Maryland
Restoration of Rights & Record Relief

The Maryland Constitution authorizes the General Assembly to disqualify persons from voting who are convicted of “infamous or other serious crime.” Md. Const. art. I, § 4. With one exception, disenfranchisement is limited to persons convicted of a felony who are “currently serving a court-ordered sentence of imprisonment for the conviction,” Md. Code Ann., Election Law § 3-102(b)(1), and the vote is restored automatically upon release. 1 The exception is for persons convicted of buying or selling votes, who are not qualified to vote even after fulfilling their court-ordered sentence. § 3-102(b)(3).

Voting by detainees : In 2021, SB 525 was enacted (by governor inaction) to require the Baltimore City centralized booking facility to provide a secure, designated ballot drop box for eligible voters in the facility and to monitor the ballot drop box 24 hours a day and 7 days a week; to disseminate written notifications directly to each eligible voter in the facility on how and when to use the drop box; and to require the State Board of Elections to provide the Baltimore City centralized booking facility with certain materials and the ballot drop box.

Office : A person is ineligible to hold an elective office if at any time after election/appointment and prior to completion of their term, the person ceases to be a registered voter. Md. Const. art. I, § 12. Once restored to the franchise, convicted persons also regain the right to hold office.

B. Jury

Persons are disqualified from jury service if convicted of a crime punishable by imprisonment exceeding 1 year, and sentenced to more than 1 year imprisonment, or charged with a crime punishable by a sentence exceeding 1 year. Md. Code Ann., Courts and Judicial Proceedings § 8-103(b)(4). 2 Jury rights are restored by pardon. § 8-103(c).

C. Firearms

Md. Code Ann., Criminal Law § 5-622 prohibits anyone convicted of a felony from possessing any firearm, including an antique firearm as defined in § 4-201, subject to a penalty not to exceed five years’ imprisonment. Relief is available only through pardon.

Regulated Firearms

In addition, a person convicted of a “disqualifying crime” who possesses a “regulated firearm” is subject to a mandatory minimum sentence of five years. Md. Code Ann., Public Safety § 5-133(b)(1). A disqualifying crime includes a crime of violence, a felony, and “a violation classified as a misdemeanor in the State that carries a statutory penalty of more than 2 years.” Id., § 5-101(c), (g). A “regulated firearm” includes handguns and certain specified assault weapons as defined in Md. Code Ann., Public Safety, §§ 5-101(h), (n), and (p). Persons “convicted of a violation classified as a common law crime and [who] received a term of imprisonment of more than 2 years” also may not possess a “regulated firearm.” § 5-133(b)(2). Prosecutors have broad authority to choose which statute to charge. See State v. Lee, 178 Md. App. 478, 943 A.2d 14 (Ct. Spec. App. 2008)(trial court exceeded its authority in substituting less serious charge in plea context).

Firearms dealers

Persons who may not possess a “regulated firearm” cannot be a firearms “dealer.” § 5-101(d); 5-107(b)(4)(iii)-(iv).

Rifles and shotguns

Under Md. Code Ann., Public Safety §§ 5-206(b), a person may not possess a rifle or shotgun if he was previously convicted of a “crime of violence” or certain drug offenses. See §§ 5-101(c) (defining crime of violence); 5-206(a).

Handgun permit

A person may not be issued a handgun permit if he has been convicted of “a felony or of a misdemeanor for which a sentence of imprisonment for more than 1 year has been imposed,” or a crime involving possession or use of a controlled substance; or, if under 30 years of age, adjudicated delinquent for an offense that would be a felony, a crime of violence, or an act that would be a misdemeanor in this State that carries a statutory penalty of more than 2 years if committed by an adult.” See Code Ann., Public Safety §§ 5-306(a), (b).

D. Other Collateral Consequences

A partial catalogue of collateral consequences for Maryland offenders is contained in the study produced by the University of Maryland School of Law Reentry of Ex-Offenders Clinic, “A Report on Collateral Consequences of Criminal Convictions in Maryland” (rev. Spring 2007), available at http://www.sentencingproject.org/doc/publications/cc_report2007.pdf. See also Homeless Persons Representation Project, “Ex-Offenders and Employment: A Review of Maryland’s Public Policy and a Look at Other States” (December 2001, rev. June 2002), available at http://www.hprplaw.org/index.php?option=com_k2&view=item&layout=item&id=20&Itemid=73, documenting a number of situations in which people with convictions are barred by law from certain jobs and occupations.

II. Pardon policy & practice

A. Authority

The pardon power is vested in the governor, except in cases of impeachment. Md. Const. art. II, § 20; see also Md. Code Ann., Correctional Services § 7-601. The Constitution requires the governor to publish notice in one or more newspapers of earliest date he will grant pardon, and to report to the legislature each grant and reasons there for. Md. Const. art. II, § 20.

B. Administration

The Maryland Parole Commission is responsible for reviewing and making recommendations on pardon applications if requested by the governor, but its advice is not binding. Md. Code Ann., Correctional Services § 7-206(3)(ii). 3 The Parole Commission consists of 10 members appointed to six-year terms by the Secretary of Public Safety and Correctional Services. § 7-202. Full-time salaried employees are subject to removal only for cause by the secretary (with concurrence of governor). § 7-203.

C. Eligibility

Md. Code Regs. tit. 12, § 08.01.16(C) provides that “[p]roof of successful completion of any parole or probation, or both, which may have been imposed, plus a reasonable length of satisfactory adjustment in the community beyond the maximum expiration date of sentence, is preferred for a favorable pardon recommendation.” Under informal Parole Commission rules, applicants with felony convictions must have ten crime-free years to be eligible (seven if a Parole Commission waiver is granted); misdemeanants must have five crime-free years. There is a twenty-year wait for crimes of violence and for controlled substances violations (or fifteen if waiver granted). See Parole Commission “Frequently Asked Questions” about pardons, Question #6, http://www.dpscs.state.md.us/about/FAQmpc.shtml. 4

A person convicted under federal law or the law of another state is ineligible for a gubernatorial pardon. See general description on http://www.dpscs.state.md.us/publicservs/pardons.shtml.

D. Effect

Pardon lifts all disabilities and penalties imposed because of the conviction. Firearms rights must be separately restored in pardon document.

A court may expunge the record if the person has been convicted of only one criminal act, and that act is not a crime of violence; and is granted a full and unconditional pardon by the Governor. Md. Code Crim. Proc. § 10-105(8).

E. Process

The form for applying for pardon can be downloaded from the website of the Maryland Parole Commission, which Commission determines if the applicant is eligible according to Maryland guidelines. See https://www.dpscs.state.md.us/publicservs/pdfs/Application-for-Pardon-Revised.pdf. If eligible, the Commission directs the Division of Parole and Probation to conduct an Executive Clemency investigation of the petitioner. Md. Code Regs. tit. 12, § 08.01.16(B). Upon the victim’s request, the victim most be notified. See Md. Code Ann., Correctional Services § 7-805. There is no formal hearing, and a case is reviewed on a paper record. Once the pardon investigation is completed, the case returns to the Commission for its review and recommendation. The application, the Division of Parole and Probation investigation report, and the Commission’s recommendation are then submitted to the governor’s legal counsel for review. The governor may choose to accept, modify, or reject the Commission’s recommendation. For purposes of effectuating a pardon, the governor must issue a written executive order under the great seal. Md. Code Ann., Correctional Services § 7-601(b)(1). In addition, the Maryland Constitution requires the governor to “give notice, in one or more newspapers, of the application made for [pardon], and of the day on, or after which, his decision will be given.” Md. Const. art. II, § 20. If pardon is denied, an applicant may reapply after a “reasonable time.” Md. Code Regs. tit. 12, § 08.01.16(B).

F. Standards

The Commission considers the following factors in connection with a petitioner’s request for a pardon: (1) the nature and circumstances of the crime; (2) effect of a pardon on the victim and community; (3) the sentence given; (4) the other anti-social behavior of the petitioner; (5) the subsequent rehabilitation of the petitioner; (6) the age and health of the petitioner; and (6) the reason the pardon is needed. Parole Commission “Frequently Asked Questions” about pardons, Question #7, http://www.dpscs.state.md.us/about/FAQmpc.shtml. 5

G. Frequency of Grants

In June 2024, Governor Wes Moore issued a blanket pardon to an estimated 175,000 individuals convicted of misdemeanor marijuana possession offenses no longer criminal as a result of the 2022 ballot initiative legalizing adult possession of marijuana. Midway through his second year in office he had not pardoned any individuals or indicated an interest in reviving the pardon program dormant for 8 years under Governor Hogan.

Governor Larry Hogan (2015-2022) issued no pardons throughout his two terms, despite having indicated an interest in increasing the number of pardons during his campaign for election. See The power to pardon, The Baltimore Sun (Jan. 23, 2015), http://www.baltimoresun.com/news/opinion/editorial/bs-ed-parole-20150125-story.html. He did, however, commute several sentences and approved parole for a number of lifers. https://wtop.com/maryland/2019/11/maryland-gov-hogan-issues-first-paroles-for-juvenile-lifers-in-decades/. Maryland is one of only two states where the governor must approve parole for lifers (the other being California).

Governor Martin O’Malley (2008-2015) granted 146 pardons in eight years in office, all but thirteen in his final three years in office, and rejected about 1300 applications. See Justin Fenton, O’Malley increases pardons, but remains stingy overall, Baltimore Sun., Dec. 18, 2014, http://www.baltimoresun.com/news/maryland/politics/bs-md-omalley-pardons-20141213-story.html#page=1. See also John Wagner, O’Malley Puts the Brakes on Clemency in Md., The Washington Post, June 21, 2009, at C1, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/06/20/AR2009062001629.html. Governor Ehrlich granted 228 pardons out of a total of 439 applications considered. (Also, he granted fifteen commutations, including five life sentences, and in addition six medical paroles during his tenure.) Governor Ehrlich considered pardon applications on a regular basis, reviewing about 20 cases each month, issuing pardons every two or three months. Source: Office of the Governor.

H. Contact

David R. Blumberg
Chair, Maryland Parole Commission
dblumberg@dpscs.state.md.us

Linda L. Dodge
Administrative Officer, Executive Clemencies & Pardons
(410) 585-3211
linda.dodge@maryland.gov

Pardon applications available at :

Additional information can be found by contacting the Pardon Application Coordinator at (410) 585-3200 or toll-free (877) 241-5428. See Parole Commission, “Frequently Asked Questions,” supra, Questions # 10-11.

III. Expungement, sealing & other record relief

A. Overview of record clearing laws

In 2015 Maryland enacted its first conviction record clearing law, making a limited list of misdemeanors eligible for “shielding” after a waiting period of three years. In 2016, the Justice Reinvestment Act authorized “expungement” for enumerated misdemeanor offenses, with a 10-year eligibility waiting period. Md. Code Ann., Crim. Proc. § 10-110. In 2018, certain felonies involving theft, burglary, and drug possession with intent to distribute were added to the list of offenses eligible for expungement, with a 15-year eligibility waiting period.

In 2023, the REDEEM Act reduced waiting periods for most misdemeanors from 10 years to five years and for eligible felonies from 15 years to seven or ten years, as described below. See SB-37 (2023), SB-101 (2018); SB-1005 (2016), Expungement confers greater benefits than shielding, and is available for more offenses, but the waiting periods for expungement are longer even after the 2023 amendments.

In 2022, conviction for simple possession of marijuana became eligible for expungement without a waiting period after completion of the sentence. Possession with intent to distribute marijuana is eligible after three years. Additionally, marijuana possession charges are an exception to Maryland’s “unit rule”, which prohibits expungement of otherwise eligible charges if there are also ineligible charges in the case. See HB837, discussed below.

Non-conviction records (except “probation before judgment”) were made eligible for automatic expungement in 2021.

B. Expungement of misdemeanor and felony convictions

Misdemeanors: Over 100 enumerated misdemeanors are eligible, including second degree assault, drug possession, prostitution, theft, disorderly conduct, various fraud offenses, and various regulatory offenses. Md. Code Ann., Crim. Proc. § 10-110(a)(1). In 2021, 4th degree burglary was added to the list by HB1336. In 2023 malicious destruction of property was added.

Felonies: Convictions for theft, possession with intent to distribute, or burglary were made eligible for expungement by SB 101, effective October 1, 2018. § 10-110(a)(2).

Waiting periods: In 2023 SB-37 shortened waiting periods for filing a petition to expunge records under § 10-110 of the Criminal Procedure Article from ten years to five years for most misdemeanors and from 15 years for all eligible felonies to seven or ten years (the longer waiting period for burglary and theft). The bill retained the existing 15-year waiting period for crimes of domestic violence.

In addition, the bill specified that any unpaid court fees or costs are not a bar to expungement and requires that, when ordering or effecting an expungement, a court must waive any court fees and costs associated with the charge being expunged.

The waiting periods begin at the completion of the sentence, which includes any period of probation, parole, or supervision. Probation violations resulting in termination of probation affect expungement eligibility. 6 .

“If the person is convicted of a new crime during [the waiting period], the original conviction or convictions are not eligible for expungement unless the new conviction becomes eligible for expungement.” § 10-110(d)(1). Individuals with pending criminal charges are not eligible. § 10-110(d)(2). If one offense stemming from a single incident is ineligible for expungement, then all offenses stemming from the incident are ineligible. §§ 10-110(d)(3), 10-107 (this is known as the “unit rule”).

Eligibility

Misdemeanors : Over 100 enumerated misdemeanors are eligible, including second degree assault, drug possession, prostitution, theft, disorderly conduct, various fraud offenses, and various regulatory offenses. Md. Code Ann., Crim. Proc. § 10-110(a)(1). In 2021, 4th degree burglary was added to the list by HB1336. A waiting period of five years from completion of sentence (including any period of probation, parole, or mandatory supervision) applies for all offenses except for second degree assault under Md. Crim. Law Code § 3-203 and offenses classified as “domestically related crimes” under Md. Crim. Proc. Code § 6-233, for which a 15-year waiting period applies. Md. Code Ann., Crim. Proc. § 10-110(c). “If the person is convicted of a new crime during [the waiting period], the original conviction or convictions are not eligible for expungement unless the new conviction becomes eligible for expungement.” § 10-110(d)(1). Individuals with pending criminal charges are not eligible. § 10-110(d)(2). If one offense stemming from a single incident is ineligible for expungement, then all offenses stemming from the incident are ineligible. §§ 10-110(d)(3), 10-107 (this is known as the “unit rule”).

Felonies : Convictions for theft, drug trafficking or burglary were made eligible for expungement by SB 101, effective October 1, 2018. § 10-110(a)(2). Since the waiting periods were reduced in 2023, there is a 10-year waiting period “running from completion of sentence, and if the person is convicted of a new crime during [the waiting period], the original conviction or convictions are not eligible for expungement unless the new conviction becomes eligible for expungement.” § 10-110(d)(1).

Procedure and criteria for expungement under § 10-110

Petition is filed in court in which proceedings began, with exceptions for cases that were transferred or appealed. Md. Code Ann., Crim. Proc. § 10-110(B). The court serves notice to the State’s Attorney and victims, who have 30 days to object to the petition. § 10-110(E). Court must order expungement if no objection is filed after 30 days. § 10-110(E)(3). If either the State’s Attorney or victim object, the court must hold a hearing, and the court’s determination is guided by § 10-110(F)(2). If the person meets the statutory eligibility requirements, the court must grant expungement upon finding:

that giving due regard to the nature of the crime, the history and character of the person, and the person’s success at rehabilitation, the person is not a risk to public safety; and that an expungement would be in the best interest of justice.

§ 10-110(F)(2)(II), (III). Petitioner and State’s Attorney are entitled to appellate review of the court’s decision. § 10-110(I). Unless an order is appealed, every custodian of police and court records subject to the order must notify the court and petitioner of compliance with the expungement order.

Effect of expungement

A record that has been expunged may be opened only upon court order, with notice to the person concerned and a hearing, or upon ex parte application by the State’s attorney and a showing of good cause (including that the record is needed by law enforcement). Md. Code Ann., Crim. Proc. §§ 10-108(a) through (c). Violation of this is a misdemeanor. § 10-108(d).

Expunged records are kept separately for three years, then destroyed. See §§ 4-511, 4-512.

A person may not be required to disclose information about expunged records to an employer, educational institution, or government licensing agency. §§ 10-109(a)(1)-(2). Refusal by a person to disclose information about criminal records that have been expunged may not be the sole reason for an employer to discharge or refuse to hire the person, or for a government licensing agency to deny the person’s application. § 10-109(a)(3). Violation is a misdemeanor, and a government official who violates may be dismissed from public service. § 10-109(b). Applicants for positions that require the carrying of firearms should be asked for information about past criminal activity for purposes of the federal firearms statute even if records have been expunged. 71 Md. Op. Att’y Gen. 242 (1986).

Partial Expungement Workgroup : In 2021, the Maryland legislature established a Work Group to Study Partial Expungement composed of representatives of the legislative, judicial and executive branches, the public defender, and the advocacy community, to study and make recommendations by January 5, 2022 on expunging charges not resulting in conviction in cases where other charges do result in conviction, overriding the governor’s veto of HB1336 in 2020. The Workgroup was directed “to study and develop a plan and legislative recommendations for enabling the expungement of criminal charges that are currently not eligible for expungement because of the requirements of § 10–107 of the Criminal Procedure Article.” This is the so-called “unit rule,” which prohibits expunging any charge or conviction unless all charges and convictions in a case are eligible.

The Workgroup produced a report in January 2022, and in 2023 partial expungement was made available, but only for convictions for simple cannabis possession. See HB837.

At this same time it established the Workgroup on partial expungement, HB1336 directed that the Maryland Judiciary Case Search “may not in any way refer to” charges resulting in acquittal, dismissal, or nolle prosequi (except nolle prosequi with the requirement of drug or alcohol treatment.”

C. “Shielding” (sealing) of misdemeanor convictions

Under the Maryland Second Chance Act of 2015, Md. Code Ann., Crim. Proc. § 10-301 et seq., a handful of minor misdemeanor convictions are eligible for “shielding” (the functional equivalent of sealing in other jurisdictions). Shielding is distinct from “expungement,” which is also available for certain misdemeanor convictions after a longer waiting period, as described in the preceding section.

Shielding is available only for twelve enumerated non-violent misdemeanors, ranging from malicious destruction of property to prostitution and possession of a controlled dangerous substance. Md. Code Ann., Crim. Proc. § 10-301(f). Any offense sentenced as a “domestically related crime” is ineligible. § 10-302(a). A person may only petition for shielding once in their lifetime, though a single petition may seek sealing of multiple convictions so long as the convictions are from the same county. § 10-303(e)(4), (a).

A waiting period of three years following satisfaction of sentence, including any period of community supervision, applies. § 10-303(a). If a person is convicted of an additional offense before filing a petition to shield, then the prior conviction may only be shielded when the intervening conviction becomes eligible for shielding. § 10-303(b)(1).

No hearing is necessary unless the State’s Attorney objects to the petition. Md. Code Ann., Crim. Proc. § 10-303(d). Prior to granting a shielding petition, the court must notify victims of the relevant offenses and allow them to submit relevant information to the court. Id. The court may grant a petition without a hearing “after taking into consideration any objections or additional information provided by the State’s Attorney or the victim.” § 10-303(d)(2). Upon a hearing, the court may grant the petition “for good cause” if otherwise eligible. § 10-303(e)(3).

Effect

Shielding has the effect of rendering “a court record and police record relating to a conviction of a crime inaccessible by members of the public,” and such records are not accessible on the Maryland Judiciary Case Search (which provides public access to state court records). Md. Code Ann., Crim. Proc. §§ 10-302, -304. Shielding does not restore rights lost as a result of a conviction and does not make the conviction “disappear.” However, a shielded conviction does not count as a conviction for the purpose of determining eligibility for PBJ expungement or expungement of decriminalized offenses. § 10-305.

In general, employers, educational institutions, and government licensing and services agencies may not require a person to disclose shielded convictions on an application or in an interview and may not take adverse action against a person for refusing to disclose such convictions. § 10-306. There are some major exceptions that threaten to swallow this rule, however. Notably, any employer or licensing agency that is required or authorized by law to inquire into a person’s criminal record may access a person’s shielded record. § 10-302(B)(2). Exceptions also apply to health occupations boards, child care facilities, and the medical marijuana commission, among others.

D. Expungement of cannabis conviction records

As of January 1, 2023, following approval in November 2022 of a constitutional amendment legalizing “personal use” of cannabis (then called marijuana), conviction for simple possession of marijuana became eligible for expungement without a waiting period after completion of the sentence. Possession with intent to distribute marijuana became eligible after three years. See HB837. Additionally, by virtue of this law marijuana possession charges were made an exception to Maryland’s “unit rule”, which prohibits expungement of otherwise eligible charges if there are also ineligible charges in the case.

Previously, Maryland law authorized expungement of convictions for possession of marijuana after a four-year waiting period. Md. Code Ann., Crim. Proc. § 10-105(a)(12). In 2021, HB 83 prohibited the Maryland Judiciary Case Search from referring to the existence of a District Court criminal case in which possession of marijuana was the only charge in the case and the charge was disposed of before October 1, 2014. § 10-111.

The November 2022 constitutional amendment legalized “personal use” (up to 1.5 ounces) of cannabis 7 for adults 21 or older, effective July 1, 2023. HB 1.

Contingent implementing legislation enacted in March 2022 created new “civil use” offenses (from 1.5 to 2.5 ounces) 8 ; mandated resentencing for those serving prison sentences for cannabis possession offenses either legalized or decriminalized by the statute; and reduced waiting periods for expungement of misdemeanor and felony cannabis convictions. See HB 837.

HB 837 reduced the waiting period for filing a petition for judicial expungement of misdemeanor cannabis possession convictions (already authorized under § 10-105(a)(12)) from four years to completion of sentence. § 10-105(c)(8). Additionally, it authorized any person incarcerated after having been convicted of misdemeanor possession of cannabis to petition the court for resentencing, providing that the court “shall” sentence the person to time served. §10-105.3. If the person is not serving a sentence for any other crime, they “shall” be released. Id. The law also reduced the waiting period for filing petitions to expunge convictions for possession with intent to distribute cannabis (already authorized for drug possession with intent to distribute generally by §§ 10-110(a)(1)(viii) and 10-110(a)(2)(ii)), from ten years (misdemeanors) and 15 years (felonies) to three years after completion of sentence. See § 10-110(c)(4).

Finally, a new § 10-112 directed the Department of Public Safety to expunge automatically conviction records in the central repository for cannabis possession obtained prior to July 1, 2023 (court records may be expunged only pursuant to the petition process in § 10-105(a)).

E. Additional conviction expungement authorities

In addition to expungement of the record in certain misdemeanor cases (see above), the court has authority to expunge the record in the following situations:

• • Non-violent first offenders who have been granted a full and unconditional pardon. Md. Code Ann., Crim. Proc. § 10-105(a)(8). Application must be filed no later than ten years after pardon granted. § 10-105(c)(4).
  • Certain minor nuisance crimes (public urination, drinking in public, panhandling, loitering, vagrancy, etc.), three years after completion of sentence. § 10-105(a)(9), (c)(6).
  • Charges transferred to juvenile court. § 10-105(a)(7); 10-106.
  • Police records of arrests not leading to charges 60 days after release. § 10-103; 10-103.1. 9
  • Conviction records for decriminalized offenses. § 10-105(a)(11).

  Procedure

  The petition form is available at https://mdcourts.gov/sites/default/files/court-forms/courtforms/joint/ccdccr072B.pdf/ccdccr072B.pdf. A $30 fee is required. See http://www.courts.state.md.us/circuit/feesummaryschedule.pdf. The State’s attorney receives a copy of the petition for expungement and is a mandatory party to the proceeding. Md. Code Ann., Crim. Proc. §§ 10-105(d), (e), (g). The State’s attorney has 30 days to respond to the petition, and if State’s attorney objects, a hearing is held to determine whether the person is entitled to expungement. Id. An expungement order may be appealed. § 10-105(g). See also State v. Nelson, 847 A.2d 1184, 1189 (Md. App. 2004) (State entitled to 30-day period to file objection and court cannot proceed to hearing prior to expiration of that period absent an articulated waiver by the State).

  Note: a website offers the ability to check for potential eligibility and generate filled out petition forms, but it appears to be mainly for non-convictions, does not include information on more recent changes to Maryland expungement law, and is down until further notice: https://mdexpungement.com/

  Limitations

  Per Md. Code Ann., Crim. Proc. § 10-107, if any single charge arising from the same incident is ineligible, then every charge arising from that incident is ineligible (this is known as “the unit rule”).

  Effect

  The effect of expungement is the same as that described for misdemeanor convictions in the preceding sections. For non-conviction dispositions, an expunged record may not be used as predicate, or to enhance sentence. See Jones v. Baltimore City Police Dep’t, 606 A.2d 214, 218 (Md. 1992).

  D. Vacatur for victims of human trafficking

  Victims of human trafficking convicted of a number of qualifying offenses (expanded in 2020 by HB242 from prostitution only) may move the court for vacatur, after 60 days. No hearing required if State’s Attorney agrees, no objection is filed by a victim, and vacatur is required if the movant establishes by a preponderance that the crime was the “direct result” of being a victim. Md. Code Ann., Crim. Proc. § 8-302, as amended by HB 242. Court shall vacate the conviction, modify the sentence, or grant a new trial. Vacatur makes the record eligible for expungement as a non-conviction (see above). § 10-105(a)(13).

  E. “Probation before judgment”

  Subject to the provisions of the Maryland sentencing guidelines, the court may defer judgment and place a defendant on probation subject to reasonable conditions, if (i) the court finds that the best interests of the defendant and the public welfare would be served; and (ii) the defendant gives written consent after determination of guilt or acceptance of a nolo contendere plea. Md. Code Ann., Crim. Proc. § 6-220(b)(1). Certain offenses related to driving and drugs are ineligible if the person has previously been placed on PBJ. § 6-220(d). Terms of probation may include payment of fine or restitution, or participation in a treatment program. § 6-220(b)(2). Upon successful completion of probation, the court shall discharge the defendant from probation without judgment of conviction, and such discharge “is not a conviction for the purpose of any disqualification or disability imposed by law because of conviction of a crime.” § 6-220(g).

  In 2023 the PBJ statute was modified to permit a defendant to take advantage of this disposition after a plea of not guilty, if the court finds that “the best interests of the defendant and the public welfare would be served,” which would avoid triggering federal immigration consequences. See HB193, enacting § 6-220(c).

  A person discharged from probation may petition the court for expungement of police and court records relating to the charges after a three-year waiting period, as long as the petitioner has not been convicted of any crime other than a minor traffic violation during that three-year period, and is not a defendant in a pending criminal proceeding. §§ 10-105(a)(3), (c)(2)(ii), (e)(4).

  A PBJ plea that has been expunged may not be used to enhance a subsequent sentence. See Jones, 606 A.2d at 218 (“A disposition of probation before judgment cannot be considered a predicate offense for imposition of certain recidivist penalties imposed by law; there is no assessment of points when probation before judgment is granted after a finding of guilt on a motor vehicle charge; and a sentence of probation before judgment is not entered upon a defendant’s public driving record.”). Cf. United States v. Bagheri, 999 F.2d 80 (4th Cir. 1993) (noting distinction between PBJ disposition, which may be considered if not expunged, and expunged record, which may not). See also “Effect of expungement” at Part II, B(2)(c), supra.

  Motion for Modification

  Under Md. Rule 4-345, upon motion filed within 90 days after imposition of a sentence, the court has revisory power over a sentence for five years from the date the sentence originally was imposed, and may upon motion reduce a sentence to probation before judgment, so as to make a defendant eligible for expungement under Md. Code Ann., Crim. Proc. § 10-105(a)(3).

  F. Expungement of non-convictions, pardons, marijuana possession under § 10-105

  Expungement by petition: Md. Code Ann., Crim. Proc. § 10-105(c) authorizes expungement of most non-conviction records, and of pardoned convictions. The waiting period before a petition may be filed is 3 years after disposition (final action on charges, or completion of treatment) unless the petitioner files with the petition a written general waiver and release of all the petitioner’s tort claims arising from the charge. The waiting period for pardoned offenses is 10 years after the pardon, for marijuana possession after four years after completion of sentence, and for an assortment of minor misdemeanor convictions three years. § 10-105(c)(6) through (8). In addition, § 10-105(c)(9) states that “[a] court may grant a petition for expungement at any time on a showing of good cause.” This section has been held to extend only to cases in which expungement is otherwise authorized under § 10-105. In re Expungement Petition of Vincent S., Nos. 607 and 608, Md. Ct. Spec. Appeals (2021). In cases where the State’s Attorney files an objection, no charges may be pending (nor, additionally, may there be intervening convictions in the case of a PBJ). Md. Code Ann., Crim. Proc. § 10-105(e)(4). Non-conviction records for civil offenses and infractions may also be expunged. See HB 382 (2018).

  Consideration of fees and costs : The REDEEM Act of 2023 discussed above prohibits the Court from considering unpaid court fees and costs as a bar to expungement of non-conviction dispositions and convictions authorized for expungement under § 10-105, though this would appear not to exclude consideration of unpaid restitution and fines. Maryland’s expungement statute was previously silent as to the impact of court fees on expungement, allowing the courts to make their own determinations regarding the impact of outstanding fees. 10

  Automatic expungement of non-conviction records: I n 2021, HB 201 (enacted by governor inaction) made expungement of most non-conviction records (dismissals, acquittals, nolle prosequi unless conditioned on drug or alcohol treatment) automatic three years after final disposition, beginning October 1, 2021. In 2023 this authority was clarified, and provision was made for the court to notify the defendant. Md. Code Ann., Crim. Proc. § 10-105.1(a). A petition must still be filed seeking expungement in the case of nolle prosequis conditioned on treatment and records of probation before judgment (“PBJ”) (discussed in Section E above), and criminal traffic violations not requiring an appearance. Expungement prior to three years must be by petition, with the requirement of release of tort claims described above.

  A person who is arrested on or after Oct. 1, 2007, and released without charges, is entitled to automatic expungement of all police records, including photographs and fingerprints, within 60 days. Md. Code Ann., Crim. Proc. § 10-103.1.

  Under the “unit rule,” if any single charge arising from the same incident is ineligible, then every charge arising from that incident is ineligible. § 10-107. Expunged records may be opened only upon court order. § 10-108. See also the entry in section IIIA above on the Partial Expungement Workgroup.

  G. Juvenile records

  Police and courts records concerning a child are confidential and may not be divulged except by court order for good cause or to certain school officials for certain reportable offenses. Md. Code Ann., Courts and Judicial Proceedings § 3-8A-27. Access and use is permitted by the Department of Juvenile Services, law enforcement agencies, and certain governmental bodies in certain circumstances. Id. If good cause is shown, the court may order court records of a child sealed at any time, and must order sealing upon motion or petition when the child reaches 21 years of age. If sealed, court records cannot be opened for any purpose except by court order for good cause shown. § 3-8A-27(c). See also § 3-827(c) (confidentiality of juvenile court records for children “in need of assistance” who require court intervention). In 2021 the law was revised to make clear that § 3-8A-27 applies to the records of children charged as adults and subsequently remanded to the juvenile court. See SB314 (overriding the governor’s veto).

  In 2022 the legislature enacted a major revisions of the juvenile code. See SB691. The bill removes state authority over delinquency of children under age 13 and provides that they may not be charged with a crime. The law adds option for “informal adjustment” by discretion of intake officer to divert nonviolent felonies committed by minors, broadens guidelines for “informal adjustment” to include not only misdemeanors and to permit informal adjustment without informing the victim given reasonable effort to contact them, and provides for new risk scoring instrument to determine child’s release before trial. A misdemeanor committed by a child cannot result in detention except for those involving firearms or repeat offenses within a year. Provides for smaller windows of time between detention and court hearing, or detention and department making plans for release. Provides a probation requirement, rather than detention, for misdemeanor committed by a child, and provides a 2-year cap on the probation period. Prohibits detention for a technical violation. Requires the Governor’s office to release information about juvenile justice practices and establish a Juvenile Justice Reform Commission.

  H. Frequency of expungements

  The report of the Maryland Criminal Justice Information System accompanying SB 101 in 2018 reported that from 2004 to 2017 the number of expungements granted by Maryland courts rose steadily from 15,769 to 48,211, not counting expungements of uncharged arrests. The increase was attributed to the expansion of eligibility criteria. See http://mgaleg.maryland.gov/2018RS/fnotes/bil_0001/sb0101.pdf.

  I. Certificate of Rehabilitation

  “Certificate of Rehabilitation” issued by Department of Corrections, affects licensing. See section IV.B., below.

  IV. Criminal record in employment & licensing
  

  A. Ban-the-box in public and private employment

  Effective January 1, 2020, private employers with more than 15 employees may not inquire an applicant’s criminal record until the first interview, and authorizing civil penalties. Md. Code Lab. & Empl. § 3-1403. Certain employment excepted. The law specifically does not preclude local jurisdictions from imposed stricter standards. Governor Hogan’s veto was overridden.

  State government employers may not inquire about an applicant’s criminal history until an applicant has had an opportunity for an interview. Md. Code Ann., State Pers. & Pens. § 2-203 (enacted by 2013 Maryland Laws Ch. 160, § 1 (S.B. 4). Certain positions are exempt, including law enforcement-related positions and positions where a criminal records check is mandated by statute. See id.

  Since 2007, the city of Baltimore has had its own ban-the-box policy for public employment. The criminal history of potential administrative hires in “positions of trust” are not investigated or inquired about until the final stages of the hiring process. See Policy AM-237-1 at http://www.nelp.org/page/-/SCLP/BaltimorePolicyonPositionsofTrust.pdf?nocdn=1; see also National Employment Law Project, Ban the Box Resource Guide 7 (2013), available at http://www.nelp.org/page/-/SCLP/2011/CityandCountyHiringInitiatives.pdf?nocdn=1. Additionally, a conviction may only be disqualifying after “fair consideration of the relationship between an conviction and the applicant’s suitability for a particular position.” AM-237-1 at 4.

  Under state law, a consumer reporting agency cannot report conviction information that is older than seven years for purposes of employment, if the job about which information sought is expected to pay an annual salary less than $20,000. Md. Code Ann., Com. Law § 14-1203(a)(5). See also Part II B, supra, regarding disclosure of arrest or conviction that has been expunged in context of application for employment, education, or government license. Md. Code Ann., Crim. Proc. § 10-109.

  B. Occupational licensing

  Md. Crim. Proc. Code § 1-209(c) states that “[i]t is the policy of the State to encourage the employment of nonviolent ex-offenders and remove barriers to their ability to demonstrate fitness for occupational licenses or certifications required by the State.” This policy specifically does not apply to a person who was previously convicted of a crime of violence, as defined in § 14-101 of the Criminal Law Article . § 1-209(b). It is described more specifically in § 1-209(d):

  A department may not deny an occupational license or certificate to an applicant solely on the basis that the applicant has previously been convicted of a crime, unless the department determines that:

  (1) there is a direct relationship between the applicant’s previous conviction and the specific occupational license or certificate sought; or
  (2) the issuance of the license or certificate would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

  Standards for making these determinations are set forth at § 1-209(e), and direct the licensing authority to consider

  In 2019, HB22 provided that a person may not be denied a license based on conviction, even if the disqualifying standards in §1-209(d) apply, if 7 years or more have passed since completion of sentence without other charges, unless a person is required to register as a sex offender. §1-209(f)(1) and (2).

  Drug convictions are specifically subject to a similar statutory policy and standards, although there is no exception for crimes involving violence. See Md. State Gov’t Code § 10-1405(b)(In deciding whether to deny an application for a license or whether to impose license sanctions against a licensee and the nature of the sanctions, a licensing authority “shall consider” (1) the relationship between the drug crime and the license; (2) the nature and circumstances of the drug crime; (3) the date of the drug crime; and (4) any other relevant information.)

  In May 2018, HB 1597 was signed into law requiring certain licensing agencies to report to the Governor and the General Assembly, by October 1, 2018, the following information disaggregated by year: (1) How many applications for occupational licensure or certification were received during the preceding 5 years; (2) Of those applications received during that time, how many applicants had a criminal record that would be applicable under 1-209; (3) Of those applications with a criminal record that would be applicable under 1-209, how much time had passed since the criminal conviction, and how many applications were denied based on a prior conviction; and (4) Of the applications denied based on a prior convictions, under which specific exemption in 1-209(d) was the license or certificate denied. 12

  Certificate of Rehabilitation

  Beginning in October 2017, the Department of Public Safety and Correctional Services “shall issue” a Certificate of Rehabilitation to individuals convicted of non-violent and non-sexual felonies and misdemeanors who were supervised by the Division of Parole and Probation under conditions of parole, probation, or mandatory release supervision, and who have completed all such conditions, including the payment of all required fines, fees, restitution, and other court debt. Md. Code Ann., Corr. Servs. § 7-104 (enacted by the 2016 Justice Reinvestment Act, SB-1005). Only one certificate may be issued in a person’s lifetime. § 7-104(E). Although the Department lacks the discretionary authority to deny a certificate to eligible applicants, applicants still bear the burden of submitting a written request for a certificate. Md. Code Regs. § 12.13.02.05(A).

  Notwithstanding the law’s mandatory language, the Department is required to promulgate rules establishing an application and review process that allows the state’s attorney and victim to object to issuance, rules that took effect in June 2018. § 7-104(G), Md. Code Regs. § 12.13.02.01 et seq. When requesting a certificate, an applicant must authorize the Division to perform a Criminal History Record Information check, though there is no fee. This investigation into an applicant’s eligibility must be completed within 45 days of receiving the request. If an applicant is found eligible, written notice must be sent within 5 workdays. Once the Division intends to issue a certificate, any victims and the State’s Attorney must be given 15 calendar days to comment. §§ 12.13.02.05(B), 12.13.02.06.

  The DPSCS certificate website contains the following “fact sheet” on the certificate, which explains that it removes automatic licensing bars and is helpful in establishing the “character” component of a licensing investigation. See https://dpscs.maryland.gov/parole_and_probation/Certificate-of-Rehabilitation-QandA.pdf. The application form can be downloaded from the DPSCS website (https://dpscs.maryland.gov/parole_and_probation/), or obtained from any Maryland Division of Parole and Probation office. According to a 2021 Justice Reinvestment Act report, in fiscal 2021, the Department received 12 certificate applications but issued 10 certificates. For the two denials, one was denied due to a failure to fully pay while the other was still under active supervision. (See the report: https://dlslibrary.state.md.us/publications/JCR/2021/2021_146a_2021.pdf)

  The legal effect of a “Certificate of Rehabilitation” is set forth in § 7-104(C). It bears noting that the “direct relationship” and “unreasonable risk” standard apply to all applicants for licenses who have a non-violent criminal history , excluding drug offenses. See Md. Crim. Proc. Code §§ 1-209(d), Md. State Gov’t § 10-1405(b)(1).

  A licensing board may not deny an occupational license or certificate to an applicant who has been issued a certificate of rehabilitation solely on the basis that the applicant has previously been convicted of the crime that is the subject of the certificate of rehabilitation, unless the licensing board determines that:

  1. 1. There is a direct relationship between the applicant’s previous conviction and the specific occupational license or certificate sought; or
     2. The issuance of the license or certificate would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

     When determining whether a conviction is directly related to a license or involves a risk to property or the public a board must consider a list of factors similar to those in COMAR 09.01.10.02, described in the previous section. § 7-104(D).

     Prior to February 2016, felony offenders did not regain the right to vote until the completion of any period of probation or parole. The 2015 bill that limited disenfranchisement to those serving a prison term was enacted over the veto of Governor Larry Hogan. See Erin Cox, Released felons gain right to vote in Maryland after veto override, Balt. Sun, Feb. 10, 2015, available athttp://www.baltimoresun.com/news/maryland/politics/bs-md-felons-voting-20160209-story.html. Eight years earlier, the 2007 Voting Registration Protection Act restored the vote to most after completion of sentence. Prior to that time, recidivists were required to wait three years after completion of sentence, and people convicted of two or more crimes of violence were permanently disenfranchised unless pardoned. Persons convicted of bribery, attempted bribery, or buying or selling votes, whether felony or misdemeanor, were permanently disenfranchised and disqualified from holding office, unless pardoned. Passage of the 2007 Act also obviated the confusion historically surrounding the constitutional term “infamous or other serious crime,” which had been held to include some misdemeanors that were regarded as crimes of moral turpitude under the common law, such as perjury. See, e.g., Brennan Center for Justice,Maryland Voter Registration Protection Act of 2007, available athttp://www.brennancenter.org/page/-/d/download_file_48254.pdf. Prior to the passage of the 2007 Act, the most recent list of disqualifying offenses issued by the Office of the Attorney General, dated July 2004, was 21 pages long and included as “infamous crimes” a large number of offenses that appear at least potentially to be misdemeanors. See also Theiss v. State Admin. Bd. of Elec. Laws, 387 F. Supp. 1038, 1040 n. 3 (D. Md. 1974) (1973 “laundry list” includes shoplifting, “child abuse,” and “various offenses relative to prostitution). These time frames were increased in 2019 from six months to 1 year by SB236. The governor also has authority to issue partial and conditional pardons. Md. Code Ann., Correctional Services §§ 7-601(a)(2), (b)(2). The governor is the sole judge of whether a condition of a conditional pardon is violated, but the Parole Commission may hear cases of alleged violations of conditional pardons if so delegated by the governor. §§ 7-602; 7-205(a)(8). Under Governor Robert Ehrlich, pardons were occasionally granted where an individual was charged with a crime but had not yet been convicted: The decision to pardon certain individuals has arisen when an individual is charged and a nolle prosequi is entered or the charge is stetted. This has proven especially helpful for individuals who wish to obtain security clearance (and, thus, maintain their jobs) under the new Homeland Security/TSA rules that govern airport employees (apparently, a nolle prosequi under those guidelines is tantamount to a ‘conviction’). E-mail from Chrysovalantis “Chrys” P. Kefalas, Deputy Counsel, Governor’s Office, June 10, 2005 (on file with author). In such cases there is no eligibility period. Id. “No one convicted of first-degree murder in Maryland has ever been pardoned.” Don Markus, Columbia Man, 18, Pleads Guilty to Assault, Armed Robbery, The Baltimore Sun, July 28, 2009, at 5A, available athttp://articles.baltimoresun.com/2009-07-28/news/0907270070_1_murder-sentence-fleming-columbia-man. In September 2022, the Appellate Court of Maryland held that, “where appellant violated the terms of his probation, and the court closed his probation unsatisfactorily, he did not “satisfy” his sentence of probation”. In re Expungement Petition of Abhishek I., 265 Md. App. 464 (2022)(a person whose probation is closed unsatisfactorily is not eligible for expungement because their sentence has not been completed). Implementing legislation changed numerous code references to “marijuana” to “cannabis,” thus that is the term used here. See§ 5-101(E-1)(1). Under revised sections of the criminal code, use or possession of a “personal use” amount of cannabis by a person under 21, or possession of a “civil use” amount by any person, are civil offenses, § 5-601(c)(2)(ii), and neither constitute possession with intent to distribute in violation of § 5-602(b)(2) “without other evidence of an intent to distribute or dispense.” Police investigative files are not subject to expungement. Md. Code Ann., Crim. Proc. § 10-102(c)(5)-(6). See alsoGigeous v. Eastern Correctional Institution, 752 A.2d 1238 (Md. App. 2000), aff’d, 769 A.2d 912 (Md. 2001) (investigatory files not subject to expungement and can be used for police investigative purposes). See The High Cost of a Fresh Start: A State-by-State Analysis of Court Debt as a Bar to Record Clearing, “Laws authorizing discretionary denial of record clearing based on outstanding court debt may give rise to substantial inconsistency and potential for bias and arbitrariness depending on how judges and prosecutors exercise their discretion.” https://www.nclc.org/wp-content/uploads/2022/08/Report-High-Cost-of-Fresh-Start.pdf. See also COMAR (Code of Md Reg) 09.01.10.02 (restating and elaborating these standards). The following standards shall be considered in the grant, denial, renewal, or revocation of a license, when an applicant or licensee has been convicted of a crime:
     1. The nature of the crime;
     2. The relationship of the crime to the activities authorized by the license;
     3. The relevance of the conviction to the fitness and qualification of the applicant or licensee to perform the occupation authorized by the license;
     4. Other crimes of which the applicant or licensee has been convicted;
     5. The length of time since the conviction;
     6. The behavior and activities of the applicant or licensee before, and subsequent to, the conviction. The reporting requirements apply to the Department of Agriculture, the Department of the Environment, the Maryland Department of Health, the Department of Human Services, the Department of Labor, Licensing, and Regulation, and the Department of Public Safety and Correctional Services. As originally introduced and until shortly before its enrollment, HB 1597 contained more specific standards and time limits governing agency consideration of conviction record in licensing. It was rewritten shortly before enrollment to contain only a reporting requirement. The report filed October 1, 2018 by the Department of Labor found no licenses denied between 2014 and 2018 by any of the boards it administered; the report filed by the Department of Health found about 20% of applications denied by boards it administers. See Report to Governor & General Assembly on applications for occupational licenses & certificates with certain data on criminal records & convictions. https://msa.maryland.gov/msa/mdmanual/20dllr/html/dllrr.html.