Restoration of Rights & Record Relief
Last updated: December 14, 2022
I. Loss & restoration of civil/firearms rights
Article VI, Section 3 of the Washington State Constitution provides that “[a]ll persons convicted of an infamous crime … are excluded from the elective franchise.” “Infamous crimes” are defined as those “punishable by death in the state penitentiary or imprisonment in a state correctional facility,” Wash. Rev. Code § 29A.04.079, and have historically included only felonies. See State v. Collins, 124 P. 903 (Wa. 1912).
Effective January 1, 2022, the right to vote is restored “automatically” as long as a person is not “serving a sentence of total confinement” for a felony conviction. An individual who is incarcerated and whose vote is restored will still need to re-register to vote upon release. See SHB 1078 (2021). Prior to that date, under § 29A.08.520(6), the right to vote was restored through discharge issued by the sentencing court under § 94A.637, by a court order restoring the right issued pursuant to § 9.92.066, or by a certificate of restoration issued by the governor, as provided in § 9.96.020. Alternatively, a person could petition the governor for restoration of rights or for pardon.1.
In 2019, a new subsection was added to § 9.94A.637 providing that a person need not have satisfied financial obligations in order to qualify for a certificate of discharge, as long as all other requirements of the sentence are satisfied and five years have elapsed since completion of supervision. § 9.94A.637(4), as added by SHB 1041 (2019). In the 5-year interim, a person who is not “under the authority of the department of corrections” may have the vote “provisionally” restored as long as they are current with their payments. See 2009 Wash. Legis. Serv. Ch. 325 (H.B. 1517), amending Wash. Rev. Code § 29A.08.520. A person is deemed to be “under the authority of the department of corrections” if the person is either serving a sentence of confinement in the custody of the department of corrections, or is “subject to community custody as defined in [Wash Rev. Code §] 9.94A.030.” § 29A.08.520(7).2 The “provisional” restoration of voting rights may be revoked by the sentencing court if the recipient has “willfully failed to comply with the terms of his or her order to pay legal financial obligations.” A person who cannot pay their fine may petition the court for remission of all or part of the court fees and costs based upon “manifest hardship.” § 10.73.160(4). However, restitution must be reasonably current. The prosecutor “shall” make such a motion if the recipient or the county clerk requests, and the payor has failed to make three payments within a 12-month period. The revocation shall remain active until the payor files a motion to remit and shows that he or she has made a good faith effort to pay. §§ 29A.08.520(2) and (3).
A person with an out-of-state or federal conviction may register to vote “as long as the person is no longer incarcerated,” without condition. § 29A.08.520(1).3
B. Public office and jury
Persons who are not “electors” (i.e., eligible to vote, see State ex rel. Hubbard v. Lindsay, 52 Wn.2d 397, 403, 329 P.2d 47 (Wash. 1958)) are not “competent to qualify for or hold any elective public office within the state of Washington, or any county, district, precinct, school district, municipal corporation or other district or political subdivision.” Wash. Rev. Code § 42.04.020. A person may not serve as a juror if he “has been convicted of a felony and has not had his or her civil rights restored.” § 2.36.070(5). A certificate of discharge restores this right. See § 9.94A.637(5). Alternatively, persons may seek restoration of these rights from the State Clemency and Pardons Board. See § 9.94A.885(2) (enabling Board to restore right to engage in political office without action by Governor).
Persons convicted of “any serious offense” (defined in § 9.41.010(16) to include violent, drug, and sex offenses) or any other felony or misdemeanor crime of domestic violence, may not possess a firearm or obtain a license to carry a concealed pistol. Wash. Rev. Code §§ 9.41.040(1)(a), (2)(a)(i) and (ii). A person has been “convicted”, whether in an adult court or adjudicated in a juvenile court, at such time as a plea of guilty has been accepted, or a verdict of guilty has been filed, even if charges are later dismissed after a period of probation, suspension or deferral of sentence, in Washington or another state. § 9.41.040(3).4
Relief from firearms restrictions is available from the executive or through the courts. Under Wash. Rev. Code § 9.41.040(3), firearms restrictions may be removed through “pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of . . . rehabilitation.”5 A court has no authority to order relief under this section, and vacatur of sentence (see Part II, infra) does not restore firearms rights. See Att’y Gen. Op. No. 10. Effective June 7, 2019, this limitation on the effect of a vacatur is codified in Wash. Rev. Code §§ 9.96.060(5)(a), 9.94A.640(3)(a) (as amended by SHB 1041).
Washington courts are authorized to restore firearms rights to individuals convicted of a crime prohibiting gun possession, other than Class A felony and sex offenses, under Wash. Rev Code § 41.040(4). People with felony offenses must wait five years without conviction or pending charges, misdemeanants must wait three years. No additional showing is necessary — if the individual meets the requirements, the court has only a ministerial function in granting the petition. State v. Swanson, 116 Wn. App. 67, review denied, 150 Wn.2d 1006 (2003) (holding that court could not require misdemeanant to show he no longer presented a substantial danger). Where the record of juvenile convictions has been expunged, no basis exists for precluding possession of a firearm. Nelson v. State (In re Firearm Rights), 120 Wn. App. 470 (2003) see also State v. Hunter, 147 Wn. App. 177 (2008) (while court has no discretion to deny restoration to otherwise eligible person, court has no additional authority to restore rights based on juvenile status at time of sex offense; restrictions on restoration extend to convictions occurring after initial loss of right). Under § 9.41.040(4), relief is available from either the sentencing court or the court in the county of the petitioner’s residence, after five years for a felony offense and after three years for a misdemeanor offense.
If a person is convicted of a crime for which § 9.41.040 prescribes no procedure for the restoration of firearm rights, the only available remedy is a pardon by the governor with a finding either of innocence or of rehabilitation. See 2002 Op. Atty Gen. Wash. No. 4.
A sentencing court is required to notify a defendant orally and in writing that the person may not possess a firearm unless a court of record restores his right to do so. Wash. Rev. Code § 9.41.047(1). Failure to do so may constitute ineffective assistance of counsel and result in vacating a subsequent felon-in-possession conviction. State v. Breitung, 155 Wn. App. 606 (Wash. App. 2010). See also State v. Leavitt, 107 Wn. App. 361 (Wash. App. 2001) (conviction reversed where defendant demonstrated actual prejudice arising from a sentencing court’s failure to comply with the mandate in § 9.41.047).
II. Pardon policy & practice
The pardon power is vested in the governor, “under such regulations and restrictions as may be prescribed by law.” Wash. Const. art III, § 9. The governor is required by law to report to the the legislature every session on “each case of reprieve, commutation or pardon granted, and the reasons for granting the same . . . .” Wash. Const. art III, § 11. He is also required to submit all applications for pardon to the State Clemency & Pardons Board, which must hold a hearing. Wash. Rev. Code §§ 9.94A.885. However, the governor is not required to conform his action to what the board recommends. See State ex rel Rogers v. Jenkins, 20 Wash. 787 (1898). The governor may also grant restoration of rights without a pardon when a sentence has expired or is about to expire, which has the effect of discharging unpaid portion of fine, or grant a pardon without restoring rights.
The State Clemency and Pardons Board is composed of five members appointed by the governor to four-year terms, subject to confirmation by the Senate. They receive no compensation, and staff is provided by the Attorney General’s office. The Board elects its own chairman from among its members. The Board’s home page is at https://www.governor.wa.gov/boards-commissions/clemency-pardon-board/about-board. Its policies are here: https://www.governor.wa.gov/sites/default/files/Clemency%20and%20Pardons%20Board%20Policy%20Adopted%2003092018.pdf. An information packet can be accessed at https://www.governor.wa.gov/sites/default/files/March%20packet.pdf
Pardon has the effect of vacating the conviction and limiting public access to the record. Wash. Rev. Code § 9.94A.030(11)(b) (“A conviction may be removed from a defendant’s criminal history only if it is vacated pursuant to [Wash Rev. Code §§] 9.96.060, 9.94A.640, 9.95.240, or a similar out-of-state statute, or if the conviction has been vacated pursuant to a governor’s pardon.”); see also 1967 Wash. Att’y Gen. Op. No. 6. Vacatur relieves all legal disabilities, and a conviction that has been vacated need not be reported. Vacatur limits dissemination of administrative records, and may be grounds for sealing the court record. See § 9.94A.640 (1), (3), and General Rule 15 of the Washington Courts, discussed infra. However, effective June 7, 2019, a vacated conviction counts as “criminal history” if a person is “charged with a recidivist offense.” §§ 9.94A.030 (11(b), 9.94A.060(3)(c), as amended by SHB 1041 (2019).6
No formal eligibility waiting period, but applicants generally required to wait 10 years. People with federal and out-of-state offenses are ineligible to apply for a pardon, but may apply to Board for restoration of rights.
A petition must be filed with Clemency and Pardons Board, which cannot recommend clemency until a public hearing has been held on the petition. Hearings are held on a quarterly basis, and are held in about one third of cases. Application form and instructions are available on the Board website at http://www.governor.wa.gov/clemency/default.asp. The Board handbook, revised in 2017, is available at https://www.governor.wa.gov/sites/default/files/Clemency%20and%20Pardons%20Board%20Policy%20Adopted%2003092018.pdf. In addition to factual information relating to the crime and the applicant’s circumstances, the application asks for an explanation of the offense, a description of the “extraordinary” circumstances that would “justify” granting a pardon, and an account of the applicant’s rehabilitative efforts. The application form itself is at http://www.governor.wa.gov/office/clemency/documents/petition_A.doc. The applicant must attach a copy of the judgment and sentence. The prosecuting attorney of the county where the conviction was obtained must be notified at least thirty days prior to the scheduled hearing, and the prosecuting attorney shall make reasonable efforts to notify victims, survivors of victims, witnesses, and the law enforcement agency or agencies that conducted the investigation, of the date and place of the hearing. Wash. Rev. Code § 9.94A.885(3).
F. Restoration of rights
The Board has been delegated authority from the Governor to grant restorations of rights pursuant to Wash. Rev. Code § 9.94A.885. It holds several dozen hearings each year, and grants most applications. People with federal and out-of-state offenses may apply to Board for restoration of rights but not for pardon.
G. Frequency of grants
About 35 petitions for pardon, commutation and restoration of rights are received each quarter, 8-10 of which go to hearing before the Board. As of March 2020, Governor Inslee had granted 48 pardons since taking office in 2013, distributed fairly evenly over the years. acting favorably on about half the cases received from the Board with an affirmative recommendation. Inslee also pardoned a number of people convicted of marijuana possession offenses no longer criminal under state law, pursuant to his Marijuana Justice Initiative. https://www.governor.wa.gov/marijuanajustice.
From 2006 through January 2011, Governor Gregoire granted 33 pardons in eight years in office, two of which were conditional, and two to avoid deportation. She also granted several sentence commutations. Governor Locke issued 45 pardons and eight commutations in his four years in office, more than half of them in his final year in office. Source: Office of the Governor.
Washington State Clemency and Pardons Board
Office of the Attorney General
P.O. Box 40116
Olympia, WA 98504
III. Expungement, sealing & other record relief
A. Vacating certain misdemeanor & felony convictions
Vacatur of felonies
Under Washington’s Sentencing Reform Act of 1981, as amended in 2012, persons who have completed their sentences and been “discharged” may apply to the sentencing court to “vacate” the record of conviction, which “clears” the record by a set-aside or dismissal of the charges:
Every offender who has been [discharged from sentence] may apply to the sentencing court for a vacation of the offender’s record of conviction. If the court finds the offender meets the tests prescribed in subsection (2) of this section, the court may clear the record of conviction by: (a) Permitting the offender to withdraw the offender’s plea of guilty and to enter a plea of not guilty; or (b) if the offender has been convicted after a plea of not guilty, by the court setting aside the verdict of guilty; and (c) by the court dismissing the information or indictment against the offender.
Wash. Rev Code § 9.94A.640(1). Under § 9.94A.640(2), a person may be eligible to have the record of conviction “cleared” after a waiting period, unless there are any charges pending. Violent offenses or crimes against the person (a Class A felony, some Class B felonies, and felony DUI offenses) were ineligible until 2019 (see below). Eligible Class B convictions must wait 10 years after completion sentence to obtain a certificate of discharge, and Class C convictions must wait five years. Id. If a “new crime” is committed during the waiting period it must be restarted.
In 2019, SHB 1041 amended § 9.94A.640(2) to make additional offenses eligible for vacatur, and to remove financial barriers to relief. Specifically, effective June 7, 2019, certain previously ineligible violent felonies were made newly eligible for vacatur, if they did not involve a firearm or “sexual motivation.”7 In addition, the new law potentially shortens the period in which there must be no intervening conviction by making it coextensive with the otherwise applicable waiting period.
Finally, importantly, the 2019 law provides that a person need not have satisfied financial obligations in order to qualify for a certificate of discharge, as long as all other requirements of the sentence are satisfied and five years have elapsed since completion of supervision. § 9.94A.637(4), as added by SHB 1041 (2019). On the other hand, the 2019 amendments provided that a vacated conviction may be considered for purposes of charging a recidivist crime.
In 2021, 9.94A.640 was further amended to authorize for victims of sex trafficking. See SB5180, discussed below.
Certain felonies committed under the pre-1981 sentencing law are also eligible for vacatur relief. See Wash. Rev. Code § 9.95.200, authorizing deferred probationary sentences for “any crime.” under the pre-1981 indeterminate sentencing regime. After successful completion of probation, or early discharge, a defendant may apply to the sentencing court for a vacatur of the defendant’s record of conviction under § 9.95.240. Once the conviction has been vacated, the clerk of court must order the state police not to disseminate those records. § 9.95.240(2)(b). See State v. Breazeale, 31 P.3d 1155 (Wash. App. 2001) (courts after issuing a vacatur have authority under § 9.95.240 to order sealing of records in possession of an executive branch agency).
While there is no specific obligation § 9.94A.640 to notify law enforcement agencies of a vacatur analogous to the one in § 9.95.240(2)(b), the two authorities have been construed as providing similar relief.
Vacatur of misdemeanors
Vacatur is available for misdemeanor offenses under Wash. Rev. Code § 9.96.060, after a three-year waiting period following completion of sentence. § 9.96.060(2)(f). Certain violent or sex crimes are ineligible, but a single domestic violence conviction may be vacated under certain circumstances, after a five-year waiting period. § 9.96.060(2)(e). Vacatur of misdemeanors is available on much the same terms and to the same degree as for felony offenses under § 9.94A.640 (above), including no convictions subsequent to discharge, no pending charges, and no previous vacaturs. § 9.96.060(2)(g) and (h).
Effective June 7, 2019, the period in which there need be no subsequent conviction is made coextensive with the three-year waiting period, and the requirement of no previous vacaturs is removed. See SHB. However, inexplicably, misdemeanants remain subject to the condition that all financial obligations must be satisfied before vacatur will be granted (contrast this with felonies).
Also in 2019 misdemeanor marijuana convictions for conduct committed age 21 and older were specifically made subject to vacatur with no waiting period or other eligibility criteria. § 9.96.060(5). “If an applicant qualifies under this subsection, the court shall vacate the record of conviction.”
Vacatur for victims of sex trafficking and related sexual abuses
In 2021, a new section (3) was added to § 9.94A.640 to authorize vacatur for “victim of sex trafficking, prostitution, or commercial sexual abuse of a minor, sexual assault, or domestic violence.” See SB5180. This section authorizes the victim or the prosecutor of the county where the victim was sentenced to apply to the sentencing court to vacate a Class B or Class C felony. “When preparing or filing the petition, the prosecutor is not deemed to be providing legal advice or legal assistance on behalf of the victim, but is fulfilling an administrative function on behalf of the state in order to further their responsibility to seek to reform and improve the administration of criminal justice.”
An analogous authority was included in § 9.96.060(3) to authorize vacatur of misdemeanors of the same classes of victims, repealing an older authority that applied only to prostitution offenses by victims of human trafficking. A provision in the earlier law prohibiting relief if the person has been convicted of another crime other than prosecution, or if there are any criminal charges against the applicant pending for any crime other than prostitution, was omitted. § 9.96.060(3), as amended by SB5180.
Effect of vacatur
A vacatur releases the person “from all penalties and disabilities resulting from the offense,” and authorizes the person to deny the conviction.
Once the court vacates a record of conviction under subsection (1) of this section, the fact that the offender has been convicted of the offense shall not be included in the offender’s criminal history for purposes of determining a sentence in any subsequent conviction, and the offender shall be released from all penalties and disabilities resulting from the offense. For all purposes, including responding to questions on employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime. Nothing in this section affects or prevents the use of an offender’s prior conviction in a later criminal prosecution.
Wash. Rev. Code § 9.94A.640(3).
Effective June 7, 2019, this section is amended to provide that a vacated conviction “may not be disseminated or disclosed by the state patrol or local law enforcement agency to any person, except other criminal justice enforcement agencies.” See SHB 1041. This statutory provision codifies the courts’ authority recognized by the Washington Supreme Court to direct the state patrol to seal records notwithstanding its discretionary authority under Wash. Rev. Code § 10.97.060. See State v. Breazeale, 31 P.3d 1155 (Wash. 2001). However, the 2019 amendments to this section curtail the relief afforded by a vacatur in two ways: a vacated conviction may be used in a later criminal prosecution,” and vacatur does not “affect the requirements for restoring a right to possess a firearm under RCW 9.41.040.” Wash. Rev. Code § 9.94A.640(3).
Vacatur does not relieve the federal immigration consequences of a state conviction. See State v. Cervantes, 282 P.3d 98, 100 (Wash. App. 2012).
Dissemination of vacated records by law enforcement: As noted above, the clerk of the court in which the vacation order is entered must immediately transmit the order vacating the conviction to the Washington state patrol identification section and to the local police agency, if any, which holds criminal history information for the person who is the subject of the conviction. § 9.95.240(2)(b). The record of a conviction that has been vacated may not be disseminated or disclosed by the state patrol or local law enforcement agency to any person, except other criminal justice enforcement agencies, or included in a person’s criminal history for purposes of enhancing a subsequent sentence. The Washington state patrol and any such local police agency must immediately update their records to reflect the vacatur, and transmit the court’s order to the federal bureau of investigation. See State v. Breazeale, supra. SHB 1041 codified this rule in Wash. Rev. Code § 9.94A.640(3).
The statutes providing for vacatur of pre-1981 deferred probationary sentences and misdemeanors specify that courts may order sealing of records held by state police. While the felony vacatur statute does not contain similar language, it has been interpreted to include this authority. See State v. Breazeale, supra, 31 P.3d at 1162.
Sealing of court records: There is no statutory authority for sealing or otherwise limiting access to court records for convictions that have been vacated. However, General Rule 15 of the Washington Courts authorizes sealing or redaction of court records of vacated convictions, if the court makes written findings that “that the specific sealing or redaction is justified by identified compelling privacy or safety concerns that outweigh the public interest in access to the court record.” GR 15(c)(2); see also Seattle Times Co. v. Ishikawa, 640 P. 2d 716 (Wash. 1982) (constitutional right of access requires a finding of compelling circumstances before a court record may be sealed). “Sufficient privacy or safety concerns that may be weighed against the public interest include findings that . . . The sealing or redaction is permitted by statute . . . . A conviction has been vacated . . . . [Or a]nother identified compelling circumstance exists that requires the sealing or redaction.” GR 15(c)(2). Court records in a criminal case may not be destroyed unless there is express statutory authority permitting the destruction. GR 15(h).
The summary prepared by the Washington courts described at the beginning of this section stresses that “Current law does not allow for destroying the court record of a criminal action against an adult that results in a conviction or some adverse findings.” In addition, an order to seal and written findings remain accessible to the public, unless protected by statute; and the existence of a court file sealed in its entirety, unless protected by statute, is available for viewing by the public on court indices (which include, in cases where a conviction has been vacated, the case number, case type with the notification “DV” if the case involved domestic violence, the defendant’s name, and the notation “vacated.”). GR 15(c)-(d).
B. Deferred sentencing
C. Non-conviction records
In general, non-conviction criminal justice records may not be disseminated for a non-criminal justice purpose, excluding records pertaining to an incident that occurred in the previous 12 months that is currently being processed by the criminal justice system, or as otherwise authorized by law, executive order, or court order. Wash. Rev. Code § 10.97.050. Under a statute enacted in 1977, non-conviction data in criminal justice agency files which are available and searched for the purpose of responding to inquiries concerning a person’s criminal history must be “deleted” at the request of its subject after two years in the case of a disposition favorable to the defendant, and after three years where no disposition is indicated (unless the person is in fugitive status or the case is under active prosecution). Criminal Records Privacy Act, Wash. Rev. Code § 10.97.060. The state repository (State Patrol) maintaining the data may, “at its option,” refuse to make the deletion if the disposition was a deferred prosecution or similar diversion, if the person has had a prior conviction for a felony or gross misdemeanor, or if the individual who is the subject of the record has been arrested for or charged with another crime during the intervening period. Id. However, the court may direct the repository to seal the record. State v. Breazeale, supra.
General Court Rule 15 provides authority to seal or redact non-conviction court records only if the “compelling circumstances” test is met. See General Rule 15(c)(2)(A). The summary prepared by the Washington courts implies that non-conviction records may be sealed under this authority, but does not make clear what “compelling circumstances” are in this context. Nonetheless, the rule does specify that a vacated conviction may be a sufficient safety or privacy concern to weigh against the public interest in access, suggesting that a non-conviction may be as well. And presumably a person whose non-conviction data had been “deleted” pursuant to Wash. Rev. Code § 10.97.060 would have an even stronger argument that their circumstances were “compelling” as that term is used in General Rule 15 and under the Ishikawa standard. However, the order to seal and written findings remain accessible to the public, unless protected by statute; and the existence of a court file sealed in its entirety, unless protected by statute, is available for viewing by the public on court indices (which includes case number, party names, notation “case sealed,” case type, and cause of action or charge, except where a conviction has been vacated, as discussed above). GR 15(c)-(d).
D. Sealing of juvenile records
The standards and procedures for sealing juvenile records are set forth in detail in the advisory prepared by the Washington courts cited in the preceding section.
As revised in 2020, juvenile courts are required to schedule, at the time of disposition, a hearing to administratively seal the record of adjudication, which is to be held after the individual reaches age 18 (or after the individual has been discharged from confinement or supervision, if it extends beyond age 18). See Wash. Rev. Code § 13.50.260(1). If the court finds that individual is no longer on supervision and has paid restitution then sealing is mandatory without a court hearing.8 Serious violent offenses, sex offenses, and most felony drug offenses are ineligible for sealing pursuant to this provision.
Individuals whose records have not been sealed pursuant to the authority described above may still petition for sealing if there are (1) no pending adult or juvenile criminal charges; (2) no pending diversions; (3) restitution has been paid; (4) the individual has remained crime free for either two or five years since the date of disposition or release from confinement, depending on the seriousness of the crime; and (5) the person is no longer required to register as a sex offender (and has not been convicted of certain sex offenses, if the subject of sealing is a Class A offense). § 13.50.260(4). Sealing is mandatory if the above eligibility requirements are met.
Sealing is immediate following acquittal or dismissal of charges, except for deferred dispositions under Wash. Rev. Code § 13.40-127, which are considered convictions and must therefore be sealed pursuant to the provisions described above. § 13.50.260(2).
Thereafter, the proceedings in the case shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events, records of which are sealed. Any agency shall reply to any inquiry concerning confidential or sealed records that records are confidential, and no information can be given about the existence or nonexistence of records concerning an individual.
§ 13.50.260(6)(a). A subsequent juvenile adjudication, adult conviction, or adult felony charge will nullify the sealing order, § 13.50.260(8)(a). A provision added in 2020 states:
All criminal justice agencies must not disclose confidential information or sealed records accessed through the Washington state identification system or other means, and no information can be given to third parties other than Washington state criminal justice agencies about the existence or nonexistence of confidential or sealed records concerning an individual.
E. Certificate of Restoration of Opportunity
Effective June 9, 2016, courts are authorized to grant a Certificate of Restoration of Opportunity (CROP) that lifts statutory bars to hiring an applicant solely based on criminal history. A CROP also protects employers and housing providers from negligent hiring/renting liability. See Wash. Rev. Code §§ 9.97.010,9.97.020. The findings that accompanied HB 1553, 2016 c. 81, are set out in detail in Part IV(B) below. :
Individuals are eligible to apply for a CROP if they have been convicted of a misdemeanor, gross misdemeanor, and certain less serious felonies (or adjudicated in juvenile court for equivalent offenses). In order to qualify, a person must be “in compliance with or have completed all sentencing requirements imposed by a court,” must have no pending charges, and must not have been arrested for or convicted of a new crime. §§ 9.97.010 (1)(b), (d); 9.97.010(2)(c). Persons convicted at any time of a Class A felony, certain sex offenses, extortion, drive-by shooting, vehicular assault, or luring are ineligible, as are registered sex offenders. § 9.97.010 (1)(c). “Qualification” for a certificate is determined by the following requirements related to the conviction (e.g., time since sentencing, payment of court debt), and other criminal record:
- 1 year from sentencing – misdemeanor/gross misdemeanor (probation/noncustodial sentence)
- 18 months from release – misdemeanor/gross misdemeanor (sentence of confinement)
- 2 years from sentencing (probation/noncustodial sentence) or release (sentence of confinement) – Class B/C felony
- 5 years from sentencing (probation/noncustodial sentence) or release (sentence of confinement) – violent offense under Wash. Rev. Code § 9.94A.030
- A person must have completed the sentence and paid all court-ordered legal financial obligations
- Has never been convicted of a class A felony or certain sex offenses.
- Has not been arrested for nor convicted of a new crime and has no pending criminal charge.
Under Wash. Rev. Code § 9.97.020, with a number of exceptions, “no state, county, or municipal department, board, officer, or agency . . . may disqualify a qualified applicant, solely based on the applicant’s criminal history, if the qualified applicant has obtained a [CROP]….” As originally enacted in 2016, excepted professions for which a CROP does not limit the ability of an entity to disqualify an applicant include: accountants, assisted living facility employees, long-term care workers, nurses and physicians, private investigators, bail bond agents, teachers, security guards, vulnerable adult care providers, and law enforcement. Id. For otherwise unspecified professions and businesses that involve unsupervised contact with vulnerable adults, children, or disabled individuals, a licensing entity may only disqualify an applicant based solely upon criminal history after reviewing “relevant factors, including the nature and seriousness of the offense, time that has passed since conviction, changed circumstances since the offense occurred, and the nature of the employment or license sought.”
In 2021 the law was amended to give effect to a CROP for assisted living facility employees and long-term care workers. See 2021 Ch. 219 (HB1411). See Part IVB for standards applicable to consideration of background screens for long-term care workers, contracted providers, or licensees.
Employers and housing providers are not required to consider a CROP in making hiring or rental decisions. However, if an employer/provider does consider a CROP, then evidence of the employee/renter’s crimes may not be entered into evidence in any action against the employer/provider for negligent or intentionally tortious conduct. Id.
CROP grants are transmitted to the Washington state patrol identification section, which must update its criminal history records to reflect the CROP. A CROP has no other effect on court or law enforcement records.
A law enacted in 2021 states that a licensing agency “may disqualify an individual from obtaining a professional license, government certification, or state recognition if it determines the individual’s conviction is related to the occupation or profession unless the individual has requested and received a certificate of restoration of opportunity under RCW 9.97.020.” See Section 3 of 2021, ch. 194 (HB1399)(uncodified). It is not clear whether this law was intended to lower the “direct relationship” standard in § 9.96A.020(2).
Procedure & criteria
Under Wash. Rev. Code § 9.97.020, applications may be filed either with the sentencing court or the superior court in the applicant’s county of residence. If filed in the county of residence, the court may decline to consider the application, and it must dismiss the application if the person does not meet the eligibility standards. In either case, dismissal in the county of residence is without prejudice, and the application may be refiled with the sentencing court, which must consider the application. Applicants must give notice to the prosecutor in the county where the certificate is sought and to the prosecutors in any county where a person has been sentenced in the last 5 years.
Notwithstanding the exception for dismissal in the court of the county of residence, the court must grant a certificate if the applicant meets the eligibility criteria described above. However, the court has discretion to determine whether the certificate applies to all past criminal history or only the convictions in the court’s jurisdiction. A hearing on the application is not required.
IV. Criminal record in employment & licensing
A. Ban-the-box in public and private employment
In March, 2018, HR 1298 added a new section to Title 49 (Labor Code) prohibiting public and private employers from inquiring about criminal record until after until “after the employer initially determines that the applicant is otherwise qualified for the position.” An employer “may not implement any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position,” suggesting that automatic exclusion may be appropriate after this point. Does not apply to employers required or permitted by law to conduct background checks, including financial institutions, to employers dealing with vulnerable populations, or to non-employee volunteers.
B. General public employment and licensing limitations
Washington law on “Restoration of Employment Rights” (1973) sets forth the state’s policy:
[I]t is the policy of the state of Washington to encourage and contribute to the rehabilitation of felons and to assist them in the assumption of the responsibilities of citizenship, and the opportunity to secure employment or to pursue, practice or engage in a meaningful and profitable trade, occupation, vocation, profession or business is an essential ingredient to rehabilitation and the assumption of the responsibilities of citizenship.
Wash. Rev. Code § 9.96A.010. Most public employers and licensing agencies may deny employment of a license based on a felony conviction only 1) if it “directly relates” to the position of employment or to the specific occupation, trade, vocation, or business, and 2) “the time elapsed since the conviction is less than ten years.” § 9.96A.020(2). There are exceptions to this general rule: People with sex offenses may be barred from many positions in education, including teaching, even if more than 10 years have passed since conviction. § 9.96A.020(4). Another provision exempts all licenses granted to practice any profession subject to the Regulation of Health Professions – Uniform Disciplinary Act. § 9.96A.020(5) (exempting all professions governed by Wash. Rev. Code § 18.130). School districts are required to conduct records checks of all employees, as is the Department of Social and Health Services. § 28A.400.303. Vulnerable adults and children are protected by restrictions against employment of persons who have committed “crimes against persons” and “crimes of financial exploitation” by nursing homes, adult family homes, and child care facilities operated by the department of health and social services. §§ 9.96A.060(3), 43.43.842. Law enforcement agencies do not have to comply with standards governing other public employees. § 9.96A.030.
The most important addition to this law in recent years was the 2016 law authorizing courts to grant Certificates of Restoration of Opportunity, to provide broad authority to hire notwithstanding many (though not all) of these restrictions. See Section III(D), above, and the findings accompanying the 2016 CROP law.9
A law enacted in 2021 states that a licensing agency “may disqualify an individual from obtaining a professional license, government certification, or state recognition if it determines the individual’s conviction is related to the occupation or profession unless the individual has requested and received a [CROP].” See Section 3 of 2021, ch. 194 (HB1399), RCW 18.400.030. It is not clear whether this law was intended to lower the “direct relationship” standard in § 9.96A.020(2).
2022 amendments: In 2022, HB1874 amended this provision to provide that a licensing authority may not disqualify an individual based on a conviction that has been sealed, dismissed, expunged, or pardoned; or a juvenile adjudication.
Preliminary determination for occupational licensure
A 2021 law provides that each licensing agency shall allow potential applicants for a license to receive a “preliminary determination” as to whether their criminal record will be disqualifying. See 2021, ch. 194 (HB1399), codified at RCW 18.400.020. No fee may be charged. This determination must be made within two months, and if it is negative it must be accompanied by a written statement of reasons: “If the licensing authority determines that the individual’s criminal conviction would disqualify the individual, the licensing authority will provide a determination that includes findings of fact and conclusions of law and may advise the individual of any action the individual may take to remedy the disqualification.” An applicant dissatisfied with the result may appeal. The law does not provide anything about the binding effect of a favorable determination, but conviction of a subsequent disqualifying offense permits the board to rescind a determination upon finding that the subsequent criminal conviction would be disqualifying. The individual may appeal a denial by the licensing authority.
In 2022 this law was fortified by multifactor standards binding on the licensing agency in making its determination, and direcfting the licensing agency to inform an applicant denied favorable consideration of the earliest time to reapply. See HB1874.
Health Care Licensure and Employment
Another 2021 law, ch. 219 (HB1411) expands access to health care employment (exempted frorm the general licensing law) for individuals with a record in several ways. 1) It gives effect for the first time to a Certificate of Restoration of Opportunity for assisted living facility employees and long-term care workers; 2) It prohibits the Department of Social and Health Services from automatically disqualifying a long-term care worker, contracted provider, or licensee who has a criminal record that contains certain crimes from having unsupervised access to, working with, or providing care to vulnerable adults or children, after specified waiting periods; and 3) It creates a work group to identify recommendations on a process to allow older adults and people with disabilities to hire a trusted individual with a criminal record that would otherwise disqualify the person from providing paid home care services.
- See United States v. Loucks, 149 F.3d 1048, 1050 (9th Cir. 1998). See also § 9.94A.637(9) (discharge under this section has “the effect of restoring all civil rights not already restored by RCW 29A.08.520.”). See also § 9.94A.637 (9) (discharge under this section has “the effect of restoring all civil rights not already restored by RCW 29A.08.520.”).Prior to July 2009, § 29A.08.520 provided that the right to vote was restored to people with felony offenses only after they had satisfied all requirements of their sentence, including all financial obligations, and obtained a certificate of discharge from the sentencing court. (For pre-1984 offenses that involved a prison sentence, and certain sex offenses committed after 2001, certificate of discharge must be obtained from the Indeterminate Sentence Review Board.) The affirmative obligation to apply to the court for discharge and to pay all financial obligations made restoration of voting rights more onerous than analogous provisions of other states, where outstanding financial obligations were either waived or ignored. See Jill Simmons, Note & Comment, Beggars Can’t be Voters: Why Washington’s Felon Re-enfranchisement Law Violates the Equal Protection Clause, 78 Wash. L. Rev. 297, 305-07 (2003). The requirement that an person pay all outstanding financial obligations before being permitted to vote was upheld by the Washington Supreme Court in Madison v. State, 163 P. 3d 757 (Wash, 2007). In 2010, the en banc 9th Circuit rejected a challenge to the Washington scheme under the Voting Rights Act, holding that plaintiffs had presented no evidence of intentional discrimination in Washington’s criminal justice system, or in the adoption of the disenfranchisement provisions. Farrakhan v. Gregoire, 623 F. 3d 990 (9th Cir. 2010) (en banc). Since 2019, “discharge” has been available five years after completion of supervision even if court debt has not been paid. See discussion in the “Vacatur” section below.
- “Community custody” is defined in Wash. Rev. Code § 9.94A.030(5) as “that portion of an offender’s sentence of confinement in lieu of earned release time or imposed as part of a sentence under this chapter and served in the community subject to controls placed on the offender’s movement and activities by the department.” See Washington State Sentencing Guidelines Commission Adult Sentencing Manual, 2009 supplement, at 12 (“A Summary of Community Custody Changes as a Result of ESSB 5288 and SSB 6162”), available at http://www.sgc.wa.gov/PUBS/Adult_Manual/AdultSentencingManualSupplement2009.pdf. According to the Office of the Secretary of State, persons sentenced to a jail term followed by a term of community supervision are “subject to community custody” and may not vote until discharged. On the other hand, persons sentenced to a suspended sentence without community custody, or to a jail term only, may vote provisionally as soon as they are sentenced.
- Prior to 2009, persons convicted in federal court in Washington State were able to regain their right to vote only by petitioning the Washington State Clemency and Pardons Board for an order restoring their right to vote. For persons convicted in another state, including people with federal 0ffenses, their right to vote depends upon the law of the jurisdiction of conviction, except that if their right to vote was not restored under the laws of the state of conviction they too could petition the Clemency and Pardons Board for an order restoring their right to vote.
- However, certain persons sentenced to probation for certain less serious offenses committed prior to July 1, 1981, do not lose firearms rights. § 9.41.040(4)(a).
- Section 9.41.040(3) does not define the term “certificate of rehabilitation,” and Washington courts have been held to have no authority to issue such certificates. See State v. Masangkay, 91 P.3d 140, 141 (Wash. Ct. App. 2004) (holding that the “certificate of rehabilitation” provision cannot reasonably be interpreted as authorization for Washington courts to issue such a certificate). On the other hand, the Supreme Court of Washington gave effect to an out-of-state restoration provision, holding that an early discharge from supervision in Montana, combined with Montana’s automatic firearms restoration provision, was sufficient to satisfy the “other equivalent procedure” provision in § 9.41.040(3). See State v. Radan, 143 Wn.2d 323, 21 P.3d 255 (Wa. 2001).
- The 2019 amendments to §§ 9.94A.030 (11)(b) and 9.94A.060(3)(c) restored the predicate effect given pardoned convictions by state courts prior to 1981. See State v. Edelstein, 146 Wash. 221, 262 P. 622 (Wash. 1927) (prior conviction, though pardoned, is to be counted in determining sentence under multiple offender laws).
- As enumerated in the amended § 9.94A.640(2), the newly eligible crimes are: “(i) Assault in the second degree under RCW 7 9A.36.021; (ii) assault in the third degree under RCW 9A.36.031 when not committed against a law enforcement officer or peace officer; and (iii) robbery in the second degree under RCW 9A.56.210.” See § 9.94A.640(2)(b).
- Prior to enactment of the 2020 law, a court hearing was required if the state objected or if the court found “a compelling reason not to seal” — in which case a contested hearing was held, pursuant to which the court was required to find that “all terms and conditions of disposition” were completed and could deny sealing if it determined that sealing was “not appropriate.”
- The findings that accompanied HB 1553, 2016 c. 81, are instructive:
Occupational licensing and employment laws regulate many professions as well as unskilled and semiskilled occupations. Examples of regulated occupations include alcohol servers, barbers and cosmetologists, body piercers, commercial fishers, contractors, drivers, embalmers, engineers, health care workers, insurance adjusters, real estate professionals, tattoo artists, and waste management workers. Individuals with criminal histories may meet the competency requirements for these occupations through training, experience, or education, but may be disqualified from them based on their criminal history.Certificates of restoration of opportunity help reduce some barriers to employment for adults and juveniles by providing an opportunity for individuals to become more employable and to more successfully reintegrate into society after they have served their sentence, demonstrated a period of law-abiding behavior consistent with successful reentry, and have turned their lives around following a conviction. Applicants for a certificate must also meet all other statutory licensing requirements.
Certificates of restoration of opportunity offer potential public and private employers or housing providers concrete and objective information about an individual under consideration for an opportunity. These certificates can facilitate the successful societal reintegration of individuals with a criminal history whose behavior demonstrates that they are taking responsibility for their
past criminal conduct and pursuing a positive law-abiding future. A certificate of restoration of opportunity provides a process for people previously sentenced by a Washington court who have successfully changed their lives to seek a court document confirming their changed circumstances.