came through the expedited process.
Governor Kasich used his executive clemency power sparing in post-sentence pardon cases. As of January 2017, in his first six years in office, he approved 86 of 2,291 pardon requests, or about 1 in 26. See Alan Johnson, Kasich stays conservative with pardons, Columbus Dispatch, Feb. 12, 2017, http://www.dispatch.com/news/20170211/kasich-stays-conservative-with-pardons; see also Johnson, Kasich rarely uses clemency to pardon, commute sentences, Columbus Dispatch, http://www.dispatch.com/content/stories/local/2015/03/16/kasich-rarely-uses-clemency.html (March 16, 2015). In 2015, the Board reviewed 176 applications and recommended favorable action for 19. The number of reviews/recommendations was 290/41 in 2014, 288/31 in 2013, and 281/71 in 2012. See Parole Board Reports, http://www.drc.ohio.gov/web/Reports/reports7.asp. Governor Kasich was more liberal in commuting capital sentences, granting six of 17 petitions in his first 3 and a half years in office. See Jeremy Pelzer, How often does Gov. John Kasich grant clemency to criminals? We break down the numbers, Cleveland.com, http://www.cleveland.com/open/index.ssf/2014/06/kasich_rarely_grants_pardons_b.html (June 20, 2014).
Kasich’s predecessor Governor Ted Strickland granted a total of 290 pardons and 29 commutations. Most of those pardoned by Strickland were convicted of minor non-violent offenses, and his clemency counsel is reported to have said that “the overwhelming majority of pardons granted by the governor were to ameliorate the collateral consequences suffered by the pardon applicants.”4 Governor Strickland denied about 75% of the cases sent him by the Parole Board, including both pardons and commutations, generally (though not always) following the Board’s recommendation. Governor Taft (1998-2006) considered 1153 clemency applications, 225 for pardon, and granted 48 pardons, slightly over 21% of those considered. (He also granted eight commutations and six “imminent danger of death” compassionate releases.) Governor Voinovich (1991-1998) considered 4621 clemency applications, granted 69 pardons and 50 commutations.
III. Expungement, sealing and other record relief
A. Sealing and expungement of conviction records
Overview: Ohio courts have no inherent authority to seal or expunge a conviction record, including a record that has been pardoned. See State v. Radcliff, Slip Opinion No. 2015-Ohio-235, **8-10, explaining that the doctrine of Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303 (1981) did not survive the enactment of a statutory sealing authority.5
Until 2023, eligibility for sealing in Ohio extended only to misdemeanors and less serious felonies, with eligibility dependent on an individual’s overall criminal record. See Ohio Rev. Code Ann. § 2953.31 (2022).6 In 2023, S. 288 made major revisions to Ohio’s record-clearing law, extending eligibility for sealing to additional categories of felonies (though still excluding certain offenses from relief), shortening waiting periods, authorizing prosecutor-initiated sealing, and creating a new authority for expungement of records after an additional waiting period. See Ohio Rev. Code Ann. §§ 2953.31 et seq., as amended by SB288.
Sealing: The 2023 law expanded eligibility for sealing to almost all but the most serious offenses, replacing what had been a complicated structure that depended on an individual’s overall record with one dependent on eligibility of specific offenses. Under its simplified eligibility scheme, sealing may be sought for an unlimited number of felonies of the 4th or 5th degree after a one-year waiting period after “final discharge”; up to two felonies of the 3rd degree7 and an unlimited number of more serious misdemeanors after a three-year waiting period; felonies involving nonviolent sexual offenses after five years, and felonies involving improper compensation after a seven-year waiting period. Minor misdemeanors must wait either one year or six months, depending upon the nature of the offense. Felonies of the first and second degree are never eligible, nor are violent offenses. See § 2953.32(B)(1)(a). “Final discharge” requires payment of restitution and any other fine or fee imposed as a “sentencing requirement.” State v. Aguirre, 41 N.E.3d 1178, 1182 (Ohio 2014).
Expungement: The 2023 law created an expungement remedy for the first time. An application for expungement of a felony may be made 10 years after the time the offense would be eligible for sealing. However, expungement of a misdemeanor may be sought one year after final discharge, or six months in the case of a minor misdemeanor. See § 2953.32(B)(1)(b). Expungement is defined as “To destroy, delete, and erase a record as appropriate for the record’s physical or electronic form or characteristic so that the record is permanently irretrievable.”
Misdemeanor arrest records in cases involving bail forfeiture may also be sealed or expunged. § 2953.32(A)(2). Crimes that are not eligible for sealing or expungement include those carrying a mandatory prison term; first and second degree felonies; crimes of violence (including robbery and domestic violence); sex offenses (except for certain convictions of “unlawful sexual conduct with a minor” where the person was under age 21 at the time of the offense, under a 2021 law, HB 431); offenses against minors; and certain traffic offenses. § 2953.36.
Federal and out-of-state offenses
An Ohio court’s sealing and expungement authority extends, somewhat anomalously, to convictions from other states and from the federal system. See e.g., § 2953.32(B)(1)(“an eligible offender may apply to the sentencing court if convicted in this state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing or expungement of the record of the case that pertains to the conviction”). The effect of such relief is limited, however, since the courts only have jurisdiction over records held by Ohio state officials and agencies that are not maintained pursuant to federal law. See In re Pacifico, 717 N.E.2d 393 (Ohio Ct. App., Montgomery County 1998).
Prosecutor-initiated clearing of “low-level controlled substance offenses”
S288 created a new § 2953.39 authorizing a prosecutor to make a motion to seal or expunge a “low-level controlled substances” offense, defined as “a misdemeanor of the fourth degree or a minor misdemeanor or a violation of an ordinance of a municipal corporation.”
Procedure and standards
The application and hearing procedures are spelled out in Ohio Rev. Code Ann. § 2953.32(A)-(C), and include a $50 filing fee. The court must notify the prosecutor, who is permitted to object to the granting of the application. § 2953.32(B). The court must also direct probation officials to “make inquiries and written reports” concerning the applicant, and determine whether the applicant has been satisfactorily rehabilitated. § 2953.32(B), (C). If an applicant for sealing was convicted of failure to pay child support, the probation department must contact the child support enforcement agency enforcing the applicant’s obligations under the child support order to inquire about the offender’s compliance with the child support order.
Courts have discretion to deny sealing or expungement petitions if they find that the applicant has been insufficiently rehabilitated. Ohio Rev. Code Ann. § 2353.32(c), (f). In performing the balancing test set out in § 2353.32, the court “must weigh the interest of the public’s need to know as against the individual’s interest in having the record sealed, and must liberally construe the statute so as to promote the legislative purpose of allowing expungements.” State v. Hilbert, 764 N.E.2d 1064, 1066 (Ohio Ct. App. 2001). See also Pierre H. Bergeron and Kimberley A. Eberwine, One Step in the Right Direction: Ohio’s Framework for Sealing Criminal Records, 36 U. Tol. L. Rev. 595, 600 (2005) (citing cases); Ohio Ex-Offender Reentry Coalition, Instructions for Sealing a Criminal Record (Expungement), available at http://www.reentrycoalition.ohio.gov/docs/expunge.pdf.
Effect of Relief
- Effect of sealing
Sealing “restores the person . . . to all rights and privileges not otherwise restored by termination of the sentence or community control sanction or by final release on parole or post-release control.” § 2953.32(A). Private and public employers, as well as occupational licensing authorities, may not question a person about a sealed adult conviction, unless “the question bears a direct and substantial relationship to the position for which the person is being considered.” § 2953.33(B). In addition, any public employee who discloses a sealed conviction in connection with an application for employment or license is guilty of a misdemeanor. §§ 2953.35; 2953.54. Compare the treatment of sealed non-conviction records, which are exempt from ionquiry. See below, § 2953.34(L). Thus it appears that the statute does not give the person whose conviction record has been sealed or expunged the option of denying the existence of the record, even if questioned improperly about it.
However, there are a number of exceptions to the limitations on access that are set forth in § 2953.32 itself. Sealed records may be used in sentencing for another offense, in determining whether to seal records of a subsequent conviction, and in charging a person with a new offense when the nature and character of that offense would be affected by the sealed information. §§ 2953.32(D), 2953.32(E). Sealed records may also be accessed by law enforcement agencies, by other state agencies in connection with applications for certain state employment, and for purposes of a variety of other employments set forth in the statute governing the Bureau of Criminal Identification (state repository of criminal records), including licensed facilities working with vulnerable populations, schools, home health agencies and financial institutions. See §§ 2953.33(D); 109.57 et seq. In addition, sealing does not restore the right to hold public office to a public servant convicted of bribery in office. State v. Bissantz, 532 N.E.2d 126 (Ohio 1988).
S.B. 337, enacted into law in June 2012 and codified in various sections of the Ohio Revised Code, contains a number of additional limitations on the use of sealed records. See 2012 Ohio Laws File 131 (Am. Sub. S.B. 337); see also Ohio Legislative Service Commission, Sub. S.B. 337 Bill Analysis (2012), available at http://bit.ly/SB337_summary.
B. Effect of expungement
The authorization to expunge in SB288 does not specify how that relief will be more thorough than sealing, with two exceptions: Unlike a sealed conviction, an expunged conviction may not be used the subject of questioning by an employer or licensing agency even if “the question bears a direct and substantial relationship to the position for which the person is being considered.” See § 2953.34(N)(2). It also cannot be used in a subsequent case to enhance a sentence. § 2953.32(B). Expungement does not result in deletion of all records, since “the bureau of criminal identification and investigation shall maintain a record of the expunged conviction record for the limited purpose of determining an individual’s qualification or disqualification for employment in law enforcement.” § 2953.32(D)(5). “These records may only be disclosed or provided to law enforcement for the limited purpose of determining an individual’s qualification or disqualification for employment in law enforcement.” Id.
Courts have expressed concern over sealing provisions in suits brought by media to gain access to sealed records. See State ex rel. Cincinnati Enquirer v. Winkler, 782 N.E.2d 1247 (Ohio Ct. App. 2002) (Enquirer II); State ex rel. Cincinnati Enquirer v. Winkler, 777 N.E.2d 320 (Ohio Ct. App. 2002) (Enquirer I). Legislative efforts to expand the scope of the statute to help returning offenders with employment opportunities have met with resistance in the past. See also Lisa Rab, “Forgive and Forget? The Push to Keep Criminal Records from Employers,” CleveScene, Sept. 21, 2005, available at http://www.clevescene.com/cleveland/forgive-and-forget/Content?oid=1492146. But see section regarding 2012 Expansion of Expungement Authority, infra.
B. Pardoned convictions
In 2021, HB110 authorized the governor to insert as a condition of any pardon granted that the record be sealed as if otherwise eligible. In 2015, the Ohio Supreme Court had held that a court has no inherent authority to seal or expunge a pardoned conviction, and called upon the legislature to act. State v. Radcliff, supra, 142 Ohio St.3d 78, 84, explaining that the doctrine of Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303 (1981) did not survive the enactment of a statutory sealing authority. See Section II above.
Any person who is granted by the governor under division (B) of section 2967.02 of the Revised Code an absolute and entire pardon, a partial pardon, or a pardon upon conditions precedent or subsequent may apply to the court for an order to seal the person’s official records in the case in which the person was convicted of the offense for which any of those types of pardons are granted. The application may be filed at any time after an absolute and entire pardon or a partial pardon is granted or at any time after all of the conditions precedent or subsequent to the pardon are met.
C. Expungement for victims of human trafficking
Ohio Rev. Code § 2953.38 provides a mechanism whereby any person who is convicted of one or three offenses (loitering, solicitation, prostitution) “may apply to the sentencing court for the expungement of the record of conviction of any offense, other than [murder or rape] the person’s participation in which was a result of having been a victim of human trafficking.” “Expunge” means to destroy, delete, or erase a record as appropriate for the record’s physical or electronic form or characteristic so that the record is permanently irretrievable.§§ 2953.38(A)(1), (G)(2).8 Offenses eligible for expungement under this authority, which was extended by S4 in 2017 to most offenses linked to victim status, range in seriousness from misdemeanor to felony depending on the circumstances (e.g., solicitation after HIV diagnosis).9 The court’s authority to expunge more serious felony-level offenses was made subject to a balancing test that requires the court to consider the degree of duress, seriousness of the offense, likelihood of recidivism, and other aggravating and mitigating factors. § 2953.38(E)(2).
This same law (S4) also enacted a new § 2953.521 authorizing expungement of non-conviction records (acquittals and dismissals) in any case where the applicant shows that he or she was the victim of human trafficking. SB 4.
D. Expungement of certain firearms convictions
Ohio Rev. Code Ann. § 2953.37 provides a mechanism for expunging convictions for certain firearms offenses that are no longer crimes. In 2011, the legislature repealed a law criminalizing reckless handling of a firearm in a motor vehicle and authorized expungement of convictions under that law. In 2022, in connection with its repeal of the requirement to obtain a license to carry a concealed firearm, the legislature authorized expungement of convictions for failure to inform a law enforcement officer during a traffic stop that the person is carrying a concealed handgun. See SB 215 (2022).
E. Intervention in lieu of conviction (ILC)
Ohio Rev. Code Ann. § 2951.041. Pre-plea diversion leading to dismissal of charges and sealing is available at the direction of the court for individuals charged with certain non-serious offenses whose crime involved substance abuse or mental illness, or who was a victim of human trafficking, and who have not previously been convicted of a felony involving violence:
If an offender is charged with a criminal offense and the court has reason to believe that drug or alcohol usage by the offender was a factor leading to the criminal offense . . . , the court may accept, prior to the entry of a guilty plea, the offender’s request for intervention in lieu of conviction.
§ 2951.041(A)(1). The Court must find that “intervention in lieu of conviction would not demean the seriousness of the offense, and intervention would substantially reduce the likelihood of any future criminal activity.” § 2951.041(B)(6).
Successful completion of the intervention plan and period of abstinence under this section shall be without adjudication of guilt and is not a criminal conviction for purposes of any disqualification or disability imposed by law and upon conviction of a crime, and the court may order the sealing of records related to the offense[.]
§ 2951.041(E). If the court determines that the offender has failed to comply with any of those terms and conditions, “it shall enter a finding of guilty and shall impose an appropriate sanction[.]” § 2951.041(F).
The statute provides similar relief to offenders with mental illness or intellectual disability. §§ 2951.041(A), (B). It was amended again in 2018 to extend to victims of human trafficking. Id. In 2018, eligibility for intervention was again expanded to delete provisions allowing the prosecuting attorney to control access to this disposition, and conditioning eligibility upon the person not having previously been granted intervention. See § 2951.041(B)(1), as added by SB 66. In 2021 the statute was again amended to create a presumption in favor granting this disposition, including written reasons for denial, and expanding number of charges that are eligible for sealing. See HB 1. In 2023, SB 288 extended the life of this authority, and limited the effect of the judicial veto.
F. Pretrial diversion
The prosecuting attorney may establish pre-trial diversion programs for adults who are charged with committing criminal offenses and “whom the prosecuting attorney believes probably will not offend again.” Ohio Rev. Code Ann. § 2953.36. The programs shall be operated pursuant to written standards approved by the presiding judge but shall not extend to “repeat offenders” or persons charged with violent crime. If the accused satisfactorily completes the diversion program, the prosecuting attorney shall recommend to the trial court that the charges against the accused be dismissed, and the court, upon the recommendation of the prosecuting attorney, shall dismiss the charges. § 2953.36(D).
G. Sealing of non-conviction records
The court may seal records pertaining to charges that were dismissed or as to which the defendant was found not guilty. Ohio Rev. Code Ann. § 2953.33(A). Petition may be filed at any time after disposition, or after 2 years where request was based on grand jury no bill, and after the statute has run if the charges were dismissed without prejudice. “Upon the filing of an application pursuant to division (A) of this section, the court shall set a date for a hearing and shall notify the prosecutor in the case of the hearing on the application.” The prosecutor may object prior to the date of the hearing, and the court may in its discretion deny, applying a balancing test: court must “[w]eigh the interests of the person in having the official records pertaining to the case sealed against the legitimate needs, if any, of the government to maintain those records.” § 2953.33(B)(2)(d). Sealing is available in cases where a prior arrest has been sealed (including prior out-of-state arrests), but not where charges are pending. § 2953.33(B)(3). A person whose record has been sealed may respond to inquiries as if the arrest did not occur:
In any application for employment, license, or any other right or privilege, any appearance as a witness, or any other inquiry, a person may not be questioned with respect to any record that has been sealed pursuant to section 2953.52 of the Revised Code. If an inquiry is made in violation of this section, the person whose official record was sealed may respond as if the arrest underlying the case to which the sealed official records pertain and all other proceedings in that case did not occur, and the person whose official record was sealed shall not be subject to any adverse action because of the arrest, the proceedings, or the person’s response.
§ 2953.33(A). The Ohio Bureau of Criminal Identification maintains records of uncharged arrests, but it is not clear how these records may be expunged.
In 2023 S288 added a paragraph to this section authorizing sealing of pardoned convictions. See Section B, supra.
H. Sealing & expungement of juvenile records
Ohio law sets forth a procedure for the sealing of the records of a case in which a person was adjudicated a delinquent child, but it prohibits the sealing of the records if the adjudication is for committing aggravated murder, murder, or rape. Ohio Rev. Code. § 2151.356 (A).10 A motion or application to seal records may be made six months after termination of a court order or unconditional discharge or a court order containing a determination that the child is no longer a juvenile offender registrant. § 2151.356(C)(1). The court may require the applicant to submit any relevant documentation, and may investigate if the applicant has been rehabilitated to a satisfactory degree. The court must notify the prosecuting attorney of any proceedings to seal records, and is entitled to file a response. § 2151.356(C)(2). In determining whether the applicant has been satisfactorily rehabilitated, S.B. 337 also permits the court to consider the granting of a new tier classification or declassification from the juvenile offender registry. § 2151.356(C)(2)(e)(v) (as amended by S.B. 337).11
If the court orders records sealed pursuant to § 2151.356, “the person who is subject of the order properly may, and the court shall, reply that no record exists with respect to the person upon any inquiry in the matter.” §§ 2151.356, 2151.357(A). The court also shall (a) order that the proceedings in a case be deemed never to have occurred, (b) delete all index references to the case so they are permanently irretrievable, and (c) order that records including DNA specimens maintained by any public office or agency be expunged. Id. S.B. 337 prohibits the court from charging a fee for the filing of an application for the sealing of juvenile records.
Sealed records are automatically expunged “five years after the court issues a sealing order or upon the twenty-third birthday of the person who is the subject of the sealing order, whichever date is earlier.” § 2151.358(A). Expungement of sealed records may be sought earlier by petition if the court “finds that the person has been rehabilitated to a satisfactory degree.” § 2151.358(B). In evaluating rehabilitation, the court “may consider:”
(a) The age of the person;
(b) The nature of the case;
(c) The cessation or continuation of delinquent, unruly, or criminal behavior;
(d) The education and employment history of the person;
(e) Any other circumstances that may relate to the rehabilitation of the person who is the subject of the records under consideration.
§ 2151.358(B)(5). Expunged records are destroyed, § 2151.355, and “ the person who is the subject of the expunged records properly may, and the court shall, reply that no record exists with respect to the person upon any inquiry in the matter.” § 2151.355(F).
I. Certificate of qualification for employment
S.B. 337,12 signed into law on June 26, 2012, created a mechanism by which an individual who has been convicted of or pleaded guilty to an Ohio offense, who is subject to a “collateral sanction” barring him from a particular occupation or license,13 and who has fully discharged his sentence, may after a short eligibility waiting period (one year after completion of sentence for felonies, six months for misdemeanors) apply to the court of common pleas in the county of his residence (if a state resident), or in the court where he was convicted (if not a resident), for a “certificate of qualification for employment” that will provide relief from the sanction and allow him to be considered on the merits. See Ohio Rev. Code Ann. § 2953.25.14 Under 2017 amendments to § 2953.25(D), CEQs were extended to the licensing context and the requirement was eliminated requiring CQE applicants to identify a particular collateral consequence from which they were seeking relief. The process of obtaining a CQE and it effect are explained at this website. http://drc.ohio.gov/cqe.
See note below on studies of efficacy of CQEs.
There are no categorical limits on eligibility for individuals with in-state convictions. However, individuals with out-of-state or federal convictions are ineligible for a CQE, even if they reside and/or do business in the state. See Ohio Rev. Code Ann. § 2953.25(A)(6) (defining “offense” as “any felony or misdemeanor under the laws of this state”). Under § 2953.25(B)(5), as amended in 2017, a petition shall be filed by state residents “with the court of common pleas of the county in which the person resides or with the designee of the deputy director of the division of parole and community services” and by nonresidents “with the court of common pleas of any county in which any conviction or plea of guilty from which the individual seeks relief was entered or with the designee of the deputy director of the division of parole and community services.” The court must notify “the prosecuting attorney of the county in which the individual resides that the individual has filed the petition.”
A CQE may lift the “automatic bar” of most collateral sanctions imposed under Ohio law. Ohio Rev. Code Ann. §§ 2953.25(B)(1)-(2). See also § 2953.25(D)(1) (“[A CQE] lifts the automatic bar of a collateral sanction, and a decision-maker may consider on a case-by-case basis whether to grant or deny the issuance or restoration of an occupational license or an employment opportunity, notwithstanding the individual’s possession of the certificate.”). As originally enacted, the sole effect of a CQE was to convert mandatory collateral consequences into discretionary consequences, but a CQE was not given any explicit effect when it came to consideration of discretionary consequences. Under 2017 amendments to § 2953.25(D), a CQE is given presumptive effect and extended to the licensing context. Thus, while a licensing agency “may deny the license or certification for the person if it determines that the person is unfit for issuance of the license,” a CQE “constitutes a rebuttable presumption that the person’s criminal convictions are insufficient evidence that the person is unfit for the license, employment opportunity, or certification in question.” See §§ 2953.25 (D)(2) and (D)(3). The amendment also eliminated the requirement that CQE applicants identify a particular collateral consequence from which relief was sought. At the same time, the amendment made individuals convicted of sex offenses ineligible for a CQE.
Exceptions: Certain collateral consequences are not affected, such as restrictions on employment as a prosecutor or law enforcement officer, restrictions on driver’s licenses and on licensing in the health care field, and loss of licenses resulting from failure to pay child support. Ohio Rev. Code Ann. § 2953.25(C)(5). Nor does a CQE relieve restrictions contained in § 2961.01(A)(1) regarding service on a jury, and § 2961.02(B) regarding public office or employment, including as a volunteer, if the volunteer activity involves substantial management or control over the property of a state agency, political subdivision, or private entity. § 2953.25(E).
The standard for issuing a certificate is whether the individual has established by a preponderance of the evidence that (a) granting the petition will materially assist in obtaining employment or occupational licensing; (b) the individual has a substantial need for the relief in order to live a law-abiding life; and (c) granting the petition would not pose an unreasonable risk to the safety of the public or any individual. Ohio Rev. Code Ann. § 2953.25(C)(3). Under a 2017 amendment to the law, applicants are no longer required to specify a particular collateral sanction from which they are seeking relief, but need only include “a general statement as to why the individual has filed the petition and how the certificate of qualification for employment would assist the individual.” § 2953.25 (F)(5).
Under a 2019 amendment to the law, there is a presumption in favor of granting a certificate if three years in the case of a felony, or one year in the case of a misdemeanor, have elapsed from incarceration and completion of supervision (or if the person was not incarcerated, from “final release from all other sanctions” for the offense). This presumption can only be overcome with “clear and convincing evidence, that the applicant has not been rehabilitated.” § 2953.25(C)(5), (6).
In 2021 HB110 amended Ohio Rev. Code Ann. § 2967.04 to permit nondisclosure of sealed convictions in connection with an application for a certificate for qualification for employment under § 2953.33, and prohibited courts from considering sealed records in deciding whether to grant a CQE. § 2953.25(C)(1).
The certificate is “presumptively revoked” if the individual is convicted of or pleads guilty to a felony offense committed after issuance of the certificate. § 2953.25(H).
Limitation on employer liability
In a judicial or administrative proceeding alleging negligence or other fault, a certificate of qualification for employment issued under the mechanism may be introduced as evidence of a person’s due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the individual to whom the certificate was issued if the person knew of the certificate at the time of the alleged negligence or other fault. In any proceeding on a claim against an employer for negligent hiring, a certificate of qualification for employment issued under the mechanism provides immunity for the employer as to the claim if the employer knew of the certificate at the time of the alleged negligence. Ohio Rev. Code Ann. § 2953.25(G).
Application and procedure
The application can be accessed at http://www.drccqe.com/Login2.aspx?APPTHEME=OHCQE, and the application process is explained at http://www.drccqe.com/documentation/OHCQE/Online_CQE_petition_Instructions.pdf. Additional helpful information about the CQE process can be accessed at the website of the Ohio Justice and Policy Center. See http://www.ohiojpc.org/what-we-do/community-education/resources/.
If the offense was a felony, the petition may be filed one year after release from incarceration and completion of supervision; if a misdemeanor, the waiting period is six months after completion of supervision. Ohio Rev. Code Ann. § 2953.25(B)(4). Petitions for a CQE shall be filed with a court, unless the person has served a term in a state correctional institution or spent time in a department-funded program for any offense, in which case the petition is initially filed with the designee of the deputy director of the division of parole and community services, who then forwards it to court. § 2953.25(B)(1)-(2), (5). The required contents of a petition are specified, and include a statement of the reasons the certificate is sought and references.
Upon receiving a petition, the court shall review the petition, the individual’s criminal history, all filings submitted by the prosecutor or the victim, and all other relevant evidence. § 2953.25(C). The court in which a petition is filed or forwarded is required to determine all other Ohio courts in which the individual was found guilty of an offense other than the offense from which relief is sought and notify those courts of the filing, notify the prosecuting attorney of the county in which the individual resides that the individual has filed the petition, and review the petition, the individual’s criminal history, all filings submitted by the prosecutor or the victim, and all other relevant evidence. § 2953.25(B)(5)(b). The court that receives or is forwarded a petition under the bill must decide whether to issue the certificate within 60 days after the court receives or is forwarded the completed petition and all information requested by the court. This time limit may be extended upon request of the individual who filed the application. § 2953.25(C)(1), (2). As noted, under a 2017 amendment to the law, applicants are no longer required to specify a particular collateral sanction from which they are seeking relief.
A court that denies a petition may place conditions on the individual regarding the filing of any subsequent petition for a certificate. An individual may to appeal a denial decision of a court of common pleas to the court of appeals only if the individual alleges that the denial was an abuse of discretion by the court of common pleas. § 2953.25(C)(1), (2). The certificate is “presumptively revoked” if the individual is convicted of or pleads guilty to a felony offense committed after issuance of the certificate. § 2953.25(H).
Pursuant to a 2017 amendment to the CQE law, the Department of Rehabilitation and Correction is responsible for maintaining an accessible electronic database of certificates, and for making an annual report to the legislature. § 2953.25(K).
A 2019 amendment to the law (SB5) sets a uniform fee for a CQE and creates a rebuttable presumption for issuance of a certificate of qualification for employment under certain circumstances (see above). It also requires licensing agencies to provide additional information on the use of certificates of qualification for employment and certificates of achievement and employability.
Three studies of the efficacy of CQEs: A 2016 study of CQEs found that individuals who had been issued certificates were more likely to get an invitation to interview than those without, and at a rate not far removed from the call-back rate for those without a criminal record. A study of the same certificates the following year in the context of applications for rental housing found a similar result. The authors of these studies theorized that court-issued certificates provide valuable information about work-readiness and/or reliability, and that in addition they may be perceived as protection against lawsuits claiming negligence. See Peter Leasure & Tia Stevens Andersen, The Effectiveness of Certificates of Relief as Collateral Consequence Relief Mechanisms: An Experimental Study, Yale L. & Pol’y Rev. Inter Alia, Vol. 35 (2016). This study involved individuals with a single year-old felony drug offense who had received a (CQE). A later study of Ohio CQEs found that they had no effect on call-back rate where subjects had a more significant criminal record, including a recent release from prison. See Peter Leasure & Robert Kaminski, The Effectiveness of Certificates of Relief: A Correspondence Audit of Hiring Outcomes, 18 J. Empirical Stud., Issue 4 (Dec. 2021). Both studies found that Black applicants received significantly fewer callbacks than white applicants in all criminal record categories. See Peter Leasure and Tara Martin, Criminal records and housing: an experimental study, 13 J. of Experimental Criminology 527 (2017). A collection of social science research into “strategies to improve reentry outcomes” judged court ordered certificates of rehabilitation just based on these Ohio studies, along with diversion from incarceration and cognitive therapy. See Jennifer Doleac, Strategies to productively reincorporate the formerly-incarcerated into communities: A review of the literature. IZA Discussion Paper No. 11646 (2018).
I. Certificate of employability
A 2011 law provides for the issuance by the Department of Rehabilitation and Corrections (DRC) or the Adult Parole Authority of “certificates of achievement and employability” for certain DRC prisoners and parolees to be used by the recipient to generally obtain relief from “mandatory civil impacts” that would affect a potential job for which the prisoner trained. See Ohio Rev. Code Ann. §§ 2961.21 through 2961.24. A “mandatory civil impact” is defined as any law that “precludes the person with the criminal record from maintaining or obtaining licensure or employment, precludes the agency from issuing a license or certification to the person with the criminal record or business, or precludes a business from being certified or from employing the person with the criminal record.” § 2961.21(D)(1). This law lifts mandatory bars and requires the licensing agency to give the person individualized consideration, in effect converting a mandatory civil impact into a discretionary one. § 2961.23(A). It also affords an employer a degree of protection from liability. § 2961.23(B). Relief from “mandatory civil impacts” does not extend to barriers to jury service and holding office. See § 2961.22(C)(3).
J. Additional resources
The Ohio Justice and Policy Center publishes a comprehensive guide to obtaining administrative and judicial employability certificates and sealing of adult and juvenile convictions. See Ohio Justice & Policy Center, Understanding and Clearing up Criminal Records in Ohio (2014), available at http://ohiojpc.org/wp-content/uploads/2015/07/OJPCs-Criminal-Record-Manual.pdf.
IV. Criminal record in employment & licensing
A. Ban-the-box in public hiring
Per Ohio Rev. Code Ann. § 9.73, enacted in 2015, “No public employer shall include on any form for application for employment with the public employer any question concerning the criminal background of the applicant.” “Public employers” include all state agencies and political subdivisions of the state.
B. Nondiscrimination in licensing – in general
Standards for disqualification: Effective April 5, 2019, SB 255 revised Ohio’s occupational licensing scheme to require boards to make available on the internet a list of all criminal offenses for which a conviction “shall” disqualify a person from obtaining a license. Ohio Rev. Code Ann. § 9.78(C)(2019). This mandatory disqualification may be overcome by a certificate of qualification for employment. (See above.)
As further amended in 2021 by HB 263 , the law requires boards to list convictions that “may” be disqualifying, and they must be “directly related” to the license. § 9.79(B).15 Non-conviction records and unlisted convictions may not be the basis for denying a license, and vague terms like “moral character” and “moral turpitude” may not be used. § 9.79(C). In addition to the “direct relationship” standard for discretionary disqualification, the 2021 law sets forth standards for considering such convictions deemed to be directly related, including requiring a link to public safety, and limits consideration of listed convictions variously to 5-year and 10-year periods. § 9.79(D).
In 2023, SB 288, a major criminal justice reform bill dealing with many subjects, imposed a moratorium on denial of licensure or any other adverse licensing action via any law that requires or authorizes a collateral sanction as a result of the person’s conviction enacted during the two-year period following the effective date of the bill. See § 9.79(L).
Preliminary determination: The 2019 law provided that anyone with a conviction may request at any time that a licensing authority make a preliminary determination whether the conviction disqualifies the person from obtaining an occupational or professional license. § 9.78(B). A fee of no more than $25 may be charged. Within thirty days of receiving a request, the licensing authority must inform the person of its decision. The decision is binding unless the licensing authority determines that the person’s convictions differ from what was included in the request. Id. “Licensing authority” as used in these new provisions means both “(a) A board, commission, or other entity that issues licenses under Title XLVII or any other provision of the Revised Code to practice an occupation or profession; [and] (b) A political subdivision that issues a license or that charges a fee for an individual to practice an occupation or profession in that political subdivision.” § 9.78(A)(2).
Procedural provisions: The 2021 law sets forth procedural protections for applicants, including a written statement of reasons in the event of denial, and an opportunity for a hearing in which the licensing authority has the burden of proof on the question of whether the individual’s conviction “directly relates to the licensed occupation.” § 9.79(D), (F).
Also pursuant to the 2021 law, boards must report regularly to the legislature on the number of licenses granted and denied because of a criminal conviction. § 9.78(F).
C. Sealed convictions
As noted above, if a conviction has been sealed pursuant to the first offender sealing statute, Ohio Rev. Code Ann. §§ 2953.31 et seq., a person may not be questioned by an employer or licensing board about it “unless the question bears a direct and substantial relationship to the position for which the person is being considered.” § 2953.33(B). If an arrest record not leading to conviction has been sealed pursuant to § 2953.52, an employer or licensing agency may not question the person about it at all, § 2953.55(A), and anyone who discloses the information is guilty of a misdemeanor in the fourth degree. § 2953.55(B).
D. Ex-Offender Reentry Coalition
In 2009, the Ohio Legislature established the Ex-Offender Reentry Coalition, composed of senior state officials involved in corrections and agencies serving returning prisoners. See Ohio Rev. Code Ann. § 5120.07; see also http://drc.ohio.gov/reentry-coalition (Ex-Offender Reentry Coalition website). S.B. 337 added an “ex-offender” appointed by the director of corrections to the Coalition.16 The Coalition was directed to “identify and examine social service barriers and other obstacles to the reentry of ex-offenders into the community,” and report to the legislature with an analysis of
the effects of those barriers on ex-offenders and on their children and other family members in various areas, including but not limited to, the following: (1) Admission to public and other housing; (2) Child support obligations and procedures; (3) Parental incarceration and family reunification; (4) Social security benefits, veterans’ benefits, food stamps, and other forms of public assistance; (5) Employment; (6) Education programs and financial assistance; (7) Substance abuse, mental health, and sex offender treatment programs and financial assistance; (8) Civic and political participation; (9) Other collateral consequences under the Revised Code or the Ohio administrative code law that may result from a criminal conviction.
E. Additional limitations on licensing exclusions in S.B. 337
S.B. 33717 prohibits the Ohio Optical Dispensers Board, the Registrar of Motor Vehicles (with regard to motor vehicle salvage dealers, motor vehicle auctions, and salvage motor vehicle pools), the Construction Industry Licensing Board, the Hearing Aid Dealers and Fitters Licensing Board, and the Director of Public Safety (with regard to private investigators and security guards) from precluding individuals from obtaining or renewing licenses, certifications, or permits due to any past criminal history of the individual unless the individual has committed a crime of moral turpitude or a disqualifying offense.18 S.B. 337 further provides a new definition of “crime of moral turpitude” to include only a number of specified serious crimes of violence. Ohio Rev. Code § 4776.10(A).
S.B. 337 specifies that (1) if an individual applying for a license, certification, or permit has been convicted of or pleaded guilty to a misdemeanor that is not a crime of moral turpitude or a “disqualifying offense” (defined below) less than one year prior to making the application, any licensing entity listed in the preceding paragraph may use its discretion in granting or denying the individual a license, certification, or permit, (2) if an individual applying for a license, certification, or permit has been convicted of or pleaded guilty to a felony that is not a crime of moral turpitude or a disqualifying offense less than three years prior to making the application, any licensing entity listed in the preceding [section] may use its discretion in granting or denying the individual a license or registration, or renewing the license. See e.g., Ohio Rev. Code Ann. § 4725.48(D) (as amended by S.B. 337) (concerning optical dispensing licenses).19
A “disqualifying offense” is defined to mean an offense that is a felony and that has a “direct nexus” to an individual’s proposed or current field of licensure, certification, or employment. § 4776.10 (C). “Direct nexus” means that the nature of the offense for which the individual was convicted or to which the individual pleaded guilty has a direct bearing on the fitness or ability of the individual to perform one or more of the duties or responsibilities necessarily related to a particular occupation, profession, or trade. § 4776.10(B). The provisions described in clauses (1) and (2) do not apply with respect to any offense unless the licensing entity, prior to the bill’s effective date, was required or authorized to deny the application based on that offense.
F. Casino control commission
The Commission must provide a written statement to each applicant denied a license under this chapter describing the reason or reasons for which the applicant was denied the license. The Commission must submit an annual report to the legislature specifying the number of applications denied in the preceding calendar year for each type of such license, and the reasons for those denials.
G. Background checks for trainees for certain professions or occupations
S.B. 337 requires the following licensing agencies to obtain criminal records checks for applicants for trainee positions: the Accountancy Board, the Board of Embalmers and Funeral Directors; the State Board of Optometry; the Ohio Optical Dispensers Board; the State Board of Pharmacy; the State Medical Board; the State Board of Psychology; the State Chiropractic Board; the Ohio Construction Industry Licensing Board; the State Veterinary Medical Licensing Board; the Occupational Therapy Section, Physical Therapy Section, and Athletic Trainers Section of the Ohio Occupational Therapy, Physical Therapy, and Athletic Trainers Board; the Counselor, Social Worker, and Marriage and Family Therapist Board; the Ohio Board of Dietetics; the Ohio Respiratory Care Board; the State Board of Orthotics, Prosthetics, and Pedorthics; the Casino Control Commission; the Registrar of Motor Vehicles regarding certain motor vehicle salvage licenses; Hearing Aid Dealers and Fitters Licensing Board; or Director of Public Safety regarding private investigators and security guard providers. See Ohio Rev. Code. Ann. § 4776.021 (as amended by S.B. 337).
These provisions requiring a criminal records check of applicants for trainee licenses do not apply with respect to any person who is participating in an apprenticeship or training program operated by or under contract with the Department of Rehabilitation and Correction. Ohio Rev. Code. Ann. § 4776.021(E).
None of the agencies may issue a trainee license to an applicant if the agency determines that the applicant would not be eligible for issuance of a license, certificate, or other authority to engage in the profession or occupation, or operate certain equipment or machinery, or enter certain premises. Ohio Rev. Code. Ann. § 4776.021(D).
An agency that uses criminal records in determining whether an applicant should be granted a trainee license under Ohio Rev. Code. Ann. § 4776.021 must make the results available to the applicant. § 47764.04(C)(2).
- Acts 2011, HB 0054, § 3 amended subsection B of § 2923.14 to “clarify that relief from a weapons disability granted under [this section] restores a person’s civil firearm rights to such an extent that the uniform federal ban on possessing any firearms at all, 18 U.S.C. § 922(g)(1), does not apply to that person, in correlation with the U.S. Supreme Court’s interpretation of 18 U.S.C. 921(a)(20) in Caron v. U.S. (1998), 524 U.S. 308.” This provision must be understood to apply only to persons convicted in Ohio, since by its terms § 921(a)(20) requires relief to be granted in the jurisdiction of conviction.
- In State v. Radcliff, 142 Ohio St.3d 78 (Ohio 2015), the Ohio Supreme Court held that Ohio courts have no authority to expunge or seal the record of a pardoned conviction that is not otherwise eligible for sealing under Ohio Rev. Code Ann. §§ 2953.31 (see Part II, infra.). The Radcliff decision settled an issue that had divided the state courts of appeal, and left open in its Boykin decision, which is that judicial power to seal a conviction record, including the record of a conviction that has been pardoned, is limited by law. The Radcliff court pointed out that the legislature had made certain provisions for retaining pardon documents, and noted that “[t]he fact that the General Assembly has required that a record of a defendant’s pardon be filed in the same court where the pardoned offense was originally adjudicated expresses the General Assembly’s intent that courts must preserve the record of a pardon, not conceal it.” Radcliff, 142 Ohio St.3d at 86. The Radcliffe court took the opportunity to express its frustration with the legislature’s failure to provide a broader sealing authority:
Despite any frustrations judges may have with their inability to do justice in any given case of a pardoned offender, judges must respect that it is the role of the legislature to address the statutory scheme on sealing records, even in cases in which gubernatorial pardons are granted. Until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness. State v. Skinner, 632 A.2d 82, 84 (Del.1993), citing Stone v. Oklahoma Real Estate Comm., 369 P.2d 642 (Okla.1962). The pardon does not wipe the slate clean. Id. If the slate is to be wiped clean for those pardoned of crimes, including Radcliff, the General Assembly must act.
Id. at 88.
In 2021, six years after the Supreme Court had called upon it to act, the legislature acted: HB110 authorized the governor to insert as a condition of pardon that the record be sealed as if otherwise eligible. The 2023 legislation may not be the last step in this progress.
Under Governor Strickland, clemency recommendations from the Board were further reviewed by his staff:
The governor’s legal staff review of each parole board recommendation includes, but is not limited to: communication with the court and the prosecutor’s office involved in the conviction; input and assistance from law enforcement officials, defense counsel, witnesses, victims and others who may have information relevant to the governor’s decisions; consultation of official records from the offender’s prosecution and appeals, the parole board’s report and exhibits, petitions, letters, media reports and other documents or materials concerning the case.
The legal counsel prepares these findings for the governor’s review, initially shielding their clemency recommendations at the governor’s request. After a thorough and detailed discussion of the specifics of a given case, the legal staff presents their recommendation for or against clemency. The governor considers the totality of information presented for each application and decides whether to approve or deny clemency.
Press Release, Governor’s Office, Governor Announces 2009 Clemency Decisions , available at https://votesmart.org/public-statement/575300/governor-announces-2009-clemency-decisions#.VxpKKDArLIU. Governor Strickland agreed with the Board in most but not all cases, both favorable and denial recommendations. See id.
- Joann Sahl, Battling Collateral Consequences: The Long Road to Redemption, University of Akron Law School, University of Akron Legal Studies Research Paper No. 12-01 (February 20, 2012), available at http://ssrn.com/abstract=2008463. The Sahl article reports that Strickland pardoned a total of 280 people during his term, a number that is not exactly the same as numbers reported by the press contemporaneously with each set of grants. See also Alan Johnson, Strickland clears desk of requests, grants 152 pardons, The Columbus Dispatch, Jan. 7, 2011, available at http://www.dispatch.com/content/stories/local/2011/01/07/strickland-clears-desk-of-requests-by-granting-152-pardons.html; Mark Naymik, Gov. Ted Strickland gives 39 people pardons or commuted sentences, The Plain Dealer, Nov. 23, 2010, available at http://www.cleveland.com/open/index.ssf/2010/11/gov_ted_strickland_gives_39_pe.html.
- See Radcliffe, slip op. at 10: “Although the judicial power to seal criminal records still exists, “it is limited to cases where the accused has been acquitted or exonerated in some way and protection of the accused’s privacy interest is paramount to prevent injustice.” Even in the case of an acquittal, “judicial expungement is an exceptional remedy to be employed where the equities of the situation demand it.” Id.
- Until July 2012 the only conviction records eligible for sealing under Ohio law were certain minor non-violent convictions where the court determined that the applicant had no other criminal record and no charges pending. This “first offender” requirement was jurisdictional, and included both felonies and misdemeanors. State v. Coleman, 691 N.E.2d 369 (Ohio Ct. App. 1997). In 2012 the legislature replaced the term “first offender” with “eligible offender” throughout the chapter, and defined “eligible offender” by a complicated formula dependent on how many convictions a person had and of what degree (e.g., an eligible offender is “anyone who has been convicted of one or more offenses in this state or any other jurisdiction, if all of the offenses in this state are felonies of the fourth or fifth degree or misdemeanors and none of those offenses are an offense of violence or a felony sex offense”; or “anyone who has not more than two felony convictions, has not more than four misdemeanor convictions, or, if the person has exactly two felony convictions, has not more than those two felony convictions and two misdemeanor convictions in this state or any other jurisdiction.” Ohio Rev. Code Ann. § 2953.31(A)(1)(a), (b).)
- A provision in the earlier law that allowed combining related felony convictions in the same case for purposes of determining eligibility (charges that “result from or are connected with the same act or result from offenses committed at the same time . . . shall be counted as one conviction,” § 2953.31(A)(1)(b) (2022)), was deleted from the new law, which may restrict eligibility in some 3rd degree felony cases involving multiple charges under preexisting Ohio law. See State v. Taylor, No. 97CA006850, 1998 WL 281352, at *1 (Ohio Ct. App. May 27, 1998) (conviction of two related counts for conduct separated by several months disqualified applicant from sealing as “first offender”).
The proceedings in the case that is the subject of an order issued under . . . this section shall be considered not to have occurred and the conviction of the person who is the subject of the proceedings shall be expunged. The record of the conviction shall not be used for any purpose, including, but not limited to, a criminal records check under section 109.572 of the Revised Code. The applicant may, and the court shall, reply that no record exists with respect to the applicant upon any inquiry into the matter.
- The authority as originally enacted in 2012 authorized expungement only of the three prostitution-related offenses.
- Prior to June 26, 2012, sexual battery and gross sexual imposition were also excluded from offenses for which juvenile records could be sealed. § 2151.356(A) (as amended by S.B. 337).
- See also Ohio Rev. Code Ann. §§ 109.57, 109.572, 109.578 (as amended by S.B. 337) (regarding limited disclosure by Attorney General or Superintendent of the Bureau of Criminal Identification and Investigation of information relating to the adjudication of a child as delinquent in certain circumstances).
- 2012 Ohio Laws File 131 (Am. Sub. S.B. 337).
- A collateral sanction is defined as “a penalty, disability, or disadvantage that is related to employment or occupational licensing, however denominated, as a result of the individual’s conviction of or plea of guilty to an offense and that applies by operation of law in this state whether or not the penalty, disability, or disadvantage is included in the sentence or judgment imposed.” Ohio Rev. Code Ann. § 2953.25(A)(1).
- The new bill has no effect on the mechanism, enacted in 2011, authorizing correctional authorities to issue “certificates of achievement and employability,” described below.
- This law repealed Ohio Rev. Code Ann. § 4743.06, enacted in 2009, which applied a “substantial relationship” standard to discretionary licensure denial.
- 2012 Ohio Laws File 131 (Am. Sub. S.B. 337) (codified at various sections of the Ohio Revised Code).
- 2012 Ohio Laws File 131 (Am. Sub. S.B. 337) (codified at various sections of the Ohio Revised Code).
- See Ohio Rev. Code §§ 3772.07, 4501.02, 4725.44, 4725.48, 4725.52, 4725.53, 4738.04, 4738.07, 4740.06, 4740.10, 4747.05, 4747.10, 4747.12, 4749.03, 4749.04, 4749.06, and 5502.011.
- See also statutes listed at note 17, supra.