Felony Convictions, 1993-1998
Granted: 382 (45%)
Denied: 280 (33%)
Unclear: 181 (21%)
Expungement of Criminal Records
Introduction
The criminal justice system serves two simultaneous and sometimes contradictory functions -- rehabilitating criminals and protecting the public. The rights of the public to be safe from crime often come into conflict with the rights of criminals to learn from their mistakes and create new lives for themselves as full members of society. While most people would not want someone convicted of fraud as their accountant or a convicted child molester as a babysitter, we as a society also recognize how difficult it can be to attempt to build a life for oneself when haunted by youthful indiscretion or a moment of poor judgement.
Expungement was conceived as an attempt to address these conflicting needs. Prior to the enactment of expungement laws, anyone convicted of a crime was required to divulge their conviction to potential employers, professional organizations, etc., and the documents relating to his or her case were open records which could be obtained by anyone for any purpose. Expungement provides relief from this sort of vulnerability by removing any mention of a certain criminal case from the public record and allowing individuals to say legally that they have never been convicted of a crime. The court file on an expunged case is stored in a vault and can only be released if the individual whose record was expunged is being tried in another case involving the same offense, applying for the bar, applying for a job at a school, or being sentenced in a subsequent criminal case (RIGL 12-1.3-4(c)). In other words the record is sealed, and if information about the case is released for any reason not listed in the statute, the custodian of the records can be held liable. With all information regarding the conviction in effect erased, individuals are able to live their lives free of the stigma of a criminal record.
Releasing criminals from the long-term repercussions of their acts can be dangerous, however. By removing all record of a criminal conviction from someone's record, the court makes it impossible for a law-abiding citizen to find out whether someone they are associating with has a history of criminal behavior, and thus perhaps protect himself or herself from being victimized. There is no foolproof system to determine which criminals will break the law again in the future. Expungement requires judges to make subjective decisions regarding the character of each petitioner, and an incorrect assessment has the potential to bring devastating consequences.
Legally and philosophically, it is clear that expungement is considered a privilege, not a right. Only first-time offenders can have their records expunged, and it must be demonstrated that the petitioner is rehabilitated and has demonstrated "good moral character" (RIGL 12-1.3-3(b)(1)). In addition, the expungement must be "consistent with the public interest" (RIGL 12-1.3-3(b)(2)). Expungement can be granted only if the judge is satisfied that all of these criteria have been met. The combination of fixed standards and judicial discretion is designed to balance joint needs for legal consistency and flexibility. While this level of discretion can be an advantage in the pursuit of an equitable and well-informed decision, it is critical that the more subjective criteria are evaluated in a serious and comprehensive manner so that it remains a valuable legal tool and not a legal loophole.
Each state has different expungement policies, ranging from allowing repeat expungement of felonies to prohibiting expungement under any circumstances. While almost every state allows expungement of juvenile convictions and many allow expungement of cases where the charges were dismissed or the defendant was acquitted, only twelve states, including Rhode Island, allow expungement of adult felony convictions. All states which allow expungement have certain crimes which cannot be expunged -- in Rhode Island, these crimes are referred to as "crimes of violence," and include murder, manslaughter, robbery, burglary, first degree arson, first and second degree sexual assault, first and second degree child molestation, assault with felonious intent and entering a dwelling with felonious intent (RIGL 12-1.3-1(1)). Most other states exclude many more felonies from consideration for expungement. Rhode Island law requires that an individual convicted of a felony wait ten years from the end of his or her sentence to have a criminal record expunged, which is moderate compared to similar guidelines in other states which range from three years to fifteen years. It is worth noting that there is no expungement of adult felony convictions in the federal court system.
Overall, Rhode Island's expungement law is one of the most liberal in the nation. Rhode Island was also one of the first states to allow adults to expunge felonies when lawmakers overhauled the existing statute (which only allowed for expungement in the case of acquittal or dismissal) in 1983. Between 1984 and 1998, 435 cases originally charged as felonies were expunged in Providence Superior Court. The number has grown each year, increasing six-fold in the 1990s, from 15 cases in 1990 to 99 in 1998.
Expungement has been a controversial issue in Rhode Island in the 1990s. Several high-profile expungement cases have been on the front page of the Providence Journal in the past several years: the expungement of Wayne David Collins' conviction in a robbery case in 1997, the Supreme Court case which overturned the expungement of reputed mobster Louis Manocchio's court records in January of 2000, and the landmark Rhode Island Supreme Court case State v. Alejo, Berry, and McCreadie (Alejo) (1999) where the Court reaffirmed that the time limits stipulated in the law are indeed mandatory by overturning three expungements which had been granted in violation of the statute. All of these cases suggest that there has been a serious problem with the application of the standing law on expungement. In each case, judges granted expungement where it is not permissible under the law.
Despite these problems and the ever-increasing number of expungements sought, there has been continued pressure to make the law more liberal. In the past decade, the General Assembly has debated a host of bills seeking to make it even easier to get records expunged. In 1989, the State Senate passed a bill to reduce the wait for expungement to three years for misdemeanor convictions and six for felony convictions, but the bill was not pursued in the Assembly. In 1999, the General Assembly passed a similar bill, which would reduce the waiting period for expungement of misdemeanor convictions for first-time offenders to two years rather than five, but Governor Almond and other legislators protested and the bill failed in the Senate.
Clearly there are many issues surrounding expungement in Rhode Island, the most pressing of which is whether it is being practiced in accordance with the law. There is no systematic data on expungement. In the Alejo decision, the Supreme Court acknowledged that there have been "varied practices" at the trial court level. In 1999, State Representative Charles Levesque referred to the Collins case as "the most arguably debatable expungement [he was] aware of,"1 yet three expungements had been overturned in Alejo less than five months prior. In the wake of Collins and Alejo, the question is not whether felony cases are being expunged in violation of the statute, but how many cases, what types of cases, and under what circumstances.
Methodology
Expungement is, by its inherent function, difficult to study in a systematic way. Expunged records are not available for public viewing. (This fact raises the concerns about public accountability that prompted this study.) The custodian of information on expunged cases is required to keep these records private under the penalty of civil liability.
We were able to study expungement systematically due to the inescapable fact that information about expunged cases was public for all of the years prior to the expungement. Using electronic records from earlier years, we were able to piece together information on many cases that were later expunged. In most of these cases, we were able to ascertain the name of the defendant. We did not include those names in this report, since our intent was to study the overall application of the law, not to single out particular people.
This study focuses on expungement practices in cases originally charged as felonies over a six year period in Providence Superior Court where the defendant was found guilty, either by plea2 or at trial. (We did not study expungement of crimes originally charged as misdemeanors, nor did we consider cases where the defendant was acquitted or charges were dropped.) Expungement was sought in a total of 843 felony cases from 1993 to 1998. Three-hundred and eighty-two (382) of these cases were expunged, 280 were denied expungement, and in 181 the ruling on the motion to expunge could not be determined. This study focuses on 145 of the 382 expungements that were granted. (There is also brief consideration of six of the 280 expungements that were denied because those were the only cases eligible for expungement that were denied.)3 The 145 cases are those which appear to be questionable under the statute: 38 were originally charged as crimes of violence and 120 were originally charged as felonies and expunged in less than ten years.4 (We also considered 7 cases expunged before 1993, because we were interested in all expungements involving charges of crimes of violence regardless of the timeframe.)
The preliminary information for this study was obtained from electronic data, but no computer record is always complete and reliable. Thus, we endeavored to review as many files as possible in hard copy. Files in cases that were not expunged were readily available. Some information on expunged cases was also ascertainable, particularly in cases where co-defendants had not had their records expunged. Although actual motions and orders for expungement were found in only two case files, at least some information was confirmed in 38 cases (or 26% of the 145 cases identified). This included 12 of the 38 crime of violence cases (31%) and 29 of the 120 expunged in less than ten years (25%). Additionally, information on several cases involving crimes of violence was found in the newspaper. Utilizing the arraignment date, original charge and police department data, we were able to find names and specific information about crimes charged in 6 of the 38 cases involving crimes of violence.
Nevertheless, in many cases we were unable to confirm the information necessary to determine whether expungement was in accordance with the statute. Due to possible inaccuracies in the electronic record, it was impossible to ascertain that a given individual had certain criminal charges expunged without seeing a signed order, and such orders were only obtained in two cases. Since the motion and order, if not the entire case file, have been removed from the public record, there is no way for anyone who is not an agent of the court or the state bar, a school administrator, or the defendant himself or herself to determine whether the court is acting within the law. Yet, while this report is by no means complete or all encompassing, it identifies (with as much accuracy as is possible given the available data) a set of cases which were expunged in violation of the statute.
Outcomes of Motions to Expunge
Felony Convictions, 1993-1998
Granted: 382 (45%)
Denied: 280 (33%)
Unclear: 181 (21%)
Findings
Cases Originally Charged as Crimes of Violence
| Some crimes should never be expunged. Under Rhode Island law, that reasoning is
applied only to felonies defined as "crimes of violence." (Rhode Island is one
of twelve states to provide for expungement of felonies committed by adults; only two
states are more liberal in terms of expunging serious felonies.) As elaborated in the
background section, 18 crimes are considered crimes of violence under the statute (RIGL
12-1.3-1). These crimes are so serious that the possible benefits of providing someone
with a clean slate are outweighed by the possible danger that expungement could pose to
public safety. This study found that 46 cases originally charged as crimes of violence were later expunged. Under the original terms of the expungement statute, these would all be impermissible since eligibility for expungement was based on the original charges, rather than plea bargains that might involve lesser charges. The 1983 amendments relaxed this provision so that eligibility for expungement is now based on the ultimate disposition of the case. This results in the expungement of some very serious crimes. We were able to ascertain the final disposition of 25 of the 46 expunged cases that were originally charged as crimes of violence. Nine of these cases were disposed with guilty pleas to other felonies and 16 were disposed as misdemeanors. Most, but not all, of these expungements were permissible (although not necessarily advisable) under Rhode Island law. Fourteen of the 16 cases disposed as misdemeanors were legal because they were expunged after more than five years. The other two cases disposed as misdemeanors were expunged in less than five years and hence were not permissible even under the waiting period for misdemeanors. The nine cases disposed as felonies are even more troubling. Only four were legally permissible. Four others were disposed as crimes of violence and should never have been expunged. Two of those were even expunged before the 10-year waiting period for felonies had been satisfied. See Table 1. Table 1: Crimes of Violence Improperly Expunged
It was impossible to ascertain the charges on which the 21 remaining cases, originally charged as crimes of violence, were ultimately disposed. Available records indicate that the original charges in these cases included manslaughter, sexual assault, and assault with intent to commit murder. It is possible that all 21 of these cases were expunged in accordance with the statute, but this seems unlikely given that 28% of the 25 crime of violence cases which we could research more fully were expunged in violation of the statutory provisions. Table 2: Expunged Cases Charges as Crimes of Violence, Ultimate Disposition Not
Available
|
“Crimes of violence” Not eligible for expungement in Rhode Island - Murder |
Statutory Time Limits
| The expungement statute provides that "a person may file a motion for expungement
of records relating to a misdemeanor conviction after five (5) years from the date of the
completion of his or her sentence" and "relating to a felony conviction after
ten (10) years from the date of the completion of his or her sentence" (RIGL
12-1.3-2). These time limits, despite their apparent simplicity, have been applied
inconsistently. Some judges have measured eligibility from the date of conviction, while
others apparently did not consider the time limits mandatory. In order to address this
problem, the Attorney General recently appealed three expungements to the Rhode Island
Supreme Court. All three had been expunged in less than the time stated in the statute. In
State v. Alejo (1999), the Supreme Court overturned these expungements, affirming that the
time limits are mandatory and must be measured from the date of the completion of the
sentence, not from the date of conviction. Since this study covers a time period in which some judges, evidently in good faith, measured eligibility from the date of conviction, we employed that standard to evaluate compliance with the statute in the 1990s. In other words, no case was considered improperly expunged under this analysis unless it was done in less time than allowed by law even using the definition favored by some judges before the Alejo case was decided. Under this approach, any case expunged under the time limit is clearly impermissible. This method understates the number of impermissible expungements, while providing the benefit of the doubt to judges who interpreted the statute more leniently. Additionally, by measuring the time limit without including the sentence, this definition in effect treats every case as if the defendant were given a deferred sentence, the most lenient punishment a court can assign. Twenty-two of the 145 cases identified were expunged before the statutory limit had expired. Seventeen of these cases were expunged in less than five years, and thus the expungements were impermissible regardless of whether the defendant was convicted of a felony or a misdemeanor. All 17 were originally charged as felonies. Thirteen of them were pled down to misdemeanors; the charges on which the other four were disposed could not be ascertained with available data. The remaining five cases were disposed on felony charges and expunged in less than ten years. Those also violate the statutory waiting period. Overall, then, about 15% of the cases in this study were in violation of the applicable statutory time limits. One of the most disturbing cases expunged under the statutory time limit involves a defendant who was originally charged with conspiracy to manufacture or sell drugs. The charge was pled down to frequenting a place where drugs are used and/or sold, a misdemeanor, and was expunged in less than two years (P2972541B). The statute does not allow any kind of conviction to be expunged in two years. Another troubling case involves a defendant who was charged with possession of an unlicensed pistol, violation of a protective order and malicious destruction of property (P2884324A). His record was expunged slightly more than six years after he was convicted. It is unclear from the available data whether any or all of these charges were pled down, but if all of them were then the expungement of these crimes was legal. (Even if this case was disposed without any felony charges, the expungement was improper under the Alejo standard which would measure the five years from the end of the sentence, which in this case was two years of probation.)
Of the remaining 123 cases examined, 84 were consistent with the time limits enumerated in the statute. These cases were originally charged as felonies and expunged after more than ten years or disposed as misdemeanors and expunged more than five years after the date of conviction. The remaining 39 cases involve felony charges where the ultimate disposition (felony or misdemeanor) could not be determined. These cases were originally charged as felonies and were expunged in more than five but less than ten years. Any of these cases which was not pled down to a misdemeanor was expunged in violation of the statutory time limit. It is doubtful that none of the 39 cases charged as felonies were disposed as felonies, and so it seems likely that some of these expungements also violate the time limit. |
Statutory Time Limits: Ten years from completion of sentence for felony convictions. Five years from completion of sentence for misdemeanor convictions. |
Prior Convictions
There are a variety of statutory guidelines for expungement of records for individuals who have prior criminal records. Only first offenders are eligible for expungement, which means that an individual with a prior conviction can never have subsequent convictions expunged (RIGL 12-1.3-2(a)). Expungement is also prohibited if an individual has been arrested in the preceding five years for a misdemeanor offense or ten years for a felony offense (RIGL 12-1.3-3(b)(1)). Additionally, denial of expungement on the basis of prior arrests beyond this time limit has been interpreted by the Rhode Island Supreme Court as a guideline for judicial discretion in applying the "good moral character" clause.5 Despite the fact that expungement is strictly denied for individuals seeking to expunge felony convictions with any prior convictions or prior arrests in the 10 years prior to the filing of a motion to expunge, there were a significant number of cases where this provision was not honored. Although the same rules apply to felonies as to misdemeanors, this study considered only cases originally charged as felonies, thus excluding the vast majority of cases being expunged in Providence Superior Court.
Of the 145 cases under consideration, there was enough information to ascertain the name and date of birth of the defendant in 79. (Without name and date of birth, it is impossible to check for other criminal records.) In 16 of these cases (or 20%) there were other criminal cases which should have precluded expungement. (See Table 4) The defendant had a conviction prior to making the motion to expunge in nine cases and the defendant had prior arrests within the appropriate time limit in ten cases. Four defendants had both prior convictions and relevant prior arrests. In 14 of these 16, the prior criminal activity was in addition to other suspected violations of expungement law; in five of those cases it appears that a crime of violence was expunged and in six cases it appears that a felony conviction was expunged in less than 10 years. In two of the cases where crimes of violence were expunged, the defendants actually had prior convictions for other crimes of violence -- in fact, one had two separate convictions for Entering with Intent to Commit a Specified Felony expunged on the same day (P2811991A and P2811249A).
In addition to the 16 clear violations, there were three cases where the defendants had other arrests which occurred more than ten years prior (five years for misdemeanors) and thus did not fall within the statutory time limit. While these expungements did not technically violate the clause regarding prior arrests, some of the defendants had long histories of criminal activity, which should arguably have prompted the judge to deny the motion on the basis of good moral character. In addition, it must be noted that these numbers on prior offenses are artificially low, since court records do not reflect all arrests.
Table 4: Cases of expungement where defendant has prior court records within statutory
window
| Case Number | Final Charge* | # of Relevant Priors | Prior** | Year | Charge(s) | Disposition | Time Elapsed From Date of Conviction |
| P2822238B | Assault with intent to commit specified felony | 8 | 1 | 1982 | Shoplifting | Guilty by plea of no contest | 16 years |
| 2 | 1991 | Misdemeanor assault | Guilty by plea of no contest | ||||
| 3 | 1992 | Misdemeanor assault | Guilty by plea of no contest | ||||
| 4 | 1993 | Driving with a suspended license | Dismissed | ||||
| 5 | 1993 | Driving with a suspended license | Dismissed | ||||
| 6 | 1995 | Driving with a suspended license | Guilty by plea of no contest | ||||
| 7 | 1997 | 3 cts. Issuing fraudulent checks under $500 | Guilty by plea of no contest | ||||
| 8 | 1998 | Driving with a suspended license (2nd offense), Leaving the scene of an accident w/property damage | Guilty by plea | ||||
| P2872203C | Conspiracy | 4 | 1 | 1987 | Intimidation of witness or victim | Dismissed for lack of evidence | 9.75 years |
| 2 | 1988 | Felony possession of controlled substances | Guilty by plea of no contest | ||||
| 3 | 1989 | Conspiracy | Guilty by plea of no contest | ||||
| 4 | 1990 | Misdemeanor assault | Guilty by plea of no contest | ||||
| P2885557B | Carrying a pistol without a license | 3 | 1 | 1988 | Receiving stolen goods over $500 | Dismissed | 7.5 years |
| 2 | 1990 | Misdemeanor assault, Malicious destruction of property | Guilty by plea of no contest | ||||
| 3 | 1991 | Driving with a suspended license | Dismissed | ||||
| P2780777A | Entering dwelling with intent to commit specified felony | 2 | 1 | 1977 | Robbery, Assault with intent to commit robbery | Guilty by plea of no contest | 19.75 yrs |
| 2 | 1981 | Entering dwelling with intent to commit specified felony | Guilty by plea of no contest | ||||
| P2961357A | Conspiracy | 2 | 1 | 1993 | Driving with a suspended license | Dismissed for lack of evidence | 2.5 yrs |
| 2 | 1994 | Driving with a suspended license | Dismissed for lack of evidence | ||||
| P1920001S | Conspiracy to manufacture/ deliver drugs |
2 | 1 | 1989 | Breaking and entering with felonious intent, Misdemeanor assault, Malicious destruction of property | Dismissed for lack of evidence | 6.5 yrs |
| 2 | 1996 | Driving with a suspended license, 2nd offense | Guilty by plea of no contest | ||||
| P2811991A | Entering dwelling with intent to commit specified felony | 1 | 1 | 1981 | Entering dwelling with intent to commit specified felony | Guilty by plea of no contest | 14.25 yrs |
| P2811249A | Entering dwelling with intent to commit specified felony | 1 | 1 | 1981 | Entering dwelling with intent to commit specified felony | Guilty by plea of no contest | 14.5 yrs |
| P2810471B | Entering dwelling with intent to commit specified felony | 1 | 1 | 1991 | Issuing fraudulent checks under $500 | Dismissed for lack of evidence | 14 yrs |
| P2930219A | Manufacture/ deliver drugs |
1 | 1 | 1996 | Obstructing police officer, Disorderly conduct | Guilty by plea of no contest | 5.5 yrs |
| P2894640A | Possession of stolen car | 1 | 1 | 1995 | Driving with a suspended license, Failure to appear in answer to summons | Dismissed for lack of evidence | 9 yrs |
| P2932922C | Misdemeanor assault | 1 | 1 | 1991 | Driving with license revoked | Dismissed for lack of evidence | 1.5 yrs |
| P2943180A | Misdemeanor assault | 1 | 1 | 1989 | Misdemeanor assault | Guilty by plea of no contest | 4 yrs |
| P2903675A | Misdemeanor assault (2 cts.) | 1 | 1 | 1997 | Violation of restraining order | Dismissed for lack of evidence | 7.5 yrs |
| P2920760A | Trespassing | 1 | 1 | 1990 | Accessory to driving a vehicle without owner's consent | Rejected: sent to diversion | 1 yr |
| P1911183E | Bookmaking | 1 | 1 | 1991 | Bookmaking, Income derived racketeering, Organized criminal gambling, Common law violation | Dismissed for lack of evidence | 7 yrs |
* Final Charge means the charges on which the defendant was convicted or the original
charge if the disposition is unknown
** Case numbers for relevant priors found in the Supplemental
Appendix
The most troubling cases involve defendants who have multiple prior arrests or convictions. There were seven expunged cases in which the defendant had two or more criminal records in addition to the case being expunged. One defendant had eight criminal records between 1982 and 1998, with convictions for shoplifting, misdemeanor assault, driving without a license, driving on a suspended license, leaving the scene of a car accident after causing property damage and three counts of writing fraudulent checks, but she still managed to get her conviction for Assault with Intent to Commit Specified Felony expunged in 1998 (P2822238B). Another defendant, who moved to expunge his conviction of a case where he was originally charged with 2nd degree sexual assault (which may have been pled down to misdemeanor assault), had two prior records -- an arrest in 1983 on first and second degree sexual assault charges, and a second degree assault conviction in 1984. His record was expunged in 1997 (P1840148A). There is no statutory reason for the 1983 arrest to preclude expungement. Without the 1984 conviction, if this case was indeed pled down, then the expungement would have been legal, despite the defendant’s disturbing criminal record. If we were able to fully investigate all 382 cases where motions to expunge were granted between 1993 and 1998, and the proportion of violations found in our sample (20%) held true across the universe of cases, then there would be about 75 additional cases of impermissible expungements based on prior criminal record.
Legal, But Dubious, Expungements
A final category of cases that were expunged raises serious questions about the appropriateness of the existing statute. These are cases in which expungement was permitted by law but nevertheless seem quite inappropriate. The most striking example involves a man who was found guilty by jury of killing his 4-month-old child in 1978. His conviction was expunged in 1991 (P1781388A). This surprising result was legal because the defendant, although charged with murder, was only convicted of felony assault and battery (after the murder charges were dismissed). Since assault and battery is not considered a "crime of violence" under the statute, the defendant was eligible for expungement 10 years after completing his sentence. His sentence was only one year, so he was eligible for expungement 11 years after conviction of this deadly assault. The motion could have been denied, of course, since expungement is a privilege and not a right; but the motion was granted and the decision was entirely legal under Rhode Island law. The case is identifiable through public records because the defendant (unsuccessfully) appealed his conviction.6
Sixteen other cases identified through this research resulted in legal expungements of convictions where the original charges involved "crimes of violence." Under the original expungement law in Rhode Island, eligibility for expungement was based on the charges brought by the prosecutor, rather than the charges on which the case was disposed. The cases discussed in this section would never be eligible for expungement under that standard. Under the more liberal provisions that currently prevail, however, many of these cases were pled down to misdemeanors, and thus were eligible for expungement in less time than must pass for felonies that do not involve "crimes of violence." Eleven examples of this phenomenon are presented in Table 5.
Table 5: Cases Lawfully Expunged with Original Charges Involving Crimes of Violence
| Case Number | Original Charges | Plea Charge | Time Elapsed From Date of Conviction |
| P2872959A | 2nd degree child molestation | Disorderly conduct | 6 yrs |
| P2873025A | 2nd degree sexual assault | Misdemeanor assault | 6 yrs |
| P2883217A | Entering dwelling with intent to commit specified felony | Trespassing | 9.75 yrs |
| P2892712A | Entering dwelling with intent to commit specified felony | Trespassing | 9.5 yrs |
| P2902466A | Entering dwelling with intent to commit specified felony | Trespassing | 6 yrs |
| P2903591A | 2nd degree child molestation and assault with intent to commit specified felony | Misdemeanor assault | 7 yrs |
| P2910104A | 2nd degree sexual assault | Misdemeanor assault | 6 yrs |
| P2912213A | 2nd degree child molestation | Misdemeanor assault | 5+ yrs |
| P2912312A | Assault with intent to commit specified felony | Misdemeanor assault | 7 yrs |
| P2921050A | 2nd degree sexual assault | Misdemeanor assault | 5.5 yrs |
| P2922558B | 2nd degree sexual assault | Misdemeanor assault | 5.5 yrs |
This table is not inclusive because it was impossible to obtain or verify all of the information in some cases. One highly suspect case not included in this table involves a man charged with manslaughter in 1991 (P1910992A). The defendant entered a guilty plea, presumably to a misdemeanor, and the case was expunged in 1998. If the case was disposed as a misdemeanor, then the expungement was legal; if it was disposed as a felony, the expungement was illegal because it came in less than ten years. Either way, it seems inappropriate, at best, to expunge a conviction for an intentional crime that resulted in death.
There are also cases where the original charges involved crimes of violence and the expungement came after ten years. Those are less objectionable from a policy point of view since the expungement was on the same terms available for all other felonies. Indeed, several of these cases, although pled down to misdemeanors, were not expunged until more than 10 years passed. Three examples are presented in Table 6. The disparity between the original charges and the charges on which the case was disposed is puzzling. If the facts supported assault with intent to commit murder, then the case certainly was not misdemeanor assault. Then again, the original charges could have been inappropriately severe (especially as it is difficult to prove intent).
Table 6: Cases Expunged After Ten Years with Original Charges Involving Crimes of
Violence
| Case Number | Original Charges | Plead Down to | Time Elapsed From Date of Conviction |
| P1812764A | Robbery | Receiving stolen goods over $500 | 14.5 yrs |
| P1832332A | Assault with intent to commit murder | Misdemeanor assault | 13 yrs |
| P2811250A | Assault with intent to commit specified felony | Misdemeanor assault | 13 yrs |
What, if anything, should be done to address the issues raised by these cases? Returning to a rule that prohibits expungement if the original charges involve a crime of violence does not seem appropriate since the original charges are at the discretion of the prosecutor, and thus can be unduly severe. That approach leaves the question of whether certain defendants will ever be eligible for expungement entirely in the hands of the police and the prosecutor. The charges on which cases are ultimately disposed should clearly affect eligibility for expungement. One possible approach to these cases would be to apply the felony standard (10-year waiting period) when the original charges involve a crime of violence but the case was disposed on lesser charges. Another possibility is to change the forms filed with petitions for expungement to include the original charges. A judge faced with a petition to expunge an assault and battery case would likely approach the matter differently if it were clear that the original charges involved, as in the case above, murder. Indeed, after expunging Wayne David Collins' conviction in a case originally charged as a crime of violence, Judge Famiglietti (now Thunberg) said that she had not been aware that Collins was originally charged with robbery. If she had known, she claimed, she "never would [have entertained] such a motion."7 Finally, the definition of "crimes of violence" could be expanded to include violent crimes not currently covered, such as assault and battery. Without any change, however, it appears that some legal expungements are highly dubious from the point of view of public policy (that is, insuring that the public record of criminal cases not be expunged when the underlying facts show extremely serious criminal behavior). At the very least, judges should make themselves more aware of the facts of a case before granting expungement and be more willing to exercise their discretion on the side of the public, rather than the side of convicted criminals.
The Discretionary Decision NOT to Expunge
While this study indicates that records have been expunged in cases when the statute does not provide for such action, that does not mean that judges always err on the side of expungement. The decision to expunge felony convictions is entirely discretionary once a case is eligible under the statute. The judge can deny a motion to expunge if the petitioner has not "exhibited good moral character," (RIGL 12-1.3-3b-1) if his or her "rehabilitation [has not] been attained to the court's satisfaction" (RIGL 12-1.3-3b-2) and/or if "expungement of the records of his or her conviction is [not] consistent with the public interest" (RIGL 12-1.3-3b-2). How often do judges use their discretion to deny expungement to someone who is eligible? This question is easier to answer with available records since the court's computerized database should contain complete information on any case in which the motion to expunge was denied, and the public has full access to the case files. It appears that judges almost never use their discretionary authority to deny a motion to expunge.
An examination of all the motions to expunge felony convictions from 1993 to 1998 reveals only five cases in which the motion was not granted when the defendant was eligible for expungement (that is, the conviction did not involve a crime of violence, the defendant had no prior convictions and no prior arrests within the proscribed time limit, and ten years had elapsed since the end of the defendant's sentence).8 Two of these motions were denied by the judge; three were either withdrawn or not pursued by the defendant. Motions to expunge were denied in a total of 280 cases from 1993-1998, but in only five of those cases was there no clear statutory reason for the denial.
Court records do not spell out the reasons why a motion to expunge is denied. The two cases which were eligible for expungement but expungement was denied by the judge (P2800127A and P2830648A) involve defendants with no prior records seeking expungement well over the time limit. In one case the defendant was convicted of assaulting a police officer and reckless driving, and the defendant in the other was convicted of possession of an unlicensed handgun and possession of a controlled substance. Although these are serious offenses, cases with much more serious charges have been expunged, raising the question of whether these discretionary decisions are being applied evenly. Without a statement of the reasons for denial, it is impossible to evaluate that question. While in many cases (as discussed above) judges have erred on the side of expungement -- removing felony convictions from the public record when the statute does not clearly authorize such action -- these cases demonstrate that judges very rarely use their discretion to keep felony convictions in the public record.
In the remaining three cases, the petition to expunge was not formally denied. Rather, the defendant withdrew the motion or simply did not appear for the hearing. All of these cases involved veterans of the expungement system. In other words, each defendant made at least two motions to expunge which were either denied by the judge or not pursued by the defendant. Some had as many as four prior motions. These cases are puzzling. Filing a motion to expunge in Providence Superior Court costs slightly more than $100, which should be a substantial enough fee to deter frivolous motions. Why these defendants filed but did not follow through remains a mystery.
However, it is striking that of the 843 motions to expunge made in the Providence Superior Court over the five year period 1993-1998, only two of those eligible were actually denied, while between 34 and 84 were granted in violation of the statute (using an extremely conservative method of measuring compliance). While the vast majority of cases were dealt with according to the expungement statute, it seems clear that judges are more likely to remove criminal records from the public domain (legally or not) than to deny convicted criminals' motions to erase their offenses.
Conclusion
It is clear from our results that a significant number of felony convictions have been improperly expunged -- at least 34 or as many as 84, to be precise. This constitutes between 9% and 22% of all cases expunged from 1993 to 1998. What remains to be considered is how the courts can achieve more uniform compliance with the statute and what policy changes could be instituted to improve the expungement system as a whole.
The easy answer is for judges to be more careful and to err on the side of caution. Aside from all of the clauses allowing judges broad discretion on motions to expunge, there are clear statutory provisions which are not being followed. While there is no conclusive evidence of systematic willful disregard of the expungement statute, our research strongly suggests that there is at the very least an unsettling ignorance on the part of some judges, combined with poor record keeping and research by the court clerk’s office.
One simple way to eliminate improper expungements is to improve the standard motion to expunge form. Any individual can make a motion in regards to his or her case, regardless of the legality of that motion if granted. A standard motion to expunge form, which states the date of conviction, charges and sentence, is filled out by the petitioner. [See Figure 1] The motion then comes before a judge, who rules on it based on a quick perusal of the case file. If the form clearly indicated the requirements for eligibility (and whether or not they were met) many mistakes could be avoided. A simple algebraic formula would clearly indicate whether the time limit had been met. A list of crime of violence offenses on the motion form could easily eliminate expungement of these crimes. Prior arrests and convictions are available to the court clerks through BCI (the Bureau of Criminal Information). It would take no more than a few minutes for the clerks to check these three criteria and mark any relevant prior records. For an example of a standard motion which would incorporate this information see Figure 2.
Ignorance of the law on the part of judges is more difficult to combat in a systematic way. Clearly, if judges weighed each motion carefully and checked the facts of the case against the statute then there would not be a problem with compliance. Still, some judges have heard literally hundreds of motions to expunge, and yet continue to occasionally grant expungement in cases which are not eligible.
It is not unheard of for judges to disregard the statutory provisions in expungement cases. In a Providence Journal story on the Wayne David Collins case, Chief Judge Rodgers was quoted as saying that the actions of the presiding judge who granted the expungement were "not only justified, [but] legal," despite the fact that it was not handled according to "the letter of the statute."9 It is unlikely that this was the only expungement which was granted because a judge felt that it was appropriate, even if it did not meet the statutory requirements. In Manocchio, the Supreme Court felt it necessary to rule explicitly that the trial courts lack the authority to order expungements which are outside the statute.
The very nature of expungement (i.e., to remove all information about a case from the public record) is a large part of the problem. Simply, if all record of a case, including that it was expunged at all, is secret then there can be no public scrutiny of the judge's decision to grant expungement. The simple fact that court records are public documents provides a strong check on potential judicial malfeasance.
In lieu of public access, the Office of the Attorney General theoretically serves as an agent of the public in expungement cases, objecting to motions when they come before a judge and, if they choose, appealing the expungement to the state Supreme Court and asking that it be overturned. We have seen four cases so appealed (in Alejo and Manocchio) and in all of them the expungements were overruled.
As the peoples' attorney, the Attorney General must be informed of all expungement proceedings ten days in advance, and they are present at a vast majority of expungement hearings. As in any trial, there must be an agent of the plaintiff (in criminal cases, the public) present to protect the public interest. It is impossible to determine systematically how often these attorneys object to motions to expunge or how often their objections are overruled or ignored, but it is clear that neither the judges nor the Office of the Attorney General is committed to uniform compliance. In an interview conducted for this study with several spokesmen for the Office of the Attorney General, Deputy Attorney General Gerald Coyne stated that, even in cases where there is a statutory violation, decisions to appeal are "made on a case by case basis."10 According to Alan Goulart, Deputy Chief of the Criminal Division for Providence, "There is a cost-benefit analysis in every case." While the Office of the Attorney General has provided a check on judges to some extent, it is not clear that they always object to expungement of cases which are not applicable nor have they appealed every case of improper expungement.
Deputy Chief Goulart and Deputy Attorney General Coyne are of the opinion that the Alejo and Manocchio appeals allowed the Supreme Court to give clear guidance to trial court judges. "There was no guidance before," said Goulart. "Now, with this new case law, there are crystal clear provisions for when [expungement] can occur." While this may be true, it ignores the fact that there have always been clear statutory guidelines that were often overlooked or ignored. While the Alejo and Manocchio cases may have been a warning to the Superior Court judges, they do not assure that the statute will be followed to the letter in all future expungement cases.
If neither the judges nor the Office of the Attorney General are committed to uniform compliance, it seems important that more checks be instituted. The statute does provide that the arresting police department also be informed in advance of expungement hearings, but this notification is often delayed and in general it is quite uncommon for a police department to appear in court to object. Perhaps it would shed new light on expungement proceedings if the crime victims were present. While their opinions should not govern a judge's decision, they are aware of the facts of the case and their presence would certainly cause judges and attorneys to treat expungements with appropriate gravity.
It is clear that there are serious problems with expungement in Rhode Island. Even if we consider only the stories in the media in recent years there were three major cases of improper expungement since 1998 alone. This study has found at least ten times more. With the expungement case load continuing to grow and the numerous high-profile expungement cases and legislative moves in the past several years, it is necessary to look at expungement practices in Rhode Island as a whole. Some expungements have been overturned (in the Alejo and Manocchio cases) and at least one illegal expungement (Wayne David Collins) still stands. Rhode Island's lenient expungement policy threatens to compromise the public interest when it is not followed by the judiciary. The "extraordinary case" which merits expungement is becoming routine, and even cases which are clearly not eligible are being removed from the public record. Clearly, it is time to think critically about expungement, its dangers, and its role in our judicial system.
Given the cases considered in the "Legal, but Dubious Expungements" section of this report, we feel that there are serious questions about the appropriateness of the standing law which should be addressed. There are many cases being expunged where it seems that the interests of the public are not being considered. As a first step, we feel that judges should utilize their discretion to deny expungements in cases involving original crime of violence charges and violent crimes not covered under the list of crimes of violence (specifically felony assault and battery.) However, since judges do not seem inclined to be conservative in expungement proceedings, we urge the legislature to consider expanding the list of crimes of violence and perhaps re-introducing statutory provisions regarding original charges. At the very least, we conclude that it is inappropriate to consider further liberalization of the expungement statute. Expungement can be a positive tool to help convicted criminals turn their lives around, but if applied without caution it can become a dangerous policy for individuals and the justice system as a whole.
Figure 1: Existing Form for Motion to Expunge/Seal (Criminal) Record in
Providence Superior Court
Figure 2: Proposed Form for Motion to Expunge
Footnotes
1 "R.I. Courts Expunged Thousands of Records," Providence Journal-Bulletin, 24 April 1999, A-1
5 State v. Manocchio, 743 A.2d 555 (R.I. 2000)
6 State v. Thorpe, 429 A.2d 785 (R.I. 1981)
7 "Judge OKs Erasure of Felon's Record," Providence Journal-Bulletin, May 7 1997, A-1
9 "Judge OKs Erasure of Felon's Record," Providence Journal-Bulletin, May 7 1997, A-1
Supplemental Appendix to Table 4: Case Numbers for Prior Records
Expunged Case Number |
# of Relevant Priors |
Relevant Prior Case Number(s) |
P2822238B |
8 |
1: P3820378 2: 619100521 3: P2922310A 4: 619313705 5: 619309571 6: 619511034 7: 319704671 8: 619808157 |
P2872203C |
4 |
1: P2872846A 2: P2882430A 3: P2892605A 4: 61905181 |
P2885557B |
3 |
1: 62886118 2: 61902995 3: 619110582 |
P2780777A |
2 |
1: P1771412B 2: P2810649A |
P2961357A |
2 |
1: 619313409 2: 619404799 |
P1920001S |
2 |
1: K2890348A 2: 619603809 |
P2811991A |
1 |
1: P2811249A |
P2811249A |
1 |
1: P2811991A |
P2910471B |
1 |
1: 619100460 |
P2930219A |
1 |
1: 619602861 |
P2894640A |
1 |
1: 619511565 |
P2932922C |
1 |
1: 619113121 |
P2943180A |
1 |
1: 61890178 |
P2903675A |
1 |
1: 619704008 |
P2920760B |
1 |
1: 72902196 |
P1911183E |
1 |
1: 629100197 |