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OCTOBER 9, 2005

VIRGINIA
I.

Automatic Restoration of Rights: N/A
Person convicted of felony loses right to vote and serve on jury. Va. Const. art.
II, § 1; Va. Code Ann. § 8.01-338 (2). Right to vote regained only by action of
the governor, through restoration of rights or pardon. Va. Const. art. V, § 12. See
also Va. Stat. Ann. § 53.1-231.2 (procedure for petitioning court for restoration,
with subsequent referral to governor for action).

II.

Discretionary Restoration Mechanisms:
A. Executive pardon:
•

Authority: Governor may grant full pardon or limited restoration of rights.
Va. Const. art. V, § 12. Constitution also requires governor to make
annual report to the legislature setting forth “the particulars of every case”
of pardon granted, with reasons.

•

Administration: Legislature has authorized Parole Board at the request of
the governor to investigate and make recommendations on pardon cases,
but this does not limit governor’s power. Va. Stat. Ann. §§ 53.1-136(5),
53.1-231. Secretary of the Commonwealth alone makes recommendation
in restoration of rights cases. Parole Board consists of five members
appointed by the governor to open-ended terms. No more than two are
full-time. One must be representative of victims group.

•

Eligibility:
o Restoration of rights: Three years after completion of sentence for
nonviolent applicants, five years after completion of sentence for
violent and drug offenses (other than simple possession), and election
fraud. No offenses are specifically excluded, but governor may decide
not to grant some due to nature of offense or some other unstated
subjective criterion.
http://www.commonwealth.virginia.gov/Clemency/RORpplicantsLetter.pdf.
o Pardon: Five years after completion of sentence. Federal and out-ofstate offenders are also eligible. See
http://www.commonwealth.virginia.gov/Clemency/clemency.cfm.
Eligibility rules informal, dating from 1990.

•

Effect:
o Restoration of rights restores right to vote, sit on jury, hold public
office, and serve as a notary public.

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o Pardon: “Simple” pardon does not expunge the record, but “it does
constitute official forgiveness and often serves as a means for the
petitioner to advance in employment, education, and self-esteem.” See
“Pardon Letter,”
http://www.commonwealth.virginia.gov/Clemency/pardonLetter2002.
doc. “Absolute” pardon generally granted only for innocence.
(“Conditional” pardon reduces sentence.) Pardon is useful in
signifying rehabilitation, but Virginia authorities advise that it is not
clear what if any legal effect a pardon may have under state law.
Pardon does not entitle a person to judicial expungement unless
granted for innocence (“absolute” pardon). Neither restoration of
rights nor pardon restores right to possess firearms, which is controlled
by court. Va. Stat. Ann. §18.2-308.2, amended by 2005 Va. Acts ch.
600 and 2005 Va. Acts ch. 833; see also
http://www.commonwealth.virginia.gov/FAQs/FAQs.cfm#clem
•

Process:
o Restoration of rights – In 2003, Governor Warner implemented
expedited application process for non-violent offenders seeking right
to vote. Simple one-page application filed with Secretary of
Commonwealth, who does a records check. Longer 13-page
application form still necessary for persons convicted of violent
offenses, including drug trafficking offenses, and election fraud.
Restoration of rights first step in pardon application process. Va. Stat.
Ann. § 53.1-231.1 requires Director of Corrections to give notice upon
completion of sentence of procedure for regaining rights.
o Court route to restoration - Alternative process through petition to
local circuit court to restore right to vote (unavailable for those
convicted of violent felonies, drug-trafficking, or election fraud).
Petition filed with court, which holds a hearing and makes a
determination as to whether the person has demonstrated “civil
responsibility,” then makes recommendation to the governor. Va. Stat.
Ann. § 53.1-231.2.
o Pardon - applications are sent to Parole Board for investigation, and
Board makes nonbinding recommendation to governor. Va. Code
Ann. § 53.1-136(5). “Evidence of good citizenship is required, as are
favorable recommendations from the official involved in the case and
the Virginia Parole Board.” See Pardon Letter, supra. The governor is
required by the state constitution to give a reason for each grant in his
report to the legislature (see above), but he generally gives no reasons
for denials.

•

Frequency of Grants:
o Restoration: Between January 2002 and June of 2005, Governor
Warner restored civil rights to 2,375 people. During the same period
136 applications were rejected, generally based on seriousness of

Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction, October 2005

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offense or overall criminal record. (Predecessor Governor Gilmore
restored rights to 238 people, and his predecessor George Allen to 480.
Governor Robb restored rights to 1180 people between 1982 and
1986.)
o Pardon - In 2004 there were 231 requests for pardon, and 12 were
granted (one medical, one to avert deportation). Three pardons were
granted in 2003. As of June 2005, Governor Warner had granted a
total of 37 pardons in his first 30 months in office. Source: Office of
the Secretary of the Commonwealth
•

Contact: Lynn Clayton, Restoration of Rights Specialist, Office of the
Secretary of the Commonwealth, 804-692-2531; lynn.clayton@
governor.virginia.gov.

B. Judicial Restoration or Expungement
Expungement available only where pardon is for innocence.
C. Administrative certificate: N/A
III.

Nondiscrimination in Licensing and Employment:
Va. Stat. Ann. § 54.1-204 (“Prior convictions not to abridge rights”): A person
shall not be refused a license or occupational/professional certificate “solely
because of” a prior criminal conviction, unless the criminal conviction “directly
relates” to the occupation or profession for which the license, certificate or
registration is sought. However, the regulatory board shall have the authority to
refuse a license, certificate or registration if, based upon all the information
available, including the applicant'
s record of prior convictions, it finds that the
applicant is unfit or unsuited to engage in such occupation or profession.
In determining whether a criminal conviction directly relates to an occupation or
profession, the regulatory board shall consider the following criteria: 1. The
nature and seriousness of the crime; 2. The relationship of the crime to the
purpose for requiring a license to engage in the occupation; 3. The extent to which
the occupation or profession might offer an opportunity to engage in further
criminal activity of the same type as that in which the person had been involved;
4. The relationship of the crime to the ability, capacity or fitness required to
perform the duties and discharge the responsibilities of the occupation or
profession; 5. The extent and nature of the person'
s past criminal activity; 6. The
age of the person at the time of the commission of the crime; 7. The amount of
time that has elapsed since the person'
s last involvement in the commission of a
crime; 8. The conduct and work activity of the person prior to and following the
criminal activity; and 9. Evidence of the person'
s rehabilitation or rehabilitative

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effort while incarcerated or following release. Applicant denied licensure because
of criminal record shall be so informed.

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Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction, October 2005