Certificates of Rehabilitation and Limited Relief

6/30/2022

Criminal Records

A growing number of states authorize their courts or parole boards to issue orders or “certificates of rehabilitation” to individuals convicted of crimes. In effect, when a person convicted of a crime receives a certificate of rehabilitation, they receive a court order declaring they are now rehabilitated. It can be considered an official judgment about a person’s reliability and good character. The purpose is to help the person overcome the collateral consequences of being involved in the justice system.

Collateral consequences are the legal and regulatory sanctions and restrictions that limit or prohibit people with criminal records from accessing employment, occupational licensing, housing, voting, education and other opportunities. According to the Sentencing Project, there are over 44,000 collateral consequences people convicted of a felony may face. Certificates can also provide some reassurances to employers or landlords about the person’s rehabilitation and employability.

Many national law reform organizations have model legislation for certificates, including the American Law Institute, the Uniform Law Commission and the American Bar Association. Under their two-step schemes, certificates of “limited relief” are available at sentencing to remove specific economic barriers to support reentry, while more comprehensive certificates of rehabilitation are available after a further waiting period.

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.”  

Recent Enactments

In 2021, two states—Arizona (HB 2067) and New Mexico (SB 183)—enacted legislation related to certificates of rehabilitation. Arizona’s new certificate was created because the state does not have a comprehensive expungement law that completely erases criminal records. The new law allows individuals who successfully fulfill their probation or sentencing conditions to petition the court to “set-aside” the conviction and receive a certificate that prevents the individual from being barred from obtaining an occupational license if they are otherwise qualified.

New Mexico adopted the Uniform Law Commission’s Uniform Collateral Consequences Act, which contains a provision that allows individuals at sentencing to petition for an “Order of Limited Relief” from one or more collateral sanctions related to employment, education, housing, public benefits or occupational

licensing. Prosecutors and victims must be notified and can participate in the hearings and the court must consider numerous factors, including whether granting the relief would affect public safety.

Efficacy

Since only a limited number of states have enacted comparably similar certificate legislation—and in many cases, not enough time has passed since implementation to measure the results—studies of certificates’ efficacy are in preliminary stages. However, a 2016 study of certificates issued by courts in Ohio found that job applicants with certificates were more likely to get an invitation to interview than those without, and that their callback rate was not far removed from the rate for those applicants without a criminal record. A subsequent 2017 study regarding applications for rentals had comparable results. It is theorized that employers and landlords view certificates as both a sign of rehabilitation and a form of protection from negligence from liability.

Statutes

A non-exhaustive list of certificate-related statutes by state

Alabama flag Alabama | § 12-16-1 et seq.
Creates an Occupational Licensing Order of Limited Relief which relieves an eligible individual from some or all collateral consequences associated with a conviction in the state. Sets forth eligibility requirements for filing a petition and outlines factors for the court to consider in its determination to grant or deny the petition. Provides that an occupational licensing board may not automatically deny a license application or revoke a license based only on the conviction when a valid Order of Limited Relief has been issued.
 
Arizona flag Arizona | § 13-905
Created a new judicial Certificate of Second Chance. A court is authorized to issue a Certificate of Second Chance to a person whose judgment of guilt is set-aside under specific conditions.


Arizona | Crim. Proc., Rule 29.7
Provides that Certificates of Second Chance are mandatory when a judge grants an application for set-aside.
 
Arkansas flag Arkansas | § 17-1-103
Procedure for registration, certification and licensing of criminal offenders. Presumption of rehabilitation for purposes of occupational licensing five years after release from prison and completion of parole/probation, so long as the person has no subsequent convictions. Exceptions for teaching and nursing licensing.

Arkansas | § 11-2-123
Directs the Division of Labor to work in conjunction with other appropriate state agencies, the private sector and labor organizations to implement ex-offender vocational training programs with a focus on in-demand vocations and professions. Upon completion, the person is awarded a certificate of completion, which “shall signify that the person is competent to enter the workforce.”
 
California flag California | Penal Code § 4852.01 et seq.
Permits a person to petition for certificate of rehabilitation and pardon. Specifies that individuals convicted of felonies are eligible to apply after a specified period of rehabilitation. Those sentenced to mandatory life without parole, a death sentence or certain other offenses and persons in military service are ineligible. Excludes obligations to register as a sex offender unless additional relief is sought under other provisions. A certificate declares that the individual has been rehabilitated and constitutes an application for the governor to grant a full pardon to the individual. Requires a certificate of rehabilitation to be reviewed by the Board of Parole hearings within one year of receipt. The board shall issue a recommendation on a pardon.

California | Bus. & Prof. Code § 480
Provides that a person shall not be denied a license on the basis that the person has been convicted of a crime or based on acts underlying a conviction for a crime if that person has obtained a certificate of rehabilitation.

California | Gov't Code § 12952
Makes it an unlawful employment practice for an employer (with five or more employees) to consider, while conducting any employment application, a conviction for which the person has been issued a certificate of rehabilitation.

California | Penal Code § 290.5
Provides procedures for an application to eliminate sex-offender registry requirements on a discretionary basis. 
 
Colorado flag Colorado | § 18-1.3-107
Permits a court to issue an order of collateral relief if the court finds the order is consistent with rehabilitation, would improve the likelihood of success in reintegrating into society and is in the public interest. Allows an order of collateral relief to relieve a defendant of any collateral consequences of a conviction, including but not limited to statutory, regulatory and other collateral consequences. Clarifies that an order of collateral relief cannot relieve consequences related to licensure by the Department of Education or related to employment within certain governmental branches. Specifies that individuals convicted of felonies that results in permanent impairment to a victim, crimes of violence and offenses that result in sex offender registration are not eligible to apply for a certificate. 

Colorado | § 16-11-102
Requires the probation officer’s pre-sentencing report to the court to include the following: “Each defendant may, at the time of conviction or at any time, thereafter, apply to the court for an order of collateral relief of the consequences of the defendant’s conviction pursuant to the provisions of section 18-1.3-107, Colorado Revised Statutes.” 
 
Connecticut flag Connecticut | § 54-130a, § 130e
Authorizes the Board of Pardons and Paroles to issue certificates of rehabilitation for any offense at any time after sentencing. It may address one or more, or all barriers and forfeitures. Effective 2023, the board is required to provide a statement to the applicant of the factors considered when denying an application. 

Connecticut | § 54-108f
Allows the Judicial Department Court Support Services Division (CSSD) to issue certificates of rehabilitation for offenders under its supervision. Certificate relieves certain barriers to employment or obtaining a credential, such as an occupational license, which results from a criminal conviction. Requires the CSSD to follow the same procedures and criteria to issue a certificate. 

Connecticut | § 31-51i
Prohibits an employer from denying employment solely based on a criminal record for which the person has a certificate of rehabilitation.

Connecticut | § 46a-80
Provisional pardon or certificate establishes a presumption of rehabilitation when the state or agency is considering a prior conviction to determine eligibility for employment or a credential. If application is denied on the basis of conviction for which the person has a certificate of rehabilitation, the state or its agencies shall provide the reason(s) in writing. 

Connecticut | § 52-180b
Creates a rebuttable presumption against admitting evidence of an applicant's or employee's prior conviction in certain lawsuits against an employer, if: (1) the person had a valid provisional pardon or certificate when the alleged negligence occurred and (2) a party establishes by a preponderance of the evidence that the employer knew of the provisional pardon or certificate at the time of the alleged conduct. This applies to any action alleging an employer's negligence in (1) hiring or retaining an applicant or employee or (2) supervising an agent, representative or designee related to the hiring or retention of the applicant or employee.
 
Washington, D.C. flag District of Columbia | § 24-1304
Authorizes the mayor to establish a program for issuance of a certificate of good standing to any person previously convicted of a crime in Washington, D.C. However, the certificate is only a statement of the individual’s status and “shall not be construed as a statement of the individual’s character.” 

District of Columbia | § 24-1351
Provides limited liability for employers by prohibiting the use of employees' criminal history record information as evidence in a civil action against the employers. This protection applies if the employer can demonstrate that, during the hiring process, the criminal history was considered in conjunction with the prospective employee's ability to perform the job. Evidence considered includes information on rehabilitation and good conduct since the offense.
 
Florida flag Florida | § 944.801
Allows the Correctional Education Program to establish a prison entrepreneurship program. If the department elects to establish a program, it must create procedures for graduation and certification of successful student inmates.
Georgia flag Georgia | § 42-2-5.2(c)
Directs the Board of Corrections and the Board of Community Supervision to create a Program and Treatment Completion Certificate that symbolizes the offender’s achievements toward successful reentry into society. 

Georgia | § 51-1-54
States that issuing a Program and Treatment Completion Certificate or granting of a pardon creates a presumption of due care in hiring, retaining or licensing an individual who has received a certificate of program and treatment completion. Permits the presumption to be rebutted by relevant evidence which extends beyond the scope of the certificate or pardon.
 
Hawaii flag Hawaii | § 831-5
Accords certificates of discharge after completion of sentence or probation or parole as restoration of the person’s rights in the state, including voting and holding public office, and that the person no longer suffers disability due to conviction.
 
Illinois flag Illinois | 730 ILCS 5/5-5.5-5 et seq.
Describes effect and procedure for obtaining a certificate of relief from disabilities or a certificate of good conduct. A certificate of good conduct may be granted to relieve an eligible offender from bars to employment, occupational licensing, but does not relieve an offender of employment-related disabilities imposed by law. A certificate does not preclude any authority from retaining full discretion to grant or deny licensure application. However, the statute specifies that an employer is not liable for an act or omission by an employee who has been issued a certificate of relief from disabilities or certificate of good conduct.

Illinois | 20 ILCS 2105/2105-131
Requires certain licensing agencies to consider certificates of relief or good conduct as a mitigating factor when determining if a prior conviction will impair the ability of the applicant to engage in the licensed profession.
 
Iowa flag Iowa | § 906.19
Directs the board of parole to develop and implement a certificate of employability program for person on parole or no longer on parole but currently unemployed or underemployed.
 
Louisiana flag Louisiana | § 23:291.1
Requires courts to order temporary certificates of employability to offenders participating in a reentry court and, upon successful completion, to issue a permanent certificate of employability. Allows for revocation of certificates. Additionally, specifies an employer and other third parties are not subject to a cause of action for negligent hiring or failing to adequately supervise an offender who was certified to be employed by a reentry court judge, solely because the employee has been previously convicted of a criminal offense. 
 
Maryland flag Maryland | Corr. Servs. § 7-103
Permits issuance of a certificate of completion to offenders who have completed all conditions of supervision and who are no longer under the department of public safety and correctional services’ jurisdiction.

Maryland | Corr. Servs. § 7-104
Requires the department of public safety and correctional services to issue a certificate of rehabilitation to an individual who meets the following: (1) was convicted of a misdemeanor or felony that is not a crime of violence or a sexual offense; (2) was supervised by the Division of Parole and Probation; (3) has completed all special and general conditions of supervision, including restitution and other financial obligations; and (4) is no longer under the jurisdiction of the division. Specifies that a licensing board may not deny an occupational license—based solely on a prior conviction—to an applicant who has been issued a certificate of rehabilitation. Lists factors the licensing board must consider. Specifies that an individual may receive only one certificate of rehabilitation per lifetime. Requires the Department of Public Safety and Correctional Services to adopt regulations establishing an application and review process that allows the State’s Attorney and the victim to object.
 
Michigan flag Michigan | § 791.234d
Allows the Department of Corrections to award a certificate of employability to an offender if 1) the offender successfully completes: a) a career and technical education course, b) 36 credit hours at a postsecondary educational institution or c) an associate or bachelor’s degree if 50% of credit hours were completed during incarceration; 2) the offender received no major conduct violations and no more than three minor conduct violations during the two years immediately preceding his or her release; and 3) the offender received a silver level or better on his or her national work readiness certificate, or a similar score on an alternative job skills assessment test administered by the department. The certificate is valid unless the offender’s actions trigger revocation, for example, by committing a felony after the certificate has been issued. 

Michigan | § 338.42
Requires a licensing board to consider a certificate of employability if evaluating an applicant’s criminal history as a determination of good moral character.

Michigan | § 600.2956a
Allows a certificate of employability to be introduced as evidence of an employer’s due care in hiring, retaining, licensing, leasing to, admitting to a school or program or otherwise transacting business or engaging in activity with the individual to whom the certificate of employability was issued. If a claim against an employer requires proof that the employer was negligent in hiring an individual by disregarding a prior criminal conviction, a certificate of employability conclusively establishes that the employer did not act negligently in hiring the individual if the employer knew of the certificate at the time of hire.
 
New Jersey flag New Jersey | § 2A:168A-7
Permits issuance of a certificate that suspends certain disabilities, forfeitures and bars to employment or professional licensure or certification that otherwise apply to criminal offenders. Relief applies to public employment, qualification for licensure or certification to engage in certain professions, and admission to examination to qualify for licensure or qualification. (Does not apply to private employers. § 2A:168A-12)

New Jersey | § 2A:168A-9
A certificate serves as presumptive evidence of the subject’s rehabilitation.

New Jersey | § 10A:71-8.1 et seq.
Authorizes parole board to issue a certificate of good conduct to assist in rehabilitation of convicted offenders. Certificate precludes a licensing authority from disqualifying or discriminating against the applicant due to certain past criminal convictions.
 
New Mexico flag New Mexico | § 31-29-1 et seq.
New Mexico enacted the Uniform Collateral Consequences of Conviction Act, which includes provisions for orders of limited relief. Limited relief is available at sentencing to remove specific economic barriers to promote reentry, while more comprehensive relief is available after a further waiting period. Additionally, an order of limited relief or a certificate of restoration of rights may be introduced as evidence of a person's due care in hiring, retaining, licensing, leasing to, admitting to a school or program or otherwise transacting business or engaging in activity with the individual to whom the order was issued, if the person knew of the order or certificate at the time of the alleged negligence or other fault.
 
New York flag New York | Correct. Law § 700 et seq.
Provides for a certificate of relief from disabilities that relieves an eligible offender of any forfeiture or disability and removes any bar to employment otherwise automatically imposed by law due to a conviction. Does not restore right to retain or obtain public office. An eligible offender is a person who has been convicted of a crime or offense, but not more than once of a felony. Additionally, provides for certificates of good conduct to relieve an individual of disability and remove any bar to employment automatically imposed by law because of a conviction. Available to any person with a previous conviction. The Department of Corrections and Community Supervision is authorized to grant and revoke certificates of release from disabilities and certificates of good conduct. Upon expiration or termination of the department’s jurisdiction over the individual, the certificate becomes permanent.

New York | Correct. Law § 753
Requires a public agency or private employer to give consideration of a certificate of relief from disabilities or a certificate of good conduct in making an employment or licensing decision. Both certificates create a presumption of rehabilitation.

New York | Exec. Law § 296
Creates a rebuttable presumption in favor of excluding from evidence the prior conviction of any person, so long as the employer evaluated the factors set forth in section 752 of the correction law (including a rebuttable presumption in favor of hiring for those with certificates of relief or good conduct) and made a reasonable, good faith determination that such factors militated in favor of hire or retention of that applicant or employee.
 
North Carolina flag North Carolina | § 15A-173.1 et seq.
Establishes certificates of relief to relieve ex-offenders of collateral sanctions and disqualifications associated with a conviction. Specifies requirements for obtaining a certificate of relief. Certificate does not automatically relieve a disqualification; however, an agency, official or court shall consider it favorably. Lists collateral sanctions for which the certificate of relief does not apply. Provides that certificate is automatically revoked upon subsequent conviction, other than traffic violation; and upon revocation, the person must notify any party who has relied on the certificate of the revocation.

North Carolina | § 93B-8.1
Prohibits a licensing board from automatically denying an applicant’s license based on a conviction. Outlines the factors the board shall consider regarding a person’s criminal history, including a certificate of relief.

North Carolina | § 15A-173.5
Specifies that a certificate of relief is a bar to any action alleging lack of due care in hiring, retaining or licensing an individual who has received the certificate, if the defendant relied on the certificate at the time of the negligence.
 
Ohio flag Ohio | § 2961.21, § 2961.24
Outlines eligibility for certificate of achievement and employability. Prisoner may apply to the department of rehabilitation and corrections or adult parole authority. Certificate creates a rebuttable presumption that the person’s criminal convictions are insufficient to establish that the person is unfit for employment or licensing. As such, allows the use of a certificate of achievement and employability as defense in a negligent hiring claim. 

Ohio | § 2953.25
Outlines eligibility for certificate of qualification for employment. Individual may apply to division of parole and community services or the court. Certificate lifts the automatic bar of a collateral sanction and requires a decision maker to evaluate an employment or licensing application on an individualized basis. Certificate creates a rebuttable presumption that the person’s criminal convictions are insufficient to establish that the person is unfit for employment or licensing. Furthermore, the statute permits the introduction of evidence of a certificate of qualification for employment as evidence of due care in hiring, retaining or licensing an individual in a judicial or administrative proceeding. 
 
Puerto Rico flag Puerto Rico | § 1615
Provides that the sentencing court may rule the sentence of any person convicted of a felony as served, when such person is eligible to benefit from a parole release, is availing him/herself of a reentry, house arrest, probation program or any other similar program offered by the Department of Corrections and Rehabilitation, subject to the rehabilitation certification procedures in statute.
 
Rhode Island flag Rhode Island | § 13-8.2-1 et seq.
Authorizes the parole board to issue certificates of recovery and reentry to individuals convicted of certain crimes who establish their successful rehabilitation to the satisfaction of the parole board. Does not prevent an individual or entity from denying employment or licensing.
 
Tennessee flag Tennessee | § 40-29-107
Authorizes application to the court for a certificate of employability. Provides for automatic revocation of certificate upon subsequent felony conviction. A certificate preempts any present rule that allows denial of license based on criminal history; and instead, requires agency to make individualized determination. Furthermore, it permits the introduction of evidence of a certificate of employability as evidence of due care in hiring, retaining or licensing an individual in a judicial or administrative proceeding. Certificate shall provide immunity for employer with respect to claim if the employer knew of the certificate at the time of the alleged negligence.
 
Texas flag Texas | Civil Practice & Remedies Code § 142.002
Prohibits a lawsuit from being brought against an employer solely for negligent hiring or failing to adequately supervise an employee based on evidence that the employee has been convicted of a criminal offense. Exempts individual contractors. Specifies that this prohibition does not apply to offenders convicted of an offense committed while performing duties substantially similar to those of the employment at issue and certain serious offenses including murder, aggravated kidnapping and sexually violent offenses. Does not apply this protection to a suit concerning the misuse of funds or property by a person other than the employer, if the offender had been convicted of certain financial crimes and it was foreseeable that the offender would have a fiduciary responsibility in performing job duties.
 
Vermont flag Vermont | 13 V.S.A. § 8001 et seq.
Vermont enacted the Uniform Collateral Consequences of Conviction Act, which includes provisions for orders of limited relief. Limited relief is available at sentencing to remove specific economic barriers to promote reentry, while more comprehensive relief is available after a further waiting period. Additionally, an order of limited relief or a certificate of restoration of rights may be introduced as evidence of a person's due care in hiring, retaining, licensing, leasing to, admitting to a school or program or otherwise transacting business or engaging in activity with the individual to whom the order was issued, if the person knew of the order or certificate at the time of the alleged negligence or other fault.
 
Washington flag Washington | § 9.97.010 et seq.
Specifies criteria for an offender to apply for a Certificate of Restoration of Opportunity from the court, including time elapsed since sentencing or release and completion of all sentencing requirements. Offenders with certain felonies are not eligible. Provides that an employer may, in its sole discretion, determine whether to consider the certificate in making an employment decision. Although employers retain discretion whether to consider Certificates of Restoration of Opportunity, those that do gain certain negligence protections.

 

Additional Resources