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:

• Courts are among the most open of government institutions, and clerks of the court are generally helpful in finding information.
  
  
• Record keeping for files that are unavailable to the public – expunged convictions, sealed documents – is inconsistent and at times inadequate.
  
  
• Systems for tracking the location of physical files are not always reliable.
  
  
• The public’s interest is not a prominent factor in decisions to seal records or expunge convictions.
  
  
• Municipalities and public agencies are not always clear about the requirements of public access laws and about procedures for compliance.
  
  
• In a significant proportion of cases, the courts have expunged adult felony convictions in apparent violation of state law. Inappropriate expungements have removed from the public record the convictions of persons who have committed crimes of violence, who had not satisfied legally required waiting periods, or who were not first-time offenders.

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.”

Expungements

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:

• Crimes of violence (murder, manslaughter, robbery, many kinds of assault, kidnapping with intent to extort, etc.);
  
  
• Recent cases (persons guilty of a felony must wait 10 years after completing their sentences, five years for a misdemeanor);
  
  
• Prior convictions (only cases of first-time offenders are eligible for expungement).

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:

• Seven of the 25 (28 percent) were expunged in violation of statutory provisions.
  
  
• In nine of the 25 cases, defendants pled guilty to felonies. Only four of those nine expungements were legal. Four cases were disposed as crimes of violence and should never have been expunged. Two of those four were even expunged before the 10-year waiting period.
  
  
• In 16 of the 25, defendants ultimately pled guilty to misdemeanors. In all but two cases, the expungements were legal (although, as the report said, “not necessarily advisable”). In the two remaining cases, the five-year waiting period for misdemeanors had not elapsed.

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.

• Of the 145 cases in the study, 22 (15 percent) were expunged before the statutory time limit.
  
  
• Seventeen of those 22 were expunged in less than five years, making them illegal even if they had been pled down to misdemeanors. (All had been originally charged as felonies.)
  
  
• Five of those 22 were disposed as felonies and expunged in less than 10 years.
  
  
• In 39 of the 145 cases, researchers could not determine the ultimate disposition. The expungements would have been legal if disposed as misdemeanors, illegal if disposed as felonies.

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.

• In 16 of the 79 cases (20 percent), the defendant was involved in criminal cases which should have precluded expungement.
  
  
• In seven of those 16, defendants had two or more convictions in addition to the conviction being expunged. One of them had eight.
  
  
• In 14 of those 16 cases, the defendant had other suspected violations of the expungement law (either a crime of violence or a felony expunged in less than 10 years).
  
  
• One defendant had two convictions for crimes of violence expunged on the same day.

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:

• The conservative measures used in the study suggested that between 9 and 22 percent of all expungements in felony cases may have been improper.
  
  
• While there was no conclusive evidence of systematic willful disregard of the expungement statute, poor record keeping and research are likely factors. These could be eliminated by improving the application form used in seeking expungement so that judges would have full and accurate information.
  
  
• The attorney general’s office represents the public interest, objecting to motions for expungement or appealing cases as it thinks necessary. It is impossible to determine how often attorneys object to motions or how often their objections are overruled. In four recent cases appealed by the attorney general, the Supreme Court has overturned expungements.
  
  
• The state might consider additional checks on the process, including arrangements for crime victims to be present or represented at expungement proceedings.
  
  
• The state might consider expanding the list of violent crimes that can never be expunged.
  
  
• At the very least, considering the number of inappropriate expungements, the state should not consider further liberalization of the expungement statute.

Sealed records

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:

• In 31 cases, the plaintiff or defendant had filed a motion to seal. Nearly all of them appeared to be appropriate sealings.
  
  
• Two cases contained sealed information without any indication of what had been sealed.
  
  
• Nine cases had materials sealed by stipulation (joint request of plaintiff and defendant). No case had a stipulation that was denied. Cases usually indicated the kinds of records that were being sealed but rarely provided a rationale.
  
  
• In 28 cases, records were sealed with neither a motion nor a stipulation. The motion or stipulation may itself have been sealed or the motion to seal may have been made orally in open court.
  
  
• Judges denied a motion to seal in only two cases.
  
  
• Seven cases were entirely sealed. Researchers could inspect the docket sheets, but none of the exhibits or records. Any motions or orders to seal were themselves sealed, so it was not possible to determine a rationale for sealing the entire case.

The researchers’ conclusions and proposals include:

• There appears to be little consideration of the public interest in open records when judges consider a request to seal records.
  
  
• It appears that opposing counsel rarely challenges motions to seal documents. Such challenges could serve as a further check to ensure that record sealing is used appropriately.
  
  
• The current system allows judges a great deal of discretion about sealing but makes it difficult for the public to learn how or why they make their decisions.
  
  
• The State of Rhode Island should require case files to contain information about what has been sealed and why, with the highest degree of specificity that does not compromise the confidentiality of sealed records.
  
  
• The State of Rhode Island should adopt a uniform method of identifying cases that contain sealed records. This would be most easily accomplished by requiring use of the docket codes for sealing (MSR and OSR).

Settlements against municipalities

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:

• Jurisdictions must take all requests for information seriously, and that policy should be conveyed strongly to city and town solicitors.
  
  
• Statewide improvement in information management, particularly for jurisdictions that are not members of the Trust, would go a long way toward eliminating procedural questions about compiling records and making public information truly accessible to Rhode Island citizens. Because it represents so many entities, the Trust itself could play a leading role in developing such a system, perhaps a single Web site.