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JANUARY 8, 2015
INDIANA
I. Restoration of Civil Rights/Firearms Privileges
Civil Rights: Vote: The Indiana Constitution authorizes the legislature to pass laws disenfranchising those
convicted of an “infamous crime.” Ind. Const. art. 2, § 8 (“The General Assembly shall have power to deprive of
the right of suffrage, and to render ineligible, any person convicted of an infamous crime.”).1 In addition, Indiana
law provides that a person who has been imprisoned following conviction of a “crime” may not vote until release
from incarceration or other lawful detention. Ind. Code § 3-7-13-4. See Snyder v. King, 958 N.E.2d 764, 785-86
(Ind. 2011)(holding that “the Indiana General Assembly has authority under its general police power to
disenfranchise persons incarcerated upon conviction of a crime, so long as the disenfranchisement lasts only for
the duration of incarceration”).
Jury: A person who “has had the right to vote revoked by reason of a felony conviction and the right has not been
restored” is disqualified from jury service; the right to serve as a juror is automatically restored upon restoration
of the right to vote. Ind. Code § 33-28-5-18.
Office: A person convicted of a felony, or who pled guilty or nolo contendere, is disqualified from holding or
being a candidate for elected office. § 3-8-1-5(c)(3). Whenever a person is convicted of misdemeanor violation of
the laws against bribery, conflict of interest, and official misconduct, the sentencing court may include in the
sentence an order rendering the person ineligible to hold office of profit or trust for a period not to exceed 10
years. § 35-50-5-1.1(a). Disabilities affecting the right to hold office may be removed by expungement under
Ind. Code § 35-38-9 (see Part II, infra) or by pardon.
Firearms: Indiana’s laws relating to gun possession by convicted persons appear to bar possession of handguns
only. See, e.g., Ind. Code § 35-47-2-3(g)(1)(license to carry a handgun shall not issue to anyone convicted of a
felony). Under these laws, those convicted of a felony or of domestic battery are barred from handgun licensure.
§§ 35-47-2-3(g)(1), 35-47-2-1(c), 35-47-4-7(a). Restoration by expungement, §§ 35-38-9-10(b), or by
governor’s pardon if 15 years have passed since commission of the offense. § 35-47-2-20. The governor may
issue a conditional pardon under § 11-9-2-4, which will remove the handgun disability “if the superintendent [of
State Police] determines after an investigation that circumstances have changed since the pardoned conviction was
entered to such an extent that the pardoned person is likely to handle handguns in compliance with the law.” § 3547-2-20. A person convicted of domestic violence may petition the court five years after conviction to regain
firearms privileges. § 35-47-4-7-(b).2
In 2011, the Indiana Supreme Court reversed the line of cases finding that an “infamous crime” for purposes of these
authorities refers to any or all felonies. See Snyder v. King, 958 N.E.2d 764, 781 (Ind. 2011) (“infamous crime includes any
crime involving an affront to democratic governance or the public administration of justice such that there is a reasonable
possibility that a person convicted of such crime poses a threat to the integrity of elections”) “Prototypical examples of
infamous crimes” under the Snyder v. King standard “are treason, perjury, malicious prosecution, and election fraud.” Id.
Misdemeanor battery does not constitute an infamous crime, and the legislature may therefore disenfranchise someone
convicted of this crime only under its general police power, and only if the person is sentenced to prison for the duration of
the prison term. Id. at 785-86.
1
See also United States v. Wagner, 976 F.2d 354 (7th Cir. 1992)(unclear status of individual’s firearms rights under state law
did not preclude federal prosecution under 18 U.S.C. § 922(g)). In Wagner, 976 F.3d 354, the Court of Appeals noted that,
at the time, Indiana did not have a statute explicitly restoring civil rights to a convicted felon who has completed his sentence
so as to make 18 USC § 921(a)(20) available as a defense. However, the 2013 expungement law restores civil rights
including firearms rights to those whose convictions have been expunged. See Ind. Code § 35-38-10(c). Expungement
specifically does not remove firearms disabilities for individuals convicted of misdemeanor domestic violence. See § 35-389-6(f).
2
Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2015
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II.
A.
Discretionary Restoration Mechanisms
Executive pardon
 Authority: The constitution gives pardon power to the governor, “subject to such regulations as may be provided
by law.” It also authorizes the legislature to create a “council composed of officers of state, without whose
advice and consent the Governor may not grant pardons.” Ind. Const. art. 5, § 17. In 1980, the legislature
abolished the Commission on Clemency, and gave the Parole Board authority to review applications and make
advisory recommendations to the governor regarding applications for pardons, commutations, and reprieves. See
Ind. Code §§ 11-9-2-1 to 11-9-2-3. While there is a statutory requirement that all applications for pardon be filed
with the Board, § 11-9-2-1, there is also a specific disclaimer of any intent to limit the constitutional power of the
Governor. § 11-9-2-3.3 The constitution requires the governor to report to the legislature his pardons at next
scheduled meeting. Ind. Const. art. 5, § 17.
 Administration: The Parole Board consists of five members appointed by the governor to four-year terms. Not
more than three of these members may be from same party. Ind. Code § 11-9-1-1(a). The Parole Board
members are full-time salaried employees.
 Eligibility: Recent governors have required a 5-year waiting period and evidence of rehabilitation. A person
convicted under the laws of another state or by the federal government is ineligible for a pardon. Firearms
disability relieved only after 15 years.
 Effect: The Indiana Supreme Court has held that pardon essentially wipes out both the punishment prescribed
for the offense and the guilt of the offender. Kelley v. State, 185 N.E. 453, 458-59 (Ind. 1933). Based on the
Supreme Court’s holding in Kelley, the Indiana Court of Appeals has found that a pardon provides automatic
grounds for judicial expungement. See State v. Bergman, 558 N.E.2d 1111 (Ind. Ct. App. 1990). A pardon
removes firearm disabilities, except for crimes against the person, “if fifteen (15) years have elapsed between
the time of the offense and the application for a license under this chapter.” Ind. Code § 35-47-2-20(a). In
addition, a pardon may be issued that is conditional upon a determination by the Superintendent of State Police
that the person is “likely to handle handguns in compliance with the law.” § 11-9-2-4. If that determination is
made in conjunction with such a conditional pardon, the firearms disability is removed. §§ 11-9-2-4, 35-47-220(b).
 Process: The governor is recent years has relied upon the Parole Board for all pardon investigations and accepts
a majority of its recommendations. Applications are filed in the first instance with the Parole Board.
Instructions and application forms are at http://www.in.gov/idoc/files/online_pardon_packet.pdf. The Indiana
pardon process is described in detail at http://www.pardon411.com/wiki/Indiana_Pardon_Information.
By statute, the Parole Board must: 1) notify the victim, sentencing court, and prosecuting attorney; 2) conduct an
investigation; and 3) conduct a hearing at which the petitioner and other interested parties are given an
opportunity to present their position. Ind. Code § 11-9-2-2(b). Whenever the Parole Board is conducting an
inquiry, investigation, hearing, or review, it may delegate that function to one or more members of the Board. §
11-9-1-3(a). If one or more member acts on behalf of the Board, he or she may exercise all the powers of the
Board except the power to render a final decision. § 11-9-1-3(b). Upon completion of the inquiry, the member
acting on behalf of the Board files the complete record of the proceedings together with his or her findings,
conclusions, and recommended decision. Based upon the record and the findings, conclusions, and
3
The statutory requirement that all applications for clemency be filed with the Parole Board has evidently not been
interpreted in practice as a limitation on the governor’s power to pardon without consulting the board. See “Frequency of
Grants,” Part IIA.
Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2015
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recommendations, the Board renders a final decision. Id. In making its recommendation to the governor, the
board must consider: “1) the nature and circumstances of the crime for which the offender is committed, and the
offender’s participation in that crime; 2) the offender’s prior criminal record; 3) the offender’s conduct and
attitude during commitment; and 4) the best interests of society.” 220 Ind. Admin. Code 1.1-4-4(d).
Additionally, in making its recommendation to the governor, the board may consider other issues relating to the
offender and his rehabilitation. 1.1-4-4(e). This process takes six to eight months to complete.
 Frequency of Grants: Governor Mitch Daniels (2005-2013) granted 62 pardons during his eight years in office,
generally pursuant to favorable Board recommendations. Several pardons went to non-citizens seeking to avoid
deportation, and many to minor drug offenders (though only three to those convicted of selling drugs). See
Executive Order archives, http://www.in.gov/gov/3635.htm. In the seven-year period between 1997 and 2004,
129 pardons were granted, and a high percentage of those who applied were granted. 4 Source: Indiana Parole
Board.
 Contact: Clint Schelle, Parole Board, 317-232-5789, [email protected].
B. Judicial expungement and sealing
Expungement and sealing: A comprehensive new law enacted in May 2013 authorized “expungement” of all but
the most serious violent and sexual offenses, and “sealing” of minor offenses. See Ind. Code § 35-38-9.5 (The
term “expungement” is not defined except by its practical effect, which involves restricting the use of records
that have been expunged, as further explained below.) Expungement is available after a waiting period that
varies depending upon the seriousness of the offense, and is mandatory where eligibility criteria are met for
non-conviction records, misdemeanors and less serious felonies. 6 As explained below, non-conviction records
and records of misdemeanors and minor felonies are “sealed” upon expungement, which limits public access
without a court order. While the record of more serious felonies “remain public” after expungement, there are
limits on the uses to which they may be put. A petitioner must have completed the terms of a court-imposed
sentence, and may not waive the right to seek expungement as part of a plea agreement. The law was amended
in March 2014 to add certain procedural provisions and clarify eligibility requirements. 7
4
According to the Parole Board, there have been few commutations granted since 1989, since courts have sentence
modification authority and prison administrators have generous good time authority. In 2004, two death sentences were
commuted to life without parole, one on the recommendation of the Parole Board and one by the Governor without
consulting the Board.
The process leading up to enactment of this comprehensive scheme is described by the legislation’s chief sponsor,
Rep. Jud McMillin, in Indiana’s new law the product of ‘many many compromises,’” Collateral Consequences
Resource Center, December 15, 2014, http://ccresourcecenter.org/2014/12/15/indianas-new-expungement-lawproduct-many-many-compromises/.
5
6
The Indiana Court of Appeals ruled in Taylor v. State, No. 45A03-1310-CR-406 (April 17, 2014), that the word
“shall” in § 35-38-9-2 left the court with no discretion to withhold expungement of a misdemeanor sex offense,
notwithstanding the objections of the victim. The same mandatory term appears in §§ 35-38-9-1 (non-conviction
records) and 35-38-9-3 (Class D felonies). The Taylor court pointed out that a victim’s objections may be weighed
only where expungement is discretionary, as is the case with more serious felonies under §§35-38-9-4 and -5.
7
The 2014 amendments specify where a petition for expungement must be filed, provide that expungement
proceedings may be closed (including to victims), change a petitioner’s burden of proof from “clear and convincing”
to “preponderance,” remove a prohibition against a waiver or reduction of the filing fee for an indigent person, grant
a defense attorney and a probation department access to expunged records if authorized by court order, and allow a
court to accept filing of a subsequent petition for expungement that includes convictions not named in the original
petition under certain circumstances. The 2014 amendments reduce waiting periods while requiring a petitioner to
have completed the terms of his court-imposed sentence, and add a prohibition on waiving the right to expungement
Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2015
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 Non-conviction records and vacated convictions: Non-conviction records and convictions vacated on
appeal may be expunged and sealed by the court in which the charges were brought or sentenced imposed, or
a court of general criminal jurisdiction in the event no charges were brought, after one year. § 35-38-9-1.
Once records are sealed under this provision, “only a criminal justice agency may access the records without
the order of a court.” § 35-38-9-1(d).
 Misdemeanors and Low-level Felonies: Records of most misdemeanors and Class D felonies or level 6
felonies that are expunged are automatically sealed and may not be released -- even to a prosecutor -without a court order. Ind. Code §§ 35-38-9-2, -3, -6(a). If sealed records are unsealed upon request of a
prosecutor to use in a subsequent prosecution of the person, or to a defense attorney, they shall be resealed at
the earliest possible time if the person is not convicted, but need not be resealed if a new conviction results.
§ 35-38-9-6(d).
 Felonies: Felonies may also be expunged, with certain exceptions (e.g., offenses involving sex, violence, or
misconduct in office), after varying waiting periods, but they are not sealed. The record of these more
serious felonies “remain public” after expungement, although they must be “clearly and visibly marked or
identified as being expunged.” § 35-38-9-7.
Eligibility waiting periods: A petition for expungement may be granted only after completion of sentence
(including payment of fines and restitution) and only if the person has no pending criminal charges or
existing/pending drivers’ license suspensions. See, e.g., Ind. Code § 35-38-9-2(d). Persons convicted of
misdemeanors are eligible to petition for expungement five years after conviction (unless the prosecutor
consents to a shorter period). Id. Persons convicted of felonies may apply for expungement eight years after
conviction or three years after completion of sentence whichever is later (unless the prosecutor consents to a
shorter period), if the crime was not committed while holding elective office and did not involve sex or
violence. §§ 35-38-9-2 through -4. Felonies committed while holding elective office or involving serious
bodily harm may be expunged ten years after conviction, or five years after completion of sentence. Offenses
involving serious violence, official misconduct, human/sex trafficking, or sex crimes are not eligible for
expungement. § 35-38-9-5(b).
Procedures and scope of relief: Procedures for filing an expungement petition with the sentencing
court are set forth in Ind. Code § 35-38-9-8. Expungement may be granted without a hearing unless the
prosecutor objects. § 35-38-9-9(a). A petitioner may seek to expunge more than one conviction at the
same time, but may file only one petition in the petitioner's lifetime – except that if a petition is denied
on the merits then a subsequent petition covering some or all of the convictions in the original petition
may be filed after three years. § 35-38-9-9(h), (i) and (j). Subsequent petitions may be filed only for
convictions included in the original petition. § 35-38-9-9(j).
Those filing for expungement must pay the filing fees required for filing a civil action ($141), and this
requirement may not be waived. The only exception to the filing fee requirement is a petition for
expungement of arrest records. § 35-38-9-1(c). See also id. at 2(c), 3(d). “A petition for expungement
and an order for expungement are confidential.” § 35-38-9-10(i). The Indiana courts have published
sample petitions for expungement at http://www.in.gov/judiciary/2706.htm.
as part of a plea agreement. They specify that access to expunged records will be grated to: (1) the supreme court and
the state board of law examiners to determine a person's fitness for admission to the bar; and (2) a person required to
access expunged records to comply with the federal Secure and Fair Enforcement for Mortgage Licensing Act.
Finally, they specify the procedure to regain the right to possess a firearm by a person convicted of a misdemeanor
crime of domestic violence after five years.
Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2015
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Effect of expungement:
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Restoration of rights: Civil rights, including voting rights and eligibility for public office and jury
service, are restored upon expungement, as are firearm rights (“to the extent not prohibited by federal
law”). § 35-38-9-10(b).
Discrimination: “It is unlawful discrimination for any person to” refuse to employ, admit or license or
“otherwise discriminate against” a person because of a conviction or arrest record that has been expunged
or sealed. Ind. Code § 35-38-9-10(a). A person whose record is expunged shall be treated “as if the
person had never been convicted of the offense,” except that an expunged conviction may be considered
in imposing sentence in the event of a subsequent conviction. § 35-38-9-10(d). Any person that so
discriminates commits a Class C infraction and may be held in contempt by the court issuing the order of
expungement or by any other court of general jurisdiction. §35-38-9-10(e).
Employer inquiry: In any application for employment, license or “other right or privilege, a person may
be questioned about a previous criminal record only in terms that exclude expunged convictions or
arrests, such as: ‘Have you ever been arrested for or convicted of a crime that has not been expunged by a
court?’" § 35-38-9-10(c).
Negligent hiring: In any action alleging negligence an expungement order may be introduced as evidence
of due care, and expunged convictions are not admissible as evidence of negligence against a person who
relied on the expungement order. § 35-38-9-10(f) and (g).
Public records: The records of convictions that have been expunged but not sealed “remain public,”
although they must be “clearly and visibly marked or identified as being expunged.” § 35-38-9-7.
Credit reporting: Convictions that have been expunged may not be reported by credit reporting
companies. See Ind. Code § 24-4-18-6(a).
Exceptions: Expungement orders do not affect sex offender registration or driver’s license suspension. §
35-38-9-6(e), -7(b). Expungement orders do not automatically restore firearms rights to persons
convicted of domestic violence, who must wait five years before petitioning the court for restoration.
Felony knocked down to Misdemeanor: Certain Class D felonies committed prior to July 1, 2014, or level 6
felonies committed after that date, may be converted to Class A misdemeanors upon entry of judgment on a onetime basis (DV and child pornography offenses are ineligible). Ind. Stat. § 35-50-2-7(c). In addition, court may
convert conviction of Class D felony (or level 6 felony) to a Class A misdemeanor upon petition of the convicted
person three years after completion of sentence, upon satisfaction of certain conditions and with the agreement of
the prosecutor, as long as there has been no intervening conviction. Ind. Code § 35-50-2-7(d). Sex offenses and
offenses involving violence or official corruption are not eligible. If a person whose Class D felony conviction
has been converted to a Class A misdemeanor conviction under subsection (c) is convicted of a felony within five
(5) years after the conversion under subsection (c), the prosecuting attorney may petition a court to convert the
person's Class A misdemeanor conviction back to a Class D felony conviction. § 35-50-7-2 (e). Expungement
and sealing of records that have been converted is governed by § 35-38-9-2, discussed above.
Expungement of Pardoned Convictions: The Indiana courts have recognized the court’s ability for judicial
expungement following a pardon (discussed above). See State v. Bergman, 558 N.E.2d 1111 (Ind. Ct. App.
1990).
Deferred prosecution/adjudication: Indiana law authorizes deferral or continuance of prosecution for drug
abusers and alcoholics charged with less serious felonies, if they have no more than one prior conviction and no
other charges pending. See Ind. Code §§ 12-23-6-1, 12-23-7-1 et seq. The defendant “must waive a jury trial
and consent to a trial by the court or must enter a guilty plea, with the general finding to be entered by the court to
be deferred until the time that prosecution may be resumed.” § 12-23-7-2. If the treatment is completed
successfully, the charges must be dismissed. § 12-23-7-11. See also State v. Nix, 833 N.E. 2d 541 (Ind. Ct. App.
2005). With the consent of the defendant and the prosecuting attorney, a court may defer prosecution for up to
one year for a defendant charged with a misdemeanor or infraction in which the use of alcohol or drugs was a
Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2015
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contributing factor or material element of the offense or the defendant's mental illness was a contributing factor,
Ind. Code § 12-23-5-1 et seq. The court may order the defendant to satisfactorily complete an alcohol or drug
treatment program, undergo treatment for mental illness, or satisfy other conditions imposed by the court during
this deferral period. § 12-23-5-2. If the defendant fulfills the conditions set forth by the court, the court shall
dismiss the charges. § 12-23-5-4. A defendant is not eligible for deferral under this section if the offense giving
rise to the prosecution involved a death or serious bodily injury, the defendant has at least two prior felony
convictions, or other criminal proceedings (not arising out of the same incident) alleging the commission of a
felony are pending against the defendant. § 12-23-5-7.
Juvenile adjudications: Expungement is governed by Ind. Code § 31-39-8-2. At any time, a person may petition
the juvenile court to expunge all records pertaining to juvenile delinquency proceedings. Id. In reviewing the
petition, the court considers numerous factors, including the nature of the offense, case disposition, and the
person’s current status. § 31-39-8-3. Upon a court order of expungement, all records are destroyed or given to
the petitioner. § 31-39-8-6. There exists no statutory authority to seal a juvenile record.
C. Administrative Sealing
 Limited sealing: The state police may disclose “limited criminal history” records to noncriminal justice agencies
for a variety of purposes, including where the subject of the records has applied for employment and licensing, or
has been convicted of specified sexual offenses. Ind. Code § 10-13-3-27(a) and (b). “Limited criminal history”
does not include arrest records that do not indicate a disposition more than one year after the arrest. § 10-13-3-11
(defining “limited criminal history”). Any person who knowingly or intentionally uses limited criminal history
for any purpose not specified under this section commits a Class A misdemeanor. § 10-13-3-27(c).
Fifteen years after discharge from probation, imprisonment, or parole (whichever is later), a felony offender may
petition the state police department to limit access to his criminal history to criminal justice agencies. Ind. Code §
35-38-5-5. Records remain available if a person has volunteered services that involve contact with, care of, or
supervision over a child who is being placed, matched, or monitored by a social services agency or a nonprofit
corporation, or is being sought by the parent locator service of the child support bureau of the department of child
services. § 35-38-5-5(a), citing § 10-13-3-27(a)(8) and (12).
III.
Nondiscrimination in Licensing and Employment:
Nondiscrimination in Licensing: Except for serious drug offenses, “a license or certificate of registration that an
individual is required by law to hold to engage in a business, profession, or occupation may not be denied,
revoked, or suspended because the applicant or holder has been convicted of a crime.” Ind. Code § 25-1-1.1-1.
The acts resulting in conviction “may, however, be considered as to whether the applicant or holder should be
entrusted to serve the public in a specific capacity.” Id. The purpose of this provision, which forbids agencies to
use felony or misdemeanor convictions as the sole basis for denial of a license application, is to require that the
nature of the acts underlying a prior conviction be explored and that these acts be related to both a specific
statutory requirement and to the occupation or profession for which a license is sought. Ind. Bd. Registration and
Ed. for Health Facility Adm’rs v. Cummings, 387 N.E.2d 491 (Ind. Ct. App. 1979). Drug offenses are excepted
from this requirement, see § 25-1-1.1-2, and certain serious drug offenses are grounds for mandatory revocation
or denial. See § 25-1-1.1-3. Under Rule 12 Section 2 of the Indiana Rules for Admission to the Bar and
Discipline of Attorneys, persons convicted of a felony are ineligible to sit for the bar. No provisions on public or
private employment.
Fair Credit Reporting: In 2012 a new chapter 24-4-18 was added to the Indiana Code to restrict criminal history
information that may be reported by a “criminal history provider” (background screening company). As
subsequently amended twice in 2013, this chapter permits reporting “only criminal history information that relates
Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2015
IN7
to a conviction,” and prohibits reporting “[a]n infraction, an arrest, or a charge that did not result in a conviction.”
See Ind. Code § 24-4-18-6(a), (b)(1).8 In addition, a criminal history provider may not report information relating
to
 A record that has been expunged;
 A record that is restricted by a court or the rules of a court;
 A record indicating a conviction of a Class D felony (for a crime committed before July 1,
2014) or a Level 6 felony (for a crime committed after June 30, 2014) if the Class D felony
or Level 6 felony conviction
(A) has been entered as a Class A misdemeanor conviction; or
(B) has been converted to a Class A misdemeanor conviction;9
 A record that the criminal history provider knows is inaccurate.
“A criminal history provider may not include criminal history data in a criminal history report if the criminal
history data has not been updated to reflect changes to the official record occurring sixty (60) days or more before
the date the criminal history report is delivered.” § 24-4-18-7.
The Attorney General may enforce sections 6 and 7 through injunction and fines, and a private individual injured
by a violation of these sections may recover damages, court costs and attorney fees. See § 24-4-18-8.
8
PL 112-2013 (effective July 1, 2013) restricted reporting of non-conviction information only insofar as it was
expunged (one year after charges dismissed or conviction vacated). Chapter 24-4-18 was amended by PL 1582013 (effective July 1, 2014) to permit reporting "only criminal history information that relates to a conviction,"
and to preclude reporting "an infraction, an arrest, or a charge that did not result in a conviction." 24-4-18-6 (a),
(b)(1). In other words, until July 1, 2014 non-conviction information may be reported only if it has been
expunged – which may not occur for one year. See supra.
9
It appears that misdemeanors may otherwise be reported unless and until they are expunged.
Margaret Colgate Love, NACDL Restoration of Rights Resource Project, January 2015

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