Restoration of Rights & Record Relief
Last updated: March 16, 2020
I. Loss & restoration of civil/firearms rights
A. Civil rights
No person “confined in a penal institution” is eligible to vote. 25 P.S. §§ 2602(w), 3146.1.1 The right to vote is restored automatically upon release from prison. United States v. Essig, 10 F.3d 968 (3d Cir. 1993). The disability has been interpreted to apply only to persons convicted of a felony. 1974 Pa. Op. Att’y Gen. No. 47 (Sept. 11, 1974). 2
Persons convicted of embezzlement of public moneys, bribery, perjury or “other infamous crime” (any felony under Pennsylvania state law) may not be elected to the General Assembly or hold any “office of trust or profit” in the state, unless pardoned. Pa. Const. art. II, § 7. Whether an out-of-state conviction constitutes an “infamous crime” depends upon the facts.4 (This disability has been interpreted to apply only to elected or appointed office, and not to mere public employment.) Like jury service, this disability is removed only upon a governor’s pardon. Pa. Const. art. IV, § 9(a). See also 37 Pa. Code ch. 81.
Juvenile adjudications do not “impose any civil disability ordinarily resulting from a conviction.” 42 Pa. Cons. Stat. § 6354.
The following crimes result in the loss of firearm rights: conviction of specified felony offenses (usually involving violence); drug crimes punishable by a term of imprisonment exceeding two years; three or more DUI offenses within a period of five years; domestic violence offenses; and additional specified criminal conduct. See 18 Pa. Cons. Stat. §§ 6105(a) through (c). Section 6105(d) provides that a disqualified person may obtain relief from a court in the person’s county of residence under certain conditions, including where the person has been granted a full pardon or the conviction has been vacated, or where ten years have passed since release from incarceration.5 Additional restoration authority is contained in § 6105.1(a), where loss of firearms rights stems from conviction under laws that no longer carry firearms disability. This restoration also restores right to vote, serve on jury and hold public office. § 6105.1(e). Applicable procedures are set forth in section 6105(e), which include potential participation of county commissioner, district attorney, and the victim.
II. Pardon policy & practice
Under the Pennsylvania Constitution, the governor has power to pardon, but he may not act except pursuant to a favorable recommendation from a majority of the Board of Pardons (unanimous in the case of life sentences). Pa. Const. art IV, § 9(a):
[N]o pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, and in the case of a sentence of death or life imprisonment, on the unanimous recommendation in writing of the Board of Pardons, after full hearing in open session, upon due public notice.
The Board of Pardons is composed of the lieutenant governor, who serves as chairman; the attorney general; and three members appointed by the governor for six year terms with the approval of a majority of the members elected to the Senate. Pa. Const. art. IV, § 9(b). The three appointed members must consist of a corrections expert; a crime victim representative; and a doctor of medicine, psychiatrist or psychologist. Id.
There is no eligibility waiting period; even prisoners may apply. However, according to the BOP website, “the applicant should be able to demonstrate a reasonable period of time having elapsed since the crime (sufficient to show rehabilitation) and successful completion of all court-imposed requirements such as probation, parole, and payment of all fines and costs.” https://www.bop.pa.gov/application-process/Pages/Factors-Considered.aspx. Convictions obtained in other jurisdictions are not eligible for Pennsylvania pardon.
Pardon restores all rights lost as a result of a conviction, and entitles the recipient to judicial expungement. Commonwealth v. C.S., 534 A.2d 1053, 1054 (Pa. 1987) (“There is no way that the state can retain the record of a former criminal who is ‘as innocent as if he had never committed the offense.’ A pardon without expungement is not a pardon.”) (citations omitted) A pardoned or expunged conviction may not be considered in a licensing decision. 18 Pa. Cons. Stat. § 9124(b). According to the Board of Pardons, most disabilities in Pennsylvania are “disabilities by choice” as opposed to “disabilities by law.” That is, they are self-imposed as opposed to legislatively imposed. Accordingly, most pardon applicants seek a pardon for forgiveness, which is accepted by employers and others as sufficient to overcome self-imposed disabilities. The Board of Pardons has shown itself reluctant to relieve disabilities imposed by the legislature, with the exception of hunting rights, and refers individuals seeking such relief to restoration provisions provided by the legislature, either generally or in connection with a particular collateral consequence (see Part IIIA, below).
Standards for Granting Pardon are published on the Board’s website. See Factors Considered by the Board, Pennsylvania Board of Pardons, https://www.bop.pa.gov/application-process/Pages/Factors-Considered.aspx (last visited Nov. 9, 2019). Factors considered by the Board include time since conviction (“the more serious, or numerous, the crime(s), the greater the period of successful rehabilitation that the applicant should be able to demonstrate”); successful completion of sentence and rehabilitation (“Successful rehabilitation may also be demonstrated by positive changes since the offense(s) in applicant’s career, education, family or through community or volunteer service, particularly in areas that relate to the offense(s).”); and need for pardon. In that regard, the “Factors” section of the Board website states:
The applicant should identify a specific need for clemency, e.g., a particular job that applicant cannot get, or some particular activity that he/she cannot participate in without clemency. as opposed to the more general answers of “employment purposes” or “to put this behind me” that applicants frequently use. Except in extraordinary circumstances, the Board does not view a pardon as an appropriate means of restoring any disability that has been imposed pursuant to a state law, e.g., suspension of driver’s license, revocation of professional or business licensure, etc. Rather, the Board generally defers to the General Assembly and the means of restoration provided for in the law in question.
Process as provided in the state constitution and administrative code is spelled out on the Board’s website. See Rules and Regulations, Pennsylvania Board of Pardons, http://www.bop.pa.gov/application-process/Pages/Rules-and-Regulations.aspx#.Vw0kMqQrKCp. In no case may pardon be recommended without a public hearing, and “due public notice.” Pa. Const. art. IV, § 9.
In March 2019, the Board eliminated all fees for applying for pardon, and made its application available on line free-of charge. (Previously there was an $8 fee to obtain the application form, and further filing fees totaling $65. which were determined to “discourage remorseful people from pursuing help with cleaning up their records.”) The Board also eliminated two other burdensome and time-consuming requirements: a full criminal history from the State Police, and a full driving history from PA’s Department of Transportation. The Board’s new Secretary installed in April 2019 is expected to make additional changes to streamline the process.
In October 2019, the governor announced an expedited procedure for those convicted of minor non-violent marijuana crimes. See https://www.bop.pa.gov/Apply%20for%20Clemency/Pages/Expedited-Review-Program.aspx.
The application includes questions relating to offenses and subsequent rehabilitation. An individual must submit the application and ten copies, and five passport-type photos. 37 Pa. Code §§ 81.221, 81.222, 81.225. The application is public and may be inspected. § 81.227. Agents from the Pennsylvania Board of Probation and Parole conduct investigations for the Board of Pardons. § 81.226(a). Applications are sent to the trial court; to the district attorney of the county from which the applicant was sentenced; and to the correctional institution (if the applicant is confined) for recommendation. Id. After all pertinent information has been compiled, the application will be reviewed for listing in a subsequent month’s calendar.
On merit review by the Board on non-capital cases, two votes are required for a public hearing, except that a vote by a majority of the Board is required for prisoners serving life sentences or sentences for crimes of violence. 37 Pa. Code § 81.231. If a hearing is denied, the application will also be deemed denied at that time and the applicant will be notified of the final adverse decision in writing. § 81.226(b). The applicant and the person representing the applicant will be advised whether or not a public hearing is granted, as well as the time and place of the hearing. The Board generally follows a strict “first in, first out” policy, so that even exigent cases (e.g., deportation cases) must join a large backlog. See Frequently Asked Questions, Pennsylvania Board of Pardons, http://www.bop.pa.gov/application-process/Pages/Frequently-Asked-Questions.aspx#.Vw1dcqQrKCo (last visited November 9, 2019). The Board’s website states, “At the current rate, it is taking approximately 3 years from receipt of an application until the Board members merit review the application to determine if a hearing will be granted.” Id.
When a hearing is granted, applicants must appear personally before the Board unless the person is confined. 37 Pa. Code § 81.281. In every case prior to the public hearing, a legal notice will be published in a newspaper of general circulation in the county or counties where the applicant committed the crime(s) for which he/she is seeking clemency. § 81.233. The notice will include the applicant’s name, conviction, and the date and place of the hearing. Id. Hearings of the Board are public and a record is kept. § 81.263. In non-capital cases 15 minutes is allotted to each side for presentation. § 81.292(a). The Board conducts its deliberations in executive session after a public hearing, but its decisions are announced publicly. § 81.301(a).
Under the Constitution, any recommendation of the Board is by majority, except that it must be unanimous in capital and life sentence cases. Pa. Const. art IV, § 9(a). The Board provides the governor with a written recommendation in every case, including the reasons (“at length”) for its recommendation. Id.
The Community Legal Services of Philadelphia website has an excellent description of Pennsylvania’s pardon process. See https://clsphila.org/get-help/pardons.
G. Frequency of grants
The Board has received a fairly steady stream of between 400-500 applications in the past 10 years, grants a hearing in 40-50% of cases, and recommends a majority of those each year (200-300) . Under the present governor almost all of those recommended by the Board have been granted with very few denials. See year-by-year statistics since 1999 at the Board website, http://www.bop.pa.gov/Statistics/Pages/Statistics-by-Year.aspx#.Vu9I6PkrLcs:
|Applications received||Granted merit review||Granted public hearing||Recommended favorably||Granted by Governor||Denied by Governor|
|2019||565||382||263||208||58 (160 under review)|
Source: Pennsylvania Board of Pardons (last viewed 12/18/17).
*Note: Applications, reviews and hearings include pardon and commutation.
Recommendations, grants, and denials refer to pardons only.
The number of applications filed with the Board doubled between 2000 and 2008, but stabilized after passage of an expungement law in 2009 addressed some of the employment issues faced by those convicted of very minor “summary” offenses (typically retail theft), which prevented an individual from working in an educational institution, health care, and other professions. More recently, a law authorizing automatic sealing for many misdemeanors (see below) should further reduce the burden on the clemency process.
Brandon J. Flood
Executive Secretary Board of Pardons
33 Market Street, 15th
Harrisburg, PA 17126-0333
III. Expungement, sealing & other record relief
A. Sealing by petition (“order for limited access”)
In 2015 Pennsylvania for the first time authorized its courts to limit public access to misdemeanors and ungraded offenses through “orders for limited access.” In 2018, this court-ordered sealing authority was expanded, and additional authority making sealing automatic for certain offenses was enacted. These record relief provisions, known respectively as “sealing by petition” and “clean slate relief,” are described in the following sections.
1. Court-ordered sealing of misdemeanors and ungraded offenses
2016 sealing law: Effective November 14, 2016, courts were authorized to seal records of 2nd and 3rd degree misdemeanors and ungraded offenses carrying a penalty of no more than two years under an “order for limited access.” See 18 Pa. Cons. Stat. § 9122.1 (added by 2015 Pa. SB 166). (The styling of this relief was changed from “seal” to “limited access” in 2018. See below on the 2018 Clean Slate Act.) A 10-year waiting period from completion of the sentence applies, during which time the petitioner may not have been arrested or prosecuted for any other offense. § 9122.1(a)(1). Petitions must be filed in the court of conviction, and they may be granted without a hearing if the prosecutor does not object. § 9122.1(c). A $132 filing fee is required. 42 Pa. Cons. Stat. § 1725.7(a).
Under the 2016 law, persons with certain prior convictions are ineligible for sealing: if the person has at any time been convicted of any offense punishable by more than two years’ imprisonment; four or more offenses punishable by imprisonment of one or more years; and a number of additional listed crimes, including simple assault (except in the 3rd degree), witness intimidation, and sexual offenses requiring registration. See § 9122.1(b).
2018 Clean Slate Act: The so-called Clean Slate Act of 2018 made several significant changes in the 2016 sealing law, expanding eligibility for what would become known as “sealing by petition” to some first degree misdemeanors, and further limiting dissemination of sealed conviction records. See 18 Pa. Cons. Stat. § 9122.1, as amended by 2018 Act 56 (Pa. HR 1419). The legislative findings accompanying the Act include that “after less violent individuals convicted of crimes have served their sentences and remained crime free long enough to demonstrate rehabilitation, the individuals’ access to employment, housing, education and other necessities of life should be fully restored.” See Act 56, findings.
First degree misdemeanors carrying a potential penalty of two years or less, and ungraded offenses carrying a penalty of up to five years, were made eligible for sealing by petition after a 10-year period in which the individual must have been free of conviction for an offense carrying a prison term of one year or more (as opposed to free of arrest or prosecution for ten years running from completion of sentence, as under the 2016 law). However, it added a new condition of eligibility that all court-ordered financial obligations of the sentence must have been satisfied. See § 9122.1(a), as amended by 2018 Act 56. The court may not order sealing for certain offenses involving violence, firearms, or sexual misconduct that are punishable by more than two years in prison. See § 9122.1(b)(1), as amended by Act 56.
The 2018 Act also narrowed the types of prior convictions rendering a person ineligible for court-ordered sealing to the following:
Conviction of first degree felonies punishable by imprisonment of 20 years;
Conviction within 20 years of felonies punishable by seven or more years in prison that involve crimes against the person or against the family, firearms, or sexual offenses requiring registration;
Conviction of four or more offenses punishable by imprisonment of two or more years; or
Conviction within 15 years of two or more offenses punishable by more than two years in prison, or a number of specific offenses, including indecent exposure, crime involving weapons or implements for escape, sex with animals, or failure to comply with registration requirements.
See § 9122.1(b)(2).
2. “Clean slate” sealing of misdemeanors and ungraded offenses
The 2018 law provides for automated sealing (“clean slate” sealing) without a requirement for a court filing or payment of a filing fee, for a range of offenses that is similar (though not identical) to those eligible for court-ordered sealing. See § 9122.2, as added by 2018 Act 56. It also provides retroactive relief to older convictions. The new law specifies a process (described below) whereby the Administrative Office of the Courts and the State Police will identify cases whose records are eligible for “clean slate” sealing, lists of which will then be submitted to the commonwealth courts on a regular monthly basis for a judicial “order of nondisclosure.” The amendments enlarging eligibility for sealing by petition under § 9122.1 were effective December 26, 2018, while many other provisions of the Act were effective June 28, 2019. The courts and state police are directed by law to identify all cases eligible for automated sealing between June 28, 2019 and June 27, 2020.
Eligibility for automated sealing under the new § 9122.2 is similar to but not exactly the same as eligibility for court-ordered sealing. In addition to second- and third-degree misdemeanors, any first degree misdemeanor punishable by imprisonment for no more than two years is eligible. The same 10-year conviction-free waiting period applies as applies to court-ordered sealing. The new provision does not mention “ungraded offenses,” but specifically authorizes sealing of summary offenses after 10 years (without the proviso that the 10-year period should be conviction-free). §§ 9122.2(a)(1), (3). Criminal history information “pertaining to charges that resulted in a final disposition other than a conviction” may be automatically sealed with no waiting period. § 9122.2(a)(2).
The same crimes ineligible for sealing by petition are also ineligible for automated sealing. See § 9122.3(a).
However, the categories of prior offenses that make an individual ineligible for “clean slate” sealing are broader:
Conviction of a felony at any time;
Conviction of two or more offenses punishable by imprisonment of more than two years;
Conviction of four or more offenses punishable by imprisonment of one or more years; or
Conviction of any of the offenses in the catchall category in § 9122.1(b)(2).
In addition, unlike sealing by petition, automated sealing is not available to an otherwise qualifying conviction if a conviction punishable by five or more years or an ineligible offense arose out of the same case. § 9122.3(b)(3).
Any case ineligible for “clean slate” sealing may proceed by court petition. § 9122.3(c)
3. Sealing of non-conviction records (“limited access”)
The “Clean Slate Act” also provided for immediate eligibility for an “order for limited access” for “charges which resulted in a final disposition other than a conviction.” § 9122.2(a)(2). An order will issue “within 30 days after entry of the disposition and payment of each court-ordered obligation.” § 9122.2(b)(2)(i). See discussion below of the constitutional right to “expungement” of non-conviction records.
4. Procedures for “clean slate” sealing
Specific procedures governing automated sealing are set forth in § 9122.2(b). They include monthly transmission by the Administrative Office for the Courts to the State Police central records repository of any record eligible for sealing, and application of a validation process by the State Police to winnow out ineligible records. Each court of common pleas shall issue monthly orders of limited access covering all cases on the list returned by the State Police. Section 4 of the 2018 Act 56 provides that cases eligible for “clean slate” limited access shall be identified by the State Police and the courts within 365 days of the law’s enactment. See effective date discussion above.
Vacatur of sealing order: 2018 Act 56 also provides authority for a court to vacate an order for “clean slate” limited access upon petition by the prosecuting attorney, if the court determines that the order was issued erroneously, or if the order involved a conviction and its recipient is subsequently convicted of a misdemeanor or felony. See § 9122.4.
5. Effect of “order for limited access”
Unlike expunged records, records sealed under an “order for limited access” are not destroyed and remain available to criminal justice agencies, to agencies such as the Department of Human Services for child protective services uses, and (under the 2016 law) to state professional and occupational licensing agencies. 18 Pa. Cons. Stat. § 9121(b.1) and (b.2). Sealed records may not be disseminated to the general public, private employers, or landlords. Additionally, unless requested by an agency to whom disclosure is already authorized, “no individual shall be required nor requested to disclose information about the person’s criminal history records that are the subject of” an order for limited access. § 9122.1(a)(2).
Limits on access by licensing boards: The 2018 Act 56 further limited access to sealed records, so that state licensing agencies will no longer have access, and access will be permitted only under a court order in cases involving child custody or civil liability for negligent hiring. Limits on access do not apply where federal law requires consideration of an applicant’s criminal history for purposes of employment, or where the Supreme Court requires information relating to judicial administration or the practice of law. See § 9121(b.2).
Voluntary disclosure: The 2018 Act also provides in a new § 9122.5 that individuals whose records have been expunged or are subject to limited access may not be required or requested to disclose related information, and “may respond as if the offense did not occur.” That section does not apply if federal law, including rules of a federal regulatory agency, requires disclosure. However, an expunged record or record subject to limited access may not be considered a conviction prohibiting employment under any state or federal laws that prohibit employment based on state convictions “to the extent permitted by Federal law.”
Employer immunity from liability: The 2018 Act grants an employer immunity from liability for any misconduct of an employee “if the misconduct relates to the portion of the criminal history that has been expunged or provided limited access.” § 9122.6.
B. Expungement of minor convictions, non-convictions & juvenile adjudications
1. Eligible convictions
Summary offenses: Courts may expunge records of “summary offenses” only if the individual who is the subject of the record petitions the court, and has been free of arrest or prosecution for five years following the conviction for that offense. 18 Pa. Cons. Stat. § 9122(b)(3)(i); 234 Pa. Code Chs. 4 and 7.6
Elderly offenders: The court may also order that conviction records be expunged where a person has reached age 70 and been arrest-free for 10 years following final release from confinement or supervision, or when the person has been dead for three years. 18 Pa. Cons. Stat. § 9122(b)(1) and (b)(2).
Underage drinking: Under a 2004 law, expungement is mandatory in summary convictions for underage drinking under 18 Pa. Cons. Stat. § 6308, if the applicant is over 21 at the time of asking for expungement. § 9122(a)(3).
Pardoned offenses: A gubernatorial pardon entitles the recipient to judicial expungement. Commonwealth v. C.S., 534 A.2d 1053 (Pa. 1987).
2. Expungement of non-conviction records
Expungement by motion to court: Criminal history information “shall be expunged” where no disposition in a case is indicated after 18 months, or otherwise where the court orders it. See 18 Pa. Cons. Stat. §§ 9122(a), (b) and discussion of constitutional right to expungement of non-conviction records below. In addition, arrest and related records may not be disseminated to the public if three years had elapsed with no disposition indicated and no proceedings pending. 18 Pa. Cons. Stat. § 9121(b)(2)(i).
Expungement is also available in cases handled pursuant to Accelerated Rehabilitative Disposition (pre-plea diversion) where the defendant successfully completes the terms of ARD probation (except for certain sex offenses). § 9122(b.1). ARD probation is available for first offenders in summary cases, pursuant to Pa. R. Crim. P. 300 et seq. See also infra, on constitutional right to expungement of arrest records. For explanation of expungement procedure in ARD cases, see Foxworth v. Pennsylvania State Police, 402 F. Supp. 2d 523, 527-28 (E.D. Pa. 2005) (Pennsylvania State Police may reject applicant with prior record of ARD disposition, notwithstanding 18 Pa. Cons. Stat. § 9124(b)).
Expungement is specifically provided in cases of probation without verdict for nonviolent drug dependent first time offenders pursuant to the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-117; see also § 780-119. Records expunged under this authority may be used only for determining eligibility for additional terms of probation without verdict under that law’s authority. § 780-117(3). See Commonwealth v. Benn, 675 A.2d 261 (Pa. 1996) (district attorney abused his discretion in denying individual admission to ARD program based on records expunged pursuant to 35 P.S. § 780-117).
Nondisclosure of arrest records and non-conviction records: See above.
3. Juvenile records
Expungement with complete destruction of records is available. 18 Pa. Cons. Stat. § 9123. Eligibility begins when one of the following criteria are met: the charges were dropped; six months have elapsed since a discharge from a consent decree or supervision; five years have elapsed since a delinquency adjudication; or a juvenile reaches age 18. Once eligible, a person may petition the court; the petition is granted in 30 days unless the DA shows good cause as to why it should not be. Id. Prosecutors retain adjudication information following expungement, and the information will be disclosed to law enforcement agencies upon request. § 9122(c).
In 2018, Section 3 of HR 1419 modified provisions relating to public disclosure of law enforcement records of juvenile adjudications, establishing new standards depending on whether the conduct occurred before or after the age of 14. See §§ 6307(b) and 6308(b) of Title 42, as amended by 2018 HR 1419.
4. Effect of expungement
(1) To remove information so that there is no trace or indication that such information existed;
(2) to eliminate all identifiers which may be used to trace the identity of an individual, allowing remaining data to be used for statistical purposes; or
(3) maintenance of certain information required or authorized under the provisions of section 9122(c) (relating to expungement), when an individual has successfully completed the conditions of any pretrial or posttrial diversion or probation program.
Once a conviction has been expunged, an offender may deny that he was ever convicted. Commonwealth v. C.S., 534 A.2d 1053 (Pa. 1987). Expunged records are destroyed, except that the prosecuting attorney and the central repository shall, and the court may, maintain a list of the names and other criminal history record information of persons whose records are expunged after the individual has successfully completed the conditions of any pretrial or post-trial diversion or probation program. See Hunt v. Pa State Police, 983 A.2d 627, 633 (Pa. 2009) (“[i]n general terms, expungement is simply the removal of information so that there is no trace or indication that such information existed”). Such information shall be made available to any court or law enforcement agency upon request, but may be used solely for the purpose of determining subsequent eligibility for diversion programs, probation, and expungement, and for identifying persons in criminal investigations. 18 Pa. Cons. Stat. § 9122(c).
Pardoned or expunged convictions may not be considered by a licensing board, 18 Pa. Cons. Stat. § 9124(b), nor may summary offenses. Id. See Part III, infra.
5. Constitutional right to expungement of arrest records
The Pennsylvania courts recognize an individual’s constitutional right, in certain circumstances, to have his or her arrest records expunged. See, e.g., Commonwealth v. Armstrong, 434 A.2d 1205, 1206 (Pa. 1981); Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa. 1981); Commonwealth v. Malone, 366 A.2d 584, 587-88 (Pa. Super. Ct. 1976) (noting serious losses that can be caused by an arrest record, including reputational and economic injury). This right is an adjunct of due process and is not dependent upon express statutory authority. Armstrong, 434 A.2d at 1206. “In determining whether justice requires expungement, the Court, in each particular case, must balance the individual’s right to be free from the harm attendant to the maintenance of the arrest record against the Commonwealth’s interest in preserving such records.” Wexler, 431 A.2d at 879. The factors that must be considered in making such a determination include, but are not limited to:
[T]he strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.
Id. (quoting Commonwealth v. Iacino, 411 A.2d 754, 759 (1979) (Spaeth, J., concurring)). The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth. See Commonwealth v. Waughtel, 999 A.2d 623, 624-25 (Pa. Super. 2010).
In addition, courts have inherent authority to redact conviction records to expunge charges not resulting in conviction under certain circumstances. See Commonwealth v. Hanna, 964 A.2d 923 (Pa. Super. 2009), summarizing Pennsylvania caselaw holding that a defendant has a right to a hearing as to whether charges nol prossed may be expunged where the defendant has been convicted of one or more of the charges in an indictment, whereas changes dismissed pursuant to a plea agreement may not. See Commonwealth v. Lutz, 788 A.2d 993 (Pa.Super.2001). The theory is that dismissal of charges in a plea agreement is a contractual undertaking that binds the defendant, whereas the prosecutor’s decision not to prosecute particular charges is presumed to be because of an absence of proof.
IV. Criminal record in employment & licensing
Like New York, Wisconsin and Hawaii, Pennsylvania has a comprehensive nondiscrimination law covering licensure and both public and private employment. See Pennsylvania Criminal History Record Information Act, 18 Pa. Cons. Stat. §§ 9101 et seq. However, unlike the other three states, Pennsylvania’s law has no mechanism for administrative enforcement, so it can only be enforced through the courts. The Attorney General or any other individual or agency may obtain injunctive relief and, in addition, any “aggrieved person” may bring an action for “actual and real damages,” punitive damages in an amount between $1,000 and $10,000 and “reasonable costs of litigation and attorney’s fees. § 9183. See also Elizabeth Gerlach, The Background Check Balancing Act: Protecting Applicants with Criminal Convictions While Encouraging Criminal Background Checks in Hiring, 8 U. Pa. J. Lab. & Emp. L. 981 (2006).
18 Pa. Cons. Stat. § 9125 provides employment protection only during the hiring stage and is not applicable to ongoing or post-employment adverse employment actions. It provides, for both public and private employment, “[f]elony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.” § 9125(b). (Certain job categories are exempted by statute elsewhere in code, like health care). Employers are required to notify applicants in writing if the decision to deny employment is based in whole or in part on criminal history. § 9125(c).
The courts have tended to interpret the direct relationship requirement in favor of employers. See Reynolds v. Murphy Ford, Inc., 2007 Phila. Ct. Com. Pl. LEXIS 146 (2007) (automobile salesman’s prior convictions for theft and burglary an appropriate basis for termination since sales representatives occasionally had access to customers’ confidential financial information and deposited monies); El v. Se. Pa. Transp. Auth., 418 F. Supp. 2d 659, 663-64 (E.D. Pa. 2005), aff’d, 479 F.3d 232 (3d Cir. 2007) (paratransit driver-trainee properly terminated under state law, as well as Title VII of the Civil Rights Act, solely on the basis of a forty-year-old conviction for his role in a gang-related homicide).
Section 9125 has been held to permit adverse action based on the fact of arrest alone. See Cisco v. United Parcel Servs., Inc., 476 A.2d 1340 (Pa. 1984) (mere arrest of a delivery person could jeopardize the reputation and business activities of UPS, so that UPS had a “plausible and legitimate reason” for discharging him, even though he was ultimately acquitted). See also Mallette v. U.S. Sec. Associates, Inc., Civil Action No. 07-3642, 2008 WL 4889025 (E.D. Pa. Nov. 12, 2008) (security guard properly dismissed from position as security guard at children’s hospital where serious criminal charges pending against him, notwithstanding his later acquittal).
In a suit for wrongful discharge, sovereign immunity has been held a defense to a suit against a public employer. See McNichols v. Dep’t of Transp., 804 A.2d 1264, 1267 (Pa. Commw. Ct. 2002) (“Wrongful discharge … is not one of the enumerated exceptions [to sovereign immunity].”); Poliskiewicz v. E. Stroudsburg Univ., 536 A.2d 472, 475 (Pa. Commw. Ct. 1988) (holding that sovereign immunity remains in effect unless it has been specifically waived).
These cases are discussed in Christine Neylon O’Brien and Jonathan J. Darrow, Adverse Employment Consequences Triggered by Criminal Convictions: Recent Cases Interpret State Statutes Prohibiting Discrimination, 42 Wake Forest L. Rev. 991, 1005-1009 (2007).
Juvenile court adjudications do not “operate to disqualify the child in any civil service application or appointment.” 42 Pa.Cons.Stat. § 6354.
Per se employment barriers
Pennsylvania has one of the broadest laws in the country disqualifying people with any sort of criminal record from working with the elderly, mentally ill, or retarded, whether in nursing homes or personal care facilities. 35 P.S. §§ 10225.101 et seq. Although the scope of this law is unclear, the statute specifically identifies social service workers, hospital personnel, mental health professionals, clergy, counselors, librarians, and doctors. Penalties for violations of these laws involve both fines for the health care facility and potentially prison for facility administrators and owners. § 10225.505. This law was limited by the Pennsylvania Supreme Court in Nixon v. Commonwealth, 839 A.2d 277, 288-89 (Pa. 2003) (state could not refuse to re-employ convicted persons while continuing to employ similarly situated persons with no break in service).
The lifetime ban on employment of people with aggravated assault convictions in the Child Protective Services Law was held unconstitutional in 2004. See Warren Cnty. Human Servs. v. State Civil Service Comm’n, 844 A.2d 70, 74 (Pa. Commw. Ct. 2004), petition for appeal denied, 863 A.2d 1152 (Pa. 2004). Notwithstanding this decision, in 2006, the Pennsylvania legislature extended the law to a range of occupations in which workers have “significant likelihood of regular contact with children.” 23 Pa. Cons. Stat. § 6344.2(A). In 2015 a unanimous appellate decision from the Commonwealth Court struck down the lifetime ban for all crimes, finding that it violated due process rights under the state constitution. Peake v. Commonwealth, No. 216 M.D. 2015 (Pa. Commw. Ct. Dec. 30, 2015); see also Margaret Love, Employment bars in long-term health care facilities declared unconstitutional, Collateral Consequences Resource Center, https://ccresourcecenter.org/2016/01/05/employment-bars-long-term-health-care-facilities-declared-unconstitutional/ (Jan. 5, 2016).
State law also prohibits people with certain convictions from working in child care, long-term and elder care, police forces, and schools. 23 Pa. Cons. Stat §§ 6301 et seq.; 35 P.S. §§ 10225.101 et seq. A study by Community Legal Services of Philadelphia found over 40 professions in Pennsylvania in which an occupational license may be denied because of a criminal record, from accountant to veterinarian. See Community Legal Services of Philadelphia, Legal Remedies and Limitations on the Employment of Ex-Offenders in Pennsylvania (Aug. 2015), available at https://clsphila.org/learn-about-issues/legal-remedies-and-limitations-employment-people-criminal-records-pennsylvania.
Ban-the-box & non-discrimination in public employment
Effective July 1, 2017, a new commonwealth hiring policy will generally prohibit inquiries into criminal history on applications for commonwealth employment and limit consideration of criminal history in the hiring process. See http://www.oa.pa.gov/Policies/hr/Documents/TM001.pdf. The policy was was announced by Governor Tom Wolf in May of 2017. Regarding specific non-discrimination provisions, the policy provides as follows:
a. Consideration of arrests not leading to a conviction; annulled, expunged, or pardoned convictions; convictions for summary offenses; and convictions that do not relate to an applicant’s suitability for Commonwealth employment is prohibited.
b. In making hiring decisions, the hiring entity shall consider the public interest of ensuring access to employment for individuals with criminal records.
c. This HR Policy shall not affect positions in which a criminal conviction makes an applicant ineligible under law.
d. This HR Policy also shall not apply to employment positions responsible for the safeguarding or security of people or property, law enforcement, or those involving contact with vulnerable populations.
e. All departments, agencies, boards, commissions, and councils shall utilize the online job application system as required by ITPBUS008. No department, agency, board, commission, or council shall utilize its own job application form or questionnaire, unless such form or questionnaire is approved by the Secretary of the Office of Administration.
Under 18 Pa. Cons. Stat. § 9124(a), licensing agencies “may consider convictions of the applicant of crimes but the convictions shall not preclude the issuance of a license, certificate, registration or permit.” In initial licensing decisions, licensing agencies may not consider records of arrest if there is no conviction of a crime based on the arrest; convictions which have been annulled or expunged; convictions of a summary offense; convictions for which the individual has received a pardon from the Governor; or “convictions which do not relate to the applicant’s suitability for the license, certificate, registration or permit.” § 9124(b). Additionally, licensing agencies may suspend or revoke a license where the applicant has been convicted of a felony, or where the applicant has been convicted of “a misdemeanor which relates to the trade, occupation or profession for which the license, certificate, registration or permit is sought.” § 9124(c). The “relation to suitability” limitation on felony convictions in initial licensing under § 9124(b) does not apply to disciplinary actions under § 9124(c). See Gangewere v. Commonwealth, 512 A.2d 1301 (Pa. Commw. Ct. 1986). In either context, the licensing agency “shall notify the individual in writing of the reasons for a decision which prohibits the applicant from practicing the trade, occupation or profession if such decision is based in whole or part on conviction of any crime.” 18 Pa. Cons. Stat. § 9124(d).
- There have been periodic unsuccessful efforts by the Pennsylvania General Assembly in recent years to extend the period of disenfranchisement to felony offenders on parole and probation, in addition to those actually incarcerated. See, e.g., H.R. 1318, Session of 2005, vetoed by Governor Rendell in March of 2006.
- 25 Pa. Cons. Stat § 1301(a) provides that a person may not be permitted to register to vote if they have been confined in a prison “for a conviction of a felony” during the past five years. However, in Mixon v. Commonwealth, 759 A.2d 442, 451 (Pa. Commw. Ct. 2000), aff’d, 783 A.2d 442 (Pa. 2001), the court held that there was no rational basis for precluding the registration of those who were incarcerated within last five years and who were not registered previously, when those who were legally registered prior to incarceration could vote upon their release.
- “Crime punishable by imprisonment of more than one year” is defined to exclude violations of “[t]he Vehicle Code” or “substantially similar offenses.” 42 Pa. Cons. Stat. § 4502(b).
- See Commonwealth v. Rambler, 32 A.3d 658, 666-67 (Pa. 2011) (no bright-line rule in determining whether “extra-jurisdictional” [i.e., non-Pennsylvania] felony constitutes infamous crime; “when analyzing the state constitutional implications of a federal felony conviction, it is appropriate to consider the character of the underlying conduct, rather than simply looking at the federal label, or the categorization associated with a similar state offense”).
- § 6105(d) provides in full as follows:
Exemption. – A person who has been convicted of a crime specified in subsection (a) or (b) or a person whose conduct meets the criteria in subsection (c)(1), (2), (5), (7) or (9) may make application to the court of common pleas of the county where the principal residence of the applicant is situated for relief from the disability imposed by this section upon the possession, transfer or control of a firearm. The court shall grant such relief if it determines that any of the following apply:
(1) The conviction has been vacated under circumstances where all appeals have been exhausted or where the right to appeal has expired.
(2) The conviction has been the subject of a full pardon by the Governor.
(3) Each of the following conditions is met:
(i) The Secretary of the Treasury of the United States has relieved the applicant of an applicable disability imposed by Federal law upon the possession, ownership or control of a firearm as a result of the applicant’s prior conviction, except that the court may waive this condition if the court determines that the Congress of the United States has not appropriated sufficient funds to enable the Secretary of the Treasury to grant relief to applicants eligible for the relief.
(ii) A period of ten years, not including any time spent in incarceration, has elapsed since the most recent conviction of the applicant of a crime enumerated in subsection (b), a felony violation of The Controlled Substance, Drug, Device and Cosmetic Act or the offense which resulted in the prohibition under 18 U.S.C. § 922(g)(9).”
- According to anecdotal evidence adduced before the Board in specific pardon cases, conviction of a summary offense, including shoplifting, has been regarded as disqualifying for any position in Pennsylvania schools, however dated. The expungement authority was enacted in part to ease administrative burdens on the Board of Pardons in these kinds of extremely minor offenses.