Distributed October 30, 2000
For Immediate Release
News Service Contact: Mark Nickel
Improperly expunged felony convictions
Study finds problems with access to public information in R.I. courts
Student researchers at Brown’s Taubman Center for Public Policy have found problems with access to public information at Rhode Island courts. While seeking information about expungement of felony convictions, sealed records and municipal settlements, researchers encountered inconsistent record keeping, missing files and faulty implementation of open records laws. They also found a set of felony convictions that had been improperly expunged.
PROVIDENCE, R.I. — How open are Rhode Island courts? How much access does the public have to court records?
An undergraduate research team at Brown University’s A. Alfred Taubman Center for Public Policy and American Institutions sought to answer those questions by exploring three specific areas of public concern: the expungement of felony convictions, the sealing of civil records, and the records of financial settlements against municipalities. Among their findings:
Editors: Public Courts, Private Records will be posted Monday under “Research Programs” at the Taubman Center’s Web site: www.brown.edu/Departments/Taubman_Center/.
“Expungement and record sealing are powerful tools which help ensure fair trials and the rehabilitation of persons who have made a serious mistake, particularly youthful offenders whose lives are ahead of them,” said Ross Cheit, associate professor of political science, who directed a team of eight undergraduate researchers in the project. “While fair trials and rehabilitation are clearly in the public interest, the public also has the right to know that those tools are being used as society intends.”
Expunged records are withdrawn from public access, allowing courts to give deserving people a chance to rebuild their lives without the stigma of a criminal conviction. Almost every state allows expungement of records for juvenile convictions and for cases where an adult defendant was acquitted. Only 12 states – Rhode Island among them – allow expungement of adult felony convictions, but convictions in certain cases may not legally be expunged:
Beyond those legal standards, judges exercise wide discretion in deciding whether to allow expungement. Judges need only be satisfied that the petitioner is rehabilitated and has demonstrated “good moral character” and that expungement is “consistent with the public interest.”
Rhode Island’s law is one of the most liberal in the nation, and there have been repeated efforts in the General Assembly to make expungements even easier to obtain. Expungements of cases originally charged as felonies are becoming more frequent, increasing six-fold during the 1990s (from 15 in 1990 to 99 in 1998). At the same time, the Rhode Island Supreme Court has overturned some high-profile expungements because they had been granted in violation of the statute.
Are expungements practiced in accordance with the law? Do they serve the public’s interest? “The question is not whether felony cases are being expunged in violation of the statute,” the researchers wrote in their report, “but how many cases, what types of cases, and under what circumstances.” How, exactly, are expungements “consistent with the public interest?”
To answer those questions, researchers assembled a database of 145 convictions in cases originally charged as felonies which were expunged between 1993 and 1998. They used electronic court records and newspaper archives to determine as much as they could about the disposition of those cases. Since the expunged cases have been removed from the public record, there is no way to be absolutely certain that a given individual had specific charges expunged. Despite incomplete data, the study did identify a set of cases which were expunged in violation of the statute.
In their study, the researchers identified 46 expunged felony cases which were originally charged as crimes of violence. Of those 46, they determined the final disposition of 25:
Although Rhode Island law clearly dates the statutory time limit from completion of the sentence, some judges, apparently in good faith, used a more lenient date of conviction standard. Others did not consider the time limits mandatory. The Rhode Island Supreme Court settled the issue in State v. Alejo (1999), reaffirming that time limits are mandatory and must date from the completion of the sentence. Because there had been some confusion during the years covered by their study, the Taubman researchers used the more conservative date-of-conviction standard.
Because only first offenders are eligible for expungement, offenders with prior convictions may not have their records expunged. The law also denies expungement of felony convictions to persons who have been arrested for a felony in the preceding 10 years (or, in the case of a misdemeanor conviction, a misdemeanor arrest in the preceding five years). Researchers were able to ascertain the defendant’s name and date of birth in 79 of the 145 cases under consideration and so were able to check for other criminal records.
Finally, the study examined the discretionary decision to expunge. After examining the 843 motions to expunge issued between 1993 and 1998, researchers determined that eligible petitioners failed to receive expungement in only five instances. In three of those instances the petitioners either withdrew the motions or did not pursue them; judges denied motions only twice to eligible petitioners.
The report makes a number of conclusions and recommendations:
U.S. courts are open institutions whose proceedings and records are available to the public. Certain cases, however, involve sensitive information that cannot be made public – medical records, trade secrets, confidential business documents and the identities of abused children, for example. Record sealing allows even the most sensitive information to be admitted as evidence and to remain confidential by separating it from the public record. In some cases (child molestation, for example), Rhode Island law requires records to be sealed.
While record sealing is an important judicial option, some observers see a serious potential for abuse. Those fears of abuse, many of which are based on anecdotal information, are difficult to address because sealed records are not available for public inspection. Researchers at the Taubman Center attempted to determine what can be learned about sealing: how often sealing occurs, in which kinds of cases it is most frequently used, how the presence of sealed material is noted in the public record, and how the decision to seal is publicly justified. The study examined Providence Superior Court civil cases from 1993 through 1999.
One of the study’s significant findings became apparent at the outset, when the researchers tried to identify which of more than 31,000 civil cases contained sealed records. They obtained a database of docket sheets (administrative case summaries) which allowed them to search for text strings. They discovered that the codes “MSR” and “OSR” (motion or order to seal records) were almost never entered on docket sheets, so they searched for a number of possible keywords (“sealed,” “confidential,” “filed in registry vault,” etc.) They identified 87 cases that appeared to involve sealed records and were able to obtain case files for 74 of them.
Further investigation showed that those 87 cases represented only part of the total – perhaps half. Researchers learned that the Superior Court clerk’s office uses an index card system to keep track of sealed records that are removed from physical case files and stored in a vault. (Most sealed records are physically removed; others are sealed in an envelope and kept with the case file.) The clerk estimated that the index card system tracked between 450 and 475 instances of record sealing in civil and criminal cases. In May, a court administrator agreed to generate a list of docket numbers from the index cards, but that list is not yet available.
Of the 74 case files studied, researchers found that:
The researchers’ conclusions and proposals include:
Ordinary citizens have a self-evident interest in financial settlements made with municipalities. Lawsuits usually allege failures on the part of municipal authorities – information which bears directly on the job performance of elected officials. More to the point, citizens ultimately pay for settlements through taxes, if only in the form of higher insurance premiums.
Since 1991, Rhode Island law has declared that the financial terms of settlements against municipalities “shall be deemed public records.” Last year, students at the Taubman Center tested compliance with that law by requesting information about the financial terms of settlements in two cases from every municipality in Rhode Island. They found a compliance rate of 32 percent. In 1998, that law was strengthened so that the entire settlement agreement – not just the financial terms – was deemed to be a public document.
This year, students sought copies of settlement agreements for all cases settled between July 1, 1998, and June 30, 1999, limiting their requests to cases settled for at least $15,000. They identified 10 such cases through the Rhode Island Interlocal Risk Management Trust and seven more by contacting non-Trust jurisdictions directly. (The Trust is a non-profit risk management program representing 29 municipalities, 15 school districts and 26 other agencies.) In all, researchers were in contact with 41 jurisdictions and received satisfactory responses from 29, a 71-percent compliance rate. Trust members had a better compliance rate than non-members (82 and 67 percent respectively), and the compliance rate of school districts was 11 percent higher than municipalities.
“Considering that the cases at issue were all recent and that the law is absolutely clear that these are public documents, this response rate is mediocre at best,” the students said in their report. “It certainly is not satisfactory.”
Eight jurisdictions were unresponsive to the initial request for information; four of those eight also ignored the follow-up letter. Several other jurisdictions responded, but in ways that were not productive. Three non-responding jurisdictions also failed to respond to last year’s study.
The Taubman Center’s report makes two recommendations: