Restoration of Rights & Record Relief
Last updated: August 27, 2022
I. Loss & restoration of civil/firearms rights
A. Civil Rights
“In any felony case, when the defendant is sentenced to a term of incarceration, the defendant is deprived of all rights and privileges described in subsection (3) of this section from the date of sentencing until: (a) The defendant is released from incarceration; or (b) The defendant’s conviction is set aside.” Or. Rev. Stat. §§ 137.281(1). Persons sentenced to jail under state law do not lose civil rights (though persons serving a portion of their prison sentence in jail do). The rights enumerated include the right to vote, serve on a jury, hold office, and hold “a position of private trust.” Id. However, for grand jury and criminal trials, 15 years after service of felony sentence, and 5 years after service of sentence for misdemeanor involving dishonesty or violence. § 137.281(3). A person convicted of any crime and serving a term of imprisonment in a federal correctional institution in the state is deprived of voting rights until discharged or paroled from imprisonment, or the conviction is set aside. § 137.281(5).
Eligibility for legislative office is lost upon conviction until the sentence is completed, including any period of probation, post-prison supervision and payment of fine. Or. Const. art. IV, § 8(4).
Firearms rights are automatically restored 15 years after discharge from sentence to persons convicted of no more than one felony, unless the offense involved criminal homicide or use of a gun or knife. Or. Rev. Stat. § 166.270(4)(a). Otherwise firearms rights are restored by pardon or expungement. Id.1 In 2009, the legislature enacted a new procedure whereby certain non-violent felony offenders may regain firearms privileges one year after discharge by petitioning a circuit court in the county of residence. See § 166.274.2 “Relief shall be granted when the petitioner demonstrates, by clear and convincing evidence, that the petitioner does not pose a threat to the safety of the public or the petitioner.” § 166.274(6). Juveniles who lost gun privileges by committing an offense involving violence may petition for restoration four years after discharge. § 166.274(7). The court may not grant relief under this section to a person convicted of a person felony involving the use of a firearm or a deadly weapon, or a list of violent offenses, or who is either currently serving a felony sentence of has served one in the year preceding application. § 166.274(10).
II. Pardon policy & practice
Pardon power rests exclusively in the governor, except for cases of treason for which the legislature has the pardon power. Or. Const. art. V, § 14; Or. Rev. Stat. § 144.649. No provision for administration. The governor must report to the legislature each grant of clemency, including the reasons for the grant. Or. Const. art. V, § 14.
“Generally, the Governor will not exercise his clemency power to pardon applicants for crimes which the law allows a court to set aside; therefore, you should not file an application if you qualify for judicial expungement under [Or. Rev Stat.] § 137.225 and have not sought such expungement.” Oregon Executive Clemency and Pardon Application, posted at http://recordgone.com/pardons/Oregon-Pardon-Application.pdf (citations omitted).
Pardon restores legal rights lost as a result of conviction. Effective in 2019, a pardon automatically seals the record of conviction. SB388 requires governor to inform courts when a pardon is granted so the court may seal the record; governor must informed courts of pardons granted in previous five years to enable them to seal, and authorizes individuals convicted before that time to apply to the court for sealing of the record.
“[C]lemency will be granted only in exceptional cases when rehabilitation has been demonstrated by conduct as well as words.” Oregon Executive Clemency and Pardon Application.
Applications must be filed with governor’s office, with a copy served upon the DA of the county where convicted or confined (if applicable), the State Board of Parole and Post-Prison Supervision, and the director of the Department of Corrections. Or. Rev. Stat. § 144.650(1) (2011). No fee is required to file an application. The governor may not act for 30 days after receipt. § 144.650(4). The governor’s legal staff obtains information about the case from law enforcement agencies. If the governor has not acted within 180 days, the application will be deemed denied. Id.
F. Frequency of grants
Until recently, pardons in Oregon have been rare. Until the spring of 2020, Governor Kate Brown had granted relatively few pardons and commutations since taking office in February 2015. Between July 1, 2015, and Feb. 14, 2020, Brown granted 20 pardons, approved six conditional commutations, and denied 240 commutation applications. See https://theappeal.org/oregon-governor-commutations-harsh-sentences-clemency/. But starting in the spring of 2020, she began making extensive use of her authority to reduce prison sentences, granting more than 1000 commutations over the following months (many based on a prisoner’s vulnerability to COVID) and issuing 35 full pardons. See Jack Keating, Oregon ramps up its clemency record relief and resentencing programs, Jan. 11, 2022, https://ccresourcecenter.org/2022/01/11/oregon-ramps-up-its-clemency-record-relief-and-resentencing-programs/. These grants were challenged in court based on an argument the governor had violated established clemency procedures, but in August 2022 the Oregon Court of Appeals held that the governor had acted lawfully. https://www.opb.org/article/2022/08/10/oregon-appeals-court-sides-with-gov-brown-in-emotional-fight-over-early-prison-releases/.
2022 marijuana pardons: On November 20, 2022, Governor Brown announced a pardon of more than 45,000 people convicted of simple possession of one ounce or less of marijuana prior to 2016 (the year such possession was legalized), and in addition she forgave $14 million in fines and fees these individuals still owed. https://www.oregonlive.com/news/2022/11/oregon-gov-kate-brown-pardons-45000-people-with-marijuana-possession-convictions.html.
Governor Kitzhaber granted one reprieve and no pardons during his third (1995-2003) and fourth (2011 – Feb. 2015) terms. Between 2005 and January 2011, Governor Ted Kulongoski granted a total of 20 pardons out of several hundred applications. (Another 290 applications for commutation, of which 53 were granted, 44 to facilitate deportation.) Several of Governor Kulongoski’s final grants went to non-citizens threatened with deportation.3 Source: Office of the Governor.
Extradition Officer/Agreement Administrator, Arrest and Return, Office of the Governor
III. Expungement, sealing & other record relief
A. Set-aside and sealing of conviction records
Or. Rev. Stat. § 137.225 authorizes the sentencing court to “set aside” misdemeanors, class C felonies, many class B felonies,4 Class A racketeering felonies, schedule I drug possession offenses, and “violations” under state law and local ordinance.5 § 137.225(1)(a). Traffic offenses, most sex offenses, most violent offenses, and most offenses against vulnerable populations are ineligible. A set-aside seals the record of conviction. Or. Rev. Stat. § 137.225(3).
Following the decriminalization of recreational marijuana use in 2015, Oregon greatly expanded the availability of set-asides for those convicted of marijuana offenses. For set-aside purposes, marijuana offenses committed before June 30, 2015, are classified as if the conduct occurred after June 30, 2015, and all decriminalized marijuana offenses are treated as class C misdemeanors. Or. Rev. Stat. § 137.226.
Waiting period & criminal history: In 2021, the eligibility waiting periods for setting aside convictions were modified as follows:
(A) For a Class B felony, seven years from the date of conviction or the release of the person from imprisonment for the conviction sought to be set aside, whichever is later.
(B) For a Class C felony, five years from the date of conviction or the release of the person from imprisonment for the conviction sought to be set aside, whichever is later.
(C) For a Class A misdemeanor, three years from the date of conviction or the release of
the person from imprisonment for the conviction sought to be set aside, whichever is later.
(D) For a Class B or Class C misdemeanor, a violation or the finding of a person in contempt of court, one year from the date of conviction or finding or the release of the person from imprisonment for the conviction or finding sought to be set aside, whichever is later.
Or. Rev. Stat. § 137.225(1)(b), as amended by SB 397. A person may have no other convictions during the waiting period. § 137.225(7). (Under prior law, misdemeanors and Class C felonies were subject not only to a three-year eligibility waiting period, but eligibility also depended on the person having no other conviction (other than motor vehicle offenses) in the 10-year period prior to application. §§ 137.225 (7)(b) (2021). Class B felonies were subject to a 20-year waiting period and the person could have no prior record.) Specified violent offenses are ineligible for set-aside, and registered sex offenders are ineligible aside until their registration obligation is discharged. § 137.225(6)(a) through (f)
Look-back periods applicable to sealing of non-conviction records were also revised by SB 397, as discussed below.
An applicant for set-aside must have “fully complied with and performed the sentence of the court.” Or. Stat. § 137.225(1)(a). Cf. Court instructions state that a person “must not owe money associated with criminal cases to the courts (restitution, court ordered fines, probation fees, etc.) when they apply to have their conviction set aside.” See, e.g., https://www.courts.oregon.gov/forms/Documents/LIN-SetAsideInstructions.pdf (last accessed Sept. 17, 2021).
Reconsideration of sentence and/or conviction: In 2021, Oregon enacted a new law that authorizes a person convicted of a felony and the district attorney to jointly petition a court to reconsider a sentence and/or conviction if it “no longer advances the interests of justice.” (Aggravated murder offenses are excluded as are cases where a conviction is eligible to be set aside and sealed under ORS 137.225.) See SB 819 (as yet uncodified). A joint petition may seek dismissal, the vacating of convictions, a plea to a new alternative offense, resentencing for the original conviction, and/or sentencing on a new offense. Certain offenses with a mandatory minimum require vacating the original conviction and a plea (and resentencing) to a new offense. In deciding whether to grant a petition, the court must hold a hearing and give victims an opportunity to make a statement, and may consider various post-conviction factors, including rehabilitation, risk of future violence, safety of the victim, the amount of time already served, and changed circumstances.
B. General procedures & criteria for sealing
The prosecutor must be served with a copy of the motion, and be given opportunity to oppose. Or. Rev. Stat. § 137.225(2)(a). The victim shall be notified by the prosecutor, § 137.225(2)(b), and shall be given an opportunity to be heard by the court. See § 137.225(3). The State Police is required to provide an applicant with fingerprints at costs, and is required to provide the prosecutor with the applicant’s full criminal record.
The 2021 law also deleted a requirement that a filing fee be paid, § 137.225(1)(f), and revised procedures to make set-aside mandatory without a hearing absent objection by the prosecutor or victim. § 137.225(3)(b). In the event of objection, the court shall hold a hearing, and relief may be denied only if the court makes written findings, by clear and convincing evidence, that the petition’s “circumstances and behavior creat[e] a risk to public safety.” § 137.225(3)(a). In making these findings, the court “may only consider criminal behavior, or violations of regulatory law or administrative rule enforced by civil penalty or other administrative sanction that relate to the character of the conviction sought to be set aside. The court may not consider non-punitive civil liability, monetary obligations and motor vehicle violations.” See also State v. Langan, 718 P.2d 719, 724 (Ore. 1986) (“the statutory reference to the applicant’s “behavior” means that the court is to examine whether the applicant has behaved in conformity with or contrary to public law. Disqualifying behavior must be some form of legal, not merely social, impropriety, and an act incurring ordinary, nonpunitive civil liability (for instance, a contract dispute) is not disqualifying if it does not also contravene some other law.”) The “public safety” standard replaced a vague “interests of justice” standard.
C. Effect of set-aside
Set-aside restores all rights, relieves all disabilities, and seals the record of the conviction:
Upon the entry of the order, the applicant for purposes of the law shall be deemed not to have been previously convicted, or arrested as the case may be, and the court shall issue an order sealing the record of conviction and other official records in the case, including the records of arrest whether or not the arrest resulted in a further criminal proceeding.
Or. Rev. Stat. § 137.225(3). A person whose conviction has been set aside is “able to represent to prospective employers that [they] have not been convicted of that crime.” Oregon Executive Clemency and Pardon Application, available at http://www.recordgone.com/templates/default/pdf/Oregon-Pardon-Application.pdf. However, Oregon courts have held that a set-aside is not a true expungement. See State v. Langan, 718 P. 2d 719, 722 n. 3 (1986) (noting that “expungement” is a “misnomer” because a set-aside order “is not designed to ‘rewrite history’ and deny the occurrence of an event but to limit the purposes for which official records may be used to exhume that past event”). The purpose of the statute is “to enhance employment and other opportunities for such formerly convicted persons . . . . The statute does not, however, impose any duty on members of [the] public who are aware of conviction to pretend that it does not exist.” Bahr v. Statesman Journal Co., 624 P.2d 664 (Or. Ct. App.), rev. den., 631 P.2d 341 (Or. 1981).
D. Set-aside and sealing for human trafficking victims
Courts authorized in 2017 to vacate state convictions for prostitution if the court finds after a hearing that the person has proven by clear and convincing evidence that “at or around the time of the conduct giving rise to the prostitution conviction, the person was the victim of sex trafficking.” Or. Rev. Stat. Ann. § 137.221. Vacatur authority expanded in 2018 to include convictions for violating municipal prostitution ordinances. Id.
E. Set-aside and sealing of marijuana possession convictions
Pursuant to SB302(2017), individuals with qualifying marijuana convictions may apply for set-aside if the sentence has been fully served, pursuant to the general set-aside authority in Or. Rev. Stat. § 137.225. § 137.226(2). For purposes of set-aside, marijuana offenses committed before April 21, 2017, are classified as if the conduct occurred after 21, 2017, and decriminalized offenses are treated as class C misdemeanors). In addition, streamlined set-aside and sealing is available under § 137.226(1) for persons with convictions for possession, delivery, or manufacture of marijuana who owere under 21 at the time of conviction, have not been convicted of another offense excluding traffic violations, and have fully complied with and performed the sentence. Individuals with convictions committed before July 1, 2015 for marijuana possession of less than 1 oz, who have fully served the sentence, may apply for set-aside without paying any fee, file fingerprints, or complete a background check or identification. A person may file a motion to reduce the offense classification of a marijuana conviction if, since the conviction, the offense has been reduced and the person has fully served the sentence.
The Oregon courts have established an e-filing system to facilitate applications for set-aside. https://oregon.tylerhost.net/SRL/SRL/#
F. Sealing of pardoned offenses
Effective in 2019, a pardon seals the record of conviction. SB388 requires governor to inform courts when a pardon is granted so the court may seal the record; governor must informed courts of pardons granted in previous five years to enable them to seal, and authorizes individuals convicted before that time to apply to the court for sealing of the record.
Deferred adjudication and set-aside for drug charges: Or. Rev. Stat. § 475.245 provides for deferred adjudication in drug cases. As amended in 2019, this section provides for a “probation agreement” that omits the requirement of a guilty plea or finding of guilt, but requires waiver of certain rights, including right to appeal. In addition the agreement “must include a requirement that the defendant pay any restitution owed to the victim as determined by the court, and any fees for court-appointed counsel ordered by the court under ORS 135.050.” § 475.245(1)(d). The agreement “may not contain a requirement that the defendant enter a plea of guilty or no contest on any charge in the accusatory instrument,” and “does not constitute an admission of guilt and is not sufficient to warrant a finding or adjudication of guilt by a court.” In the event of a violation of the agreement, the proceedings resume, and the defendant “may not contest the sufficiency of the evidence establishing the defendant’s guilt of the offenses in the accusatory instrument.” § 475.245(2).
First misdemeanor probation without judgment: Or. Rev. Stat. § 137.533 provides for probation without entry of a judgment of guilt, following a plea or finding of guilty for a misdemeanor other than domestic violence or DUI, if a person has never been convicted of any offense and was not placed on an Oregon diversion or deferred adjudication before. Upon completion of probation, the court may discharge the person and dismiss the proceedings without adjudication of guilt or conviction. Id.
Diversion: Or. Rev. Stat. § 135.188 provides that the prosecutor may offer diversion to persons charged with non-violent offenses who have not previously participated in a diversion program. The agreement is filed with the court, proceedings are suspended, and charges are dismissed in the event of successful completion of conditions.
H. Set-aside and sealing of non-conviction records
Look-back periods applicable to sealing of non-conviction records, and prior record disqualifications, were also revised by the 2021 law. SB 397. If no charges were filed a person may apply to the court after 60 days from the date of arrest, and “at any time” after an acquittal or a dismissal of the charge, for entry of an order setting aside the record of such arrest. Or. Rev. Stat. § 137.225(1)(b). A provision requiring a one-year waiting period for uncharged arrests was reduced to 60 days, and a requirement omitted that there have been no other arrest within three years of applying, or conviction within 10 years. §§ 137.225(7), (8). Same procedures and effect as those applicable to conviction records (see above).
I. Expungement of juvenile records
Expungement of juvenile records is available after turning 18. Or. Rev. Stat. §§ 419A.260; 419A.262(2). Expungement is available after a four-year waiting period (reduced in 2023 from five years by SB519) if the person has no subsequent convictions of a felony or Class A misdemeanor and no charges or criminal investigations are pending. §§ 419A.262(2)(a)-(e). Certain classes of felonies, sex crimes, and crimes involving children are ineligible for expungement. § 137.225(5). Certain offenses requiring sex offender registration may not be expunged until the obligation to has been relieved. § 419A.262(9). Offenses ineligible for expungement may be eligible for set-aside and sealing. § 419C.610. The DA must notify the victim of a pending expungement application. § 419A.262(10)(b). If the DA objects to expungement, the court must hold a hearing. § 419A.262(12)(a).
Expunged records may not be disclosed to or by any agency, though the Oregon Youth Authority maintains expunged records in a secure area. § 419A.262(19); Or. Admin. R. 416-140-0040(4). The event that is the subject of the expunged record shall not be disclosed by any agency. An agency that is subject to an expunction judgment shall respond to any inquiry about the contact by indicating that no record or reference concerning the contact exists. § 419A.262(21). “A person who is the subject of a record that has been expunged under this section may assert that the record never existed and that the contact, which was the subject of the record, never occurred without incurring a penalty for perjury or false swearing under the laws of this state. § 419A.262(22).
In 2021, SB575 amended Or. Rev. Stat §§ 419A.260 and 419A.262 to direct juvenile authorities to automatically initiate the statutory expunction process for juvenile records relating to contact that did not result in referral to juvenile court, and if a juvenile had contact with the juvenile department but was never found to be under jurisdiction of juvenile court, upon the young person reaching the age of 18.
Im 2023, SB519 drected the juvenile department to apply for automatic expunction of juvenile records for subjects for acts that, if committed by an adult, would constitute one or more
violations or misdemeanors as long as the person has not been found guilty of an act that, if committed by an adult, would constitute a felony; the person does not owe restitution;
the person has not been waived to criminal court and has not been convicted in criminal court. Reduced the eligibility waiting period from five to four years for those who do not qualify for automatic expunction, as long as the subject has attained 18 years of age.
IV. Criminal record in employment & licensing
A. Ban the Box
In 2015, Oregon enacted HB 3025 (codified at Or. Rev. Stat. § 659A.360), which prohibits any employer, public or private, from requiring an applicant to disclose criminal convictions on an application, before an initial interview, or, if no initial interview is conducted, before making a conditional offer of employment. The law does not otherwise prevent an employer from considering conviction history in the hiring process, and does not apply to law enforcement, volunteer positions, and employers required by federal, state, or local laws or regulations to consider criminal history.
In 2019, Oregon loosened standards for employment in care-giving positions, providing that in conducting fitness determinations pursuant to criminal records checks for certain employees providing direct care to vulnerable populations, state agencies “may not consider” convictions more than 10 years old, non-conviction records (including diversions), marijuana convictions, or DUI more than five years old (SB 725). See Or. Rev. Stat. § 181A.195(11). However, the new standards do not apply to certain specified serious offenses, or to positions in residential care centers, home health aides, childcare centers or workers, or EMTs. And agencies may consider non-convictions records for certain persons specified at § 181A.195(11)(b).
Except for teachers’ licenses, a commission or agency may not deny, suspend or revoke an occupational or professional license “solely for the reason that the applicant or licensee has been convicted of a crime, but it may consider the relationship of the facts which support the conviction and all intervening circumstances to the specific occupational or professional standards in determining the fitness of the person to receive or hold the license.” Or. Rev. Stat. § 670.280(2).
[The state] may deny an occupational or professional license or impose discipline on a licensee based on conduct that is not undertaken directly in the course of the licensed activity, but that is substantially related to the fitness and ability of the applicant or licensee to engage in the activity for which the license is required. In determining whether the conduct is substantially related to the fitness and ability of the applicant or licensee to engage in the activity for which the license is required, the licensing board, commission or agency shall consider the relationship of the facts with respect to the conduct and all intervening circumstances to the specific occupational or professional standards.
§ 670.280(3) (emphasis added). See Dearborn v. Real Estate Agency, 997 P.2d 239, 242 (Or. Ct. App. 2000) (finding that a drug conviction was unrelated to the licensee’s past or future conduct in professional real estate activity and, therefore, a professional license cannot be suspended or denied), aff’d in relevant part, 53 P.3d 436, 440-42 (Or. 2002). There is no similar provision governing public or private employment.
See also provisions affecting home health care employment, above.
- It is not clear whether the statute’s use of the term “expungement” is intended to include the more customary relief of set-aside and sealing under Oregon law. In this regard, Oregon courts have held that the relief by “set-aside” is not a true expungement. See State v. Langan, 718 P. 2d 719, 722 n. 3 (1986) (noting that “expungement” is a “misnomer” because a set-aside order “is not designed to ‘rewrite history’ and deny the occurrence of an event but to limit the purposes for which official records may be used to exhume that past event”).
- The judicial restoration procedure as originally enacted in 2010 applied to all offenders, and eligibility was immediate. The eligibility criteria were amended in August 2011 to exclude those convicted of violent offenses or any person felony involving use of a firearm or deadly weapon, and a waiting period was added. See http://gov.oregonlive.com/bill/2011/SB762/.
- Governor Kulongoski’s final pardons are described in his report to the legislature at http://www.scribd.com/mobile/documents/46776123/download?commit=Download+Now&secret_password=.
- This authority was extended to Class B felonies in 2012. See http://gov.oregonlive.com/bill/2011/HB3376/. Some prosecutors opposed this extension of the law. See Aimee Green, Oregon Felons Who Have Gone Straight Ask for Clean Slate; Some DAs Think Proposed Law Goes Too Far, The Oregonian, (May 9, 2011), http://www.oregonlive.com/tigard/index.ssf/2011/05/oregon_felons_who_have_gone_straight_plead_for_clean_slate_but_district_attorneys_fear_proposed_expu.html. The statute as originally enacted in 1971 covered almost all offenses. 1971 Or. Laws chap. 434, § 2. Prior to the 1993 amendments, more serious offenses were eligible subject to a 10-year eligibility waiting period. Courts had no discretion to reject set-aside except on eligibility grounds. Or. Rev. Stat. § 137.225 (1991); 1993 Or. Laws chap. 664, § 2; see also State v. Langan, 718 P.2d 719, 723 (Or. 1986) (concluding that statutory criteria, not discretion of trial court, control whether set-aside should be granted).
- § 137.225(5)(b) states that “Any crime punishable as a misdemeanor, including judgment of conviction for a misdemeanor pursuant to ORS 161.705.” is eligible. Class C felonies, Class A racketeering felonies, and many marijuana offenses are made eligible through this provision since they may all be punishable as misdemeanors under § 161.705.