Record Clearing vs. Certificates of Rehabilitation or Limited Relief
Although much legislative focus in recent years has been on strengthening record-clearing avenues, certificates and other more limited executive and judicial orders are additional tools in the toolbox of legislators. They are distinct from other tools because they make the criminal history of an individual fully public, for all to see.
Many recently legislated record-clearing processes do just the opposite—namely, clear records from the public view. In contrast, certificates and limited relief shine a light on an individual’s criminal history. These tools are premised on principles of transparency both of one’s criminal history and journey of rehabilitation. Often, expungement laws require an extended waiting period before one can get a record expunged. But certificates may be available after a shorter waiting period, making them a potentially more valuable aid to reentry for certain eligible individuals.
For example, in North Carolina, relief is available one year after service of sentence, whereas the expungement waiting period for felonies is 10 years. Similarly, in Vermont, certificates are available at sentencing or after five years, whereas record sealing has extended waiting periods. In some states, a person who is not eligible for the expungement of a criminal record, like for a felony conviction, may still be able to obtain a certificate.
Scope of Certificates of Rehabilitation
Certificates take on different names and purposes in different states. For example, in Nevada, they are called “Certificates of Good Conduct,” while Arizona calls it a “Certificate of Second Chance” and in New York they are called “Certificates of Relief from Disabilities.” Certificates are issued by the courts in some states and by parole boards, clemency boards or board of corrections in others. According to the Collateral Consequences Resource Center, 12 states—California, Colorado, Connecticut, Illinois, New Jersey, New York, North Carolina, Ohio, Rhode Island, Vermont, Washington and Tennessee—have enacted laws providing for judicially issued certificates.
In North Carolina, for example, an individual with misdemeanor and felony conviction records may petition the court for a “certificate of relief” one year after completion of his or her sentence, including probation or parole. The petitioner is eligible for a certificate if he or she “is engaged in, or seeking to engage in, a lawful occupation or activity, including employment, training, education, or rehabilitative programs, or … otherwise has a lawful source of support.” Occupational licensing boards must consider the certificate favorably when determining whether a conviction should result in a disqualification for a license. The certificate is automatically revoked if the person is convicted of another crime.
Some certificates carve out exceptions for specific consequences, particularly those that relate to licensing and employment in sensitive occupations. For example, Washington’s law has a potent effect in many occupational licensing schemes and is the only way a person with a felony record may be considered for employment by the school system (but not as a teacher). However, it has no effect on licensing relief for nurses and physicians, private investigators, teachers or law enforcement personnel. Additionally, an otherwise eligible petitioner may be denied relief if the court is unable to make the necessary findings, sometimes weighing the applicant’s need for relief against the public’s safety.
Liability Protections for Those Relying on Certificates
The potential drawback of these policies is that certificate laws rely on the goodwill of employers, licensing boards and landlords. Policymakers have taken many different approaches to encourage goodwill. Some states, like Connecticut, prohibit an employer from denying employment solely based on a criminal record if the person has a certificate of rehabilitation. In other states, like New Jersey, certificates must be considered with public employment, but the law does not apply to private employers. These types of laws are designed to guarantee certificates are considered when hiring, but they are not the only tool for policymakers when encouraging goodwill in the community regarding certificates.
Ohio, New Mexico, North Carolina and Vermont allow for an employer’s reliance on a certificate to create a presumption of due care in hiring. This provides limited protection to employers from negligent hiring claims— which allege an employer knew or should have known of an employee’s potential risk to cause harm. In Illinois and Tennessee, reliance on a certificate is a complete defense to liability.
Ohio law goes further by extending protections to other similar forms of liability, such as negligence in connection with renting an apartment or with admission to an educational program. For more information on negligent hiring claims more generally, see the Society for Human Resource Management’s magazine article, “How to Address Negligent Hiring Concerns.”