“When Mercy Seasons Justice”:
Interstate Recognition of Ex-Offender
Rights
Wayne A. Logan*
To the great relief of many, states are now rethinking their draconian
criminal justice policies of the past several decades. In addition to
shrinking prison and jail populations, reforms are underway to expand
opportunities for relief from the collateral consequences of conviction,
such as the loss of the right to vote, serve as a juror, or work in certain
occupations, which can impede the ability of ex-offenders to successfully
reintegrate into society. In coming years, as states seek to reduce their
high recidivism rates, such relief efforts will likely continue to grow in
number; as they do, we should expect to see parallel growth in an
important horizontal federalism challenge.
The challenge comes when ex-offenders, having secured collateral
consequences relief in one state, relocate to another and seek to have their
restored status recognized there. When this occurs a legal conflict
materializes not unlike that of late witnessed with same-sex marriage.

* Copyright © 2015 Wayne A. Logan. Gary & Sallyn Pajcic Professor of Law,
Florida State University. Thanks to Courtney Cahill, Jack Chin, Neil Cohen, David
Logan, Margaret Colgate Love, Hannah Wiseman, and Sam Wiseman for their helpful
comments; special thanks also to Barbara Kaplan, Mary McCormick, AnnaLaura
Rehwinkel and Keith Savino for their wonderful research assistance, and to the UC
Davis Law Review staff for their top-notch editorial work.

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Unlike same-sex marriage recognition, however, which was the subject of
major public debate and legal attention, restoration recognition — despite
its potential impact on many millions more lives — has been largely
ignored. This Article aims to remedy the deficit, providing the first
comprehensive examination of how restoration recognition thus far has
been addressed, and outlining a legislative way forward for states, or
Congress, to balance the important comity, federalism, and state
autonomy interests implicated.
TABLE OF CONTENTS
INTRODUCTION ....................................................................................... 3
I. RESTORATION AND RECOGNITION ................................................ 9
A. Restoration .......................................................................... 10
B. Recognition .......................................................................... 15
1. Statute or Regulation .................................................... 15
2. Caselaw ......................................................................... 17
II. POTENTIAL CONSTITUTIONAL ARGUMENTS ................................ 21
A. Full Faith and Credit ........................................................... 21
B. Privileges and Immunities .................................................... 28
C. Right to Travel .................................................................... 32
D. Equal Protection .................................................................. 35
III. LEGISLATIVE OPTIONS ................................................................ 39
A. States................................................................................... 39
1. The Case for Recognition ............................................. 39
2. The Case Against Recognition ..................................... 42
3. The Case for a More Conditional Approach ................ 44
B. Congress.............................................................................. 48
1. Interstate Compact ....................................................... 48
2. Spending Clause ........................................................... 50
3. Commerce Clause ........................................................ 52
4. Effects Clause ............................................................... 54
CONCLUSION......................................................................................... 56

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INTRODUCTION
America’s federalist system, in which sovereign states enjoy coequal
law-making authority,1 is custom-made for conflict.2 That such
conflicts would occur was certainly not lost on the Constitution’s
Framers, who were at pains to include provisions designed to avoid
fractious state relations marking the Articles of Confederation era.3
Whereas the Constitution contains only one provision regarding legal
disputes between states and the federal government (the Supremacy
Clause),4 four provisions speak to interstate disputes. The Full Faith
and Credit Clause,5 Privileges and Immunities Clause,6 and Fugitive
Slave Clause7 are perhaps best known. Yet equally telling of the
Framers’ concern is the Extradition Clause,8 which requires one state
to surrender an individual to another even if the behavior in question
does not violate the criminal law of the surrendering state.9

1 See, e.g., Underwriters Nat’l Assurance Co. v. N.C. Life & Accident Ins. Guar.
Ass’n., 455 U.S. 691, 704 (1982) (recognizing the “structure of our Nation as a union
of States, each possessing equal sovereign powers”); Kansas v. Colorado, 206 U.S. 46,
97 (1907) (“One cardinal rule, underlying all the relations of the states to each other,
is that of equality of right. Each state stands on the same level with all the rest.”).
2 See Douglas Laycock, Equal Citizens of Equal and Territorial States: The
Constitutional Foundations of Choice of Law, 92 COLUM. L. REV. 249, 250 (1992) (“One
consequence of dividing a single nation into fifty quasi-sovereign states is a constant
need to choose the law that governs interstate disputes.”). As Professor Paul Freund
noted over fifty years ago, “[a] federal system presupposes diversity and must cope
with corresponding tensions.” Paul A. Freund, Umpiring the Federal System, 54
COLUM. L. REV. 561, 561 (1954).
3 See New York v. United States, 505 U.S. 144, 180 (1992) (noting Framers’
awareness of the “disputes that were common under the Articles of Confederation”);
THE FEDERALIST NO. 6, at 54 (Alexander Hamilton) (Clinton Rossiter ed., 1961)
(noting “frequent and violent contests” among states). See generally DAVID C.
HENDRICKSON, PEACE PACT: THE LOST WORLD OF THE AMERICAN FOUNDING 242-48
(Wilson C. McWilliams & Lance Banning eds., 2003) (providing a history of the
creation of the Constitution and the events leading up to it).
4 See U.S. CONST. art. VI, cl. 2 (specifying that the Constitution, federal laws, and
treaties enacted pursuant to it “shall be the supreme Law of the Land”).
5 Id. art. IV, § 1.
6 Id. art. IV, § 2, cl. 1.
7 Id. art. IV, § 2, cl. 3.
8 Id. art. IV, § 2, cl. 2; see also California v. Superior Court, 482 U.S. 400, 405-07
(1987) (stating that “[t]he Federal Constitution places certain limits on the sovereign
powers of the States, limits that are an essential part of the Framers’ conception of
national identity and Union,” and noting that the Extradition Clause numbers among
these provisions).
9 See New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151, 154 (1998).

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Despite these structural mechanisms, interstate conflicts have
persisted over time, as the bitter disputes over the enforceability of the
federal Fugitive Slave Act in the antebellum era10 and, more recently,
same-sex marriage,11 attest. This Article addresses another conflict,
one arising when an individual subject to a collateral consequence of a
criminal conviction — such as the loss of the right to vote, serve on a
jury, possess a firearm, or work in particular occupations12 — secures
relief from the disability in one state and asks that the status change be
recognized in a new state of residence. Although not legally obligated
to do so,13 states typically use sister-state convictions to trigger their
own collateral consequences.14 Need a state recognize another state’s
decision to heed the Immortal Bard and afford mercy?15

10

See generally STEVEN LUBET, FUGITIVE JUSTICE: RUNAWAYS, RESCUERS, AND SLAVERY
TRIAL 42-45 (2010) (discussing how the Fugitive Slave Act divided northern and
southern states). The Act, passed by Congress pursuant to authority ostensibly
granted by the Fugitive Slave Clause, was the subject of litigation for decades, ended
only by adoption of the Thirteenth Amendment in 1865. See Robert J. Kaczorowski,
Popular Constitutionalism Versus Justice in Plainclothes: Reflections from History, 73
FORDHAM L. REV. 1415, 1427-29 (2005).
11 See, e.g., Andrew Koppelman, Interstate Recognition of Same-Sex Marriages and
Civil Unions: A Handbook for Judges, 153 U. PA. L. REV. 2143 (2005) (discussing the
question of interstate recognition in the context of same-sex marriage); Larry Kramer,
Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception,
106 YALE L.J. 1965 (1997) (same).
12 See generally NAT’L INVENTORY OF THE COLLATERAL CONSEQUENCES OF
CONVICTION, http://www.abacollateralconsequences.org/user_guide/ (last visited Jan.
25, 2015) (providing an overview of collateral consequences imposed by states).
13 See Logan v. United States, 144 U.S. 263, 303 (1892) (citations omitted) (“At
common law, and on general principles of jurisprudence, [a conviction in one
state] . . . can have no effect, by way of penalty, or of personal disability or
disqualification, beyond the limits of the state in which the judgment is rendered.”),
abrogated on other grounds by Witherspoon v. Illinois, 391 U.S. 510 (1968); Clark v.
Gadden, 432 P.2d 182, 185 (Or. 1967) (“No state is required to take notice of foreign
convictions . . . . Each state is free to give foreign convictions such force as it deems
proper in the administration of local sentencing policy.”).
14 See Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of
Mass Conviction, 160 U. PA. L. REV. 1789, 1802-03 (2012).
15 WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE act 4, sc. 1:
ON

The quality of mercy is not strain’d,
It droppeth as the gentle rain from heaven
Upon the place beneath . . .
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice.

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To date, the question has received only limited attention. While a
handful of states have required recognition vis-à-vis particular rights,16
only a single state, Vermont (adopting a model provision advanced by
the Uniform Law Commission17 and backed by the American Bar
Association18), has enacted a broad-gauged recognition statute.19
Meanwhile, on the few occasions the matter has been addressed,
courts typically have rejected challenges to state refusal to recognize
restored status.20 As a consequence, individuals who secure relief in
one state, and exercise their constitutional right to travel to another
state,21 will likely experience a negative status change in their new

16

See infra Part I.B.1.
See Collateral Consequences of Conviction Act, UNIF. LAW COMM’N, http://www.
uniformlaws.org/Act.aspx?title=Collateral%20Consequences%20of%20Conviction%20A
ct (last visited Sept. 28, 2015). In 2015, the Act was considered by legislatures in
Maryland, New York, Oregon, and the U.S. Virgin Islands, id., and in prior years by
other states including Minnesota, New Mexico, and West Virginia. See Legislation, UNIF.
LAW COMM’N, http://uniformlaws.org/Legislation.aspx?title=Collateral+Consequences+
of+Conviction+Act (last visited Oct. 10, 2015).
18 Letter from Hon. Bernice B. Donald, Sec’y, Am. Bar Ass’n, to John A. Sebert,
Exec. Dir., Nat’l Conference of Comm’rs on Unif. State Laws (Apr. 23, 2010), available
at http://www.uniformlaws.org/Shared/Docs/ABA%20Approval%205-11-2010.pdf. The
National Association of Criminal Defense Lawyers likewise urges adoption of
recognition. NAT’L ASS’N OF CRIMINAL DEFENSE LAWYERS, COLLATERAL DAMAGE:
AMERICA’S FAILURE TO FORGIVE OR FORGET IN THE WAR ON CRIME: A ROADMAP TO
RESTORE RIGHTS AND STATUS AFTER ARREST OR CONVICTION 15 (2014) (urging that
jurisdictions “give effect to relief granted by other jurisdictions”). The latest draft of
the Model Penal Code revision project by the American Law Institute contains a
provision allowing individuals with an out-of-state conviction to petition the forum
court for relief from a mandatory collateral consequence, directing the reviewing court
to “give favorable consideration to any relief already granted to the petitioner by the
jurisdiction in which the conviction occurred.” MODEL PENAL CODE: SENTENCING §
6x.05(1)–(3) (Tentative Draft No. 3, Apr. 24, 2014).
19 See VT. STAT. ANN. tit. 13, § 8009(d)–(e) (2013) (effective Jan. 1, 2016).
20 See infra Parts I.B.2, II.A.
21 See City of Chicago v. Morales, 527 U.S. 41, 53 (1999) (citation omitted)
(“[The] ‘right to remove from one place to another according to inclination’ [is] ‘an
attribute of personal liberty’ protected by the Constitution.” (quoting William v. Fears,
179 U.S. 270 (1900)); Zobel v. Williams, 457 U.S. 55, 76-77 (1982) (O’Connor, J.,
concurring) (“[I]t is difficult to imagine a right more essential to the Nation as a
whole than the right to establish residence in a new State.”); Shapiro v. Thompson,
394 U.S. 618, 629 (1969) (“[T]he nature of our Federal Union and our constitutional
concepts of personal liberty unite to require that all citizens be free to travel
throughout the length and breadth of our land uninhibited by statutes, rules, or
regulations which unreasonably burden or restrict this movement.”), overruled in part
by Edelman v. Jordan, 415 U.S. 651 (1974).
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state of residence upon arrival, and even possibly face criminal
liability.22
Restoration recognition has major practical importance for
convicted individuals seeking to reintegrate into society,23 and for a
nation grappling with the staggering human and financial costs of
recidivism.24 It also has major federalism implications, creating
interstate tensions similar to those seen lately in the case of same-sex
marriage.25 Much like marriage, collateral consequences policy
embodies an expression of state sovereignty and democratic self-will,26
and states vary in how and whether they make relief available.27
Unlike same-sex marriage recognition, however, which has been the
subject of federal legislation (the Defense of Marriage Act) designed to
address interstate conflict,28 and high-profile litigation,29 restoration
22 See, e.g., People v. Shear, 83 Cal. Rptr. 2d 707, 714 (Ct. App. 1999) (allowing
prosecution for unlawful possession of a firearm to proceed despite Arizona firearm
restoration). Working without an occupational license can likewise have criminal law
ramifications. See, e.g., FLA. STAT. ANN. § 481.223 (2015) (criminalizing unlicensed
practice as an architect), held unconstitutional in part by Locke v. Shore, 682 F. Supp.
2d 1283 (N.D. Fla. 2010).
23 See generally U.S. DEP’T OF JUSTICE, SMART ON CRIME: REFORMING THE CRIMINAL
JUSTICE SYSTEM FOR THE 21ST CENTURY 5 (2013) (noting significant impediments to
reentry imposed by collateral consequences); Michael Pinard, An Integrated Perspective
on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by
Formerly Incarcerated Individuals, 86 B.U. L. REV. 623, 666-73 (2006) (surveying
literature regarding negative effect collateral consequences have on reentry prospects).
24 See, e.g., Editorial, Recidivism’s High Cost and a Way to Cut It, N.Y. TIMES (Apr.
27, 2011), http://www.nytimes.com/2011/04/28/opinion/28thu3.html (citing study by
Pew Charitable Trusts’ Center on the States estimating that states would save $635
million in a single year by reducing their recidivism rates by only ten percent).
25 See generally Steve Sanders, The Constitutional Right to (Keep Your) Same-Sex
Marriage, 110 MICH. L. REV. 1421 (2012) (discussing the interstate conflicts between
states that allow same-sex marriage and those that do not).
26 See, e.g., Oregon v. Ice, 555 U.S. 160, 170 (2009) (citing Patterson v. New York,
432 U.S. 197 (1977) (“[T]he authority of States over the administration of their
criminal justice systems lies at the core of their sovereign status”); Heath v. Alabama,
474 U.S. 82, 93 (1985) (“The Constitution leaves in the possession of each State
‘certain exclusive and very important portions of sovereign power.’ Foremost among
the prerogatives of sovereignty is the power to create and enforce a criminal code.”
(quoting THE FEDERALIST NO. 9, at 55 (Alexander Hamilton) (J.E. Cooke ed., 1961));
State v. Langlands, 583 S.E.2d 18, 20 n.4 (Ga. 2003) (“A state cannot express its
public policy more strongly than through its penal code. When a state defines conduct
as criminal and sets the punishment for the offender, it is conveying in the clearest
possible terms its view of public policy.” (quoting New Mexico v. Edmondson, 818
P.2d 855, 860-861 (N.M. 1991)).
27 See infra Part I.A.
28 See 28 U.S.C. § 1738C (2012) (“No State . . . shall be required to give effect to
any public act, record, or judicial proceeding of any other State . . . respecting a

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recognition has remained off the nation’s radar. This is so even though
the issue potentially affects many millions more individuals. While it
cannot be said with certainty how many restored ex-offenders
relocate,30 over sixty-five million Americans have a criminal record,
potentially triggering collateral consequences of some kind,31 an
aggregate population that increases by the year.32
Despite its theoretical and practical significance and despite the
voluminous literature on collateral consequences more generally,33
interstate recognition has received very little scholarly attention.34
This Article aims to fill that gap and proceeds as follows. Part I
relationship between persons of the same sex that is treated as a marriage under the
laws of such other State . . . .”). The recognition provision was not addressed by the
Court in its decision United States v. Windsor, 133 S. Ct. 2675, 2682-83 (2013),
invalidating DOMA’s restrictive definition of marriage on Fifth Amendment due
process grounds. Id. at 2693-95.
29 The Court’s recent landmark decision regarding same-sex marriage, Obergefell
v. Hodges, 135 S. Ct. 2584 (2015), had the potential to resolve the interstate
recognition question. When granting certiorari in the litigation, which combined
several different cases, the Court agreed to decide (1) if there is a constitutional right
to same-sex marriage; and (2) whether states must recognize a same-sex marriage
lawfully conducted in another state. See Bourke v. Beshear, 135 S. Ct. 1041, 1041
(2015) (mem.). Ultimately, a 5-4 majority of the Court resolved the first question in
the affirmative, mooting the necessity of resolving the marriage recognition question.
Obergefell, 135 S. Ct. at 2607-08 (“The Court, in this decision, holds same-sex couples
may exercise the fundamental right to marry in all States. It follows that the Court also
must hold — and it now does hold — that there is no lawful basis for a State to refuse
to recognize a lawful same-sex marriage performed in another State on the ground of
its same-sex character.”).
30 For data on the interstate migration of Americans more generally, see Gregor
Aisch & Robert Gebeloff, Mapping Migration in the United States, N.Y. TIMES (Aug. 15,
2014), http://www.nytimes.com/2014/08/16/upshot/mapping-migration-in-the-unitedstates-since-1900.html; State-to-State Migration for States of 8 Million or More, U.S.
CENSUS BUREAU (Dec. 20, 2012), http://www.census.gov/dataviz/visualizations/028/.
31 See Chin, supra note 14, at 1805.
32 See LAUREN E. GLAZE & DANIELLE KAEBLE, CORRECTIONAL POPULATIONS IN THE
UNITED STATES, 2013 at 1 (2014), available at http://www.bjs.gov/content/pub/pdf/
cpus13.pdf (noting that almost seven million individuals are now incarcerated or
subject to community correctional supervision).
33 For a sampling of the expansive and ever-growing literature, see COLLATERAL
CONSEQUENCES RESOURCE CENTER, http://ccresourcecenter.org/resources-2/resourcesbooks-and-articles/ (last visited Feb. 3, 2015).
34 See MARGARET COLGATE LOVE ET AL., COLLATERAL CONSEQUENCES OF CRIMINAL
CONVICTIONS: LAW, POLICY AND PRACTICE §§ 1:17, 3:22, 7.24 (2013) (briefly discussing
interstate recognition and noting uncertainty surrounding the issue); Flynn Patrick
Carey, Note, Extending the Home Court Advantage: A Call to Update the Arizona Civil
Rights Restoration Scheme, 48 ARIZ. L. REV. 1129, 1132-34 (2006) (examining
uncertainty of recognition in Arizona).

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provides an overview of the growing array of relief mechanisms
becoming available in states and then discusses the only limited
allowance now made for recognition of sister-state restoration
outcomes. Part II considers whether, in the absence of a state
recognition provision, a newcomer ex-offender35 to a state might have
a federal constitutional basis to force recognition. In the state-federal
context, the answer is clear: the Supremacy Clause requires that states
recognize and give effect to a presidential pardon of a convicted
federal offender.36 The obligation owed by states to one another,
however, is less clear. If anywhere, such an obligation likely would be
grounded in provisions designed to promote comity and mediate
interstate conflicts, such as the Full Faith and Credit Clause and the
Privileges and Immunities Clause contained in Article IV. Such claims,
however, have thus far met with almost universal defeat and little
reason exists to think that future efforts will be any more successful.
Part III turns to the prospects for increased interstate recognition as
a result of legislative change. Individual states have a significant
comity-based interest in recognizing one another’s restoration
decisions. They each also have strong practical interest in promoting
the successful reentry of ex-offenders, including newcomers, given the
enormous social and economic consequences of recidivism.
Recognition, however, is not without cost or complication. A chief
difficulty stems from the fact that states can and do vary in their
restoration laws and policies, which embody important sovereign
political preferences. If not undertaken with sensitivity to state
35 The “ex-offender” designation, a shorthand method to refer to an individual at
one time convicted of a crime, is used here in the interest of brevity, but with
reluctance. The designation allows for the continued stigmatization of individuals
convicted of crimes and is at odds with the goal of successful reentry and
reintegration. As Professor Duff recently noted, “‘ex-’ suggests that this is not a role at
all: it declares that the description which it qualifies no longer applies; he was an
offender, but is no longer. On the other hand, as the phrase is actually used, it
suggests that the taint of that — strictly speaking no longer applicable — description
persists: the ‘ex-offender’ still carries the powerfully effective stigma of offending.”
R.A. Duff, A Democratic Criminal Law 18 (U. Minn. L. Sch., Research Paper No. 15-20,
2015), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2618698.
36 See Bjerkan v. United States, 529 F.2d 125, 129 (7th Cir. 1975) (recognizing
that the federal pardon power for offenses against the United States “must be supreme.
It cannot be hindered by the operation of the subordinate governments. The pardon
power would be ineffective if it could only restore a convict’s federal civil rights”);
Bradford v. Cardoza, 240 Cal. Rptr. 648, 650 (1987) (“[A] presidential pardon [of a
federal conviction] . . . restores an individual’s state as well as federal civil rights.”).
The President, however, lacks constitutional authority to pardon a state conviction.
See In re Bocchiaro, 49 F. Supp. 37, 38 (W.D.N.Y. 1943) (citing U.S. CONST. art. II).

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interests, recognition ultimately could allow the preferences of a single
state to control policy nationwide, much as Nevada once did with its
divorce policy.37
The Article therefore makes the case for adoption of a more
conditional approach to interstate recognition, one that allows for
forum state restoration law and policy to be taken into account. While
ideally the proffered approach would be undertaken organically by
states themselves, states might not feel compelled to act. The Article
therefore considers the means by which Congress, mindful of the
pressing national need to promote reentry, can require or encourage
state adoption of recognition provisions.
I.

RESTORATION AND RECOGNITION

Although collateral consequences in some form date back to ancient
times,38 they came to enjoy unprecedented use starting in the 1980s
when U.S. criminal justice policy took a far more punitive turn.39
Today, convictions for serious and non-serious offenses alike40 trigger
collateral consequences that affect convicted individuals in manifold
ways.41 This part first surveys recent state efforts to reduce this
37 See, e.g., David P. Currie, Suitcase Divorce in the Conflict of Laws: Simons,
Rosenstiel, and Borax, 34 U. CHI. L. REV. 26, 26-27 (1966) (“It is no secret that Nevada
makes divorce law for the whole country.”).
38 See Mirjan R. Damaska, Adverse Legal Consequences of Conviction and Their
Removal: A Comparative Study, 59 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 347, 350-56
(1968). The category “collateral consequences” actually encompasses two forms of
non-penal disability: a “collateral sanction,” imposed by operation of law as a result of
conviction, and a discretionary “disqualification,” also arising from conviction, but
imposed after an individualized inquiry by a legal authority. See UNIF. COLLATERAL
CONSEQUENCES OF CONVICTION ACT §§ 2(2), (5), 8 (2010), available at http://www.
uniformlaws.org/shared/docs/collateral_consequences/uccca_final_10.pdf.
39 Kathleen M. Olivares et al., The Collateral Consequences of a Felony Conviction: A
National Study of State Legal Codes 10 Years Later, 60 FED. PROBATION 10, 11-15 (1996)
(surveying marked increase in collateral consequences between 1986 and 1996). See
generally JOAN PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REENTRY
136 (2003) (noting that collateral consequences are “being applied to a larger
percentage of the U.S. population and for longer periods of time than at any point in
U.S. history.”).
40 See Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the
Lower Criminal Courts, 45 UC DAVIS L. REV. 277, 302-03 (2011).
41 The American Bar Association, with a grant from the U.S. Department of
Justice, is now in the process of assembling a comprehensive inventory of the
collateral consequences imposed by states and the federal government, which number
in the tens of thousands, referred to as the National Inventory of the Collateral
Consequences of Conviction (“NICCC”). See NAT’L INVENTORY OF THE COLLATERAL
CONSEQUENCES OF CONVICTION, supra note 12. As the NICCC highlights, collateral

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proliferation, by removing legal disabilities and restoring rights of exoffenders, and then examines the extent to which states recognize
restoration outcomes of sister-states.
A. Restoration
Today, state codes contain an increasing array of mechanisms
allowing for relief from collateral consequences.42 First, many states
afford relief automatically by operation of law,43 restoring rights such
as voting, serving on a jury, or holding public office after a sentence is
served44 or the passage of a specified number of crime-free years.45
Automatic relief is less common when it comes to restoration of the
right to own or possess a firearm, with a handful of states affording

consequences come in myriad forms, including lesser known but nonetheless
significant disabilities such as losing eligibility to secure student loans and public
housing, serve as a foster parent, and obtain certain forms of insurance. See id. The
focus here, however, is on what are generally seen as the chief collateral consequences
of the right to vote, serve on a jury, hold public office, possess a firearm, and limits on
employment and eligibility for occupational licensure.
42 See RAM SUBRAMANIAN ET AL., RELIEF IN SIGHT?: STATES RETHINK THE COLLATERAL
CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014, at 4 (2014) (noting that “[f]rom
2009 through 2014, forty-one states and the District of Columbia enacted 155 pieces
of legislation to mitigate the burden of collateral consequences for people with certain
criminal convictions”).
43 Margaret Colgate Love, Executive Director of the Collateral Consequences
Resource Center and former U.S. Pardon Attorney, has assembled an extremely
helpful web site detailing state and federal restoration provisions, a resource that was
of invaluable help in assembling much of the information reported on in this section.
See Margaret Colgate Love, NACDL Restoration of Rights Project, NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, https://www.nacdl.org/ResourceCenter.
aspx?id=25091 (last visited June 22, 2015).
44 See, e.g., GA. CONST. art. II, § 1, para. III (voting); MONT. CONST. art. IV, § 4
(holding public office); ALASKA STAT. § 9.20.020 (2015) (jury service); ALASKA STAT.
§ 15.05.030(a) (2015) (voting); CONN. GEN. STAT. ANN. § 9-46a(a), (b) (2015)
(voting); HAW. REV. STAT. § 831-2(a) (2015) (voting and holding public office); IND.
CODE ANN. § 3-7-13-4 (2015) (voting); IND. CODE ANN. § 33-28-5-18 (2015) (jury
service); KAN. STAT. ANN. § 21-6613(b) (2015) (voting, holding office and jury
service); MINN. STAT. ANN. § 609.165 (2015) (voting and holding public office);
MONT. CODE ANN. § 46-18-801(2) (2015) (“all civil rights and full citizenship”); N.C.
GEN. STAT. ANN. § 13-1 (2015) (“rights of citizenship”); N.D. CENT. CODE ANN. § 12.133-01(1) (2015) (voting and holding public office); OR. REV. STAT. ANN. § 137.281(1),
(3) (2015) (voting, jury service, holding public office).
45 See, e.g., LA. CONST. art. I, § 10(C) (right to hold office restored after fifteen
years); MASS. GEN. LAWS ANN. ch. 234A, § 4(7) (2015) (jury right restored after seven
years); NEV. REV. STAT. ANN. § 213.157(1)(b)–(c) (2015) (hold office after four years
and sit on a criminal jury after six years).

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relief after a specified period of time.46 The same is true regarding
removal of occupational or licensure prohibitions.47
The second cluster of relief mechanisms is discretionary in nature.
The pardon is the best known and oldest method. Today, every state
makes pardons available in some form, vesting the authority in various
entities, including governors acting alone and independent boards
acting with or without governors.48 If secured, a pardon can afford an
expansive range of relief.49 In Montana, for instance, pardon removes
“all legal consequences” of a conviction.50 In South Carolina, pardon
relieves the convicted individual of “all the legal consequences of his
crime and of his conviction, direct and collateral, including the
punishment, whether of imprisonment, pecuniary penalty or whatever
else the law has provided.”51
Pardons, however, have become infrequent in recent years,52 leaving
room for experimentation with other discretionary relief mechanisms.
In New York, for instance, a court or designated board can issue a
“certificate of relief from disabilities,” when “consistent with the
rehabilitation of the eligible offender” and “consistent with the public

46 See, e.g., IDAHO CODE ANN. § 18-310(1)(2) (2015) (except for enumerated
violent felonies, right lost only during period of sentence, and for enumerated
felonies, application considered for restoration of right only after 5 years); KAN. STAT.
ANN. § 21-6304(a) (2015) (right restored five years after sentence served for “nonperson felony” conviction, or ten years after serving sentence for other felony
convictions); ME. REV. STAT. ANN. tit. 15, § 393(2) (2015) (right may be restored five
years after discharge, based on application); N.D. CENT. CODE ANN. § 62.1-02-01
(2015) (right lost for ten years after discharge or upon conviction of violent felony or
intimidation, for five years if convicted of non-violent felony or Class A
misdemeanor).
47 In Illinois, for instance, with the exception of some specified professions, “all
license rights and privileges” are restored after completion of a sentence or discharge
from supervision, subject to review. 730 ILL. COMP. STAT. ANN. 5/5-5-5(d) (2015).
48 See Katie R. Van Camp, Comment, The Pardoning Power: Where Does Tradition
End and Legal Regulation Begin?, 83 MISS. L.J. 1271, 1286-90 (2014) (describing the
six different pardon models currently employed).
49 See, e.g., People v. Glisson, 358 N.E.2d 35, 38 (Ill. App. Ct. 1976) (“[A] pardon
‘removes the penalties and disabilities (resulting from the conviction) and restores
[the individual] to all his civil rights.’” (quoting Ex Parte Garland, 71 U.S. 333, 380
(1866)), aff’d and rev’d in part by People v. Glisson, 872 N.E.2d 669 (Ill. 1978); Doe v.
State, 328 A.2d 784, 787 (N.H. 1974) (stating a pardon “is an act of executive grace
completely eliminating all consequences of the conviction . . . .”).
50 MONT. CODE ANN. § 46-23-301(1)(b) (2015).
51 S.C. CODE ANN. § 24-21-940(A) (2015).
52 See generally Margaret Colgate Love, The Twilight of the Pardon Power, 100 J.
CRIM. L. & CRIMINOLOGY 1169 (2010) (discussing the infrequent exercise of the
presidential pardon power since the 1980s).

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interest.”53 Individuals with a single felony or several misdemeanor
convictions can secure a certificate
to relieve an eligible offender of any forfeiture or disability, or to
remove any bar to his employment, automatically imposed by
law by reason of his conviction . . . . Such certificate may be
limited to one or more enumerated forfeitures, disabilities or
bars, or may relieve the eligible offender of all forfeitures,
disabilities and bars. Provided, however, that no such certificate
shall apply, or be construed so as to apply, to the right of such
person to retain or to be eligible for public office.54
Individuals with multiple felonies can seek a “certificate of good
conduct,” which affords similar relief.55
Connecticut makes available “absolute”56 and “provisional”
pardons.57 The former negates the fact of a prior conviction, relieving
all legal disabilities. The latter functions as a “certificate of
rehabilitation” that restores particular rights and removes particular
disqualifications.58 In New Jersey, a certificate “suspends certain
disabilities, forfeitures or bars to employment or professional licensure
or certification that apply to persons convicted of criminal offenses.”59
North Carolina also makes available a “certificate of relief,” with
similar effect.60
States are also expanding opportunities for relief pursuant to
traditional expungement and annulment mechanisms. In Indiana, for
instance, convicted felons can petition for judicial expungement five
or eight years after the date of conviction, or three years after

53

N.Y. CORRECT. LAW §§ 702(2), 703(3) (McKinney 2015).
Id. § 701(1).
55 See Certificate of Relief from Disabilities-Certificate of Good Conduct Application
and Instructions, N.Y. DEP’T CORRECTIONS & COMMUNITY SUPERVISION, https://www.
parole.ny.gov/pdf/DOCCS-CRD-Application_Instructions.pdf (last visited Sept. 8,
2015) (stating the Department has discretion to remove one or all “allowable
disabilities”). For more information on New York’s regime, see Joy Radice,
Administering Justice: Removing Statutory Barriers to Reentry, 83 U. COLO. L. REV. 715,
726-42 (2012).
56 CONN. GEN. STAT. ANN. § 54-142a(d) (2015).
57 Id. §§ 54-130e(b)–(d).
58 See David J. Norman, Note, Stymied by the Stigma of a Criminal Conviction:
Connecticut and the Struggle to Relieve Collateral Consequences, 31 QUINNIPIAC L. REV.
985, 1005-13 (2013).
59 N.J. STAT. ANN. § 2A:168A-7(a) (2015).
60 See N.C. GEN. STAT. ANN. § 15A-173.2(d) (2015).
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completion of sentence (depending on the offense),61 which restores
the ability to serve on a jury, vote, hold public office, and possess a
firearm,62 and bars use of the conviction to refuse employment or deny
licensure.63 In New Hampshire, courts can annul convictions for less
serious offenses and non-recidivists “if in the opinion of the court, the
annulment will assist in the petitioner’s rehabilitation and will be
consistent with the public welfare.”64 Upon securing an annulment, an
individual “shall be treated in all respects as if he or she had never
been arrested, convicted or sentenced,” except (as is commonly the
case) that courts may consider the annulled conviction in the event of
a subsequent conviction.65 In Arizona, courts can issue “set-asides” or
vacate convictions for less-serious offenses,66 restoring all rights and
relieving the individual from “all penalties and disabilities resulting
from the conviction.”67
In many states, laws target occupational limits in particular. Ohio, for
instance, allows a court to issue a “certificate of qualification for
employment” that lifts occupational bars and licensure prohibitions,68
subject as is commonly the case to exceptions for particular occupations
(e.g., a prosecutor or law enforcement officer).69 Tennessee allows exoffenders to present a “certificate of employability”70 to potential
employers, negating the effect of otherwise applicable provisions barring
issuance of licenses.71 In New Jersey, one can secure a certificate of
rehabilitation that “suspends certain disabilities, forfeitures or bars to
employment or professional licensure or certification that apply to
persons convicted of criminal offenses.”72
61

IND. CODE ANN. §§ 35-38-9-2 to -4 (2015).
Id. § 35-38-9-10(c) (2015).
63 Id. § 35-38-9-10(b).
64 N.H. REV. STAT. ANN. § 651:5(I) (2015).
65 Id. § 651:5(X)(a).
66 ARIZ. REV. STAT. ANN § 13-907(A) (2015).
67 Id. § 13-907(C).
68 OHIO REV. CODE ANN. § 2953.25 (2015). A court considers three factors:
whether granting relief will materially assist in obtaining work or occupational
licensure; whether the individual has a substantial need for the relief in order to live a
law-abiding life; and whether granting relief will not pose an unreasonable risk to the
safety of the public or the individual. Id. § 2953.25(C)(3)(a)–(c).
69 Id. § 2953.25(5).
70 TENN. CODE ANN. § 40-29-107 (2015).
71 See id. § 40-29-107(m). Tennessee’s criteria for issuance are substantially
similar as those of Ohio. Compare id. § 40-29-107(i), with OHIO REV. CODE ANN.
§ 2953.25(C).
72 N.J. STAT. ANN. § 2A:168A-7 to -8 (2015). The certificate evidences that “the
applicant has achieved a degree of rehabilitation indicating that his engaging in the
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Finally, some states either refrain from imposing particular
collateral consequences in the first place, or significantly circumscribe
their application. Colorado does not impose a bar on the right to serve
as a trial juror;73 New York and Massachusetts do not limit the right to
hold public office;74 Vermont does not restrict the right to own or
possess a firearm, vote or hold public office;75 Alabama restricts the
right to serve on a jury when an individual is convicted of an “offense
involving moral turpitude;”76 and Maine does not restrict the right to
vote, serve on a jury or hold public office.77 Meanwhile, Colorado78
and New Jersey79 afford sentencing courts discretion to relieve
defendants of specific collateral consequences, which would otherwise
apply by operation of law.

proposed employment would not be incompatible with the welfare of society.” Id.
§ 2A:168A-3.
73 See People v. Ellis, 148 P.3d 205, 209 (Colo. App. 2006), habeas corpus granted by
Ellis v. Raemisch, 2014 WL 7464021 (D. Colo. Dec. 12, 2014). A felony conviction,
however, may be considered in the empanelment of trial jurors, and individuals convicted
of felonies are ineligible to serve as grand jurors. Frequently Asked Questions, COLORADO
JUDICIAL BRANCH, https://www.courts.state.co.us/FAQs/ (last visited Sept. 3, 2015).
74 See Andrea Steinacker, The Prisoner’s Campaign: Felony Disenfranchisement Laws
and the Right to Hold Public Office, 2003 BYU L. REV. 801, 804.
75 VT. STAT. ANN. tit. 28, § 807 (2015) (voting); Steinacker, supra note 74, at 804
(holding public office). As for firearms, no law expressly bans felons from possession
and the state constitution explicitly extends the right without reservation, resulting in
de facto preservation of the right. See Jay Buckey, Note, Firearms for Felons? A
Proposal to Prohibit Felons from Possessing Firearms in Vermont, 35 VT. L. REV. 957,
958, 965-66 (2011).
76 ALA. CODE § 12-16-60(a)(4) (2015). If lost, the right can be restored by a
pardon from the Board of Pardons and Parole. See id. §§ 15-22-20 to -40 (2015).
77 See ME. REV. STAT. ANN. tit. 14, § 1211 (2015) (specifying disqualifications for
jury service, none of which refer to jury service); Act of Apr. 28–29, 1982, ch. 705, pt.
G, sec. 4, § 1211, 1981 Me. Laws 1263 (deleting language that disqualified individuals
with convictions from serving on juries). On voting, see Felon Voting Rights, NAT’L
CONF. OF ST. LEGISLATURES (July 15, 2014), http://www.ncsl.org/research/electionsand-campaigns/felon-voting-rights.aspx. On holding office, see Steinacker, supra note
74, at 806.
78 COLO. REV. STAT. ANN. § 18-1.3-107(1), (3) (2015) (affording court power to
“relieve a defendant of any collateral consequences of the conviction, whether in
housing or employment barriers or any other sanction or disqualification that the
court shall specify”).
79 N.J. STAT. ANN. § 2A:168A-7 to -8 (2015) (affording court power to issue
certificate that “suspends certain disabilities, forfeitures or bars to employment or
professional licensure or certification that apply to persons convicted of criminal
offenses”).

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B. Recognition
The increasing availability of relief mechanisms in states, and the
decision of some states to refrain from or limit imposing certain
collateral consequences altogether, create potential conflict of law
problems when restored individuals relocate to another state.
Historically, states have declined to recognize a prior sister-state pardon,
annulment, or vacating of a conviction when sentencing an individual
later convicted of a crime in the forum.80 As the California Supreme
Court put it, “the profile of the shadow that conviction casts on later
events is the business of the state where those later events occur.”81
A forum state’s interest in holding accountable newcomers who
violate its criminal laws,82 however, differs from its treatment of
newcomers who remain law-abiding. Over time, states have exhibited
greater willingness to recognize sister-state grants of mercy when it
comes to collateral consequences.
1.

Statute or Regulation

A handful of states statutorily recognize sister states’ restoration of
particular rights. With respect to voting, jury service and holding
public office:
•
•

Nevada83 recognizes the right to vote and serve as a civil
(but not criminal) juror;
New Hampshire84 recognizes the right to vote and hold
public office;

80 See generally Kimberly J. Winbush, Annotation, Pardoned or Expunged
Conviction as “Prior Offense” Under State Statute or Regulation Enhancing Punishment
for Subsequent Conviction, 97 A.L.R. 5TH 293 (2002 & Supp. 2014) (listing
jurisdictions that consider convictions pardoned by foreign states for the purposes of
sentence enhancement statutes).
81 People v. Laino, 87 P.3d 27, 37 (Cal. 2004) (citation omitted citing Poo v.
Hood, 1992 WL 30617, at *6 (S.D.N.Y Feb. 12, 1992) (internal quotation marks
omitted)).
82 See, e.g., State v. Hulbert, 544 S.E.2d 919, 923-24 (W. Va. 2001) (asserting that
failure to consider foreign state conviction would “invite” individuals in search of a
“‘clean slate,’ thereby enabling them to continue committing [crimes] in [the] state . . .
without realizing the legislatively-intended effects of enhanced punishment for repeat
offenders”).
83 NEV. REV. STAT. ANN. § 213.155(5)(b) (2015); id. § 213.157(5)(b) (2015); id. §
293.543(2)(b)(2) (2015).
84 N.H. REV. STAT. ANN. § 607-A:5 (2015).

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North Carolina85 recognizes the right to vote, serve as juror,
and hold public office;
Nebraska86 recognizes the right to serve as a juror and hold
public office;
Kentucky87 recognizes the right to serve as juror; and
Arkansas88 recognizes the right to hold public office.

With respect to the right to possess a firearm, Oklahoma,89 Georgia,90
Idaho,91 Virginia,92 and Washington93 recognize sister-state restorations.
In Virginia, administrative regulation allows for recognition of restored
status vis-à-vis the right to vote, serve as a juror, and hold public
office.94
Vermont, as noted, is the only state to adopt a statutory-based global
approach to sister-state recognition.95 Vermont law requires that a
pardon issued by another jurisdiction have “the same effect for
purposes of authorizing, imposing, and relieving a collateral
consequence” in Vermont as it does in the issuing jurisdiction.96 With
respect to non-pardon forms of relief, as when a conviction has been
“relieved by expungement, sealing, annulment, set-aside, or vacation”
elsewhere “on grounds of rehabilitation or good behavior,” collateral
consequences relief in Vermont accords with that afforded in the
restoring state.97 When “civil rights are restored pursuant to statute,”
however, Vermont will extend relief regardless of whether sister-state
restoration was predicated on grounds of rehabilitation or good

85 N.C. GEN. STAT. ANN. §§ 13-1, 13-2 (2015) (“rights of citizenship”); see also Relief
from a Criminal Conviction, UNC SCH. OF GOV’T, http://www.sog.unc.edu/resources/
microsites/relief-criminal-conviction/citizenship-rights (last visited Sept. 4, 2015).
86 NEB. REV. STAT. ANN. § 29-113 (2015).
87 KY. REV. STAT. ANN. § 29A.080(2)(e) (2015).
88 ARK. CODE ANN. § 7-6-102(d) (2015).
89 OKLA. STAT. ANN. tit. 21, § 1283(B) (2015).
90 GA. CODE ANN. § 16-11-131(c) (2015).
91 IDAHO CODE ANN. § 18-3316(3) (2015).
92 VA. CODE ANN. § 18.2-308.2(B)(iv) (2015); Restoration of Firearm Rights, VA. ST.
POLICE (July 1, 2015), http://www.vsp.state.va.us/Firearms_Restoration.shtm.
93 WASH. REV. CODE. ANN. § 9.41.040(3) (2015).
94 Telephone and e-mail correspondence with Garry E. Ellis, Virginia Department of
Elections (Sept. 29, 2015) (on file with author); Virginia Department of Elections, General
Registrar and Electoral Board Handbook § 9.1.3.2 (Rev. July 2015) (on file with author).
95 See VT. STAT. ANN. tit. 13 § 8009 (2013) (effective Jan. 1, 2016).
96 Id. § 8009(d).
97 Id. § 8009(e).

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behavior.98 The sole caveat to non-pardon-based recognition is that no
relief will be accorded vis-à-vis the three collateral consequences that
Vermont makes unavailable to its own residents.99
2.

Caselaw

Restoration recognition has received only limited attention in state
courts. To date, courts in Florida — paradoxically, a state that ranks
among the nation’s least generous in restoring rights and removing
disabilities of its own residents100 — have been most receptive. In
Schlenther v. Department of State, Division of Licensing,101 the
petitioner, who had been convicted of a felony in Connecticut and
later had his rights “fully restored” there (by unspecified means)
sought to secure a permit to carry a concealed weapon in Florida.102
The Second District Court of Appeal framed the issue in terms of
whether Florida was obligated to show full faith and credit to
Connecticut’s restoration outcome.103
The court held that Florida’s firearms ban was not intended to apply
when “the individual’s civil rights had been suspended and restored by
another state, all before the individual arrived in this State.”104 When
the petitioner moved to Florida,
he did so in full possession of all civil rights of Connecticut
citizenship. He did not arrive here under a disability. To the
contrary, he arrived as any other citizen, with full rights of
citizenship. Appellant must not now be required, twenty-five
years later, to ask this State to restore his civil rights. They
were never lost here.105

98

Id.
See id. (cross-referencing section 8012, which disallows relief from sex offender
registration, motor vehicle license limitations, and law enforcement employment
prohibitions); id. § 8012.
100 See, e.g., Erika Wood, Turning Back the Clock in Florida, HUFFINGTON POST
(Mar. 10, 2011, 4:36 PM EST), http://www.huffingtonpost.com/erika-wood/turningback-the-clock-in_b_834239.html (describing Florida as “the most punitive state in
the country when it comes to disenfranchising people with criminal convictions in
their past.”).
101 743 So. 2d 536 (Fla. Dist. Ct. App. 1998).
102 Id. at 536-37.
103 Id. at 537.
104 Id.
105 Id.
99

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The court continued:
Once another state restores the civil rights of one of its citizens
whose rights had been lost because of a conviction in that
state, they are restored and the State of Florida has no
authority to suspend or restore them at that point. The matter
is simply at an end.106
One year later, another Florida intermediate appellate court held
likewise. In Doyle v. Florida Department of State, Division of
Licensing,107 the petitioner, who had been convicted in New York of a
misdemeanor drug offense, but did not lose his right to carry a firearm
there, moved to Florida and sought a concealed weapons carry permit.
The First District Court of Appeal, citing Schlenther, held that Doyle
could obtain a permit because New York never withdrew his right to
own or possess a firearm,108 even though the drug offense would have
been a felony in Florida and resulted in the loss of the right.109
According to the Doyle court, “[t]he governor of Florida has neither
the power to restore the civil rights of out-of-state offenders which
have already been restored by another state, nor the authority to
restore the civil rights of those whose rights were never suspended by
another jurisdiction.”110
Intermediate appellate courts in Colorado and Arizona have shown
similar deference to restoration in sister-states. In Seguna v. Maketa,111
the Colorado Court of Appeals addressed whether a Michigan felony
drug conviction, later set aside by Michigan authorities, qualified
under Colorado’s prohibition against possessing a firearm after a
felony conviction “under . . . any other state’s law.”112 The court
concluded that the Colorado Legislature’s reference to “other state’s
law” required that it look to Michigan law to determine if Seguna was
entitled to possess a firearm in Colorado.113 Because Seguna was
106

Id.
748 So. 2d 353 (Fla. Dist. Ct. App. 1999).
108 Id. at 356.
109 Id. at 354.
110 Id. at 356. Compare id., with Logan v. United States, 552 U.S. 23, 37 (2007)
(holding an exemption in federal firearm law for those with “civil rights restored” did
not cover a person “who lost no civil rights” in a state as a result of a state conviction).
111 181 P.3d 399 (Colo. App. 1999).
112 Id. at 400-01 (quoting COLO. REV. STAT. § 18-12-108(1) (1999)) (internal
quotation marks omitted).
113 Id.; see also id. at 402 (“If the legislature had wished to require reference to
Colorado law to determine whether a person had been so convicted, it could have
made such intent clear.”).
107

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entitled to a set-aside under Michigan law allowing for removal of the
firearms disability there, he was eligible to secure a permit to carry a
concealed firearm in Colorado.114
In Parker v. City of Tucson,115 the Arizona Court of Appeals
addressed recognition in a case challenging the eligibility of
individuals to circulate ballot initiative petitions. The court addressed
a provision in the state constitution and election law that permitted
convicted felons to vote and circulate ballot petitions only if “restored
to civil rights.”116 The court concluded that the proviso applied to
individuals with in-state and out-of-state felony convictions alike and
that “restoration of rights is determined by the law of the jurisdiction
in which the conviction occurred.”117 Applying this standard, the
Parker court found that the appellants had not had their civil rights
restored in their states of conviction and therefore were ineligible to
circulate petitions in Arizona.118
Finally, the Washington Supreme Court, in State v. Radan,119 also
recognized sister-state relief but took a more conditional approach. In
Radan, the petitioner had been convicted of felony theft in Montana,
but secured an early discharge from supervision that resulted in
automatic restoration of his right to possess a firearm in Montana.120
After he had moved to Washington he failed to seek a firearms permit,
assuming his Montana restoration of civil rights would apply in
Washington.121 In answering whether Washington would recognize
Radan’s restoration absent an application for a firearms permit, the
Radan court assessed whether the legal basis for restoration in
Montana satisfied Washington’s law, which provided in part that
[a] person shall not be precluded from possession of a firearm
if the conviction has been the subject of a pardon, annulment,
certificate of rehabilitation, or other equivalent procedure
114

Id. at 403.
314 P.3d 100 (Ariz. Ct. App. 2013).
116 Id. at 107 (citing ARIZ. CONST. art. VII, § 2(C) (2013); ARIZ. REV. STAT. §§ 19114(A), 16-101(A)(5) (2013)).
117 Id. at 109 & n.8.
118 Id. at 111-13. Two years earlier, the Arizona Supreme Court, without
elaboration, concluded with respect to eligibility to serve on a jury that an individual
with an out-of-state felony conviction cannot serve “unless the [prospective] juror’s
civil rights have been restored.” State v. Prince, 250 P.3d 1145, 1158-59 (Ariz. 2011)
(quoting ARIZ. REV. STAT. § 21-201(3) (2011)) (internal quotation marks omitted).
119 21 P.3d 255 (Wash. 2001) (en banc).
120 Id. at 256-57.
121 See id. at 256.
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based on a finding of the rehabilitation of the person convicted
or the conviction or disposition has been the subject of a
pardon, annulment, or other equivalent procedure been based
on a finding of innocence.122
Because Radan had not secured relief in Montana based on a finding of
innocence, and did not receive a “pardon, annulment, [or] certificate
of rehabilitation,” the court considered whether Montana’s early
discharge mechanism qualified as an “other equivalent procedure
based on a finding of [] rehabilitation of the person convicted . . . .”123
After noting that Washington required “something more than the
automatic restoration of an individual’s civil rights,” the Court
concluded that even though the Montana restoration was automatic, it
was predicated on an “equivalent procedure” that was “based on a
finding of [] rehabilitation.”124 Although unwilling to define the
meaning of “finding of rehabilitation,”125 the Court concluded that
Montana’s early discharge mechanism sufficed, as it was based on a
recommendation from Radan’s probation and parole officer and a
finding by a court that his discharge from supervision was “in the best
interests of the probationer and society and ‘will not present
unreasonable risk of danger to the victim of the offense.’”126
***
After a several-decades-long experiment in harsh penality,127 states
are now acting to soften their sentencing policies, including
122

Id. at 257 (citing WASH. REV. CODE. § 9.41.040(3) (2001)).
Id. at 258 (citing WASH. REV. CODE. § 9.41.040(3) (2001)) (internal quotation
marks omitted).
124 Id. at 258-61 (citing WASH. REV. CODE § 9.41.040(3) (2001)) (internal quotation
marks omitted).
125 Id. at 260-61 (internal quotation marks omitted).
126 Id. at 260 (quoting MONT. CODE ANN. § 46-23-1011 (2001)). In a footnote, the
court observed that Radan could have petitioned a Washington court for restoration and
the criteria would have been “far less stringent” than those operative in Montana. Id. at
260 n.2. See also State v. Harrison, 326 P.3d 800, 804 (Wash. Ct. App. 2014) (holding
that a California “certificate of rehabilitation,” while not a pardon serving to restore the
right to possess a firearm in California, entailed a judicial finding of rehabilitation even
more demanding than that required by Washington law).
127 On the reasons behind this shift more generally, see JONATHAN SIMON,
GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN
DEMOCRACY AND CREATED A CULTURE OF FEAR (2007); JAMES Q. WHITMAN, HARSH
JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND
EUROPE (2003).
123

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undertaking efforts to afford relief from collateral consequences
imposed as a result of convictions. To date, however, increased state
interest in restoring the rights of their own ex-offenders has not
translated into equal dispensation for newcomers who have had their
rights restored in another state. The next part examines the extent to
which federal constitutional litigation might be available to force
recognition.
II.

POTENTIAL CONSTITUTIONAL ARGUMENTS

Given the modest availability of recognition mechanisms and
limited redress afforded by courts, the question naturally arises
whether recognition might be obliged on the basis of one or more
constitutional arguments. This part surveys potential claims that
might be brought.
A. Full Faith and Credit
Although the Constitution does not provide a clear-cut answer to
whether states have the power to regulate matters beyond their
borders,128 it does contain “first-in-time” rules that seek to reduce
interstate friction.129 The most prominent of these is the Full Faith and
Credit Clause, which requires that “[f]ull Faith and Credit shall be
given in each State to the public Acts, Records, and judicial
Proceedings of every other State.”130 The Clause functions as a
“nationally unifying force” that “altered the status of the several states
as independent foreign sovereignties, each free to ignore rights and
obligations created under the laws . . . of the others.”131
The Full Faith and Credit Clause, however, is “not an inexorable and
unqualified command.”132 For instance, it has long been accepted that
“public Acts” (statutes and common law)133 and “Records” (executive
128 See Mark D. Rosen, State Extraterritorial Powers Reconsidered, 85 NOTRE DAME L.
REV. 1133, 1154 (2010) (noting that “constitutional doctrine to this day does not
clearly tell us to what extent states may regulate people and things outside their
borders”).
129 See Allan Erbsen, Horizontal Federalism, 93 MINN. L. REV. 493, 567 n.264
(2008) (“The first-in-time rule creates a mandatory form of comity that subordinates
state policy preferences to systemic concerns about interstate harmony and finality of
judgments.”).
130 U.S. CONST. art. IV, § 1; see also 28 U.S.C. § 1738 (2012).
131 Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943).
132 Pink v. A.A.A. Highway Express, Inc., 314 U.S. 201, 210 (1941).
133 See, e.g., Ralph U. Whitten, Full Faith and Credit for Dummies, 38 CREIGHTON L.
REV. 465, 471-73 (2005) (discussing interpretations of the Clause and its application

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branch action documents)134 need not be accorded full faith and credit
if doing so would violate a state’s “legitimate public policy”135 or would
be “obnoxious to the public policy of the forum.”136 By contrast,
“judicial Proceedings” (judgments, especially money judgments)137
have been accorded “exacting operation” and “nationwide force”138
regardless of policy conflict.139 More recently, however, the Supreme
Court has signaled its willingness to shift course.
Most notably, in Baker ex rel. Thomas v. General Motors Corp.,140
despite insisting that there is “no roving ‘public policy exception’ to
the full faith and credit due judgments,”141 the U.S. Supreme Court
to public acts and common law).
134 See Shawn Gebhardt, Comment, Full Faith and Credit for Status Records: A
Reconsideration of Gardiner, 97 CALIF. L. REV. 1419, 1444 (2009). The definition and
contents of the “records” category has not been illuminated much over time and the Court
itself has ignored it. See, e.g., Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 232
(1998) (stating that its “precedent differentiates the credit owed to laws (legislative
measures and common law) and to judgments,” omitting reference to records).
135 Nevada v. Hall, 440 U.S. 410, 422 (1979) (citing Pac. Ins. Co. v. Indus.
Accident Comm’n, 306 U.S. 493 (1939)).
136 See, e.g., Bradford Elec. Light Co. v. Clapper, 286 U.S. 145, 160-61 (1932)
(weighing the validity of a state’s public policy argument), abrogated in part by Crider
v. Zurich Ins. Co., 380 U.S. 39 (1965).
137 See Baker, 522 U.S. at 232-33 (citing Matsushita Elec. Ind. Co. v. Epstein, 516
U.S. 367 (1996)) (“A final judgment in one State, if rendered by a court with
adjudicatory authority over the subject matter and persons governed by the judgment,
qualifies for recognition throughout the land.”); see also 18B CHARLES ALAN WRIGHT ET
AL., FEDERAL PRACTICE AND PROCEDURE § 4467, at 17 (2d ed. 2002) (“The most familiar
application of the full faith and credit statute has involved enforcement of money
judgments.”).
138 Rosin v. Monken, 599 F.3d 574, 576 (7th Cir. 2010) (quoting Baker, 522 U.S.
at 233) (internal quotation marks omitted). For discussion of why judgments deserve
elevated status over acts and records, see Rex Glensy, Note, The Extent of Congress’
Power Under the Full Faith and Credit Clause, 71 S. CAL. L. REV. 137, 161 (1997).
139 See, e.g., Williams v. North Carolina, 317 U.S. 287, 294, 299 (1942) (holding
that North Carolina must recognize Nevada divorce decree, even though it conflicted
with North Carolina policy); Kenney v. Supreme Lodge of the World, Loyal Order of
Moose, 252 U.S. 411, 414 (1920) (holding that Illinois must enforce judgment in
Alabama wrongful death even though action could not be brought in Illinois);
Fauntleroy v. Lum, 210 U.S. 230, 237-38 (1908) (holding that Mississippi must
enforce Missouri judgment upholding a gambling contract otherwise unenforceable in
Mississippi); see also Franchise Tax Bd. v. Hyatt, 538 U.S. 488, 499 (2003) (“Without
a rudder to steer us, we decline to embark on the constitutional course of balancing
coordinate States’ competing sovereign interests to resolve conflicts of laws under the
Full Faith and Credit Clause.”).
140 522 U.S. 222 (1998).
141 Id. at 233 (citing Estin v. Estin, 334 U.S. 541 (1948); Fauntleroy v. Lum, 210
U.S. 230 (1908)).

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refused to require that Missouri honor a Michigan court’s injunction
(a “judgment”) barring a particular witness’s testimony.142 The Baker
majority also suggested that a judgment need only be recognized for
evidentiary (res judicata) but not enforcement purposes,143 a position
endorsed by Justice Scalia in his concurrence,144 several scholars,145
and recently the Fifth Circuit Court of Appeals.146
As noted above, in Schlenther v. Department of State, Division of
Licensing, the Florida Court of Appeals accorded full faith and credit
to a sister-state’s restoration of an individual’s right to possess a
firearm.147 A review of the caselaw, however, makes clear that the

142 Id. at 226. This point was not lost on Justice Kennedy, who in his concurrence
noted the majority’s “reliance upon unidentified principles to justify omitting certain
types of injunctions from the doctrine’s application leaves its decision in uneasy
tension with its own rejection of a broad public policy exception to full faith and
credit.” Id. at 245 (Kennedy, J., concurring in judgment). Justice Kennedy added that
“[m]y concern is that the majority, having stated the principle [that states are
obligated to give effect to each other’s judgments despite contravening public
policies], proceeds to disregard it by announcing two broad exceptions.” Id. at 243.
143 Id. at 235 (majority opinion) (“Enforcement measures do not travel with the
sister state judgment as preclusive effects do . . . .”); id. at 233 (citations and footnote
omitted) (a state judgment “qualifies for recognition throughout the land. For claim
and issue preclusion (res judicata) purposes. . .the judgment of the issuing State
enjoys nationwide force.”).
144 See id. at 241 (Scalia, J., concurring in judgment) (“The Full Faith and Credit
Clause did not make the judgments of other States domestic judgments to all intents
and purposes, but only gave a general validity, faith, and credit to them, as evidence.
No execution can issue upon such judgments without a new suit in the tribunals of
other States.” (internal quotation marks omitted) (quoting Thompson v. Whitman, 85
U.S. (18 Wall.) 457, 462-63 (1873))).
145 See David E. Engdahl, The Classic Rule of Faith and Credit, 118 YALE L.J. 1584,
1587-89 (2009); Stephen E. Sachs, Full Faith and Credit in the Early Congress, 95 VA.
L. REV. 1201, 1205-08 (2009); James D. Sumner, Jr., The Full-Faith-and-Credit Clause
— Its History and Purpose, 34 OR. L. REV. 224, 248-49 (1955). For a contrarian view,
see Jeffrey M. Schmitt, A Historical Reassessment of Full Faith and Credit, 20 GEO.
MASON L. REV. 485 (2013).
146 Adar v. Smith, 639 F.3d 146, 153-55 (5th Cir. 2011) (en banc). In Adar,
Louisiana was asked to give effect to a New York child adoption decree, secured by
two fathers, by issuing a birth certificate containing their names. Id. at 151. The
Louisiana registrar recognized the New York decree but refused to enforce it based on
Louisiana public policy prohibiting adoption by unmarried couples. Id. at 149-50. The
majority concluded that Louisiana was obliged to recognize the sister-state decree but
was not required to enforce it. Id. at 158-59 (citing Baker, 522 U.S. at 232-35).
“Obtaining a birth certificate,” the court stated, “falls in the heartland of enforcement,
and therefore outside the full faith and credit obligation of recognition.” Id. at 160.
147 Schlenther v. Dept. of State, Div. of Licensing, 743 So. 2d 536, 537 (Fla. Dist.
Ct. App. 1998).

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position is very much an outlier, with courts regularly refusing
recognition on public policy grounds.
In People v. Shear,148 for instance, the California Court of Appeal
upheld the petitioner’s California conviction for unlawful possession of
a firearm based on a prior Arizona felony conviction, even though his
right to possess a weapon had previously been restored by Arizona. The
court concluded that recognizing restoration would be “‘obnoxious to
the public policy’” of California regarding limits on who can lawfully a
possess firearm.149 According to the unanimous court,
There can be few more significant public policies of this state
than that of protecting the safety of its citizens by barring
convicted felons, persons who have proved unfit to be
entrusted with firearms, from possessing them.
....
The Full Faith and Credit Clause does not preclude California
from carrying out its public policy of prohibiting convicted
felons within its borders from possessing firearms merely
because defendant could lawfully possess firearms in
Arizona.150
In Blackwell v. Haslam,151 the Tennessee Court of Appeals addressed
whether a Georgia pardon that restored Blackwell’s right to possess a
firearm must be recognized in Tennessee. Without pausing to
categorize the pardon as an act, record, or judgment,152 the court
directly addressed the public policy question. The court concluded
that the two states were at “loggerheads”: Georgia allowed restoration
of persons convicted of all felonies, whether violent or not, while
Tennessee denied restoration eligibility to violent felons.153 Citing
Shear, the court held that “the Tennessee statutes on firearm rights are
borne of the State’s significant interest in ‘protecting the safety of its

148

83 Cal. Rptr. 2d 707 (Ct. App. 1999).
Id. at 713 (quoting Bradford Elec. Light Co. v. Clapper, 286 U.S. 145, 160 (1932)).
150 Id. at 714.
151 No. M2012-01991-COA-R3-CV, 2013 WL 3379364 (Tenn. Ct. App. 2013).
152 See id. at *16 n.19 (“It matters not whether Georgia restored Mr. Blackwell’s
rights through executive pardon, statutory procedure, or otherwise. We are charged in
this appeal with determining whether Georgia’s restoration of Mr. Blackwell’s firearm
rights, by any means, conflicts with Tennessee’s public policy on the restoration of a
convicted felon’s firearm rights.”).
153 Id. at *16.
149

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citizens’ by barring persons whom our legislature has deemed unfit to
be entrusted with the possession of firearms.”154
The Blackwell court emphasized that because the restriction was
part of the state’s penal code it was especially emblematic of its public
policy.155 The legislature “made the public policy judgments inherent
in discharging its constitutional duty” vis-à-vis firearms regulation,
and the court felt no need to “‘abandon [its] fundamental policy in
favor of the public policy of another jurisdiction.’”156 Requiring
Tennessee to extend full faith and credit to Georgia’s restoration
outcome would require “‘too large a sacrifice by [Tennessee] of its
interests in a matter with which it is primarily concerned’ —
protecting public safety and preventing crime.”157
In re Winston158 provides yet another example of state court
resistance to a full faith and credit argument. In Winston, a New Jersey
appellate court addressed whether Winston, who had secured from
New York a “Certificate of Relief from Disabilities” for two prior New
York felony convictions, could obtain a New Jersey firearm purchaser
identification card and permit to purchase a firearm. The Winston
court held that while the certificate removed the automatic firearm
disability in New York, it did not “alter or affect the criminal
conviction[s] to which it relates.”159 “The Full Faith and Credit
Clause,” the Winston court wrote, “does not require New Jersey to
ignore its law that treats such convictions as automatically
disqualifying simply because the [New York] certificates remove that
automatic disqualifier under New York’s gun laws.”160

154

Id. at *17 (citing Shear, 83 Cal. Rptr. 2d at 714).
See id. (quoting New Mexico v. Edmondson, 818 P.2d 855, 860 (N.M. Ct. App.
1991)) (“Tennessee’s penal code conveys ‘in the clearest possible terms [Tennessee’s]
view of public policy.’”).
156 Id. (citing Edmondson, 818 P.2d at 860-61).
157 Id. (citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 103 cmt. b (1971));
see also Pardoned Felony Drug Offender Prohibited from Possessing or Purchasing
Firearms, Tenn. Op. Att’y Gen., No. 09-168 (2009), 2009 WL 3479586, at *4
(concluding that Tennessee need not recognize out-of-state pardon for a felony drug
offense conviction, as pardon in Tennessee would not restore right). Because the
record was unclear on whether Blackwell’s Georgia conviction involved violence, the
court remanded the matter to the trial court for determination. Blackwell, 2013 WL
3379364, at *15, *21.
158 101 A.3d 1120 (N.J. Super. Ct. App. Div. 2014).
159 Id. at 1125.
160 Id.; see also id. (“There is no constitutional requirement that New Jersey deem
Winston not disqualified for a permit under its firearms law just because New York
has seen fit to do so under its law.”).
155

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Each of the foregoing challenges concerned restoration of the
firearm right. Another collateral consequence spurring litigation
concerns sister-state recognition of relief from the sex offender
registration requirement, a claim that has been uniformly rejected. For
instance, in Donlan v. State161 an individual moved to Nevada from
California after California had terminated his registration requirement.
Noting that the termination resulted from an executive administrative
act, and was not a “judgment” of another state,162 the court invoked
the full faith and credit public policy exception.163 California, the
Nevada Supreme Court concluded, had “‘no authority to dictate to
[Nevada] the manner in which it can best protect its citizenry from
those convicted of sex offenses.’”164 According to the Donlan court,
“Nevada does not need to dispense with its preferred mechanism for
protecting its populace by virtue of a California executive branch
administrative action that terminated Donlan’s requirement to register
as a sex offender.”165
Similarly, in Rosin v. Monken166 the Seventh Circuit rejected a claim
that Illinois must grant relief from registration based on a New York
plea agreement expressly stating that the defendant need not register
as a sex offender. The court reasoned that the agreement, despite being
embodied in a judgment by the court, was important only “‘for claim
and issue preclusion (res judicata) purposes,’” and Illinois need not
give effect to it.167 According to the Rosin court, “Illinois need not
dispense with its preferred mechanism for protecting its citizenry by
virtue merely of a foreign judgment that envisioned less restrictive
requirements’ [sic] being imposed on the relevant sex offender.”168
161

249 P.3d 1231 (Nev. 2011).
Id. at 1233.
163 Id. at 1233 & n.1.
164 Id. at 1233 (quoting Rosin v. Monken, 599 F.3d 574, 577 (7th Cir. 2010)).
165 Id. (citing Rosin, 599 F.3d at 577). For an instance of a California court employing
similar reasoning to refuse full faith and credit to another state’s relief from registration
(Washington), see Crofoot v. Harris, 239 Cal. App. 4th 1125 (Cal. App. 2015).
166 599 F.3d 574 (7th Cir. 2010).
167 Id. at 576 (citing Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 233
(1998)).
168 Id. at 577. The court elaborated on what the plea bargain meant:
162

New York could promise [petitioner] only that he would never have to
register as a sex offender within its own jurisdiction. [Petitioner] could not
bargain for a promise from New York as to what other states would do based
on his guilty plea to sexual abuse in the third degree, for New York had no
power to make such a promise.
Id.

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The court closed by echoing the view adopted by other courts, stating
that “[t]he Full Faith and Credit Clause was enacted to preclude the
same matters’ [sic] being relitigated in different states as recalcitrant
parties evade unfavorable judgments by moving elsewhere. It was
never intended to allow one state to dictate the manner in which
another state protects its populace.”169
As the preceding cases make clear, notwithstanding the limited
Florida caselaw to the contrary,170 there is little reason to conclude
that the Full Faith and Credit Clause provides a constitutional basis to
require states to recognize and give effect to one another’s restoration
outcomes. This is true regardless of whether restoration occurs by
automatic operation of statutory law (an “Act”), administrativeexecutive branch action (a “Record”), or even a judgment (a
“Proceeding”). Not only does the public policy exception (whatever its
merit171) stand in the way,172 but so too does the reality that a sister169 Id. At other times, the forum court sidesteps the issue. For instance, in rejecting
another state’s decision to discontinue registration, a New York appellate court
reasoned that “[t]he purpose of the Full Faith and Credit Clause is to avoid conflicts
between States in adjudicating the same matters” and that “a different state’s
registration requirement is not the same matter.” People v. McGarghan, 920 N.Y.S.2d
329, 331 (App. Div. 2011) (citation omitted) (internal quotation marks omitted); cf.
Nolan v. Fifteenth Judicial Dist. Attorney’s Office, 10-1093 (La. App. 3 Cir. 4/6/11); 62
So. 3d 805, 807 (holding that Ohio judgment terminating registration requirement did
not preclude Louisiana from requiring registration, as Louisiana was “not seeking to
force [petitioner] to register as a sex offender in Ohio”). For a very rare instance of a
state suspending its registration requirement, itself triggered by an out-of-state
conviction, which was later expunged by the other state, see Stallworth v. State, 2013–
CA–01643–SCT (¶5) (Miss. 2015); 160 So. 3d 1161. The Stallworth court, over a
spirited dissent, avoided the full faith and credit question, instead holding that when
the petitioner’s “conviction was expunged, he was returned to the status he occupied
before his conviction. And because he had no duty [to] register as a sex offender
before he was convicted, the expungement relieved him of any further duty to
register.” Id. at 1164.
170 See supra notes 100–10 and accompanying text.
171 See, e.g., Robert H. Jackson, Full Faith and Credit — The Lawyer’s Clause of the
Constitution, 45 COLUM. L. REV. 1, 27 (1945) (“It is hard to see how the faith and
credit clause has any practical meaning as to statutes if the Court should adhere to the
statement that ‘. . . a state is not required to enforce a law obnoxious to its public
policy.’” (quoting Griffin v. McCoach, 313 U.S. 398, 507 (1941))); Kramer, supra note
11, at 1987 (“The measure of repugnance . . . is fixed by the federal Constitution, and
states have no business selectively ignoring or refusing to recognize the constitutional
laws of sister states because they do not like them.”); Laycock, supra note 2, at 313
(calling the public policy exception “a relic carried over from international law
without reflection on the changes in interstate relations wrought by the
Constitution”).
172 See supra notes 148–65 and accompanying text; see also, e.g., Walker v.
Commonwealth, 127 S.W.3d 596, 601 (Ky. 2004) (“The Full Faith and Credit Clause

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state judgment might serve only an evidentiary function and need not
be given legal effect by the forum.173
B. Privileges and Immunities
Alternatively, a forum state’s refusal to honor the restored status of a
newcomer might arguably violate constitutional limits imposed on state
authority to impair the rights of new residents. The Privileges and
Immunities Clause of Article IV ensures that “[c]itizens of each State
shall be entitled to all Privileges and Immunities of Citizens in the
several States.”174 Like the Full Faith and Credit Clause (also contained
in Article IV),175 the Privileges and Immunities Clause was intended to
“fuse into one Nation a collection of independent, sovereign States”176
and designed to “‘insure to a citizen of State A who ventures into State B
the same privileges which the citizens of State B enjoy.’”177
The Privileges and Immunities Clause, however, assures protection
of only “fundamental” privileges and immunities,178 those “bearing
upon the vitality of the Nation as a single entity.”179 It also does not
require that states recognize “special privileges enjoyed by citizens in
their own States.”180 Such privileges, the Court wrote in Paul v.
Virginia, “can have no such operation, except by the permission,
express or implied, of those States. The special privileges which
was designed to give the United States certain benefits of a unified nation, but a
judgment of a sister state need not be recognized by another state if it is an improper
infringement on the interests of the latter state.” (citation omitted) (internal quotation
marks omitted)).
173 See supra notes 140–46, 166–68 and accompanying text.
174 U.S. CONST. art. IV, § 2, cl. 1. Although the text references “citizens,” the Clause
has been interpreted to treat state residency and citizenship interchangeably. See
Hicklin v. Orbeck, 437 U.S. 518, 524 n.8 (1978) (citations omitted).
175 Also known as the “States’ Relations Article.” Baldwin v. Fish and Game
Comm’n, 436 U.S. 371, 379 (1978).
176 Toomer v. Witsell, 334 U.S. 385, 395 (1948); see also Paul v. Virginia, 75 U.S.
(8 Wall.) 168, 180 (1868) (“[W]ithout some provision of the kind removing from the
citizens of each State the disabilities of alienage in the other States, and giving them
equality of privilege with citizens of those States, the Republic would have constituted
little more than a league of States; it would not have constituted the Union which now
exists.”), overruled in part by United States v. South-Eastern Underwriters Ass’n, 322
U.S. 533 (1944).
177 Baldwin, 436 U.S. at 399 (Brennan, J., dissenting) (quoting Toomer, 334 U.S. at 395).
178 McBurney v. Young, 133 S. Ct. 1709, 1714 (2013); Baldwin, 436 U.S. at 387
(stating that the scope is inclusive of “such basic and essential activities, interference
with which would frustrate the purposes of the formation of the Union”).
179 See Baldwin, 436 U.S. at 383.
180 Paul, 75 U.S. (8 Wall.) at 180.

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[States] confer must, therefore, be enjoyed at home, unless the assent
of other States to their enjoyment therein be given.”181
Conceivably, forum state refusal to recognize restored eligibility for
an occupation could qualify as “vital[]” to national unity, as the Court
has deemed problematic state limits on the ability of newcomers to
“ply their trade, practice their occupation, or pursue a common
calling.”182 To be actionable, however, one must prove discriminatory
protectionist intent,183 a difficult standard to meet.184
Furthermore, even assuming that one or more other rights qualify, a
key challenge in any recognition claim would be to establish that
restoration is not a “special privilege” bestowed by another state.185
The Supreme Court has held that a state acts within its power to deny
a right to a newcomer when “there are perfectly valid independent
reasons for it.”186 To satisfy this test a state could invoke its sovereign
authority to apply its own distinct restoration eligibility criteria and
procedures vis-à-vis restoration of the right(s) implicated.
With firearms, for instance, some states have very demanding
restoration requirements, such as requiring an individualized finding of
fitness187 or a pardon.188 Some states preclude restoration altogether,189
181

Id. at 180-81.
Hicklin v. Orbeck, 437 U.S. 518, 524 (1978); see also United Bldg. & Constr.
Trades Council v. Mayor of Camden, 465 U.S. 208, 219 (1984) (citing Baldwin, 436
U.S. at 387)) (“[T]he pursuit of a common calling is one of the most fundamental of
those privileges protected by the Clause.”). It is for this reason that much of the
litigation that could sound in Article IV is instead resolved on Dormant Commerce
Clause grounds. See generally Brannon P. Denning, Why the Privileges and Immunities
Clause of Article IV Cannot Replace the Dormant Commerce Clause Doctrine, 88 MINN. L.
REV. 384 (2003) (providing background information on the Dormant Commerce
Clause and on Article IV, Section 2, the Privileges and Immunities Clause).
183 See McBurney, 133 S. Ct. at 1715 (citing United Bldg. & Constr. Trades Council,
465 U.S. 208; Hicklin, 437 U.S. at 524; Toomer v. Witsell, 334 U.S. 385, 395, 397
(1948)) (“[T]he Court has struck laws down as violating the privilege of pursuing a
common calling only when those laws were enacted for the protectionist purpose of
burdening out-of-state citizens.”).
184 See, e.g., id. (upholding state law because it had a non-protectionist aim). The
existence of protectionist purpose, however, should not be entirely discounted as a
possibility, such as might result from pressure applied by occupational cartels (e.g.,
licensed trades) that do not want competition from newcomers.
185 See supra notes 180–81 and accompanying text.
186 Toomer v. Witsell, 334 U.S. 385, 396 (1948).
187 See, e.g., OHIO REV. CODE ANN. § 2923.14(D)(2) (LexisNexis 2015) (requiring
inter alia that “applicant has led a law-abiding life since discharge or release, and
appears likely to continue to do so”).
188 See, e.g., United States v. Fowler, No. 95-1207, 104 F.3d 368, at *4 (10th Cir.
1996) (unpublished table decision) (finding that legislative changes to Colorado
182

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whereas others simply require a period of conviction-free years190 or
never restrict the right in the first instance.191 With jury service, the
right can be restored automatically upon completion of sentence,192 yet
in some states it is not subject to restoration,193 or requires a pardon.194
With respect to employment, many states require that there be a nexus
between the nature of the offense of conviction and the occupation in
question.195 Some states do not require this nexus,196 and others only
impose a limit during correctional supervision.197
Revised Statutes § 18-12-108 in 1994 prospectively excluded possession of firearms
from the restoration provision in the Colorado Constitution, leaving a pardon as the
only means to restore the right to possess a firearm); Effect of Governor’s Pardon on
the Ownership of Firearms, Del. Op. Att’y Gen., No. 03-IB04 (2003), 2003 WL
1088725, at *2 (analyzing existing law and concluding the legislature intended the
Board of Pardons to resolve whether ex-offenders could possess firearms by granting
them pardons); KY. REV. STAT. ANN. § 527.040(1) (2015); MO. REV. STAT. ANN. §
571.070.1(1) (2015); NEB. REV. STAT. ANN. §§ 28-1206(1)–(2), 83-1,130(2) (2015);
NEV. REV. STAT. ANN. § 202.360(1)(a) (2015).
189 See, e.g., Blackwell v. Haslam, No. M2012-01991-COA-R3-CV, 2013 WL 3379364,
at *16 (Tenn. Ct. App. 2013) (describing Tennessee’s denial of restoration of firearm rights
for persons convicted of violent felonies, as opposed to non-violent felonies).
190 See, e.g., KAN. STAT. ANN. § 21-6304(a) (2015) (five or ten year prohibition for
“person” or drug offenses); LA. REV. STAT. ANN. § 14:95.1(c) (2015) (right restored
after ten years for crime of violence or sex offense); MICH. COMP. LAWS § 750.224f(1)–
(2) (2015) (right restored after five years for violent felonies and drug offenses,
restored after three years for other felonies); see also, e.g., State v. Swanson, 65 P.3d
343, 348-49 (Wash. Ct. App. 2003) (noting that Washington law restores right
automatically after specified number of conviction-free years without finding of
rehabilitation); cf. State v. Buonafede, 814 P.2d 1381, 1383-84 (Ariz. 1991) (holding
that automatic civil rights restoration applies regardless of whether the individual is
deemed “rehabilitated”).
191 Vermont is one such state. See supra note 75 and accompanying text; see also
Selected Vermont Laws Governing the Use and Possession of Firearms, OFFICE OF THE ATT’Y
GEN. OF VT. (May 27, 2014), http://ago.vermont.gov/divisions/criminal-division/gunlaws.php (showing no such laws). In Idaho, the right for non-violent felons is lost only
while under sentence. IDAHO CODE ANN. §§ 18-310(1)–(3), 18-3316 (2015).
192 See, e.g., supra note 44 and accompanying text.
193 See, e.g., MICH. COMP. LAWS § 600.1307a(1)(e) (2015) (requiring without
qualification that a juror “[n]ot have been convicted of a felony.”). For more on juror
exclusion, see generally Anna Roberts, Casual Ostracism: Jury Exclusion on the Basis of
Criminal Convictions, 98 MINN. L. REV. 592 (2013).
194 See, e.g., ALASKA STAT. § 11.61.200(b)(1) (2015); HAW. REV. STAT. § 612-4(b)(2)
(2015); LA. CODE CRIM. PROC. ANN. art. 401(A)(5) (2015); 42 PA. STAT. ANN.
§ 4502(a)(3) (2015); S.C. CODE ANN. §§ 14-7-810(1), 24-21-920 (2015); Oklahoma
Department of Corrections, Pardon Information Fact Sheet, OKLA. DEP’T OF CORR.,
http://www.ok.gov/doc/documents/160301ab.pdf (last visited Sept.7, 2015).
195 See, e.g., D.C. CODE § 47-2853.17(a) (2015) (allowing revocation of license for
crime bearing directly on the fitness of the person to be licensed); HAW. REV. STAT.
§ 831-3.1(a) (2015) (providing specific exceptions where a prior conviction can

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Further highlighting state prerogative, significant variations exist in
the eligibility criteria and procedures used by states when affording
collateral consequences relief to individuals convicted in their own
courts. Even pardons, the most traditional avenue for relief, vary
significantly. States offer different kinds of pardons with different
justifications198 and the pardons themselves differ significantly in the
kinds of relief that they afford.199 Pardons also vary in their eligibility
criteria: they can be based on no or nebulous criteria,200 attach no or
little express importance to rehabilitation,201 and even result from
simple personal or political predilection of governors.202 Finally,
enormous variation exists regarding the eligibility criteria for
expungement and its effect.203

preclude employment licensing); KY. REV. STAT. ANN. § 335B.020(1) (2015) (allowing
disqualification from employment when prior conviction relates directly to the
position sought); S.C. CODE ANN. § 40-1-140 (2015) (forbidding disqualification
unless a conviction relates directly to employment sought or appropriate board
determines otherwise).
196 See, e.g., GA. CODE ANN. § 43-1-19(a)(3) (2015) (allowing the refusal of a
license for any felony conviction).
197 See, e.g., 730 ILL. COMP. STAT. ANN. 5/5-5-5(d) (2015) (restoring “all license
rights and privileges” after completion of sentence or discharge from supervision
unless the relevant authority determines it is not in the public interest).
198 North Carolina, for instance, has a forgiveness pardon, an innocence pardon,
and an unconditional pardon, each with different eligibility criteria and impact in
terms of restorative relief. See Definitions/Glossary, OFFICE OF EXECUTIVE CLEMENCY,
http://www.doc.state.nc.us/clemency/glossary.htm (last visited July 20, 2015).
199 In Oklahoma, a pardon restores firearms privileges for non-violent offenders,
even allowing a recipient to serve as a peace officer. See OKLA. STAT. ANN. tit. 21
§ 1283(B) (2015). However, a pardon might not enable one to secure a professional
license. See Pardon Information Fact Sheet, OKLA. DEP’T OF CORR., http://www.ok.gov/
doc/documents/160301ab.pdf (last visited Sept. 7, 2015). In Pennsylvania, a pardon
restores all rights and removes all disabilities, including adverse use in a licensing
decision. See 18 PA.STAT. ANN. § 9124(b) (2015).
200 See Van Camp, supra note 48, at 1304-06 (citing state examples).
201 In Pennsylvania, for instance, rehabilitation is only one of several factors for the
Board of Pardons to consider. See Factors Considered by the Board, PA. BD. OF PARDONS (Aug.
15, 2012), http://www.bop.state.pa.us/portal/server.pt/community/factors_considered_by_
the_board/14412. In Nevada, a pardon “does not attest to rehabilitation of a person.”
Community Case Application, NEV. BD. OF PAROLE COMM’RS 2 (Jan. 2012), http://parole.
nv.gov/uploadedFiles/parolenvgov/content/Information/Application_Community.pdf.
202 With the multiple pardons issued in 2012 by outgoing Mississippi Governor
Haley Barbour being the most recent widely reported example. See Chad Flanders,
Pardons and the Theory of the “Second-Best,” 65 FLA. L. REV. 1559, 1571-74 (2013).
203 See generally Anna Kessler, Comment, Excavating Expungement Law: A
Comprehensive Approach, 87 TEMP. L. REV. 403, 408-09 (2015) (noting variations).

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In sum, despite the importance of the rights and privileges involved,
and the very significant impact of their loss to individuals, it is unlikely
that a reviewing court would see fit to command a forum state to
extend relief on the basis of the Privileges and Immunities Clause.
C. Right to Travel
Forum refusal to recognize restoration could also possibly be
challenged as an infringement of the right to interstate travel.204 In
Saenz v. Roe, the Court noted that the “right to travel” embraced “at
least three different components”:
[1] the right of a citizen of one State to enter and to leave
another State, [2] the right to be treated as a welcome visitor
rather than an unfriendly alien when temporarily present in
the second State, and [3], for those travelers who elect to
become permanent residents, the right to be treated like other
citizens of that State.205
The first travel right would not so much be at issue here, because
individuals would not be challenging infringement of their freedom of
state ingress and egress. The second right, to be “treated as a welcome
visitor,” which the Court located in Article IV’s Privileges and
Immunities Clause,206 could be implicated, such as when work or
school necessitates, but a challenge would face an uphill battle for
reasons discussed in the prior section.207 The success of a claim
sounding in the third travel right — to be treated equally when a
“permanent resident” — which the Court located in the Fourteenth
Amendment’s Privileges or Immunities Clause,208 would depend on a
reviewing court’s reading of Saenz.209
204 See supra note 21 and accompanying text. The right to travel can be limited by
state-imposed probation, parole, or other community supervision conditions. The
population at issue here, however, mainly concerns persons who have satisfied their
penal debt to society. See Smith v. Doe, 538 U.S. 84, 101-02 (2003) (noting that
convicted individuals who have discharged their penal debt “are free to move where
they wish and to live and work as other citizens, with no supervision”).
205 Saenz v. Roe, 526 U.S. 489, 500 (1999).
206 Id.
207 See supra Part II.B.
208 Saenz, 526 U.S. at 502-03 (citing U.S. CONST. amend. XIV, § 1).
209 Saenz reignited interest in the Privileges or Immunities Clause as a possible
basis for constitutional challenge, which had been moribund since the Slaughter-House
Cases, 83 U.S. (16 Wall.) 36 (1873). See generally Michael Kent Curtis, Historical
Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the
United States, 78 N.C. L. REV. 1071 (2000) (exploring that historical background).

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In Saenz, petitioners challenged a California law that restricted the
amount of welfare benefits they could receive during their first year of
California residency to an amount equivalent to that available in their
prior state residence.210 The Court, by a 7-2 vote, invalidated the
durational residency requirement, concluding that it violated a citizen’s
“right to be treated equally in her new state of residence.”211 The
requirement was impermissible, even if it only “incidentally” infringed
the right to travel to California212 and enjoyed fiscal justification in the
state.213 The Fourteenth Amendment’s Privileges and Immunities
Clause, the Court wrote, ensures the right of citizens, “rich or poor,” to
choose a state in which to reside, and states “do not have any right to
select their citizens.”214 According to the Saenz majority, “[t]he
Fourteenth Amendment, like the Constitution itself, was, as Justice
Cardozo put it, ‘framed upon the theory that the peoples of the several
states must sink or swim together, and that in the long run prosperity
and salvation are in union and not division.’”215
Saenz offers intriguing possibility based on its embrace of what I
have elsewhere called “constitutional collectivism.”216 Before Saenz,
the precept was most forcefully invoked in Edwards v. California,217
where the Court addressed yet another California law, one enacted in
the wake of the Depression making it a misdemeanor to bring into the
State “any indigent person who is not a resident of the State.”218
Framing the issue as whether the exclusionary law was within
California’s police power, the Court acknowledged the major
difficulties states faced as a result of the masses of itinerant poor then
moving about the land,219 but refused to condone California’s effort to
isolate itself.
Optimism was dashed, however, in McDonald v. City of Chicago, 561 U.S. 742 (2010),
when the Court parried efforts to locate the Second Amendment right to bear arms
there, instead relying on Fourteenth Amendment incorporation doctrine. Id. at 758.
210 Saenz, 526 U.S. at 493-94.
211 Id. at 505.
212 Id. at 504.
213 Id. at 506.
214 Id. at 510-11 (citing U.S. CONST. amend. XIV, § 1).
215 Id. at 511 (quoting Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523 (1935)).
216 Wayne A. Logan, Constitutional Collectivism and Ex-Offender Residence Exclusion
Laws, 92 IOWA L. REV. 1, 3 (2006).
217 Edwards v. California, 314 U.S. 160 (1941).
218 Id. at 171 (quoting CAL. WELF. & INST. CODE § 2615 (1941)).
219 See id. at 173 (“The State asserts that the huge influx of migrants into California
in recent years has resulted in problems of health, morals, and especially finance, the
proportions of which are staggering. It is not for us to say that this is not true.”);

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Writing for the Court, Justice Byrnes, invoking Justice Cardozo’s
“sink or swim” precept, stated that while “[i]t is frequently the case that
a State might gain a momentary respite from the pressure of events by
the simple expedient of shutting its gates to the outside world,” the
Constitution does not permit it to do so.220 As a member of the federal
union, California was obligated to assist the needy — “the common
responsibility and concern of the whole nation.”221 The state’s refusal to
do so imposed an impermissible barrier on interstate commerce insofar
as the free interstate passage of all citizens, including the poor, affected
commerce.222 Furthermore, the law was problematic in political process
terms because it deprived non-resident indigents, the targets of the law,
“of the opportunity to exert political pressure upon the California
legislature in order to obtain a change in policy.”223
Helping promote the successful reentry of ex-offenders can certainly
be thought “the common responsibility and concern of the whole
nation.”224 At the same time, the disparate treatment of newcomers
would give rise to political process concerns (especially concerning
the right to vote) identified in Edwards.225 States do not typically wish
to appear hospitable to ex-offenders,226 who are also often poor or
have little resources, and it is not inconceivable that state refusal of
restoration recognition aligns with a desire to discourage their entry.
Nevertheless, a restoration recognition claim would prove difficult
to sustain. Refusing to recognize the restored status of a newcomer,
while discriminatory in its effect, would not likely be seen as
comparable to the overt discrimination embodied in the travel barriers
condemned by the Court in Saenz and Edwards.227 Moreover, as with
Logan, supra note 216, at 26.
220 Edwards, 314 U.S. 160 at 173-74 (quoting Baldwin, 294 U.S. at 523).
221 Id. at 175; see also id. at 174-75 (“Recent years, and particularly the past decade,
have been marked by a growing recognition that in an industrial society the task of
providing assistance to the needy has ceased to be local in character.”).
222 Id. at 175-76.
223 Id. at 174.
224 Id. at 175.
225 See id. at 174.
226 See Wayne A. Logan, Crime, Criminals, and Competitive Crime Control, 104
MICH. L. REV. 1733, 1733-35 (2006) (noting state desires to reduce crime and natural
aversion for appearing too welcoming to potential criminal offenders); Doron
Teichman, The Market for Criminal Justice: Federalism, Crime Control, and
Jurisdictional Competition, 103 MICH. L. REV. 1831, 1831-33 (2005) (discussing how
state criminal justice policies might serve to discourage entry of individuals with
possible propensity to commit crimes).
227 For an intriguing argument that the Privileges or Immunities Clause was
intended to guard against “status-based” discrimination reflected in Dred Scott, see

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an Article IV Privileges and Immunities Claim,228 a state would be well
positioned to defend its differential treatment of newcomers by
asserting its desire to have its own restoration policies enforced.229
D. Equal Protection
Finally, refusing to recognize a newcomer’s restored status might be
challenged under the Equal Protection Clause of the Fourteenth
Amendment.230 As with any equal protection claim, the critical
threshold question would be the level of scrutiny that is to be applied.
Laws based on classifications that are suspect in character or that
impinge on a fundamental right are subject to the most demanding
level of scrutiny — strict scrutiny — requiring that a law be narrowly
tailored to serve a compelling state interest.231
As for the fundamental right prong, certain collateral consequences
— such as loss of the right to vote and possess a firearm — impinge
on a fundamental right,232 while other rights such as jury service
implicate very significant yet perhaps not fundamental rights.233 The
Bruce E. Boyden, Constitutional Safety Valve: The Privileges or Immunities Clause and
Status Regimes in a Federalist System, 62 ALA. L. REV. 111 (2010). Boyden argues that
similar discrimination motivated opposition to same-sex marriage, and that the Clause
should function as a “mechanism for ironing out differences” in status-based regimes.
Id. at 188. Conceivably, the restored status of ex-offenders could be similarly viewed,
but would make for an even more ambitious stretch for a reviewing court.
228 See supra Part II.B.
229 See Saenz v. Roe, 526 U.S. 489, 502 (1999) (stating that the Clause bars
“discrimination against citizens of other States where there is no substantial reason for
the discrimination beyond the mere fact that they are citizens of other States”).
230 U.S. CONST. amend. XIV, § 1 (“No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.”).
231 See, e.g., Johnson v. California, 543 U.S. 499, 505-06 (2005) (regarding suspect
classification); McConnell v. Fed. Election Comm’n, 540 U.S. 93, 205 (2003)
(regarding fundamental right), overruled on other grounds by Citizens United v. Fed.
Election Comm’n, 558 U.S. 310 (2010).
232 See Daniel P. Tokaji, Applying Section 2 to the New Vote Denial, 50 HARV. C.R.C.L. L. REV. 439, 468-71 (2015) (voting); Rob Hillenbrand, Note, Heller on the
Threshold: Crafting a Gun Insurance Mandate, 95 B.U. L. REV. 1451, 1475-76 & n.148
(2015) (firearms).
233 See Kevin J. Quilty, Note, The Unrecognized Right: How Wealth Discrimination
Unconstitutionally Bars Indigent Citizens from the Jury Box, 24 CORNELL J.L. & PUB.
POL’Y 567, 588-89 (2015) (noting that jury service has not been deemed a
fundamental right but arguing that it should be); Jason C. Miller, The Unwise and
Unconstitutional Hatch Act: Why State and Local Government Employees Should be Free
to Run for Public Office, 34 S. ILL. U. L.J. 313, 338-41 (2010) (noting that the right to
run for office has not been deemed a fundamental right but arguing that it should be).
See also Litmon v. Harris, 768 F.3d 1237, 1242 (9th Cir. 2014) (citation omitted)

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right to emigrate also could be affected, such as when a state refuses to
recognize another state’s removal of an occupational licensure bar and
an individual is not able to accept a new job and relocate.
A state, however, likely would have little difficulty identifying a
compelling state interest to justify its refusal to recognize restored
status of newcomers. At a high level of generality, a state could invoke
its police power interest in regulating ex-offenders who enter its
jurisdiction.234 More specifically, it could justify its position by
averring its significant interest in regulating jury service, voting, the
holding of public office, possession of firearms, and eligibility to work
in certain occupations.235 A state would face only somewhat greater
difficulty with respect to the narrow tailoring requirement, again
pointing to its sovereign right to adhere to its own restoration
eligibility criteria and procedures, not those of another state.236
Indeed, it could be said that a right is not being taken away at all;
rather, that refusal to recognize restoration simply withholds a benefit
that a state can withhold entirely.237
There is little reason to think that a classification-based challenge
would fare better. Ex-convict status itself is not suspect,238 and a court
(noting that “‘[t]he [Supreme] Court has never held that the ‘right’ to pursue a
profession is a fundamental right, such that any state-sponsored barriers to entry
would be subject to strict scrutiny.’”).
234 See Jamila Jefferson-Jones, A Good Name: Applying Regulatory Takings Analysis
to Reputational Damage Caused by Criminal History, 116 W. VA. L. REV. 497, 520
(2013) (noting that “the continued attachment of ex-offender status[] is usually
identified as ‘public safety’ and is, thus, an exercise of the government’s police
power”).
235 See, e.g., FLA. STAT. § 112.0111(1) (2015) (“The Legislature declares that a goal
of this state is to clearly identify the occupations from which ex-offenders are
disqualified based on the nature of their offenses. . . . in a manner that serves to
preserve and protect the . . . safety . . . of the general public . . . .”).
236 Cf. Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of
Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793 (2006) (noting low success
rate of strict scrutiny challenges more generally).
237 A position, for instance, adopted by courts regarding the selective
disenfranchisement and re-enfranchisement of convicted felons. See, e.g., Harvey v.
Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010) (citing Richardson v. Ramirez, 418 U.S.
24, 26-27 (1974)); Johnson v. Bredesen, 579 F. Supp. 2d 1044, 1054 (M.D. Tenn.
2008), aff’d, 624 F.3d 742 (6th Cir. 2010); Madison v. State, 163 P.3d 757, 769
(Wash. 2007) (en banc) (“Respondents have failed to establish that felons’ right to
vote qualifies as an important right under federal case law.”).
238 See, e.g., Romero v. Pataki, 241 Fed. App’x 764, 766 (2d Cir. 2007)
(unpublished decision) (“Convicted felons . . . are not a suspect class.”); see also
Turner v. Glickman, 207 F.3d 419, 425 (7th Cir. 2000) (upholding denial of food
stamp benefits to convicted felons); Heller v. Ross, 682 F. Supp. 2d 797, 807 (E.D.
Mich. 2010) (upholding differential treatment of convicted felons in handling of

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would need to be persuaded that newcomer ex-convict status is
somehow suspect (or even quasi-suspect), which is unlikely given the
modern Court’s reluctance to confer protected status on additional
subgroups.239
Still, non-recognition might be thought problematic because it
violates a state’s more general obligation to treat similarly situated
individuals in a similar fashion.240 When a forum state lacks a
recognition mechanism, and makes relief available to its own
convicted individuals but not newcomers, such as can occur with
pardons,241 the two populations experience different treatment.242 The

occupational licenses).
239 See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 9.1.2
(4th ed. 2011) (noting that “the Court has shown little willingness in the past three
decades to subject additional classifications to strict or intermediate scrutiny”). But see
Ben Geiger, Comment, The Case for Treating Ex-Offenders as a Suspect Class, 94 CALIF.
L. REV. 1191, 1192-93 (2006).
240 City of Cleburne v. Cleburne Living Cent., 473 U.S. 432, 439 (1985).
241 In Oklahoma, for instance, the right to sit on a jury is only restored by a
pardon, OKLA. STAT. ANN. tit. 38, § 28(C)(5) (2015), but only persons convicted in
Oklahoma can secure a pardon. Eligibility, OKLA. PARDON AND PAROLE BOARD,
http://www.ok.gov/ppb/Pardon_Process/Eligibility/index.html (last modified Apr. 19,
2015). In South Carolina, the right to serve on a jury and to possess a firearm is only
restored by pardon. S.C. CODE ANN. § 14-7-810(1) (2015) (jury service); Brunson v.
Stewart, 547 S.E.2d 504, 505 (S.C. Ct. App. 2001) (firearm possession). Again,
however, the pardon authority extends only to in-state convictions. Telephone
Conversation with Matthew Buchanan, General Counsel, South Carolina Department
of Probation, Parole and Pardon Service (Aug. 24, 2015) (transcript on file with
author) (South Carolina only grants pardons to persons convicted in state); see also,
e.g., DEL. CODE ANN. tit. 10, § 4509(b)(6) (2015) (only pardon can restore right to sit
on a jury); DEL. CODE ANN. tit. 11, §§ 1448(a)(1), (3), (7) (2015) (only pardon can
restore right to own or possess firearm); Telephone Conversation with Judy Smith,
Delaware Board of Pardon (Aug. 24, 2015) (transcript on file with author) (Delaware
governor has jurisdiction over only state convictions).
242 Although not the frequent subject of litigation, courts at times have found fault
with state laws that subject out-of-state convicted sex offenders to less favorable
treatment vis-à-vis registration and community notification. See, e.g., Doe v. Pa. Bd. of
Prob. & Parole, 513 F.3d 95, 102, 112 (3d Cir. 2008) (invalidating provisions of
Pennsylvania law that provided an “extensive adjudicatory process” to in-state but not
out-of-state offenders before subjecting them to community notification); Hendricks
v. Jones ex rel. State, 2013 OK 71, ¶ 1, 349 P.3d 531, 532 (Okla. 2013) (holding that
law violated equal protection because it required out-of-state offenders but not in-state
offenders to register when convicted before the statute’s enactment date); cf. ACLU v.
City of Albuquerque, 2006-NMCA-078, ¶¶ 26-30, 139 N.M. 761,137 P.3d 1215, 1227
(N.M. Ct. App. 2006) (finding equal protection violation when city required convicted
sex offenders residing in other states to register if they spent a certain amount of time
in city while not requiring registration of offenders who lived in neighboring cities
and worked in city).

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question then becomes whether there exists a “rational relationship
between the disparate treatment and a legitimate government
objective.”243 The standard is a deferential one: Variable treatment is
permitted unless it “is so unrelated to the achievement of any
combination of legitimate purposes that [the court] can only conclude
that the legislature’s actions were irrational.”244
Even here, a state would be in a strong position to turn back a
constitutional challenge. Refusing to make pardons available to
persons with out-of-state convictions, for instance, can be justified on
jurisdictional245 or comity grounds,246 and a reviewing court would be
reluctant to second-guess the parameters of executive pardon
authority.247 At the same time, states could justify refusing to make
administrative and judicial relief mechanisms available to newcomers
due to the administrative burdens and costs of doing so,248 as well as
the difficulties inherent in assessing the background and conviction
history of persons with out-of-state convictions.249
***

243

Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 145 (1st Cir. 2001).
Vance v. Bradley, 440 U.S. 93, 97 (1979).
245 See, e.g., Beecham v. United States, 511 U.S. 368, 372-74 (1994) (interpreting
18 U.S.C. § 921(a)(20) and stating that only federal law can nullify the effect of a
federal conviction). On rare occasions courts have held otherwise. See, e.g., Arnett v.
Stumbo, 153 S.W.2d 889, 891-92 (Ky. Ct. App. 1941) (upholding right of governor to
restore office holding right under state law to federal felon in absence of presidential
pardon); Malone v. Shyne, 2006-2190, p. 18 (La. 9/13/06); 937 So. 2d 343, 356 (La.
2006) (upholding authority of governor to “issue pardons restoring collateral civil
rights forfeited solely as a result of state law . . . to persons convicted of federal
felonies” that have not been pardoned by the president).
246 See generally Daniel T. Kobil, The Quality of Mercy Strained: Wresting the
Pardoning Power from the King, 69 TEX. L. REV. 569, 583-89 (1991) (surveying sources
of pardon authority).
247 See, e.g., Solesbee v. Balkcom, 339 U.S. 9, 11-12 (1949) (citations omitted),
abrogated by Ford v. Wainright, 477 U.S. 399 (1986) (“Seldom, if ever, has this power
of executive clemency been subjected to review by the courts.”); Ex Parte Garland, 71
U.S. (4 Wall.) 333, 380-81 (1866) (discussing the scope of the pardon power).
248 Cf. Armour v. City of Indianapolis, 132 S. Ct. 2073, 2081 (2012) (holding that
administrative costs associated with expanding access provide rational basis to uphold
law).
249 See Wayne A. Logan, Horizontal Federalism in an Age of Criminal Justice
Interconnectedness, 154 U. PA. L. REV. 257, 271-72, 293 (2005) [hereinafter Horizontal
Federalism] (noting common problems associated with incomplete or uncertain outof-state records).
244

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In sum, little basis exists to conclude that restoration recognition
can be forced as a result of federal constitutional precedent. The
Constitution’s structural provisions designed to ensure interstate
comity and freedom of travel, such as the Full Faith and Credit and
Privileges and Immunities Clauses, appear to be of only very modest
avail. By the same token, as just discussed, locating a recognition
challenge in a rights-based or equal treatment argument would very
likely founder on the considerable deference accorded to states in the
treatment of ex-offenders (whether their own or those coming from
other states).
III. LEGISLATIVE OPTIONS
Given the absence of a viable constitutional basis to compel state
recognition of restored status, this part explores potential legislative
solutions. Discussion is first framed in terms of the individual states.250
Because states might not act on their own, however, the discussion
considers whether Congress, faced with the pressing national
challenge of reentry, could take the initiative.251
A. States
Ideally, any solution to the difficulties presented by interstate
recognition would come organically from states themselves. It is they,
individually and collectively, that will have to implement recognition.
This part examines the chief considerations that should animate policy
deliberation.
1.

The Case for Recognition

A chief reason for states to recognize the restoration outcomes of
sister-states is that doing so fosters comity.252 Here, another state has
adopted a policy favoring restoration, applied its restoration eligibility
criteria to an individual, and granted relief. Refusing recognition
amounts to a slap in the face of the issuing state, treating its judgment

250

See infra Part III.A.
See infra Part III.B.
252 See Franchise Tax Bd. v. Hyatt, 538 U.S. 488, 493 (2003) (noting the Nevada
Supreme Court recognized comity as “an accommodation policy, under which the
courts of one state voluntarily give effect to the laws and judicial decisions of another
state out of deference and respect, to promote harmonious interstate relations”
(internal quotation marks omitted)).
251

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like that of a foreign nation,253 rather than a repeat player in a
federated constitutional union.254 The issuing state has an interest in
seeing its outcome honored and given effect in the forum, just as the
forum has a reciprocal desire to see its own decisions honored in the
issuing state.255 Indeed, if a sister-state conviction is relied upon to
impose a collateral consequence,256 logic and fairness support acceding
to its restorative decision. Moreover, to the extent that a conviction
serves as an evidentiary proxy for dangerousness and moral
condemnation,257 a sister-state’s decision to restore undercuts this
empirical ground, especially if based on an individualized finding of
rehabilitation.258
Surely no less important, recognition can have tangible practical
benefits for forum states. Just as removing obstacles to reentry can
lessen the likelihood of recidivism in the convicting state,259 having a
253 See Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943) (noting that
since the Constitution’s framing states no longer exist as “independent foreign
sovereignties, each free to ignore rights and obligations created under the laws . . . of
the others”).
254 See Aziz Z. Huq, Does the Logic of Collective Action Explain Federalism Doctrine?,
66 STAN. L. REV. 217, 253-54 (2014).
255 See generally ROBERT AXELROD, THE EVOLUTION OF COOPERATION 31 (1984)
(describing model of sustained cooperation of repeat player participants that “starts
with a cooperative choice, and thereafter [the player] does what the other player did
on the previous move”); see also generally RUSSELL W. COOPER, COORDINATION GAMES:
COMPLEMENTARITIES AND MACROECONOMICS 126-50 (1999) (discussing cooperative
models applied to governments). An issuing state, moreover, might have practical
reason to see that its restoration outcome is recognized, such as when an individual
travels to and returns from a contiguous state and is able to provide for himself and
any dependents.
256 See supra notes 13–14 and accompanying text.
257 See Dickerson v. New Banner Inst., Inc. 460 U.S. 103, 120 (1983) (stating that
convictions provide “a convenient, although somewhat inexact, way of identifying
‘especially risky people’”) (quoting United States v. Bass, 404 U.S. 336, 345 (1971)),
superseded by statute as recognized by Logan v. United States, 552 U.S. 23, 27-28 (2007).
258 As the Oklahoma Court of Criminal Appeals noted over forty years ago:

There would appear to be some merit to the theory that if the State of
Nevada had convicted a person and then nullified that conviction with a
pardon, Oklahoma would be bound to give full faith and credit to the act of
Nevada nullifying the conviction. Oklahoma could not choose to recognize
one act of the sister-state, the conviction, and then ignore its subsequent act
which nullified the conviction.
Kellogg v. State, 1972 OK CR 345, ¶ 8, 504 P.2d 440, 442 (Okla. Crim. App. 1972).
259 See supra notes 23–24; see also JEREMY TRAVIS, BUT THEY ALL COME BACK: FACING
THE CHALLENGES OF PRISONER REENTRY 168-70 (2005) (discussing studies showing
recidivism reduction as a result of adult education and work programs).

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recognition mechanism in place in the forum can provide public safety
benefits (and avoid the economic costs associated with recidivism).260
Recognition can also alleviate notice-related uncertainties experienced
by newcomers, which can result in criminal liability (such as with the
firearm right)261 that result in public safety expenditures (prosecution
and imprisonment). Taken together, such savings very likely exceed
administrative costs associated with creating and maintaining a
recognition regime.262
Finally, recognition can have possible federalism benefits. When
states vary in their restoration policies, recognition can provide a
valuable opportunity for intra-state policy experimentation.263
Carefully monitored, the forum state will be able to assess the impact
of restored status, vis-à-vis recidivism and other measures of reentry
success (e.g., securing work). At the same time, as Heather Gerken
and Ari Holtzblatt recently observed, imported policy outcomes might
inspire interest in the foreign norm being replicated in the forum:
Foreign norms can “generate friction, and friction has its uses in a
democratic system,” in that it can “spur[] democratic engagement.”264

260 On the significant positive influence employment in particular has in facilitating
successful reentry, see, for example, Marlaina Freisthler & Mark A. Godsey, Going
Home to Stay: A Review of Collateral Consequences of Conviction, Post-Incarceration
Employment, and Recidivism in Ohio, 36 U. TOL. L. REV. 525, 531-32 (2005) (examining
how employment opportunities promote crime desistance); Matthew Makarios et al.,
Examining the Predictors of Recidivism Among Men and Women Released from Prison in
Ohio, 37 CRIM. JUST. & BEHAV. 1377, 1377-89 (2010) (outlining barriers to reentry,
including the difficulty in finding and maintaining employment).
261 See, e.g., United States v. Wilson, 159 F.3d 280, 295 (7th Cir. 1998) (Posner,
C.J., dissenting) (condemning lack of notice to those subject to federal firearms ban
and noting that when a law is not clear it is “not a deterrent. It is a trap”); United
States v. Herron, 45 F.3d 340, 341, 342-43 (9th Cir. 1995) (noting “antimousetrapping rule” contained in federal law banning firearm possession that requires
any state pardon, expungement, or restoration of rights must expressly provide that
individual “may not ship, transport, possess, or receive firearms” (citations omitted)
(internal quotations marks omitted)); cf. Small v. United States, 544 U.S. 385, 390
(2005) (rejecting consideration of a foreign nation conviction in part because it would
“leave those previously convicted in a foreign court . . . uncertain about their legal
obligations”).
262 See supra notes 260–61 and accompanying text.
263 Cf. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,
dissenting) (“It is one of the happy incidents of the federal system that a single
courageous State may, if its citizens choose, serve as a laboratory; and try novel social
and economic experiments without risk to the rest of the country.”).
264 Heather K. Gerken & Ari Holtzblatt, The Political Safeguards of Horizontal
Federalism, 113 MICH. L. REV. 57, 62-63 (2014).

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Opponents of same sex marriage, for instance, find themselves
living next to a gay couple married in another state. Residents
of blue states have to read the textbooks designated for a
conservative Texas market. Skeptics of environmental reform
find themselves driving cars that meet California’s high
emissions standards. As a result, political elites in these states
are prodded to reach across political boundaries, not just
territorial ones.265
By this account a state with a generous restoration policy can serve as
a norm entrepreneur vis-à-vis other states.266
2.

The Case Against Recognition

Recognition, however, is not without its challenges. Perhaps most
significant is that recognition can effectively superimpose on the
forum state the policy preferences of another state.267 Although not
clothed as such, it is this autonomy-based concern that motivates
courts to invoke the public policy exception when refusing to afford
full faith and credit to sister-state recognition outcomes.268 In a related
sense, recognition can be thought problematic because it short-circuits
the democratic process.269 While it could be the case that forum state
265 Id. at 63; see also id. at 88 (“[W]hen citizens of one state must accommodate the
preferences of another’s, they are enlisted in the practice of pluralism. They are
reminded that they are not just part of a state but part of a union.”); id. at 90
(“Spillovers mitigate the problems associated with policymaking inertia because they
provide the friction necessary to ignite the national policymaking process.”). For
classic treatments of norm diffusion among states, see Virginia Gray, Innovation in the
States: A Diffusion Study, 67 AM. POL. SCI. REV. 1174 (1973) (examining why states
innovate legislatively and how those innovations spread); Jack L. Walker, The
Diffusion of Innovations Among the American States, 63 AM. POL. SCI. REV. 880 (1969)
(aiming to measure the speed with which innovations are adopted and recognize the
principles guiding adoption).
266 On the phenomenon more generally, see ERIC A. POSNER, LAW AND SOCIAL
NORMS 32 (2000) (noting norm diffusion among governments); Eric A. Posner & Cass
R. Sunstein, The Law of Other States, 59 STAN. L. REV. 131, 133-35 (2006) (discussing
phenomenon of governments heeding one another’s precedents and norms).
267 See Lynn A. Baker & Ernest A. Young, Federalism and the Double Standard of
Judicial Review, 51 DUKE L.J. 75, 134 (2001) (noting the “negative freedom” of
federalism).
268 See supra Part II.A.
269 See Paul H. Robinson, The Legal Construction of Norms: Why Does the Criminal
Law Care What the Layperson Thinks Is Just? Coercive Versus Normative Crime Control,
86 VA. L. REV. 1839, 1867 (2000) (observing that the legislative process affords “an
occasion for public debate that can help build norms, with the conclusion of the
debate announced by legislative action, or inaction”).

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residents approve in whole or part of the issuing state’s particular
restoration laws and procedures, and resulting outcome, they might
not, and recognition gives short shrift to this possibility.270 Under such
circumstances, legislators can be insulated from political
accountability,271 a deficit that can assume particular importance in
the event of a public safety failure, such as could occur when an
individual with a restored right to possess a firearm commits a
firearm-related crime, or recognition results in an individual securing
an occupational license and commits a work-related crime.
Finally, by blurring the lines of normative authority of individual
states, recognition risks undercutting a value extolled by the Framers
in the vertical federalism context, namely the competition for the
“affection of the people,”272 which Alexander Hamilton posited as
being especially at play in the administration of justice.273 Although it
is perhaps unlikely that a given state’s restoration policy alone would
affect an individual’s decision to vote with one’s feet,274 decisions to
grant or withhold particular rights (e.g., the right to possess a firearm,
hold public office, or serve on a criminal jury) reflect civic and
political beliefs of considerable importance.275 State policy on whether
270 See Ernest A. Young, The Rehnquist Court’s Two Federalisms, 83 TEX. L. REV. 1,
52 (2004) (“[S]tate governments cannot provide fora for political participation and
competition unless meaningful decisions are being made in those fora.”).
271 Cf. New York v. United States, 505 U.S. 144, 169 (1992) (stating that
accountability is diminished when the federal government commandeers states to
execute federal policy).
272 United States v. Lopez, 514 U.S. 549, 576-77 (1995) (Kennedy, J., concurring)
(“[T]he Federal and State Governments are to control each other . . . and hold each
other in check by competing for the affections of the people.”) (citing THE FEDERALIST
NOS. 46, 51 (James Madison)). On the Framers’ vision in this regard more generally,
see Todd E. Pettys, Competing for the People’s Affection: Federalism’s Forgotten
Marketplace, 56 VAND. L. REV. 329, 338-44 (2003).
273 THE FEDERALIST No. 17, at 120 (Alexander Hamilton) (Clinton Rossiter ed.,
1961) (calling the ordinary administration of justice by local governments “the most
powerful, most universal, and most attractive source of popular . . . attachment” due
in part to it being “the immediate and visible guardian of life and property”).
274 A concept of course made famous by Charles Tiebout who reasoned that
individuals will gravitate to jurisdictions that best align with their personal needs and
convictions. See Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL.
ECON. 416, 418-19 (1956).
275 Such differences manifest themselves in the quite marked variations in the
restoration opportunities of states. Compare, e.g., 430 ILL. COMP. STAT. ANN.
65/10(c)(1) (2015) (firearm right lost and can be regained only after 20 years), with
IDAHO CODE ANN. § 18-310(1)–(2) (2015) (firearm right lost only during sentence,
with exception of specified serious violent offenses); DEL. CODE ANN. tit. 11, § 4364
(2015) (person convicted of “infamous crime” cannot serve in public office), with

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and when relief should be afforded from occupational disabilities
could also have implications for companies that are located in or are
perhaps considering relocating to the forum state.276
3.

The Case for a More Conditional Approach

As the preceding discussion highlights, restoration recognition has
significant benefits, but is not without complication or concern.277 In
significant part, difficulties arise as a result of recognition being
conceived of in unconditional terms. Florida, for example, surely acts
within its power when it recognizes sister-state restoration of a firearm
right, but democratic transparency and self-governance is diminished
when doing so overrides its own restoration procedures and
policies.278 Moreover, recognition can result in the unfair treatment of
a forum’s own residents, who remain subject to the forum’s less
generous restoration policy.279
CONN. CODE § 9-46a (right of elector (and thus right to hold public office) restored
upon satisfaction of penal sentence), MASS. CONST. art. IX (affording all inhabitants the
right to hold office, without restriction), MONT. CONST. art. IV, sec. 4 (restoring right
to hold public office upon successful completion of sentence, absent additional
legislative qualifications), and N.D. CENT. CODE ANN. § 12.1-33-03(1) (2015) (right to
hold future office not lost except during incarceration or stated otherwise by sentence
or law); MONT. CODE ANN. sec. 46-18-801(2) (2015) (rights of citizenship regained
upon completion of sentence), with LA. CODE CRIM. PROC. ANN. art. 401(A)(5) (2015)
(right to serve on a jury never regained absent pardon) and MICH. COMP. LAWS
§ 600.1307a(1)(e) (2015) (requiring without qualification that a juror “[n]ot have
been convicted of a felony.”).
276 Connecticut law, for instance, provides that “[i]t is [] the policy of
[Connecticut] to encourage all employers to give favorable consideration to providing
jobs to qualified individuals, including those who may have criminal [] records,” and
that the “public is best protected when criminal offenders are rehabilitated and
returned to society prepared to take their places as productive citizens.” CONN. GEN.
STAT. ANN. § 46a-79 (2015).
277 See supra Part III.A.1–2.
278 See supra notes 101–10 and accompanying text.
279 Florida’s clemency rules track the position taken in the caselaw discussed in the
text. See FLA. COMM’N ON OFFENDER REVIEW, RULES OF EXECUTIVE CLEMENCY 4(I)(f)
(Mar. 2011), available at https://www.fcor.state.fl.us/docs/clemency/clemency_
rules.pdf. The Rules, however, do not allow for recognition of sister-state relief of
other collateral consequences; individuals with out-of-state convictions must satisfy
the demanding petition requirements that apply to persons with Florida convictions.
Id. at 9(C), 10(B). The asymmetry figured in litigation arising out of the controversial
2000 Bush-Gore presidential election contest in Florida, in which voting rights groups
challenged the purging from eligible elector lists individuals with convictions in states
that automatically restored their right to vote. See, e.g., Plaintiffs’ Reply in Support of
Their Motion for Partial Summary Judgment, NAACP v. Harris, No. 01-120-CivGold/Simonton, 2002 WL 32971627 (S.D. Fla. July, 22, 2002).

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At the same time, Vermont’s more global statutory approach (based
on the Uniform Law Commission’s Collateral Consequences of
Convictions Act) is not without problems of its own. Vermont, for
instance, requires that unconditional deference be shown to a sisterstate pardon, providing that it “has the same effect for purposes of
authorizing, imposing, and relieving a collateral consequence in
[Vermont] as it has in the issuing jurisdiction.”280 Such deference can be
problematic because it possibly gives short shrift to the very significant
differences among state pardon criteria and procedures noted earlier.281
Global recognition also can afford relief to newcomers not afforded to
the forum’s own denizens,282 a concern that is magnified in states that
impose limits on the relief that a pardon can afford.283
Vermont’s law regarding recognition of relief by means other than
pardon also raises possible concern. In one part, it defers to an
“expungement, sealing, annulment, set-aside, or vacation by a
court . . . on grounds of rehabilitation or good behavior.”284 However,
states can differ on how “rehabilitation” and “good behavior” are
evaluated.285 Moreover, Vermont law expresses no reservation
whatsoever when “civil rights are restored pursuant to statute.”286 As a
result, a right restored in one state by operation of law can result in
the right being recognized in the forum, even if the forum imposes
more demanding restoration criteria and processes. In Vermont, for
instance, a person convicted of a felony will need to secure a pardon if
they want to regain the right to serve on a jury.287 A newcomer from
Kansas, where the right is regained upon completion of sentence,288
will be able to serve on a Vermont jury through Vermont’s recognition
of the issuing state’s automatic restoration.289
280

VT. STAT. ANN. tit. 13, § 8009(d) (2013) (effective Jan. 1, 2016).
See supra notes 198–202 and accompanying text.
282 Vermont’s law does, as noted earlier, have a narrow exception to its otherwise
blanket deference: neither a Vermonter nor newcomer can be relieved of (i) sex
offender registration and notification; (ii) drivers’ license-related limits; and (iii)
ineligibility for employment by law enforcement agencies. See VT. STAT. ANN. tit. 13, §
8012(a) (2013) (effective Jan. 1, 2016). It is unclear whether this proviso applies to
individuals receiving a pardon in another state.
283 See, e.g., supra notes 198–99 and accompanying text.
284 tit. 13, § 8009(e).
285 See supra notes 200–01.
286 tit. 13, § 8009(e).
287 See tit. 4, § 962(a)(5) (2015); tit. 12, § 64 (2015).
288 KAN. STAT. ANN. § 21-6613(b) (2015).
289 A similar scenario would play out in Virginia, which essentially makes restoration of
the right to vote (and also serve on a jury and hold public office) automatic for persons
281

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Unconditional deference can also risk other perhaps more subtle
difficulties, including law-evasion. One could, for instance, be
convicted in State A, a restoration-restrictive jurisdiction, and engage
in a form of “circumvention tourism” by traveling to State B,290 with
its more generous restoration regime, and then returning to State A
and demanding recognition of restored status.291 In the workplace
context, recognition of removed disabilities can be problematic if the
forum has not established legal protections for employers against
negligent hiring and supervision claims that might arise if a restored
employee engages in work-related misconduct.292
In light of these difficulties, law reform efforts should proceed
mindful of the need to accommodate varied state restoration law,
policy, and practice. Despite the acknowledged efficiency benefits of
uniform laws more generally,293 and continued interest among states
in the model restoration regime promulgated by the Uniform Law
Commission,294 state differences in relief eligibility laws and

convicted in Virginia of non-violent felonies who have completed their sentence, but
imposes a three-year waiting period for individuals convicted in Virginia of violent felonies.
See General Registrar and Electoral Board Handbook, supra note 94, § 9.1.3.1; Secretary of
the Commonwealth, Restoration of Rights, https://commonwealth.virginia.gov/judicialsystem/restoration-of-and who secures automatic rights restoration rights/ (last visited Sept.
28, 2015). As a result, it seems that an individual convicted in another state of a violent
crime who secured automatic restoration will be subject to a less demanding regime than
an individual with a Virginia conviction. Telephone and e-mail correspondence with Garry
Ellis, Virginia Department of Elections, supra note 94. See also Handbook, supra note 94,
§ 9.1.3.2 (noting that “[o]ther state laws may provide for restoration through much simpler
even automatic processes.”).
290 Cf. I. Glenn Cohen, Circumvention Tourism, 97 CORNELL L. REV. 1309 (2012)
(discussing phenomenon in medical treatment context).
291 For instance, persons convicted in Nebraska and serving a prison sentence there
must secure relief from the Nebraska Board of Pardons before regaining the jury
service and public office rights. NEB. REV. STAT. ANN. § 29-112 (2015). Yet Nebraska
seemingly would unconditionally recognize relief granted by another state with a less
demanding regime. See id. § 29-113 (2015).
292 As of 2012, only six states had such protections in place. See State Reforms
Reducing Collateral Consequences for People with Criminal Records: 2011-2012
Legislative Round-Up, NATIONAL EMPLOYMENT LAW PROJECT 6 (Sept. 2012), available at
http://nelp.3cdn.net/6ab3d3b51b9490b40c_cnm6b847q.pdf.
293 See, e.g., David Charny, Competition Among Jurisdictions in Formulating
Corporate Law Rules: An American Perspective on the “Race to the Bottom” in the
European Communities, 32 HARV. INT’L L.J. 423, 436 (1991) (uniformity “saves the
decisionmakers and transactors the costs of having to develop and learn a multiplicity
of rules”).
294 See supra note 17 and accompanying text.

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procedures, and the varied policy preferences they embody,295 will not
likely disappear anytime soon.
One way to achieve greater conditionality is for states to have
recognition hinge on satisfaction of the forum’s own restoration
criteria and procedures on a case-by-case basis. Many states take this
approach when assessing whether a conviction from another state
warrants recognition for sentence enhancement or sex offender
registration purposes,296 and some states already take a conditional
approach to restoration recognition. Arkansas, for instance, restores
the right to hold public office on the basis of expungement, and
recognizes sister-state restoration only if based on a “similar
expunction statute.”297 Washington State, as noted earlier, takes a
similar conditional approach with restoration of the firearm right,298 as
does North Carolina.299
The federal government, which uses state convictions to trigger its
own collateral consequences,300 also takes a conditional approach.
Federal law prohibiting convicted state felons from possessing
firearms, for instance, contains an exception for persons who have had
their “civil rights restored” by the convicting state.301 Federal courts
must assess whether in fact a state has restored an individual’s right to
vote, serve on a jury and hold public office,302 a review that can prove
quite difficult.303 If all three civil rights are not restored, the individual
remains “convicted” under federal law and is therefore subject to the
federal firearm prohibition.304
295

See, e.g., supra note 275 and accompanying text.
See Logan, Horizontal Federalism, supra note 249, at 260, 279-88.
297 ARK. CODE ANN. § 7-6-102(d) (2015).
298 See supra notes 119–26 and accompanying text; see also State v. Harrison, No.
481-49-5-1, 2002 Wash. App. LEXIS 563, at *8 (Apr. 1, 2002) (concluding that North
Dakota procedure allowing for reduction of felony to misdemeanor, based on
successful satisfaction of probation requirements, did not qualify as “other equivalent
procedure” based on a “finding of rehabilitation” (quoting State v. Radan, 21 P.3d
255, 330 (Wash. 2001) (internal quotation marks omitted)).
299 See N.C. GEN. STAT. ANN. § 14-415.1(d) (2015) (allowing restoration when
person “has been pardoned or has had his or her firearms rights restored if such
restoration of rights could also be granted under North Carolina law”).
300 See Margaret Colgate Love, Starting Over with a Clean Slate: In Praise of a
Forgotten Section of the Model Penal Code, 30 FORDHAM URB. L.J. 1705, 1721-22 (2003).
301 18 U.S.C. § 921(a)(20) (2012).
302 See United States v. Thompson, 702 F.3d 604, 607-08 (11th Cir. 2012).
303 See generally STEPHEN P. HALBROOK, FIREARMS LAW DESKBOOK § 2:30 (2014).
304 See, e.g., United States v. Nix, 438 F.3d 1284, 1286-87 (11th Cir. 2006)
(holding restoration of civil rights is necessary to trigger § 921(a)(20)); United States
v. Brown, 408 F.3d 1016, 1017 (8th Cir. 2005) (holding that Missouri’s restoration of
296

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In the alternative, states could take an ex ante approach, based on
analysis of other state restoration protocols, and recognize restored
status conferred only by states with kindred criteria and procedures.
The up-front comparative law undertaking would be challenging and
time-consuming, and would require updating. But it would not be
without precedent. States already condition recognition of one
another’s decisions to grant concealed carry handgun permits on this
basis.305 Similarly, in Texas, where state law requires that a sister-state
conviction be for a “substantially similar” offense in order to trigger
sex offender registration in Texas, the Department of Public Safety is
charged with the responsibility for such assessments and making
available any “compilation” created to prosecutor offices.306
B. Congress
In the event that states fail to adopt restoration recognition
provisions on their own Congress should step in and advance a
provision along the lines suggested above. This part examines possible
avenues by which it could do so.
1.

Interstate Compact

One way for Congress to act would be through approval of a
compact entered into by states that wish to cooperate with respect to
interstate recognition of relief. The Compact Clause allows for such
agreements,307 subject to congressional approval.308 Interstate
only some rights (juror service and holding public office) were not sufficient to trigger
the § 921(a)(2) exemption because other civil rights that were not restored); United
States v. Thomas, 991 F.2d 206, 213-14 (5th Cir. 1993) (holding that the failure to
deny an individual the right to possess a firearm was not equivalent to restoring their
civil rights).
305 See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-12-717, GUN CONTROL: STATES’
LAWS AND REQUIREMENTS FOR CONCEALED CARRY PERMITS VARY ACROSS THE NATION 19
(2012) (noting that roughly forty states selectively recognize permits from one or
more other states on this basis).
306 TEX. CODE CRIM. PROC. ANN. art. 62.003 (2015). In an effort to ensure that
individuals are registered for the minimum period required by the federal Adam
Walsh Act, the website of the Department of Public Safety contains a lengthy, detailed
list specifying and comparing registration periods under Texas and federal law. See
Texas Offenses Tiered Under the Federal Adam Walsh Act (42 U.S.C. Section 16911 et
seq.), TEX. DEP’T OF PUB. SAFETY (Apr. 2013), https://records.txdps.state.tx.us/
SexOffender/Registration%20periods%20SORP%20v%20SORNA%202-2013.pdf.
307 U.S. CONST. art. I, § 10, cl. 3 (“No State shall, without the Consent of
Congress . . . enter into any Agreement or Compact with another State . . . .”).
308 Despite the unequivocal quality of its text, the Compact Clause has long been

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compacts are common, providing a durable legal framework for
handling cross-jurisdictional matters of mutual importance.309 All
states, for instance, are signatories to the Interstate Compact for Adult
Offender Supervision,310 and the Interstate Compact for Juveniles,311
which are overseen by quasi-governmental commissions dedicated to
ensuring the smooth movement of offenders.312 As with other
compacts, interested states would present Congress with a model
recognition provision,313 which would become federal law subsequent
to congressional approval.314
A compact would have obvious appeal, as it would be the result of
negotiated compromise by the states themselves, but it remains
unclear whether it would actually come to fruition. The main reason is
held to admit of exceptions. Most recently, the Supreme Court stated that
congressional approval is only necessary when a state agreement “enhance[s] state
power to the detriment of federal supremacy.” U.S. Steel Corp. v. Multistate Tax
Comm’n, 434 U.S. 452, 460, 471 (1978); see also Matthew Pincus, Note, When Should
Interstate Compacts Require Congressional Consent?, 42 COLUM. J.L. & SOC. PROBS. 511,
513-14 (2009). Consistent with this view, Texas law expressly provides that the
Department of Public Safety, responsible for overseeing “extrajurisdictional
registrant[s],” “may negotiate and enter into a reciprocal registration agreement with
any other state to prevent residents of this state and residents of the other state from
frustrating the public purpose of the registration of sex offenders by moving from one
state to the other.” TEX. CODE CRIM. PROC. ANN. art. 62.052(c) (2015).
309 See generally CAROLINE N. BROUN ET AL., THE EVOLVING USE AND THE CHANGING
RULE OF INTERSTATE COMPACTS (2006) (discussing the development of interstate
compacts, including their various advantages); JOSEPH F. ZIMMERMAN, INTERSTATE
COOPERATION: COMPACT AND ADMINISTRATIVE AGREEMENTS (3d ed. 2012).
310 See 4 U.S.C. § 112(a) (2012); Offender Information, INTERSTATE COMMISSION FOR
ADULT
OFFENDER
SUPERVISION,
http://www.interstatecompact.org/StateDocs/
StateDocuments.aspx (last visited July 28, 2015). See generally Michael L. Buenger &
Richard L. Masters, The Interstate Compact on Adult Offender Supervision: Using Old Tools to
Solve New Problems, 9 ROGER WILLIAMS U. L. REV. 71, 107-15 (2003) (tracing history and
evolution of the Compact).
311 See Interactive Map, INTERSTATE COMMISSION FOR JUVENILES, http://www.
juvenilecompact.org/Directory/RegionsStates/Overview.aspx (last visited July 28, 2015).
312 See About the Commission, INTERSTATE COMMISSION FOR ADULT OFFENDER
SUPERVISION, http://www.interstatecompact.org/About/AbouttheCommission.aspx (last
visited July 28, 2015); About ICJ, INTERSTATE COMMISSION FOR JUVENILES,
http://www.juvenilecompact.org/About/Mission,Vision,andValues.aspx (last visited
July 28, 2015). Multiple states are also signatories to the Interstate Corrections
Compact, which facilitates transfer and oversight of inmates who for some reason
serve time in a state other than where sentenced. See Interstate Corrections Compact,
NAT’L CENTER FOR INTERSTATE COMPACTS, http://apps.csg.org/ncic/Compact.aspx?id=82
(last visited July 28, 2015).
313 See Edward T. Swaine, Does Federalism Constrain the Treaty Power?, 103
COLUM. L. REV. 403, 504-05 (2003).
314 See Texas v. New Mexico, 462 U.S. 554, 564 (1983).

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that states might not discern a pressing need to subscribe to a
coordinated national solution. Unlike other compacts, such as with
probationers and parolees, motivated by a need to facilitate the
monitoring of individuals subject to continued correctional
supervision, restored individuals present neither an ongoing
imperative for interstate agency cooperation nor pose an immediate
public safety threat.315 In short, as with other public policy areas
marked by state collective action barriers,316 Congress might need to
act on its own.
2.

Spending Clause

If Congress were to take the initiative, it might seek to do so
pursuant to Article I’s Spending Clause,317 which allows the federal
government to condition state receipt of funds on compliance with
federal conditions on matters concerning the nation’s “general
welfare.”318 Although congressional resort to the spending authority
long served as a virtually unassailable basis for the exercise of federal
power,319 the Court in National Federation of Independent Business v.
Sebelius320 signaled that the power is not without limit.
In Sebelius, seven members of a highly fractured Court found that a
key portion of the Affordable Care Act (the Act), conditioning state
receipt of federal Medicaid funding, violated the Spending Clause.321
The Justices held unconstitutional Congress’s threat to withhold
315 It also bears mention that compacts can present enforceability problems. First,
individuals have neither a direct nor third-party beneficiary interest in having compact
terms enforced. See, e.g., Doe v. Pa. Bd. of Prob. & Parole, 513 F.3d 95, 104 (3d Cir.
2008) (“The language of the [Interstate Probation and Parole] Compact itself creates
rights for the various states who are signatories to it. It does not create rights for
probationers or parolees.”). Second, little recourse exists to penalize or sanction
recalcitrant signatories to compacts. See, e.g., Alabama v. North Carolina, 560 U.S.
330, 339-42 (2010) (declining to penalize state that opted out of interstate compact
regarding disposition of radioactive waste).
316 See Huq, supra note 254, at 218 (noting need for Congress to act when states
exhibit a “collective inability to organize and install their own solutions to pressing
policy concerns”).
317 See U.S. CONST. art. I, § 8, cl. 1 (providing Congress power “to pay the Debts
and provide for the . . . general Welfare of the United States”).
318 South Dakota v. Dole, 483 U.S. 203, 207 (1987) (citations omitted) (“[T]he
exercise of the spending power must be in pursuit of ‘the general welfare.’”).
319 See Erin Ryan, The Spending Power and Environmental Law After Sebelius, 85 U.
COLO. L. REV. 1003, 1006 (2014).
320 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).
321 See id. at 2601-08 (Roberts, C.J., joined by Breyer, J., and Kagan, J.); id. at 265966 (Scalia, J., joined by Kennedy, J., Thomas, J., and Alito, J., dissenting).

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Medicaid funds from states that elected to not satisfy the Act’s
required expansion in Medicaid coverage.322 While unable to agree on
a single rationale, the three-member plurality opinion by Chief Justice
Roberts and the four-member dissent written by Justice Scalia agreed
that Congress’s threat to withhold all Medicaid funds from noncompliant states was so large (amounting to the largest line item in
state budgets) that Congress crossed the line from permissible
inducement to impermissible coercion.323
Unanimity of result but not rationale requires that the Court’s
holding be the “position taken by those Members who concurred in
the judgment[] on the narrowest grounds.”324 On this basis, the
spending authority take-away from Sebelius resides in the narrower
plurality opinion of Chief Justice Roberts, which invalidated the
Medicaid expansion because (1) it linked state receipt of funds for an
extant funding program to a new independent program, and (2) the
funds at stake were so significant that their threatened loss amounted
to coercion.325
Here, Congress would have no difficulty maneuvering the spendingpower shoals seemingly created by Sebelius. It could either fund new
state laws requiring recognition directly326 or it could condition
receipt of federal money on states doing so.327 If it went the latter
route, Congress could pressure state buy-in by tying adoption of a
provision to a state’s receipt of a portion of federal criminal justice
funding under the Edward Byrne Grant Program.328 The method is a
322

Id. at 2608 (Roberts, C.J., joined by Breyer, J., and Kagan, J.).
See id. at 2604 (deeming threat “much more than ‘relatively mild
encouragement’ — it is a gun to the head”); id. at 2661 (Scalia, J., joined by Kennedy,
J., Thomas, J., and Alito, J., dissenting) (finding threat “coercive” and stating that “if
States really have no choice other than to accept the package . . . the conditions
cannot be sustained under the spending power”).
324 Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia,
428 U.S. 153, 169 n.15 (1976)) (internal quotation marks omitted).
325 Sebelius, 132 S. Ct. at 2601-07 (Roberts, C.J.); see also Samuel R. Bagenstos, The
Anti-Leveraging Principle and the Spending Clause After NFIB, 101 GEO. L.J. 861, 873
(2013); Ryan, supra note 320, at 1007.
326 See Daniel Richman, The Past, Present, and Future of Violent Crime Federalism,
34 CRIME & JUST. 377, 399 (2006) (discussing broad array of direct federal grants and
in-kind aid disbursed with regard to state criminal justice matters).
327 See South Dakota v. Dole, 483 U.S. 203, 206 (1987) (“Congress may attach
conditions on the receipt of federal funds, and has repeatedly employed the power ‘to
further broad policy objectives by conditioning receipt of federal moneys upon
compliance by the recipient with federal statutory and administrative directives.’”)
(quoting Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (Burger, C.J.)).
328 See, e.g., State v. Tatlow, 290 P.3d 228 (Ariz. Ct. App. 2012) (discussing how
323

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tried and true one, for instance allowing Congress to repeatedly
ratchet up state sex offender registration and community notification
laws,329 despite continued Tenth Amendment-based commandeering
challenges.330 While it could be argued that the initiative runs afoul of
the second Sebelius concern, threatened withholding of ten percent of
funding is not remotely comparable to the impact of lost state
Medicaid funds deemed problematic in Sebelius.331
3.

Commerce Clause

The Commerce Clause, which empowers Congress to “regulate
Commerce . . . among the several States,”332 could serve as another
basis for congressional action. Although the critical threshold
requirement of a matter or behavior qualifying as “[c]ommerce” has at
times proved controversial, including in Sebelius,333 when ex-offenders
change state residences they act as those who “by some preexisting
activity bring themselves within the sphere of federal regulation.”334
Just as courts have repeatedly rejected Commerce Clause challenges to
the federal law imposing criminal liability on sex offenders who travel
across state lines,335 Congress would act within its authority when it
Byrne Act funds are distributed in Arizona); see also How Byrne JAG Grants Are
Awarded and Distributed, NAT’L CRIM. JUST. ASS’N, http://www.ncja.org/how-byrne-jaggrants-are-awarded-and-distributed (last visited July 28, 2015).
329 See WAYNE A. LOGAN, KNOWLEDGE AS POWER: CRIMINAL REGISTRATION AND
COMMUNITY NOTIFICATION LAWS IN AMERICA 55-66 (2009) (surveying federal laws
starting with the Jacob Wetterling Act (1994) through the Adam Walsh Act (2006)).
330 See United States v. White, 782 F.3d 1118, 1128 (10th Cir. 2015) (joining the
Second, Fifth, Eighth, and Ninth Circuits in finding that the Sex Offender Registration
and Notification Act does not violate the Tenth Amendment); see also United States v.
Felts, 674 F.3d 599, 608 (6th Cir. 2012) (noting that “Congress. . .has not
commandeered Tennessee, nor compelled the state to comply with its requirements.
Congress has simply placed conditions on the receipt of federal funds.”).
331 See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2663 (2012)
(Ginsburg, J., concurring and dissenting in part). The point at which coercion
becomes intolerable (“real” in the parlance of Sebelius), as Kathleen Sullivan long ago
noted, is less a constitutional than an “irreducibly normative” judgment. Kathleen M.
Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1428 (1989). For
discussion of the dynamic within states affecting whether to submit to federal
conditions, and receive funds, see Brian Galle, Federal Grants, State Decisions, 88 B.U.
L. REV. 875, 923-30 (2008).
332 U.S. CONST. art. I, § 8, cl. 3.
333 See, e.g., Dan T. Coenen, The Commerce Power and Congressional Mandates, 82
GEO. WASH. L. REV. 1052 (2014) (discussing the Supreme Court’s use of the
Commerce Clause in Sebelius).
334 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2592 (2012).
335 See, e.g., United States v. White, 782 F.3d 1118, 1123-26 (10th Cir. 2015)

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regulates the interstate travel of restored ex-offenders. In doing so,
legislation should make clear the economic impact associated with
state-imposed impediments to the interstate travel of restored
individuals, such as with the right to occupational licensure.336
Although the Court has admonished that the “Constitution requires
a distinction between what is truly national and what is truly local,”337
such line-drawing would present no difficulty here. If indeed reentry
was ever truly the concern of individual states, it no longer is so given
the pressing national need to integrate the nation’s many millions of
ex-offenders.338 Rather than constituting an internal police power
matter for states alone, as to which “the general welfare of the United
States is not concerned,”339 successful reentry is manifestly a concern
warranting the attention of the national legislature.340
(“[W]e discuss the Supreme Court’s decision in NFIB and explain why it is not
controlling of the Commerce Clause issue presented here [regarding SORNA].”
(referring to Sebelius, 132 S. Ct. 2566)); United States v. Anderson, 771 F.3d 1064,
1071 (8th Cir. 2014) (rejecting a Commerce Clause claim against SORNA and noting
continued effect of another decision holding likewise post-Sebelius); United States v.
Cabrera-Gutierrez, 756 F.3d 1125, 1129-32 (9th Cir. 2013) (upholding Congress’
power to regulate interstate travel of sex-offenders under the Commerce Clause).
336 See supra notes 68–72 and accompanying text.
337 United States v. Morrison, 529 U.S. 598, 617-18 (2000).
338 See, e.g., Vicki Lopez Lukis, Final Report to the Governor, GOVERNOR’S EXOFFENDER TASK FORCE app. C, at 39 (Nov. 2006), available at http://www.
pdmiami.com/governors_ex-offender_task_force.pdf (noting that conviction-based
employment restrictions may affect “more than one-third of Florida’s 7.9 million nonfarm jobs”); John Schmitt & Kris Warner, Ex-Offenders and the Labor Market, CENTER
FOR ECON. & POL’Y RES. 1 (Nov. 2010), available at http://www.cepr.net/documents/
publications/ex-offenders-2010-11.pdf (noting that in 2008 criminal record-related
employment barriers resulted in almost a full percent reduction in the nation’s
employment rate, amounting to a gross domestic product impact as high as $65
billion). See generally Michelle Natividad Rodriguez & Maurice Emsellem, 65 Million
“Need Not Apply”: The Case for Reforming Criminal Background Checks for Employment,
THE NAT’L EMP. L. PROJECT (Mar. 2011), available at http://www.nelp.org/page/_/SCLP/
201/65_Million_Need_Not_Apply.pdf?nocdn=1 (noting critical national economic
impact of criminal conviction and the need for changes in the way records affect
employment market).
339 Randy E. Barnett, The Proper Scope of the Police Power, 79 NOTRE DAME L. REV.
429, 476 (2004) (quoting 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 21
(Max Farrand ed., 3d ed. 1966)) (internal quotations marks omitted).
340 See generally U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 803 (1995)
(“[I]n [the] National Government, representatives owe primary allegiance not to the
people of a State, but to the people of the Nation . . . . Representatives and Senators
are as much officers of the entire Union as is the President.”); Wayne A. Logan,
Creating a “Hydra in Government”: Federal Recourse to State Law in Crime Fighting, 86
B.U. L. REV. 65, 89 (2006) (noting same and providing additional historical evidence
in support of the view).

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Yet even if Congress enjoys authority to act vis-à-vis emigrating exoffenders, a potential problem remains in that it could well lack
authority to require state officials to implement its legislative will,
based on Tenth Amendment anti-commandeering principles set forth
in Printz v. United States.341 Directing state executive officials to
recognize restoration could raise commandeering concern akin to that
in Printz, where the Court invalidated a federal law requiring local
executive actors to conduct background checks on potential firearms
purchasers,342 and absorb associated costs.343 However, to the extent
that state courts (as opposed to executive actors) are required to do so,
commandeering presents less of a concern.344
4.

Effects Clause

Finally, Congress might act pursuant to power granted under a
lesser known part of the Full Faith and Credit Clause to lend “[e]ffect”
to the “public Acts, Records, and judicial Proceedings” of states.345
Congress in the past has acted on its Effects Clause authority in
instances of felt national need,346 with the Parental Kidnapping
341 521 U.S. 898, 928-29, 935 (1997) (holding that “Congress cannot compel the
States to enact or enforce a federal regulatory program”).
342 Id. at 933-35 (interpreting a provision of the Brady Handgun Violence
Prevention Act).
343 Id. at 930 (identifying “financial burden[s]” of implementing federal policy as
an anti-commandeering concern).
344 See id. at 928-29 (suggesting that Congress enjoys greater authority to affect the
work of state judges). For a critical take on the federalism-based premise animating
the Court’s commandeering prohibition more generally, see Wesley J. Campbell,
Commandeering and Constitutional Change, 122 YALE L.J. 1104 (2013). According to
Professor Campbell, Anti-Federalists actually favored federal deployment of state
executive and judicial actors to enforce federal law, as a means to preserve state
power, and commandeering was widely accepted in the Founding Era and for decades
thereafter. Id. at 1111.
345 U.S. CONST. art. IV, § 1. For an account of the Framing Era origins of the Effects
Clause, see Engdahl, supra note 145. Professor Engdahl asserts that the historical
record makes clear that the first clause of the Full Faith and Credit Clause, requiring
that states afford full faith and credit to one another’s acts, records, and proceedings,
obliges only that states provide them prima facie evidentiary sufficiency; only the
“Effects Clause,” pertaining to Congress, requires that they be given legal extra-state
effect. Id. at 1593-94; see also Sachs, supra note 145, at 1202 (examining early
congressional consideration of invoking “Effects” Clause in relation to state records).
346 In the Defense of Marriage Act, Congress paradoxically invoked the Clause to
not require that same-sex marriages performed in states be given effect in objecting
states. See Andrew Koppelman, Dumb and DOMA: Why the Defense of Marriage Act Is
Unconstitutional, 83 IOWA L. REV. 1, 21-24 (1997) (surveying objections made by
constitutional law scholars regarding congressional use of the Clause in this way). As

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Prevention Act of 1980,347 the 1994 Full Faith and Credit for Child
Support Orders Act,348 and domestic protection orders under the
Violence against Women Act (1994 and 2000).349 Congress intervened
to resolve difficulties presented by interstate conflicts in
enforcement,350 and perhaps could do so here. However, Congress has
been notably abstemious in invoking its authority to date focusing
exclusively on family law.351 Whether it would do so with respect to
restoration recognition, which does not have similarly immediate dire
implications, is subject to question.
***
In sum, Congress has the means to oblige restoration recognition
among states, and while getting the current “do nothing” Congress to
act is never a sure thing,352 reason exists for at least some optimism in
the reentry context. With enactment of the Second Chance Act of
2007, which provides state and local governments over $250 million
in grants to develop and implement research-based reentry
programs,353 members of Congress made clear their desire to advance
the cause of reentry among states.354 At the same time, restoration
recognition — as with reentry more generally — presents little of the
noted earlier, the constitutionality of the provision has not been addressed by the
Court. See supra notes 28–29.
347 See 28 U.S.C. § 1738A (2012).
348 See 28 U.S.C. § 1738B; see also Violent Crime Control and Law Enforcement
Act of 1994, 18 U.S.C. 2265 (2012).
349 See 18 U.S.C. § 2265(a).
350 See Emily J. Sack, Domestic Violence Across State Lines: The Full Faith and Credit
Clause, Congressional Power, and Interstate Enforcement of Protection Orders, 98 NW. U.
L. REV. 827, 876-88 (2004).
351 Id. at 876 (“Congress has passed only a handful of specific full faith and credit
legislation, focused exclusively in the family law area.”); see also Engdahl, supra note
145, at 1655-58 (noting that Congress has “rarely” exercised its power in this regard
and that any such exercise will be “exceptional”).
352 See, e.g., Susan Milligan, The Do-Nothing Congress, U.S. NEWS & WORLD REP. (Sept.
24, 2015), http://www.usnews.com/news/articles/2014/09/08/the-do-nothing-congress.
353 See Second Chance Act of 2007, Pub. L. 110-199, 122 Stat. 657 (2008) (codified as
amended at 42 U.S.C. § 17501 (Supp. V. 2012)) (authorizing grants to state governments
and nonprofit entities to provide reentry assistance). See generally Second Chance Act
(SCA), U.S. BUREAU OF JUSTICE ASSISTANCE, https://www.bja.gov/ProgramDetails.aspx?
Program_ID=90 (last visited July 28, 2015).
354 See, e.g., 42 U.S.C. § 17501(a)(1) (2012) (identifying among the Act’s purposes
as “break[ing] the cycle of criminal recidivism . . . and help[ing] States, local units of
government, and Indian Tribes, better address the growing population of criminal
offenders who return to their communities and commit new crimes”).

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political downside that typically impedes criminal justice reform
initiatives. Not only can lawmakers invoke the positive narrative of
individual redemption and cite the human and fiscal costs of
recidivism,355 they can actually score points with constituents from
across the political spectrum, given the diverse appeal of firearm rights
and securing gainful employment (conservatives and libertarians) and
civic and political rights such as voting and jury service (progressives).
CONCLUSION
Among the most commonly extolled virtues of American federalism
is the legal diversity resulting from its decentralized system of
governance.356 This Article has addressed an outgrowth of this
diversity: the conflicts generated when individuals, convicted of a
crime in one state, and who later secure relief from collateral
consequences of conviction there, seek to have their restored status
recognized by another state to which they have relocated. Although it
is true, as Judith Resnick has observed, that “laws (like people)
migrate, and seepage is everywhere,”357 with restoration recognition
such legal seepage has thus far been limited.
Whether and how states lend legal effect to one another’s restoration
outcomes has major implications for horizontal federalism. It also has
major practical importance, certainly for ex-offenders, but also for
states and a nation struggling to promote the successful reentry of tens
of millions of convicted individuals. In its recent landmark decision
recognizing a constitutional right to same-sex marriage, the Supreme
Court expressed its concern over the “instability and uncertainty”
caused by the refusal of some states to recognize same-sex marriages

355 Cf. Statement of Principles, RIGHT ON CRIME, http://www.rightoncrime.com/theconservative-case-for-reform/statement-of-principles/ (last visited July 31, 2015)
(discussing the conservative approach to criminal justice policies, especially in terms
of cost-effectiveness).
356 See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (“[Federalism] assures a
decentralized government that will be more sensitive to the diverse needs of a
heterogeneous society; it increases opportunity for citizen involvement in democratic
processes . . . .”); Evan H. Caminker, State Sovereignty and Subordinacy: May Congress
Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001, 1074
(1995) (noting that federalism permits “greater local tailoring and aggregate diversity
of policies throughout the nation”); Barry Friedman, Valuing Federalism, 82 MINN. L.
REV. 317, 402 (1997) (noting the argument that federalism “enhances our lives by
preserving and creating diversity”).
357 Judith Resnick, Law’s Migration: American Exceptionalism, Silent Dialogues, and
Federalism’s Multiple Ports of Entry, 115 YALE L.J. 1564, 1576 (2006).

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lawfully entered into in other states,358 adding that “the disruption
caused by the recognition bans is significant and ever-growing.”359 To
date, however, similar concern over emigrant ex-offenders, who seek
recognition of their restored status, and who potentially far exceed the
number of same-sex married individuals, has failed to garner much
public attention.
Although restoration remains out of reach for many because of
narrow eligibility criteria, administrative cost, or the difficulty of the
process,360 relief opportunities will likely continue to expand in coming
years, and thus so too will conflicts when ex-offenders emigrate. This
Article has explored the many important legal and policy ramifications
of recognition and highlighted the challenges that it presents. In doing
so, it is hoped that the Article has advanced the cause of ensuring, as
Shakespeare would have it, that mercy seasons justice.

358 Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015). By way of example, the
Court noted that “[f]or some couples, even an ordinary drive into a neighboring State
to visit family or friends risks causing severe hardship in the event of a spouse’s
hospitalization while across state lines.” Id.
359 Id.
360 See SUBRAMANIAN ET AL., supra note 42, at 33–34.