Restoration of Rights & Record Relief
Last updated: August 27, 2023
I. Loss & restoration of civil/firearms rights
A. Civil rights
A person convicted of a felony loses the right to vote, hold public office, and sit on a jury. Va. Const. art. II, § 1 (“No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.”); see also Va. Code Ann. § 8.01-338 (2) (“Persons convicted of treason or a felony” disqualified from jury service); Va. Code Ann. § 24.2-231 (disqualifying persons convicted of felonies from holding office). Civil rights may be regained only by action of the governor under his constitutional pardon power, through restoration of rights or an absolute pardon. Va. Const. art. V, § 12.
Beginning in 2013, and escalating with a series of executive orders through 2021, successive governors of Virginia loosened restrictions on the right to vote. Governor Robert McDonnell inaugurated the automatic restoration policy in 2013, following the conclusions of a task force convened by the Attorney General that 1) the General Assembly cannot establish by statute a process for the automatic restoration of rights; 2) the governor cannot institute by executive order an automatic, self-executing restoration of rights for all persons convicted of felonies in the Commonwealth of Virginia; but 3) the governor may exercise his discretionary clemency power in a more expansive manner to restore civil rights on an individualized basis. See https://www.washingtonpost.com/local/va-politics/cuccinelli-set-to-announce-findings-on-restoring-voting-rights-of-virginia-felons/2013/05/27/9f6819e0-c6e4-11e2-9245-773c0123c027_story.html.
Governor McAuliffe restored the vote automatically on a case-by-case basis to all those who had completed their sentences, including completion of parole or probation, but since 2016 specifically not including an obligation to pay court debt. Persons convicted of violent crimes were required to wait an additional three years. In March 2021, Governor Ralph Northam issued an executive order pursuant to his pardon power, restoring the vote to 69,000 people who had been released from prison but had not yet completed their supervision, culminating a process of automatic expansion of the franchise by gubernatorial executive order that began in 2013.[note] Prior to 2016, individuals convicted of non-violent offenses were eligible to petition for relief immediately upon completion of their sentences, while those convicted of violent offenses were required to wait five years to file a petition. See https://governor.virginia.gov/newsroom/newsarticle?articleId=3880. See also Va. Code Ann. § 53.1-231.2 (procedure for petitioning court for restoration five years after completion of sentence, with subsequent referral to governor for fast-track action). When prisoners finish their sentence, the director of the Department of Corrections is required to notify them of the procedures whereby civil rights may be restored. § 53.1-231.1. On July 22, 2016, the Virginia Supreme Court struck down a series of executive orders issued by Governor Terry McAuliffe on a monthly basis beginning in April 2016, which purported to restore the vote automatically to all disenfranchised individuals who had completed their sentences and satisfied any attendant financial obligations. See Howell v. McAuliffe, http://www.eji.org/files/howell-v-mcauliffe-virginia-supreme-court-decision-07-22-16.pdf. Governor McAuliffe responded to the court’s action by restoring the vote on an individual basis to the more than 200,000 individuals affected by his orders. http://www.nytimes.com/2016/07/23/us/virginia-felony-supreme-court.html [/note] The history of the expansion of this automatic executive restoration program between 2013 and 2021 is traced by the Brennan Center.
This trend toward automatic restoration of the franchise in Virginia was halted in 2023 by Governor Glen Youngkin, who returned to case-by-case restoration after a person has completed a prison term. See https://www.nytimes.com/2023/04/06/us/virginia-youngkin-voting-former-felons.html?searchResultPosition=1. At the same time, a constitutional amendment that would have made restoration of the vote automatic was held up in the legislature. https://www.wric.com/news/politics/capitol-connection/virginia-republicans-block-proposal-to-make-felon-voting-rights-restoration-automatic/?ipid=promo-link-block3.
Out-of-state and federal convictions: According to the Office of the Secretary of the Commonwealth, people who were convicted in another state, and whose rights were restored in the jurisdiction where they were convicted (evidenced by voter registration card), may vote in Virginia. This applies also to persons convicted of federal offenses in another state. Persons convicted in other jurisdictions while residing in Virginia (including federal offenders), or who moved to Virginia before their rights were restored in the jurisdiction of conviction, may apply to the Governor for restoration under his constitutional pardon power. See Part II, infra.
Constitutional amendment: In February 2021, a proposal to amend the state constitution was approved by the legislature that, if approved a second time by the next legislature and by a referendum, will disenfranchise only people who are sentenced to a prison term and will restore their right to vote upon release from prison. After elections in the fall of 2021, the measure was reintroduced in 2022 but was rejected by a House subcommittee. If the measure fails again in 2023, the amendment process would have to start over.
Persons convicted of a felony lose firearms rights, as do those adjudicated delinquent at age 14 or older of murder, kidnapping, robbery with a firearm, or rape. Additionally, an adjudication of delinquency for any crime that would be a felony if committed by an adult results in the loss of firearm rights until the age of 29. Va. Code Ann. § 18.2-308.2(A). Firearms rights may be restored by pardon or by gubernatorial restoration of rights, § 18.2-308.2(B), or by court order in the county of the applicant’s residence if other rights have been restored. See § 18.2-308.2(C)(“no person who has been convicted of a felony shall be qualified to petition for such an order unless his civil rights have been restored by the Governor or other appropriate authority”).1 If the person is not a resident of the Commonwealth, restoration may be sought in “the circuit court of any county or city where such person was last convicted of a felony or adjudicated delinquent . . .” Id. A person who resides in the state but with an out of state conviction must also pursue this judicial route to relief in order to hunt in Virginia. See Farnsworth v. Commonwealth, 599 S.E.2d 482 (2004), aff’d, 270 Va. 1, 613 S.E.2d 459 (2005).2 Note that a Virginia resident with an out-of-state conviction must satisfy the requirements of 18 U.S. C. § 921(a)(20) relating to record relief in the jurisdiction of conviction in order to avoid the bar in federal firearms law.
Concealed carry permits
In 2014, Virginia enacted new restrictions on concealed carry permits for those convicted of two or more misdemeanors (5 years), marijuana possession and public drunkenness (3 years), stalking (permanent with no relief), and juvenile offenses that would be a felony (16 years). See Va. Code Ann. § 18.2-308.09.
II. Pardon policy & practice
The governor may grant a full pardon or limited restoration of rights, “under such rules and regulations as may be prescribed by law.” Va. Const. art. V, § 12; see also Va. Code § 53.1-229. Section 12 also requires the governor to “communicate to the General Assembly, at each regular session, particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting, or commuting the same.” The governor’s annual reports to the General Assembly (“List of Pardons, Commutations, Reprieves, and Other Forms of Executive Clemency”), including reasons for granting pardon in each case, are accessible dating back to 1974 at http://leg2.state.va.us/DLS/h&sdocs.nsf/Search+All+Published/?SearchView&SearchOrder=4&query=clemency. In Virginia, the governor may grant “simple” pardons for forgiveness of crimes, an “absolute” pardon for innocence, or a ”conditional pardon” to commute a prison sentence. See “Effect” section below.
The legislature has authorized the Parole Board, at the request of the governor, to investigate and make recommendations on pardon cases, but this does not limit the governor’s power. Va. Code Ann. §§ 53.1-136(5), 53.1-231. The Parole Board consists of five members appointed by the governor to open-ended terms. No more than two members are full-time. § 53.1-135. One must be a representative of a victims group. § 53.1-134. Applications for both pardon and restoration of rights are made to the Office of the Secretary of the Commonwealth. The Secretary of the Commonwealth alone makes the recommendation in restoration of rights cases. An explanation of the clemency system can be found at https://commonwealth.virginia.gov/judicial-system.
Restoration of rights
On July 22, 2016, the Virginia Supreme Court struck down a series of executive orders issued by Governor Terry McAuliffe on a monthly basis beginning in April 2016, which purported to restore the vote automatically to all disenfranchised individuals who had completed their sentences and satisfied any attendant financial obligations. See Howell v. McAuliffe (Va. 2016). The court, in a 4-to-3 decision, disputed the governor’s assertion that his clemency power was absolute under the state’s Constitution. “We respectfully disagree,” the majority justices wrote. “The clemency power may be broad, but it is not absolute.” Specifically, the pardon power must be interpreted in light of the constitutional prohibition on suspension of laws by the executive.3 Governor Terry McAuliffe responded to the court’s action by undertaking to restore the vote on an individual basis, initially to the more than 200,000 individuals affected by his orders to that time, and thereafter on a regular basis through additional executive orders. http://www.nytimes.com/2016/07/23/us/virginia-felony-supreme-court.html. His successor Ralph Northam has continued this process, and in March 2021 issued an order restoring the vote to all those released from prison. See also Part I-A, supra.
Stricter eligibility standards apply to the statutory restoration procedure through the court. See Va. Code. Ann. § 53.1-231.2, described below.
See general rules at https://commonwealth.virginia.gov/judicial-system/pardons/simple-pardons/. The website of the Office of the Secretary of the Commonwealth indicates that “If any felony was involved, you MUST have been granted your Restoration of Rights before appealing for the pardon.” There is a five-year eligibility waiting period, which runs from date sentence is completed (including any probation, suspended time, or good behavior time).4 If a pardon application is denied, an applicant may reapply after two years. Federal and out-of-state offenders are not eligible to apply for pardon.
Restoration of rights
Restores right to vote, sit on jury, hold public office, and serve as a notary public. It does not restore firearms rights. In 2015, Governor McAuliffe adopted a policy allowing individuals that have had their rights restored to have that restoration noted on their official criminal record if they choose.
“Simple” pardon does not expunge the record, but “it does constitute official forgiveness and often serves as a means for the petitioner to advance in employment, education, and self-esteem.” The criminal records of those who receive a simple pardon are marked with a notation indicating the pardon grant, but the record remains available to the public. A “simple” pardon is useful in signifying rehabilitation, but Virginia authorities advise that it is not clear what if any legal effect such a pardon may have under state law.
The governor may also grant a “partial pardon” to reduce a sentence retrospectively to avoid immigration consequences.
An “absolute” pardon is generally granted only for innocence. According to the Secretary of Commonwealth’s website, a petitioner must have pleaded not guilty and, if eligible, exhausted all other remedies, including filing a writ of actual innocence. Effective July 1, 2019, an “absolute” pardon entitles a person to automatic judicial expungement and no petition need be filed with the court. Va. Code Ann. § 19.2-392.2(I).
A third type of pardon, a “conditional” pardon, is granted to those currently incarcerated, and has the effect of commuting the sentence. These include so-called “medical pardons,” a few of which have been granted for people in the state prison system who have terminal illnesses. See Va. Code § 53.1-40.02.
Va. Code Ann. §18.2-308.2(B) provides that firearms dispossession provisions “shall not apply to . . . .(iii) any person who has been pardoned or whose political disabilities have been removed pursuant to Article V, Section 12 of the Constitution of Virginia provided the Governor, in the document granting the pardon or removing the person’s political disabilities, may expressly place conditions upon the reinstatement of the person’s right to ship, transport, possess or receive firearms.” Cf. Gallagher v. Commonwealth, 284 Va. 444, 451, 732 S.E.2d 22 (Va. 2012).5
Restoration of rights
See Part I-A, supra. for the succession of executive actions between 2013 and 2021 restoring civil rights to persons with felony convictions. In February 2021, an amendment to the state constitution was approved by the legislature that, if approved a second time by the next legislature and by a referendum, will restore the vote upon release from prison. Restoration of rights is the first step in the pardon application process for felony offenders.
Notice of restoration procedure by corrections director
Va. Code Ann. §1-231.1 requires the director of corrections to give notice to individuals completing their sentences of the procedure for regaining rights.
Court route to restoration by governor
An alternative process allows for petition to the local circuit court or court of conviction to restore the right to vote (unavailable for those convicted of violent felonies, drug-trafficking, or election fraud; five year waiting period). Upon filing, the court holds a hearing and makes a determination as to whether the person has completed their sentence five years previous, and demonstrated “civil responsibility.” The court then makes a recommendation to the governor. Va. Code. Ann. § 53.1-231.2. This “fast track” pardon/restoration scheme purports to impose on the Governor’s office a 90-day time limit to decide court-approved applications. § 53.1-231.2.
Governor McAuliffe formalized the pardon process, so that applicants fill out a questionnaire that requires information related to the applicant’s juvenile and adult criminal record, sentence, employment history, educational background, military service, community service, as well as the reason the applicant feels the governor should grant a pardon. The pardon application form is available at https://commonwealth.virginia.gov/judicial-system/pardons/simple-pardons. Applications are sent to the Office of the Secretary of the Commonwealth and are sometimes forwarded to the Parole Board which makes a non-binding recommendation to the governor following an investigation. Va. Code Ann. § 53.1-136(5). The website of the Secretary of the Commonwealth explains that
There is no reliable method of predicting how long a pardon petition will take to complete. The investigation process may take two years or longer. We appreciate your patience during this time.
https://www.commonwealth.virginia.gov/media/governorvirginiagov/secretary-of-the-commonwealth/pdf/VIRGINIA-EXECUTIVE-CLEMENCY-FACT-SHEET.pdf. Interested persons are invited to contact the Secretary’s office by email (firstname.lastname@example.org) or by phone (804-692-2542.) The governor is required by the state constitution to give a reason for each grant in his report to the legislature (see above), but he generally gives no reasons for denials.
F. Frequency of grants
Restoration of Rights
As a result of the expedited restoration procedure described above that was begun during the tenure of Governor McDonnell (2010-2014), thousands of individuals have had their civil rights restored by executive order. Between 2002 and 2021, the state’s governors acted aggressively to restore rights to many thousands of individuals, a practice that became essentially automatic during the tenures of Governor Terry McAuliffe (2014–2018) and Governor Ralph Northam (2018–2022). These grants are all listed in the annual reports of the governor to the legislature cited above.
Governor Ralph Northam issued more than 1200 simple pardons during his four years in office (2018-2022), and 126,000 restorations of rights. These are all listed in his end-of-year reports to the legislature. See, e.g., Report dated February 9, 2021, https://rga.lis.virginia.gov/Published/2021/SD2/PDF. He also issued a number of conditional pardons (commutations). Governor McAuliffe granted 189 simple pardons over four years, a majority to individuals convicted of misdemeanors, most grants citing the recipient’s “commendable adjustment” since conviction and “upon the recommendation of the Parole Board.” McAuliffe also issued 10 “partial pardons” to reduce a non-citizen’s sentence to avoid immigration consequences, either deportability (less than 365 days) or inadmissibility. 6
In his four years in office (2010-2014) Governor McDonnell granted a total of 52 simple pardons, 46 in his final year in office, for reasons ranging from restoration of firearms rights to facilitate military enlistment and removal of legal barriers to adoption, to relief from disqualification for public office and employment. He also granted four “conditional pardons” to enable the recipients to avoid deportation, and a number of medical pardons (commutations). See http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/SD22014/$file/SD2.pdf.7
Governor Kaine issued 108 simple pardons (three to individuals seeking to avoid deportation), and one commutation to avoid deportation.8 He also granted a number of absolute pardons (for innocence), conditional pardons (sentence commutations), and medical pardons (terminally ill prisoners). His predecessor Governor Mark Warner granted a total of 46 simple pardons from 2002-2006.
Office of the Secretary of the Commonwealth 804-786-2441.
Restoration of Rights
Candice Reid, Restoration of Rights Director
Office of the Secretary of the Commonwealth
Post Office Box 2454
Richmond, Virginia 23218-2454
Office of the Secretary of the Commonwealth
III. Expungement, sealing & other record relief
A. 2021 record clearing laws – in general
Until 2021, Virginia law made no provision for expunging or sealing adult conviction records, except those that have been vacated pursuant to a writ of actual innocence, see Va. Code Ann. § 19.2-392.2(J), or those which were the subject of an absolute pardon (for innocence), see § 19.2-392.2 (I).
With enactment of HB 2113 and SB 1406, Virginia gained one of the more progressive record relief systems in the country, with a mixture of automatic and petition-based sealing, both for convictions generally and marijuana offenses specifically.
The general record relief legislation (HB 2113) includes five key provisions:
- Establishes a system of automatic sealing for misdemeanor non-convictions, nine types of misdemeanor convictions, and deferred dismissals for underage alcohol and marijuana possession.
- Allows for sealing of felony acquittals and dismissals at disposition with the consent of the prosecuting attorney.
- Provides for sealing nearly all midemeanors (ex. DUI and domestic assault) after 7 years, Level 5 and 6 felony convictions after 10 conviction-free years, and deferred dismissals through a petition-based court process. Notably, court debt will not be a barrier to record clearance under the legislation.
- Introduces a system of court-appointed counsel for individuals who cannot afford an attorney for the petition-based sealing process.
- Requires private companies that buy and sell criminal records to routinely delete sealed records and creates a private right of action for individuals against companies that refuse to do so.
The provisions of HB 2113 are scheduled to go into effect no later than 2025, and they are described together in a final “2021 law” section below.
A separate bill providing for marijuana legalization and expungement (SB 1406) authorized the automatic expungement of records related to certain misdemeanor marijuana offenses along with petition-based expungement of all other misdemeanor and many felony marijuana offenses. With one exception, these provisions are also scheduled to go into effect by 2025. See the section below on marijuana offenses.
B. Deferred dispositions
General deferred dispositions: In 2020, Virginia enacted its first broad deferred disposition law, authorizing expungement with the consent of the prosecution. SB5033. Effective March 1, 2021, in any case, courts may, with the agreement of the Commonwealth, after plea or trial, with or without a guilty finding or determination, and notwithstanding entry of a conviction order—upon consideration of the facts and circumstances of the case, including mitigating factors and the request of the victim—defer entry of a conviction order or a final order, and continue the case on reasonable terms and conditions agreed upon by the parties or imposed by the court. The final disposition may be a conviction of the original charge, conviction of an alternative charge, or dismissal. Va. Code Ann. § 19.2-298.02. In the event of dismissal, expungement may follow if the prosecutor agrees:
Upon agreement of all parties, a charge that is dismissed pursuant to this section may be considered as otherwise dismissed for purposes of expungement of police and court records in accordance with § 19.2–392.2, and such agreement of all parties and expungement eligibility shall be indicated in the final disposition order.
§ 19.2-298.02(D). Cf. Comm. v. Dotson, 661 S.E.2d 473, 476 (Va. 2008) (where court required to find evidence of guilt under § 18.2-251, charges not “otherwise dismissed” within the meaning of expungement statute). See also Crespo v. Holder, 631 F.3d 130 (4th Cir. 2011) (where non-citizen pled not guilty under § 18.2-251, deferred adjudication was not a conviction for purposes of 8 U.S.C. §1101(a)(48)(A)(i) to make him deportable since there was no concession or finding of guilt).
Deferred disposition for a misdemeanor property offense: The court may grant deferred disposition for a misdemeanor property offense (with certain exceptions), upon plea of guilty or not guilty, if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt—unless the accused has been previously convicted of a felony, or previously had an offense dismissed under this section. Va. Code Ann. § 19.2-303.2. Because the court must find facts justifying a finding of guilt, the ruling of Comm. v. Dotson, supra, would appear to preclude expungement.
Deferred disposition for a first drug offense: The court may grant deferred disposition for certain first drug offenses, upon plea of guilty or not guilty, if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt. Va. Code Ann. § 18.2-251. Charges may be dismissed but no authority exists to expunge or seal the record. See Comm. v. Dotson, supra. The statute specifies that if a court places an individual on probation under this section, it is considered a conviction for purposes of school suspension under § 22.1-315. Cf. Crespo v. Holder, supra, where non-citizen pled not guilty under § 18.2-251, deferred adjudication was not a conviction for purposes of 8 U.S.C. §1101(a)(48)(A)(i) to make him deportable.
Deferred disposition for persons with autism and intellectual disabilities: A new law enacted in 2020 and effective March 1, 2021, allows the court to grant a deferred disposition upon a plea of guilty or not guilty, if “the defendant has been diagnosed by a psychiatrist or clinical psychologist with (i) an autism spectrum disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association or (ii) an intellectual disability as defined in § 37.2-100 and the court finds by clear and convincing evidence that the criminal conduct was caused by or had a direct and substantial relationship to the person’s disorder or disability.” The court must find facts that would justify a guilty finding and give “due consideration” to the position of the Commonwealth and views of the victim. Acts of violence and crimes where deferred disposition is provided by statute are ineligible. Va. Code Ann. § 19.2-303.6. This authority is available even if the accused had a previous conviction, deferred disposition, or juvenile adjudication, unless a deferred disposition would be “inconsistent with the interests of justice.” Id. However, no expungement because of the requirement that the court find facts justifying guilty finding. See Comm. v. Dotson, supra.
Specialized courts: Virginia has specialized dockets for behavioral health, drug treatment, and veterans’ treatment. See Va. Code Ann. §§ 18.2-254.1, -254.2, -254.3.
C. Marijuana offenses
Limited access to marijuana misdemeanor records: In May 2020, possession of marijuana was converted to a civil offense, § 18.2-250.1. Public access to records of past arrests, charges, and convictions for marijuana possession in the central repository was automatically limited, § 19.2-389.3, employers and educational institutions were prohibited from inquiring about them, and state and local officials may not requiring an applicant for a license, permit, registration, or governmental service to disclose information about them. See HB 972.
In April 2021, SB1406 eliminated criminal penalties for simple possession of up to one ounce of marijuana by persons 21 years of age or older. This bill also expanded the offenses subject to the limits on dissemination of criminal history record information (discussed above) to include arrests, charges, and convictions for misdemeanor with intent to distribute marijuana offenses. These records will be automatically sealed in the Virginia State Police systems on July 1, 2021. (See https://www.cannabis.virginia.gov/.)
Automatic and petition-based expungement of marijuana records: SB1406 further provides that by July 1, 2025, all records of arrests, charges, and convictions for simple marijuana possession, including court records, will be automatically expunged, § 19.2–392.2:1, and that misdemeanor sale of marijuana paraphernalia will be eligible for a petition-based expungement process. § 19.2–392.2:2. (See https://www.cannabis.virginia.gov/.) Additional provisions of SB1406 proposing to repeal a statute providing penalties for distribution and possession with intent to distribute marijuana, and authorizing automatic expungement of misdemeanor possession with intent to distribute marijuana and petition-based expungement of felony marijuana offenses, will not take effect because they were not reenacted in 2022, as required by the legalization law. See 2021 Virginia Laws Ch. 550, cl. 9 (S.B. 1406).
See also the provisions of SB 2113 relating to marijuana described below in “clean slate” section.
D. Vacatur for victims of human trafficking
In 2021 Virginia enacted a series of provisions authorizing vacatur and expungement for victims of sex trafficking convicted or adjudicated guilty of prostitution and related offenses. See §19.2-327.15 et seq. The court shall hold a hearing to determine whether the person was a victim – unless the commonweath’s attorney certifies that a person was a victim in which case the court need not hold a hearing. In 2022 §19.2-327.19 was amended to provide that a petitioner seeking a writ of vacatur based on status as a victim of sex trafficking shall not be required to pay any fees or costs for filing such petition if the petitioner is found to be unable to pay them. See HB711.
E. Non-conviction records
See discussion below of the restrictions on access imposed by the 2021 law.
Expungement of police and court records by petition is authorized under Va. Code Ann. § 19.2-392.2, in the case of acquittal or where charges were nol prossed or “otherwise dismissed,” but not where adjudication deferred after a finding of guilt. See Comm. v. Dotson, supra. Court may grant relief only if it finds “manifest injustice” to the petitioner, except where arrest was for a misdemeanor and the petitioner has no prior record:
If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge. Otherwise, it shall deny the petition. However, if the petitioner has no prior criminal record and the arrest was for a misdemeanor violation, the petitioner shall be entitled, in the absence of good cause shown to the contrary by the Commonwealth, to expungement of the police and court records relating to the charge, and the court shall enter an order of expungement.
Id. Requirement of a hearing may be waived if government gives written notice to the court that he does not object to the petition and, when the charge to be expunged is a felony, “stipulates in such written notice that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner.” Id.
Effective July 1, 2019, a petition need no longer be filed where a pardon was granted for innocence, and such a pardon remains grounds for automatic expungement. See Va. Code Ann. § 19.2-392.2(I).
Employers may not inquire about expunged non-conviction records or conviction records expunged in the case of a pardon for innocence. § 19.2-392.4. Applicants are not required to disclose expunged records in response to any employment-related inquiry. Id.
Law enforcement access is also prohibited except that a court may order access upon “petition filed by the attorney for the Commonwealth alleging that the record is needed by a law-enforcement agency for purposes of employment application as an employee of a law-enforcement agency or for a pending criminal investigation and that the investigation will be jeopardized or that life or property will be endangered without immediate access to the record. . . ” § 19.2-392.3. “An ex parte order may permit a review of the record, but may not permit a copy to be made of it.” Id.
F. Juvenile records
There is no mechanism for sealing juvenile records, but most juvenile court records are confidential and only accessible by statute or court order. Court records are automatically destroyed annually if the juvenile is at least age 19 and five years have elapsed since the last hearing in any juvenile case. Va. Code Ann. § 16.1-306(A). Automatic destruction is unavailable in several instances, including for most offenses that would constitute adult felonies. § 16.1-307. A person may deny the existence of a destroyed record, and it is a misdemeanor offense to access an expunged record. §§ 19.2-392.3, 19.2-392.4(A)–(B). Deferred adjudication and dismissal without an adjudication of guilt is available for most juvenile offenses. See § 16.1-278.8.
G. Sex offender registry
Va. Code Ann. § 9.1-910 (“Removal of name and information from Registry”). Persons required to register, other than a person who has been convicted of any sexually violent offense, two or more offenses for which registration is required, or murder, “may petition the circuit court in which he was convicted or the circuit court in the jurisdiction where he then resides for removal of his name and all identifying information from the Registry.” Minimum waiting period is 15 years, and for some offenses it is 25 years. A petition may not be filed until all court ordered treatment, counseling, and restitution has been completed. The court holds a hearing on the petition at which the applicant and any interested persons may present witnesses and other evidence. The Commonwealth shall be made a party to any action under this section. “If, after such hearing, the court is satisfied that such person no longer poses a risk to public safety, the court shall grant the petition.” In the event the petition is not granted, the person shall wait at least 24 months from the date of the denial to file a new petition for removal from the Registry.
H. Clean Slate law: Sealing of convictions and non-convictions
The record sealing portions of HB2113/SB1339 are divided into three types: 1) automatic sealing, 2) contemporaneous sealing, and 3) petition-based sealing. With one exception, all sealing authorities take effect July 1, 2025. Police records for marijuana possession of one ounce or less will take effect July 1, 2021. See https://www.cannabis.virginia.gov/.
1) Automatic sealing: Under the law as amended, charges that qualify for automatic sealing include:
- Charges involving mistaken identity or unauthorized use of identifying information;
- Deferred dismissals for possession of marijuana and underage possession of alcohol;
- Convictions for the following misdemeanors: underage possession of alcohol, petit larceny, concealment, trespass after having been forbidden, instigating others to trespass, trespass on posted property, possession with the intent to distribute marijuana, possession of marijuana, and disorderly conduct; and
- Misdemeanor non-convictions (excluding traffic infractions) unless the Commonwealth’s attorney objects on one of five specific grounds. There are some exceptions for non-convictions, such as when the charge is dropped as part of a plea agreement. Non-convictions that do not qualify for automatic sealing can still go through the petition-based process.
See §§ 19.2-392.6, 19.2-392.7, 19.392.8(a). To qualify for automatic sealing, seven years must have passed since the conviction or deferred dismissal, the person must not have any new convictions during that time, and on the date of disposition, the person must not have been convicted of another offense that is ineligible for automatic sealing.
2) Sealing at disposition: Felony acquittals and dismissals with prejudice can be sealed by the court immediately at the time of disposition, without filing a petition, “with the concurrence of” the Commonwealth’s attorney. § 19.2-392.8(b). If the prosecutor refuses or sealing is denied by the court, the individual can still petition to seal the record.
3) Petition-based sealing: The greatly expanded petition-based sealing portion of the bill, set forth in § 19.2-392.12, covers a broad range of offenses.
- Nearly all other misdemeanor convictions, except DUI and domestic assault, are eligible if the person was not convicted of a new crime for a seven-year period after conviction or release from incarceration.
- Class 5 felonies (1–10 years in prison), Class 6 felonies (1–5 years in prison), and felony larceny convictions (except certain DUI offenses) are eligible for petition-based sealing if the person has not been convicted of any offense for a ten-year period after the conviction or release from incarceration, whichever is later. There is a lifetime limit of two on the number of sentencing events that an individual can have sealed. § 19.2-392.12(C). A person must also never have been convicted of an offense that carries a maximum of life in prison if they want another low-level felony or misdemeanor conviction sealed.
- Deferred dismissals for offenses other than marijuana and alcohol possession are also eligible for petition-based sealing. This is a change from the existing expungement law, which was designed to assist “an innocent person’s ability to obtain employment, an education and to obtain credit.” This is significant in light of a 2020 expansion of the deferred disposition law to include crimes against property for anyone not previously convicted of a felony.
- No filing fee will be required in the case of indigency.
- Procedures set forth in § 19.2-392.12(E) and (F); if prosecutor does not object, court need not hold a hearing; court must find “manifest injustice.”
Court-appointed legal assistance: Individuals who cannot afford an attorney for help with the petition-based sealing process can request one. The bill establishes a Sealing Fee Fund, which will collect filing fees from individuals who can afford them and use that money to pay court-appointed attorneys. § 19.2-392.12(L).
Court debt no barrier: Notably, court debt will not be a barrier to record clearance under the legislation (a provision requiring payment was omitted in the final bill) and court clerks will continue to have access to records for the purpose of collecting court debt owed by individuals after their record has been sealed. §19.2-393.13(C)(xi). The legislation also removes the requirement that individuals seeking record clearance go to a law enforcement agency to get fingerprinted as part of the petition process, and the petitioner does not have to produce their criminal record. The prosecutor will supply both types of information instead.
Effect of sealing: In general, sealed records may not be disclosed except pursuant to a court order, unless disclosure is specifically authorized by § 19.2-392.13(C) These 25 specific authorizations include various law enforcement and related employments, and any purpose for which a background check is required by federal, state or local law.
Regulation of private background screeners: The other major component of the bill addresses the regulation of private companies that buy and sell individuals’ criminal records. As advocates warned during the 2020 special session, these records can continue to appear on private background checks long after the public records have been sealed or expunged.
The bill takes several steps to alleviate this problem. § 19.2-392.16. First, private companies (defined as “business screening services” under the bill) have an obligation to delete sealed records and must take steps to ensure they do not maintain sealed or inaccurate records. Second, these companies must register with the Virginia State Police to receive electronic copies of sealed records. Third, the companies must include the date they collected an individual record when they disseminate it. Fourth, the companies must allow individuals to request a copy of their own criminal history record information from the company. Finally, individuals or the attorney general may initiate a civil action to enforce this section of the legislation, and the companies may be forced to pay damages if they violate it.
IV. Criminal record in employment & licensing
A. Ban-the-Box in public hiring
In 2020, HB757 added §§ 2.2-2812.1 and 15.2-1505.3 to the Code to limit inquiries by state agencies and localities regarding criminal arrests, charges, or convictions on employment applications, unless the inquiry takes place during or after a staff interview of the prospective employee. The prohibition does not apply to applications for law enforcement employment, or to state agencies that are expressly permitted to inquire into an individual’s criminal arrests or charges for employment purposes pursuant to any provision of federal or state law. For localities, the prohibition also does not apply to positions for employment by the local school board.
See also the discussion in the preceding section of restrictions on background screening companies imposed by the 2021 law.
Application-stage inquiries into criminal history by executive branch agencies are also governed by a 2015 executive order which directs all state agencies to remove the question relating to criminal record from employment applications, and “encourages similar hiring practices among private employers operating within the Commonwealth and state government contractors.” See Executive Order No. 41 (McAuliffe). The order directed further that “state employment decisions will not be based on the criminal history of an individual unless demonstrably job-related and consistent with business necessity, or state or federal law prohibits hiring an individual with certain convictions for a particular position.” A background check would be conducted only after a candidate has signed a waiver, has been “found otherwise eligible for the position,” and is “being considered for a specific position.”
B. Occupational licensing
The Department of Professional and Occupational Licensure is subject to the general nondiscrimination provision at Va. Code Ann. § 54.1-204 (“Prior convictions not to abridge rights”). With an important caveat, a person may not be refused a license or occupational/professional certificate “solely because of” a prior criminal conviction, unless the criminal conviction “directly relates” to the occupation or profession for which the license, certificate or registration is sought. However, a board “shall have the authority to refuse a license . . . if, based upon all the information available, including the applicant’s record of prior convictions, it finds that the applicant is unfit or unsuited to engaged in such occupation or profession.” § 54.1-204(A).
In determining whether a criminal conviction “directly relates” to an occupation or profession, the regulatory board shall consider the following criteria:
- The nature and seriousness of the crime;
- The relationship of the crime to the purpose for requiring a license to engage in the occupation;
- The extent to which the occupation or profession might offer an opportunity to engage in further criminal activity of the same type as that in which the person had been involved;
- The relationship of the crime to the ability, capacity or fitness required to perform the duties and discharge the responsibilities of the occupation or profession;
- The extent and nature of the person’s past criminal activity;
- The age of the person at the time of the commission of the crime;
- The amount of time that has elapsed since the person’s last involvement in the commission of a crime;
- The conduct and work activity of the person prior to and following the criminal activity; and
- Evidence of the person’s rehabilitation or rehabilitative effort while incarcerated or following release.
Notification of reasons for denial:
If an applicant is denied a registration, license or certificate because of the information appearing in his criminal history record, the regulatory board or department shall notify the applicant that information obtained from the Central Criminal Records Exchange contributed to such denial. The information shall not be disseminated except as provided for in this section.
2022 modifications of the licensing law: In 2022, two identical laws were enacted that, if reenacted in 2023, will make a number of changes in the language governing a board’s determination of direct relationship that are intended to limit a board’s ability to reject applicants based on their conviction.in 2023, will expand on the language in § 54.1-204(A) that relates to a finding of “direct relationship” both substantively and procedurally. The new laws would prohibit refusal of a license based on a conviction until the board
completes an individualized assessment of the individual’s criminal record and current circumstances and determines that the criminal conviction directly relates to the occupation or profession [for which the license is sought].
These two 2022 laws also provide that a board “shall not require an applicant to disclose an excluded record, and an excluded record shall not be the basis for the refusal of a license, certificate, or registration by the board.” (An excluded record is any conviction that has been sealed, annulled, dismissed, expunged, or pardoned, and any non-conviction record.) That said, a board may review records in which a sentence was suspended, and pleas of nolo contendere. See Va. Code Ann. § 54.1-204(B).
If renacted in 2023, these two 2022 laws would also make a number of changes in the language governing a board’s determination of direct relationship that are intended to limit a board’s ability to reject applicants based on their conviction. They would also require boards to “develop and publish on their website guidance documents that inform prospective applicants of the types of criminal offenses that may impede licensure, including specific convictions and application of the factors provided [to determine direct relationship].”
Finally, these two laws would require, beginning July 1, 2025, the Department of Professional and Occupational Regulation must include in its biennial report to the governor certain data related to the criminal history of applicants for each regulatory board, including the number of applicants with a criminal history and cases where denial of a license was based in whole or in part upon the existence of the applicant’s criminal record.
These changes will be entered into the profile when and if these laws are reenacted, since in the meantime the language above governs.
- In what appears to be a somewhat questionable decision, in light of the clear grant of authority to the governor under §18.2-308.2(B), the Virginia Supreme Court in Gallagher v. Commonwealth, 284 Va. 444; 732 S.E.2d 22 (2012) held that the legislature’s grant of authority to the court under § 18.2-308.2(C) superseded and rendered nugatory its grant of authority to the governor in light of the longstanding constitutional concern for separation of powers:
. . .[O]ur constitutional history demonstrates a cautious and incremental approach to any expansions of the executive power, leading to the conclusion that the concerns motivating the original framers in 1776 still survive in Virginia. If the executive clemency power were construed to include the restoration of firearm rights, then Code § 18.2-308.2(C), insofar as it grants the circuit courts’ jurisdiction to restore them, would not only be redundant, but would be an unconstitutional intrusion by one branch of government on the powers of another.
- Because it was not properly raised, the Farnsworth court declined to consider whether the Full Faith and Credit clause precluded conviction after an out-of-state restoration of rights.
- Prior to the issuance of the Executive Order in April 2016, nonviolent offenders were eligible for restoration immediately upon completion of sentence, if no felony charges were pending, and restoration was automatic upon determination of eligibility.On April 22, 2014, four drug offenses were officially reclassified as non-violent. See Press Release, Governor’s Office, Governor McAuliffe Announces Changes to Virginia’s Restoration of Rights Policy (April 18, 2014), https://governor.virginia.gov/newsroom/newsarticle?articleId=3880. See Olympia Meola, McAuliffe to Speed Rights Restoration, Richmond Times-Dispatch (Apr. 17, 2014), http://www.timesdispatch.com/news/state-regional/mcauliffe-to-speed-rights-restoration/article_661befcf-b8c9-5ca3-ba60-05b75812c9a3.html. Applicants also had to have satisfied all financial penalties, including fines and restitution. Those convicted of violent offenses, crimes against children, election fraud, and other “more serious offenses” were required to satisfy a waiting period — as of February 2016, three years after completion of supervision. (Unsupervised probation did not count as part of waiting period.) It remains to be seen what eligibility standards will inform the case-by-case restoration procedure going forward.
- The waiting period was reduced by Governor McAuliffe from 10 years on January 1, 2016.
- But see note 2, supra, for a discussion of the Gallagher holding.
- Because federal immigration authorities have taken the position that Virginia “simple” pardons do not satisfy the requirement in federal law that a pardon be “full and unconditional,” see, e.g., Karen Brulliard, Kaine Intervenes in Deportation Case, Washington Post, August 15, 2008, in several recent cases where deportation was triggered by the length of the sentence imposed, the governor took the unusual step of commuting the person’s sentence nunc pro tunc. For example, in 2009 Governor Kaine commuted Sharyn Harmon’s sentence, imposed in 2002, from one year of imprisonment (with all but ten days suspended) to five months’ incarceration (with all but ten days suspended), to enable her to avoid automatic deportation based on status as an aggravated felon. See p. 39 of http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/SD22010/$file/SD2.pdf. Similarly, in 2012 and 2013 Governor McDonnell commuted the sentences of Ramjit Kissoon so that his convictions would no longer be considered “aggravated felonies” resulting in automatic deportability. See pp. 2, 3 of http://leg2.state.va.us/DLS/h&sdocs.nsf/a762cd2685f84d7a85256f030053196e/0407b390e94aad9e852579bf005c4445?OpenDocument&Highlight=0,clemency. Three of Governor Kaine’s simple pardons and one of Governor Warner’s were issued to individuals seeking pardon to avoid deportation, but as noted federal immigration authorities do not regard Virginia pardons as effective to avoid deportation. Governor Gilmore issued three absolute pardons to individuals seeking pardon to avoid deportation.
- See note 10, supra.