A. Frequency and Applicant Motivations

Some attorneys and advocates have called certificates underutilized (see Radice Reference Radice2012, 777) and said that most people eligible for certificates do not seek them, a view confirmed by interviews with judges and probation officers. In the overwhelming majority of counties, probation officers and judges report that a very small portion of the eligible population seeks certificates—usually just a few people a month, in small and midsize counties. For example, in a typical rural county that saw about 700 felony and misdemeanor sentences in 2012, probation staff estimated that each month “two or three” certificate applications were received. In a New York City county that saw about 11,000 felony and misdemeanor dispositions in 2012, the probation official in charge of processing certificate applications (and who kept careful records) reported receiving “thirty‐five to forty‐five” in a typical month. Similarly, most judges explained that they usually receive only a handful of applications each month; some recalled processing fewer than ten a year. There were exceptions: a county court judge in one upstate city said that lawyers ask for certificates during the plea‐bargaining process “maybe a third of the time,” and another small county judge estimated he signs “fifteen a month, or more.” (Neither judge was sure how certificates had come to have such a relatively prominent place in their court practice.)

It appears that in most counties, fewer than 5 percent of people sentenced in a typical year are seeking certificates. Of course, even that would be only a fraction of those under supervision (probation typically lasts three years for a misdemeanor, five for a felony), and a still smaller portion of those ever sentenced in the county, which is the population for whom certificates might be worth having. These low figures suggest knowledge of certificates is not extensive among the populations who stand to gain from them.

People seek CORs for a range of purposes, including some that the document does not deliver.Footnote ²¹ “A lot of people want it because they think it'll wipe their record clean,” explained a probation official in a large suburban county. “It's ‘a friend told me this would clear my record,’” said a New York City county probation officer. Interestingly, probation officers in four counties mentioned the right to vote as a regular motivation, with one estimating that almost a third of COR seekers are trying to restore their voting rights—despite the fact that New York law does not bar people on probation from the polls. Others mentioned that they had occasionally heard COR applicants talk about college and military applications and efforts to gain citizenship, despite the apparent absence of a legal reason to think the COR would help with these pursuits.

Most interviewees were quick to explain the most common reason people with convictions apply for the COR—though they differed on what that reason was. In urban locations, judges and probation officers agreed that expanded access to jobs is the most common goal. “Employment—it's the only thing that should be motivating it,” said one New York City court judge emphatically. Two other New York City judges also emphasized the prominence of employment‐based applications, as did six of their counterparts interviewed in three upstate counties’ city and county courts. Meanwhile, six probation officers interviewed in two New York City counties, two urban upstate counties, and two heavily populated suburban counties in the suburban New York City area and the Hudson Valley all stated that employment purposes—usually seeking professional licensure through a New York state agency, or looking for a boost in the general job search—was the most common motivator. Housing surfaced only rarely outside New York City, but probation officials interviewed in two city boroughs both said that after employment, access to public housing was the second most common COR application motivator. Both knew that NYCHA, the city housing authority, considered CORs as evidence of rehabilitation when hearing appeals from denied applicants with convictions.Footnote ²²

Rural certificate seekers have a different goal. “It's hunting—almost all of them,” answered one upstate county court judge, capturing the dominant COR applicant profile across rural northern and western New York. In almost every rural county probation office and county court chamber, criminal justice officials told the same tale: “If there are twenty‐seven of them in the last year, twenty‐five of them relate to guns,” one rural county probation officer explained. In predominantly rural counties, six of eight county court judges put guns first, while twelve of fifteen rural county probation officers did so (the other three said employment and guns were about even). “Ninety‐five percent of the time, they want them for firearms,” said one northern judge. Probation officials told the same story. “Obviously, this is hunting country up here, and they want a rifle or shotgun to go hunting with. Those are really the only ones I've dealt with,” explained one rural county probation official. “It's ‘I want to hunt again, and I heard there's some form I can fill out,’” as another probation official characterized the typical applicant. “Around here, a lot of people hunt for the freezer,” not just for sport, explained a third rural county probation officer. When asked how many COR applications per month his office received, another probation officer replied: “We could get three or four a day, during hunting season.”

In more than a dozen lengthy interviews conducted in New York City related to collateral consequences and CORs—with judges, probation officials, defense counsel, prosecutors, and staff of re‐entry organizations—firearms rights were almost completely unmentioned. In predominantly rural parts of northern and western New York, however, gun rights so permeate the certificates process that firearms surfaced not only in response to questions about applicants’ motivations, but throughout the interview. For example, in response to an open‐ended question about how they thought people with convictions learned about CORs, most probation officers gave the same answers: from an attorney, from a potential employer, or from their probation officer. Five rural county probation officers, however, immediately mentioned firearms. Two said a typical COR applicant learned of the COR only when he had tried to purchase firearms and was rejected; another said applicants learned of the COR when they heard that the loss of firearms rights was a standard probation condition; and another mentioned applicants asking their hunter friends how they could hunt again. A fifth said CORs sometimes came to the attention of probationers when officers conducting routine home visits saw firearms in the home, and explained to the offender that such possession was unlawful unless they were granted a COR. As discussed below, firearms rights were also critical to probation officers’ and judges’ decision making related whether to recommend and award CORs.

B. Deciding to Recommend or Grant a Certificate of Relief: Collaborative Processes

Most CORs issued by county and city courts emerge from a collaborative process. In practice, almost all judges send every COR application to their probation department for an investigation and recommendation, and probation officers and judges describe widespread agreement about which types of applicants should be awarded CORs. Probation officers often explain that they anticipate local judicial standards in doing their work, and judges, in turn, appear to accept the overwhelming majority of probation recommendations. Meanwhile, as explained below, local conditions influence how these interpreters understand CORs—in particular, the importance of firearms for hunting in predominantly rural areas.

In explaining certificate practices, every probation officer referred to judges—in many cases, anticipating, describing, and even praising judicial standards, not merely specifying judicial referral as the path by which COR applications arrive on their desk. “Imagine you're the judge, saying ‘why should I approve this?’” one rural county probation officer advises his clients. “Our local judge has adopted an unwritten policy: for the most part they want people to complete their supervision and be off for a while” before a COR can be granted, explained a Hudson Valley probation officer. “We're pretty much parallel in our thinking,” said a northern county probation officer. “We all have different philosophical views, and I like the judge's view: earning it back, through showing compliance with probation,” as another upstate probation official articulated local COR standards. Probation officers overwhelmingly said judges accept their COR granting recommendations. “He'll almost never refuse,” said a typical officer. Others responded “99% of the time”; “98% of the time”; “He hasn't turned me down yet, for one”; and “We have a good relationship.” “We've worked a long time to develop a reputation with our court—they trust our work,” explained a rural probation officer.

Some probation officers mentioned other legal interpreters as having shaped their understanding of CORs, if not individual decisions. In one New York City borough, one urban upstate county, and one rural upstate county, probation officers described in positive terms their collaboration with public defender and reform advocacy organizations working on certificates. Others mentioned included the New York DCJS (four counties); New York City Probation, which has advocated increased use of certificates as a boon to re‐entry (five counties); local prosecutors (three counties); and the sheriff, when dealing with applicants seeking pistol permits (one county).

C. Granting CORs at Initial Sentencing

Probation officers and judges in different counties employ varying standards for recommending and awarding CORs. Particularly deep differences emerge over the wisdom of granting CORs at sentencing: with a few exceptions, most jurisdictions appear to award extremely few certificates at sentencing, and many judges and probation officers object outright to such grants. Officials’ differing responses to the possibility of sentencing grants are influenced by community norms, by their considered judgments about the nature of criminal supervision and public safety, and by their own evaluations of the merits of the individual applications before them.

As explained above, New York law has long enabled CORs to be granted at sentencing, and legal texts appear to obligate both judges and probation officers to apprise defendants and those under supervision of the COR's existence. Under a change to certificates law enacted in 2011 and meant to encourage sentencing grants, courts sentencing people to any nonprison sentence are directed, “upon application,” to “determine the fitness of an eligible offender for such Certificate prior to or at the time sentence is pronounced.”Footnote ²³ Meanwhile, New York City Probation in recent years has been engaged in what more than one interview subject described as a “push” to get certificates granted at sentencing (see, e.g., Schiraldi Reference Schiraldi2012). Some upstate judges and probation officials are aware of this effort; very few, however, routinely recommend sentencing grants, and many oppose them. Meanwhile, interviews indicate that across New York, judges neither frequently award certificates at sentencing nor automatically advise defendants of their eligibility. In one New York City county, a senior probation official explained that their department was working to encourage judges to award CORs broadly at sentencing—a campaign of “explanation and persuasion,” with probation emphasizing the rehabilitative and public safety benefits of greater access to employment. And in one upstate county, both the probation officer and the county court judge interviewed agreed that sentencing grants are usually worked out between the prosecutor and the public defender, as part of a plea bargain.

However, these are the exceptions that prove the rule—the only two probation offices contacted where it was standard practice to recommend CORs at sentencing for most eligible offenders. Two other small county officers explained that they commonly recommended certificates for people who had done well enough to be granted early termination of probation; one large upstate county probation office was considering a policy of recommending the COR for everyone completing supervision, but had not yet adopted such a practice. Sixteen others, however, have no practice of recommending COR grants on the basis of eligibility alone—at sentencing, during supervision, or at its successful completion—or of apprising those they supervise of their eligibility. This is notable because New York state law requires that individuals not granted the COR at sentencing be informed of the COR's existence and their potential eligibility while under supervision.Footnote ²⁴ No probation officers interviewed referred to this legal provision, in response either to this question or to a query about how typical applicants learned about the COR. “We'll take the application, but there's no handout while they're under supervision. If it comes up, we'll respond,” said a typical probation director. “Unless it's a special circumstance, we usually don't address it” during the presentence process or supervision, said another.

Many probation officers made clear their opposition to sentencing grants. “It's kind of like our unwritten policy: if a person's gonna get convicted of a felony, there should be a period of good behavior,” said a typical upstate probation officer. “They're hardly ever given at the time of sentence—it's something you notice, it's so rare,” said a probation officer in a large downstate suburban county. This was the case across the state: “Judges don't want to grant them at sentencing,” said a probation officer in one New York City county, while his counterpart in a rural county explained, “the day of sentencing, we don't want to say ‘let ‘em hunt.’” Another also explained resistance to early grants in terms of firearms—but this time emphasizing the motivational value of a potential COR grant. “For a lot of people around here, firearms rights are a big deal,” said this rural county probation officer, and the possibility of gun‐rights restoration “gets people over the hump” in terms of completing a term of probation.

Among this large group of respondents, it was most common to indicate that early COR recommendations did occur, but only in response to those who already held licenses they stood to lose. As a central New York probation officer explained: “If the person had a professional license, and [the offense] was something that's not typical of his or her behavior, that might allow us to do that.” We'd do it “to save that person's job,” or “if you know someone needs it to retain employment,” as two others explained. Several probation officers volunteered that health care licensure is the most common objective in such situations, with home health aides the most frequent single occupation; one traced an increase in COR applications to a state Department of Health policy change requiring certified nurse's assistants to secure CORs even for misdemeanor convictions.

Among judges, six indicated that they routinely granted CORs at sentencing. Three of those six were in New York City courts, and these jurists made clear that their purposes were directly linked to employment. “If I can help someone get a job, in this economy, I'm gonna do it,” explained one city judge.Footnote ²⁵ “The automatic bars are stupid,” said another city judge bluntly of state licensure restrictions. Seven other judges said CORs were occasionally awarded at sentence, but only as needed to maintain employment, while six said sentencing grants were rare or never occurred—and some disparaged the idea. “No, I'm doing the sentence, and that's separate,” laughed one New York City judge when asked if he regularly awards CORs at sentence. “It's more like, ‘let me know in a year, how you're doing,’” explained an upstate counterpart. “I can count on one hand the times I've issued it at the sentence,” said another veteran upstate rural county court judge.

D. Postsupervision COR Applications

The typical COR applicant has completed supervision and returns to court months or years later to seek relief from disabilities. Core practices for these candidates are broadly similar: the court refers the application to probation, at which point a probation officer makes certain the applicant is eligible for a judicially awarded COR (i.e., was not sentenced to incarceration and has no more than one felony conviction), then conducts what many called a “mini‐PSR” investigation, including either meeting with the applicant in person or at least talking with him or her on the phone. Many probation offices have developed their own unique practices within this sequence. The probation office in a large suburban county, for example, directs applicants to supply stand‐alone letters to the judge, articulating their purposes; an upstate county requires them to submit three reference letters, both to demonstrate their own commitment to the process and to increase their chances. In one large downstate suburban county, probation charges candidates $350 to process COR applications. No other office charges such a fee.

Beyond common procedures, however, significant variation emerges. As with sentencing grants, considerations of public safety figure prominently in many probation offices and judicial chambers, but with differing results: some conclude a COR grant serves the public by facilitating desistance, while others focus on risks of issuing the certificate, particularly where firearms are concerned. Many weigh the specific civil law effects of a COR grant, as when certain objectives are viewed more favorably than others—yet simultaneously, uncertainty about those effects is widespread. And as explained below, these officials reach very different conclusions about the relationship between the COR and individual rehabilitation, sometimes drawing on contrasting readings of the law, sometimes on their judgments of individual applicant merit.

Probation officers’ approaches to COR recommendations fell into three groups. The first, and the smallest, consisted of the two county probation offices (one in New York City, the other upstate) who explained that eligibility alone is the threshold: they recommend CORs for virtually all eligible offenders, and do so at sentencing as often as possible. Meanwhile, nine county probation officers’ responses articulated different versions of what we might call the supportive review approach: if an eligible person had completed supervision and wanted a certificate, and an investigation did not raise any obvious red flags, they would support the grant. This was particularly true of applications for employment purposes: “we look more positively on those,” as a typical upstate probation director explained. As long as there is no “safety issue in the community,” a large suburban county probation officer said, “if it would aid in their rehabilitation, we tend to recommend granting them.”

In twelve probation offices, meanwhile, COR applications are met with what we might call skeptical review. Here, eligibility, desire, completion of supervision, and a clean postprobation record may not be enough, as probation officers are likely to look carefully at the conviction record, to ask if the applicant has “a good reason,” and to look at whether “there has been a significant period of time where they have not been in trouble,” and built “ties to the community,” as a Hudson Valley probation officer explained. “It's a privilege, and you've got to earn it,” said a rural central New York probation director. “I tell people, ‘the judges don't give these out like candy. You're asking them to go out on a limb by granting this,’” said another. “I mean, you have to do something,” explained a probation officer in a large downstate suburban county. “You can't just say ‘I'm a different person’—you have to show something. They have to convince me—and I'm not that easy to convince!”

Notably, several members of this group made clear that they were wary of recommending CORs specifically because so many applicants were seeking firearms rights. A few rural county officers explicitly contrasted their typical offender profile with that encountered by the New York City probation officials who were promoting sentencing grants. “We're living in different worlds,” said one, after speaking admiringly of the work of New York City Probation Commissioner Vincent Schiraldi, a certificates supporter. Referring to upstate colleagues, this probation director described “a little pushback” against sentencing grants “because of the fact that we dealt primarily with the firearms issue.” Another made the same point: “we're dealing with very different populations” than New York City probation staff, particularly “the hunter population” in the upstate counties. “The only [applications] we get are from felony DWI guys” who want to hunt, said another rural probation director. And when asked whether housing restrictions motivated COR applications, another replied: “No, because the type of offenders we have—the DWI cases, the drunk drivers—they actually have jobs and housing.”

Judges’ COR signing standards were similarly diverse. Nine judges (four of them in New York City) explained that if an applicant was eligible and had a PSR or postsupervision probation report recommending a COR grant, they would rarely refuse. “I don't require a purpose,” said one jurist in a mixed upstate county. “If they're eligible, I'll give it to them. If they're employed, they're less likely to get in hot water again.”Footnote ²⁶ Asked how he decides which applications to grant, a New York City judge pointed directly to the probation recommendation: “It's Probation. These are government officials; they're going to be careful.” An upstate counterpart agreed, though he also routinely involves the county prosecutor: “The key is Probation, and the District Attorney. If he has a problem, he expresses it. But generally, I follow Probation.” Some judges in this group might award a COR even to an applicant with a subsequent arrest or misdemeanor: as one urban upstate county court judge explained, that person might be “trying to get their act together” and a COR could help him or her “gain some self‐worth” and “encourage them to go forward.” “If the person has remained relatively arrest‐free, I would be inclined to grant it,” explained an urban upstate county court judge.

Eleven other judges, however, explained that they engaged in careful, case‐by‐case scrutiny of individual files. “It's not automatic,” said a New York City judge. “I look at the recommendation from Probation, the person's background, the trial folder.” An upstate city court judge explained, “I handle these very carefully.” Someone seeking eligibility to work as a nurse's aide, this judge explained, “might be caring for vulnerable old people. I like to see people employed, but I also like to see the public protected.” The standard, explained an upstate county court judge, is: “Is there something compelling, such that I should lift the onus of a criminal conviction from this person?” “I don't grant them as a matter of right,” said another upstate city court judge, explaining that he considers the record, the age of the conviction, any treatment or education the person has done, and why he or she wants the COR. “It helps if they make a good pitch,” this judge explained. One veteran rural county court judge explained that he will usually “check with the DA, to see if they have any objections,” but he does not send most applications to probation for investigation—because of his long service on the bench, “chances are I know the guy.”

Firearms surfaced often in these explanations, but in quite diverse ways. Some judges made clear that their reluctance to sign CORs generally was closely linked to the fact that CORs restored gun rights. Others explained that they distinguished carefully between employment‐motivated applications (which they were likely to grant) and gun‐motivated petitions (which they were not). “Ninety‐five percent of the time, they want them for firearms,” explained one rural county judge. “And I say no. Because as you know, it says right there in the statute that it's for rehabilitation. And I have yet to have anyone explain to me how firearms help with that.” But not all shared this approach. “I'll generally grant those,” said one urban upstate county court judge of gun‐motivated applications. “I do believe there's a constitutional right to bear arms—though that's a minority view around here.” A rural county court judge explained that before signing a firearms‐motivated COR application, she would want to know, from Probation, that the motivation was genuine—“that this is somebody that's hunted before.” (Probation officials in two other counties made similar comments about confirming the veracity of a hunting‐motivated application. As one explained, we'd look at “the culture of that family,” with regard to hunting's importance, and ask, “have you ever had a hunting license? Where do you hunt?”Footnote ²⁷ )

E. The Certificate of Relief and Individual Rehabilitation

Varying social and cultural settings, then, interact with diverse considerations of public safety and discretionary judgments of individual applicant merit to shape probation officers’ and judges’ COR practices. Another significant cause of variation is interpreters’ differing views of the proper relationship between individual rehabilitation and the certificate. As explained above, the concept of rehabilitation is central to New York's certificates law: state correctional law says a COR shall be awarded if doing so is “consistent with the rehabilitation of the offender” (and also “with the public interest”) (NY Correctional Law §§ 702(2), 703(3), 703‐b(1); emphasis added). On its face, this “consistent with” can be read to mean that a certificate should serve as an aid to rehabilitation—or, conversely, that a certificate should be awarded only after rehabilitation has occurred. Meanwhile, recall that New York's employment antidiscrimination law instructs employers to consider evidence of the offender's rehabilitation, and states that a COR (or a Certificate of Good Conduct) “shall create a presumption of rehabilitation in regard to the offense or offenses specified therein” (NY Correctional Law § 753(2); emphasis added).

In her careful study of the development of New York's certificates law, Radice concluded that CORs were originally intended to enable rehabilitation, particularly by making it easier for people with convictions to find lawful employment. But ambiguous statutory language, Radice noted, may “open the door to different evaluation standards” by issuing authorities (2012, 759).Footnote ²⁸ Indeed, both probation officials and judges differed over whether a COR is meant to precede and enable rehabilitation, or intended to follow and reward rehabilitation. Though guns alone do not explain these differing views, firearms appear to play an important role in shaping how some decision makers understand the relationship between rehabilitation and certificates.

As quotations above indicate, rehabilitative ideas surfaced in numerous places in many interviews. Toward the close of each session, the interviewer quoted the “consistent with the rehabilitation” passage of New York law, and asked whether the probation officer or judge understood certificates properly to precede and enable the offender's rehabilitation, or to follow and reward it. Among probation officers, just three firmly adopted the former position. Not surprisingly, two of these three were the New York City county and the upstate county where CORs were routinely awarded at sentencing. As one said, “they can give them out at sentencing—so it can't be required that you be rehabilitated first.” Ten chose the latter option, typically describing the COR as “a reward for showing you've done the work,” “like the carrot out there,” or “something that should be earned,” as probation officials in three rural counties explained. Importantly, in six of these ten counties, firearms had earlier been called the leading COR application motivator, and three of these ten probation officers explicitly mentioned firearms in explaining why CORs should only be awarded after an extended period of good behavior. “We're going to encourage people to act better—by giving them a gun? I don't see that as a good idea,” said a typical rural probation officer in this group. However, several officers in the postrehabilitation camp did so without referring to gun rights. “It's presumptive evidence of the offender's rehabilitation,” said a downstate suburban county officer, referring to the state employment law and disparaging sentencing grants, “and how can one say at the point of sentencing that the person has been rehabilitated?” Similarly, a rural western county probation officer said, “the document is to tell a potential educational institution or employer that any issues have been addressed and they are, quote, ‘rehabilitated,’ unquote.” “It just indicates that the judge acknowledged some degree of rehabilitation,” said a Hudson Valley officer—“it's not a given, it's not ‘stay out of trouble for eight or ten years and expect it’.”

Nine probation officers, meanwhile, demurred, stating that certificates practice was too case dependent to fit a before‐or‐after‐rehabilitation framework. “I have seen it used in both ways,” explained a typical respondent. Another emphasized the importance of the individual's situation, saying that usually the COR should signal “that rehabilitation has happened,” but if “the person has taken concrete steps toward rehabilitation and there's a good reason for it,” the COR could come earlier. And several distinguished between job‐motivated applicants and those seeking firearms: “It doesn't make sense to make them ‘earn’ one for employment,” as a rural upstate county officer explained.

Three probation officers mused that for some of their charges, firearms can be conducive to rehabilitation. One rural official explained that “sometimes the guy wants to be a security guard, and has to be armed,” and in that case the COR would directly help with employment. Two others pointed to social and cultural dimensions of rehabilitation. “I guess this sounds bleeding‐heart,” apologized one veteran rural county probation director, “but around here, recreation, hunting—it's a stress reliever.” “I know it sounds weird, if you're not from that culture, to talk about the importance of hunting in a healthy lifestyle,” another upstate probation director explained:

Judges were similarly divided on rehabilitation's relationship to a COR grant. Nine declined to offer a definitive answer, often saying decisions were case by case, and that they did not frame certificates decision making that way. “It's both: ‘consistent with’ doesn't mean one or the other, to me,” said an urban upstate county court judge. “It's fact‐driven as far as the individual person is concerned,” explained a rural upstate county court judge. Some rejected firearms‐based applicants without ample evidence of sustained good conduct, while granting them earlier “for employment, or so they can apply to college, and get federal aid.”Footnote ²⁹

Six judges, however, from urban and rural courts alike, endorsed the “precede” understanding. One upstate judge pointed out that he awards most of his CORs at sentencing, as the law allows—when it is not possible to say a person is rehabilitated. Another rural county upstate judge noted that by final sentencing, some people have been on interim probation for several weeks, perhaps engaged in substance abuse treatment and job training; while it is not the “crystal ball” he would like to have, it does give the court some information about the person's suitability for a COR. Others were more emphatic. “[I]f I can help someone rebuild their life, I'm going to do it,” said one urban upstate county court judge, while another urban upstate county court judge pointed to the COR's antirecidivism objective: “it's affording them greater opportunities to avoid criminal conduct in the future.” Four judges, meanwhile—one in New York City, three upstate—firmly articulated the latter standard. “No—it tends to be the result of rehabilitation, the reward,” said one rural central New York county judge. “It's the carrot at the end of the stick!” Another rural county court judge explained that he likes to see “that they have demonstrated the ability to live in society in an appropriate manner.”

One authority has suggested that ideal rights‐restoration procedures are those that provide an “individualized assessment of genuine rehabilitation” (Love 2003, 115). Some New York probation officers and judges believe CORs should be issued only after such an assessment, and insist that successful reintegration occur before a COR is granted. Others, however, read the law and their professional experiences differently, and conclude that in the interest of re‐entry, employment, and public safety, CORs should be awarded as soon as possible. Still others tackle this question anew in each case, weighing the applicant's purposes and profile. These contrasting, complex understandings of rehabilitation are an important consideration for other states considering rights‐restoration measures.

F. The COR's Effect: Employment

Despite the certificate's almost fifty‐year history, and despite judges and probation officers having carefully developed procedures and interpretive frameworks with which to consider applicants, interview subjects reported considerable uncertainty about the certificate's actual effects. A full assessment of the actual impact of COR possession lies beyond the scope of this article, and judges and probation officers usually lack direct evidence of the certificate's effects. However, two notable themes emerged in interview subjects’ views of the changes in status the COR confers upon recipients—one related to employment, and the other related to firearms.

Many judges and probation officers frankly acknowledged their uncertainty about how civil law interpreters in licensure agencies and private employers alike would look at the COR. When asked whether they thought certificates actually help people obtain licenses and jobs, almost all judges gave responses like that of a veteran upstate urban county judge: “I don't know—I have no after‐the‐fact sense of them.” A New York City judge said, “I don't know—my sense is they're not particularly effective.” “What effect they have is so subjective—the employer, the [college] admissions department, the Alcoholic Beverage Commission—I'm not sure how much they know about [CORs],” said an urban upstate county judge, whose connection to a local drug court had engaged him in significant postsentence work. A few had a more positive sense: referring to what he had heard from his local probation counterparts, an upstate county court judge answered, “I'm under the assumption that it has worked.” Another distinguished among professions: “It tends to be health‐related licensed professions where [employers] know about it,” explained a rural upstate county court judge, telling the story of a local hospital worker whose employer had encouraged him to apply for a certificate so he could advance within the company.Footnote ³⁰ Notably, judges’ understanding of the COR's impact showed no connection to their disposition toward CORs generally: judges who were favorably disposed toward granting CORs and those who were more reluctant to do so were just as likely to say that they did not know how much difference the certificate made on the job market.

As might be expected given their sustained postsentence interactions with defendants, probation officers’ responses to this question were richer and more varied; space allows only a brief summary here. Of twenty‐three probation officers interviewed, nine said they did not know enough about the COR's effects in the employment field to venture an answer. Often, their responses were skeptical, as with the rural officer who said, “I don't know that it helps actually get jobs—again, it just restores the right to have it.” Seven others, however, offered some kind of tentative positive answer, such as, “I believe it does … but it's not the panacea people think.” Seven others, meanwhile, gave strong positive answers, sometimes including illustrative anecdotes from their work. A New York City probation officer who handled most COR applications in his borough quickly answered in the affirmative when asked if CORs help people obtain jobs: “Yes they do. I get calls and cards … ‘I'm working, thanks to you,’ they'll say.” A Hudson Valley probation officer described successful placements at a national retailer and a home care agency, both, in the officer's view, assisted by the COR. And an urban upstate county supervisor described in great detail where the COR figures in the complicated state Department of Health sequence for applicants with criminal backgrounds.Footnote ³¹

Among respondents giving positive answers, however, at least three went out of their way to note that private employers “have no idea” what the COR is, as one urban upstate probation officer specializing in offender workforce development put it. Private employers “typically don't know what they are,” said another veteran urban upstate probation director. “Employers don't understand Certificates,” said a small rural county probation officer bluntly. Meanwhile, three probation officers volunteered varied opinions about whether applicants should tell potential employers about the COR. “I would very much encourage them to talk about it [with employers],” said one rural officer, “because they would still have to answer ‘yes’ to the question [about having been convicted of a crime]. So we would say yes, explain that to them, show that to them—and tell them if they wanted to, the employer could give us a call.” But two other rural probation officers disagreed. “It doesn't help—it just causes attention [to the conviction],” said one. “I think it goes the other way,” replied another, when asked if displaying the COR to a potential employer would help someone land a job. “You show the employer the Certificate, and they show you the door.”

G. The COR's Effect: Firearms

As we have seen, applicants’ desires to own firearms for hunting permeate certificates practice in rural counties, and affect how probation officers and judges respond to COR applications generally. That the prospect of an offender carrying a gun should influence discretionary understandings of COR applicant merit is understandable. Beyond those judgments, however, interviews revealed unexpected disagreement on the question of whether the COR actually restores a person's legal right to bear arms, as a matter of law. Among thirteen upstate judges to whom this question was posed directly, ten said the COR does restore gun rights (at least to bear “long guns,” such as shotguns and rifles for hunting), two said no, and one gave an ambivalent answer. Of twenty probation officers asked directly, seven offered a clear yes and three a clear no; ten gave positive responses, but displayed acute awareness of ongoing disagreement over the COR's legal impact. Intriguingly, many interviewees revealed explicitly the importance of the local legal community in interpreting this federal constitutional right.

In part, this uncertainty rests on the nature of federal firearms law. While national statutory law removes gun rights from people convicted of felonies, state laws restore those rights: if a person “has had civil rights restored” under state law, whether through a pardon, a rights‐restoration action specific to firearms, or another legal procedure, his or her felony conviction is no longer disqualifying, for federal purposes. (Some misdemeanors—particularly crimes of domestic violence—also bring gun rights revocation under federal law: see 18 U.S.C. § 922[g].) This hybrid revocation‐restoration legal system is reflected in federal statutes, recent US Supreme Court decisions, and regulatory practices at the Bureau of Alcohol, Tobacco, and Firearms (ATF) and the FBI's National Crime Information System (NICS).Footnote ³² Although the ATF has statutory authority to conduct its own rights‐restoration investigations, Congress has not appropriated funds for any such operations since 1992, effectively making it illegal for ATF staff to engage in them.Footnote ³³ The result is that the federal bureaucrats implementing background check law must engage in ongoing evaluation of any rights‐restoration procedures offered by each individual state (author's telephone interview, FBI NICS official [name withheld], August 2, 2013).Footnote ³⁴ Meanwhile, many states mirror the federal ban in their own criminal codes. Ignorance of how federal and state laws interact to define the firearms rights of people with criminal convictions is widespread, and reaches the highest levels of the US legal system.Footnote ³⁵

Only three probation officers essentially shared the New York DOCCS position, which is that while the Certificate of Good Conduct does restore firearms rights, a COR does not do so (author's interview, New York DOCCS official, September 25, 2012). “You got the state and the federal—the state grants [the certificate], but you still got the federal ban,” explained one rural upstate probation officer. “No—you'd have to apply to the federal government,” said an urban upstate county officer. A third also said no, but acknowledged “a lot of debate right now” over this question, and explained frankly the ultimate importance of local interpretation:

Indeed, the largest group of probation officers—ten of those responding to this question—said that while they believed the COR does restore firearms rights, they were aware of legal ambiguity and uncertainty on this question. “There's a lot of banter going back and forth” among probation directors, said a rural county probation officer. “I think there's actually some discrepancy or disagreement—the ATF gets involved, somehow,” said another. “We believe so,” said another. “Some judges say it does, but others are not sure a Certificate gets weapons rights back. Our view is, ‘Get a Certificate and hope for the best’.” “We'll tell them to have the Certificate on them, when they're hunting,” explained this rural upstate county probation officer. “We'll say, ‘This is good for New York—don't go anywhere else. And best stay in the county!”

“The feds say, ‘If you get a Certificate, you're good with us,’” explained one rural probation director, referring to ATF procedures. Those offering emphatic “yes” answers were just as likely to describe local interpretation of a blended federal‐state legal regime. “It works—you can hunt, and get a pistol permit, if you have the right language for the sheriff,” said one rural upstate probation director, explaining that his office had learned that he needs to put “some specific language in there” on the COR application. “I asked the sheriff, ‘where'd they hear that, from ATF?’ ‘Yes,’ he says.” Another, after noting ambiguity in the law, said this:

Here, the legality of firearms possession—that is, the status of an individual's federal constitutional right—is effectively defined by the county probation officer's sense of the county prosecutor's understanding of what the county judge believes the law means.

Some judges explained that they usually reject COR applications because they do not think people with criminal convictions should have guns and they believe the certificate would restore firearms eligibility. One upstate county court judge explained carefully that CORs do restore firearms rights under federal law—but only to own long guns (i.e., not pistols, which are licensed separately under state law), and only as long as no limitations or restrictions are written onto the COR granting form. “I trust the judgment of my probation department on this,” explained the judge. Several emphasized uncertainty. “There's lack of—let's say, lack of universal agreement on the Certificate of Relief for purposes of state and federal firearms law,” said one urban upstate county court judge. “I don't think I've ever issued a COR that a person requested to go hunting without telling them that if they have a firearm, it's still a federal crime.”Footnote ³⁶ Another urban upstate county judge was even more explicit, saying of hunters applying for the COR: “I'll give it to them, but I'll tell them there's no guarantee it'll enable them to hunt.”

Documents some respondents offered as their interpretive guides deepened the complexity. These included a New York DCJS document that describes the interaction of federal and state rights‐restoration law in considerable detail, and concludes that a person with a COR “would qualify for an exemption” from the federal ban.Footnote ³⁷ One probation officer shared a copy of the document distributed to offenders in his county, describing the necessity of securing a New York COR and a federal “Relief from Disabilities” for firearms rights, and providing them the ATF address to write to. (This is the inoperative ATF procedure noted above.) Two probation officers referred to a 2012 memorandum from the State Probation Director's office, interpreting a 2000 state appellate court decision as ruling that only a Certificate of Good Conduct restores firearms rights in New York (Robert Maccarone, DCJS Office of Probation and Correctional Alternatives, State Director's Memorandum #2012‐3, February 7, 2012; copy on file with the author). Another provided a memo written in 2002 by an Assistant US Attorney for the Western District of New York, which concludes that an “A” type COR restores the “full right to possess firearms” in New York (see Maigret Reference Maigret2002). And one judge displayed a pamphlet on collateral consequences and rights restoration in New York written by Federal District Judge Harold Baer, Jr. (2011), which concludes that a COR does not restore gun rights: only those convicted of “lower level, nonviolent felonies” (Baer Reference Baer2011, 7) can have their rights restored via the Certificate of Good Conduct, while violent offenders have no rights‐restoration options.

Ultimately, it is not clear that there is a “black‐letter law” answer to the question of whether a COR restores firearms rights. In this context of blended but ambiguous federal and state authority, the law consists of the practices and shared understandings of local legal interpreters, all the way down. Academics and reformers scrutinizing collateral penalties that disadvantage people with criminal justice records have rarely focused on gun restrictions. This study suggests that has been a mistake: in New York, and likely in rural areas across the country, many people with criminal convictions experience the loss of firearms rights as the most serious collateral sanction of all. With the US Supreme Court defining the ability to bear arms as a fundamental right, federal statutes withdrawing gun rights and state laws restoring them, some states dividing long‐gun and handgun rights, and local probation officers, judges, and sheriffs collaborating in deciding whose rights to restore, this is a field rich for study.