Restoration of Rights, Pardon, Expungement & Sealing
Last updated: December 1, 2017
I. Restoration of Civil/Firearms Rights
Rhode Island Constitution provides that “No person who is incarcerated in a correctional facility upon a felony conviction shall be permitted to vote until such person is discharged from the facility. Upon discharge, such person’s right to vote shall be restored.” R.I. Const. art. II, § 1.1 The department of corrections acts as a voter registration agency with certain duties as part of the release from prison. See R.I. Gen. Laws 17-9.2-3.
B. Jury & public office
A person convicted of a felony “shall not be allowed” to serve as a juror until completion of sentence. R.I. Gen. Laws § 9-9-1.1(c). A person is disqualified from public office if convicted of a felony, or a misdemeanor resulting in a jail sentence of six months or more, either suspended or to be served. R.I. Const. art. III, § 2. The right is automatically restored three years after completion of sentence or earlier by pardon. See R.I. Const. art. IX, § 13; R.I. Gen. Laws § 13-10-1.
Juvenile adjudications do not “impose any of the civil disabilities ordinarily resulting from a conviction.” R.I. Gen. Laws § 14-1-40.
A person convicted of a “crime of violence” is prohibited from possessing any firearm. R.I. Gen. Laws § 11-47-5(a). Prohibition also applies to any person sentenced to community confinement or electronic surveillance. Id. § 11-47-5(c). “Crime of violence” is defined as specific list of felonies, including felony domestic violence. Id. § 11-47-2(2). Restoration of rights may be effected by pardon only, except that persons convicted of felony domestic violence are only prohibited from possessing a firearm for two years following the date of conviction. Id. § 11-47-5(b).
II. Discretionary Restoration Mechanisms
A. Executive pardon
Power vested in governor, “by and with the advice and consent of the senate,” except in cases of impeachment. R.I. Const. art. IX, § 13. According to the Office of the Governor, a pardon restores ones right to hold public office and lifts occupational and licensing bars. There is no express eligibility requirement – the process is unstructured and petitioners must comply with “any rules and regulations respecting [pardon application] filing and hearing that [the governor] may from time to time prescribe.” See R.I. Gen. Laws § 13-10-1.
Frequency of grants
No pardon to a living person2 has been issued in more than a decade, which may explain the fact that there are only a handful of applicants each year. (Requirement of going to legislature for consent evidently discourages exercise of power.) Source: Office of the Governor.
Special Counsel to Governor
B. Judicial expungement and sealing
Rhode Island law provides for three distinct types of expungement pursuant to R.I. Gen. Laws § 12-1.3-2: 1) “first offenders,” defined as those with a single felony or misdemeanor conviction; 2) those with between two and six misdemeanor convictions; and 3) those who successfully completed deferred sentences. It also provides additional authority for expunging other deferred dispositions, and for sealing nonconviction records. Sealing and expungement have been held to be functionally identical. State v. Faria, 947 A.2d 863, 866, n.3 (R.I. 2008).
1. First offenders and misdemeanants
First offenders may petition for expungement of the record of conviction after 10 arrest-free years (for felonies) or 5 arrest-free years (for misdemeanors). R.I. Gen. Laws § 12-1.3-3(a), (c), (d). Waiting periods begin upon completion of sentence. Id. “First offender” is defined as “a person who has been convicted of a felony offense or a misdemeanor offense, and who has not been previously convicted of or placed on probation for a felony or a misdemeanor and against whom there is no criminal proceeding pending in any court.” § 12-1.3-1(3). First offender expungement is unavailable to persons convicted of specified serious violent offenses. § 12-1.3-2; § 12-1.3-1(1). In addition, all outstanding court-imposed fees, fines, and any other monetary obligations must have been paid, unless waived by order of the court.
In September of 2017, expungement eligibility was expanded to include individuals with between 2 and 6 misdemeanor convictions, who may petition to expunge those convictions after 10 arrest-free years. §§ 12-1.3-2(b), (f); 12-1.3-3(b)(iii) (added by H-5205 (2017)). Individuals convicted of a felony at any time are ineligible under this new provision, as are those with pending charges. §§ 12-1.3-2(b); 12-1.3-3(b)(iii). Domestic violence and DUI convictions may not be expunged under this new provision. § 12-1.3-2(b). The new provision applies retroactively to convictions that predate its enactment. H-5205, § 2 (2017).
Petitioner must give notice to Attorney General and prosecutor at least 10 days prior to hearing date. R.I. Gen. Laws § 12-1.3-3(a). After hearing, court may in its discretion order expungement if it finds that “there are no criminal proceedings pending against the person, and he or she has exhibited good moral character” and that “the petitioner’s rehabilitation has been attained to the court’s satisfaction and the expungement of the records of his or her conviction is consistent with the public interest.” § 12-1.3-3(b). If the court grants the motion, it shall order all records and records of conviction relating to the conviction expunged and all index and other references to it deleted. § 12-1.3-3(c). A copy of the order of the court shall be sent to any law enforcement agency and other agency known by either the petitioner, the department of the attorney general, or the court to have possession of the records. Compliance with the order shall be according to the terms specified by the court. Id.
“Expungement of records” is defined as “the sealing and retention of all records of a conviction and/or probation and the removal from active files of all records and information relating to conviction and/or probation.” § 12-1.3-1(2). Expungement releases recipient “from all penalties and disabilities resulting from the crime,” except that it may serve as a predicate offense, for sentencing purposes, in a subsequent prosecution. § 12-1.3-4(a). Generally, expungement relieves legal disabilities (including firearms disabilities). See § 12-1.3-4. A person whose conviction has been expunged “may state that he or she has never been convicted of the crime” in “any application for employment, license, or other civil right or privilege, or any appearance as a witness,” except that conviction must be disclosed in applications for certain jobs and licenses involving teaching, early childhood education, law enforcement, coaching, and the practice of law. § 12-1.3-4(b). Expunged records also remain available to entities charged with hiring and licensing in those specific areas. § 12-1.3-4(c), (d). Unauthorized disclosure may lead to civil liability. § 12-1.3-4(d).
2. Nolo plea followed by probation
Pursuant to R.I. Gen. Laws § 12-18-3, a person who pleads nolo contendere and is placed on probation without judgment will have no conviction if probation is successfully completed, and sealing is available on same basis as other non-conviction records under § 12-1-12.1(a). Evidence of the nolo plea may not be introduced in any court proceeding, except that it may be provided a court in a subsequent criminal proceeding. Where the offense constitutes a crime of violence, the plea shall be deemed a conviction for purposes of purchasing a firearm, § 12-18-3(c).
3. Deferred sentences (deferred adjudication)
Effective in 2016, expungement may be sought immediately upon completion of deferred sentencing under R.I. Gen. Laws §§ 12-19-19(c); 12-1.3-2(d) (enacted by HB-7025, (2016), subsequently renumbered as (e)). Expungement is discretionary and may be granted only if “the court finds that the person has complied with all of the terms and conditions of the deferral agreement including, but not limited to, the payment in full of any court-ordered fines, fees, costs, assessments, and restitution to victims of crimes; there are no criminal proceedings pending against the person; and he or she has established good moral character.” § 12-1.3-3(b)(ii). Specified serious violent offenses are ineligible. Id.; § 12-1.3-1. This expungement authority applies to all deferred sentencing agreements, whether completed before or after the enactment of the 2016 law. HB-7025, § 3 (2016).
3. Expungement of other deferred dispositions
A post-plea disposition pursuant to R.I. Gen. Laws § 12-10-12 (“Filing of Complaints”) results in the automatic destruction of the complaint after one year of good behavior (no arrests during this year and compliance with all imposed conditions of the “filing”). Conditions of a filing may include restitution totaling less than two hundred dollars, community service, and other conditions determined by the court. There is a three-year waiting period for the destruction of filed domestic violence cases.
Post-plea cases sent to drug court are dismissed and expunged after successful completion of the program. http://www.courts.ri.gov/PublicResources/forms/Superior%20Court%20Forms/Adult%20Drug%20Court%20-%20Contract.pdf.
4. Sealing of nonconviction records
R.I. Gen. Laws § 12-1-12.1(a): “Any person who is acquitted or otherwise exonerated of all counts in a criminal case, including, but not limited to, dismissal or filing of a no true bill or no information, may file a motion for the sealing of his or her court records in the case, provided, that no person who has been convicted of a felony shall be entitled to relief under this section except for those records in cases of acquittal after trial.”3 After a hearing “at which all relevant testimony and information shall be considered,” the court is required to seal records of persons acquitted or otherwise exonerated (including charges dismissed, etc.). § 12-1-12.1(c). Sealing is unavailable to anyone with a prior felony conviction, “except for those records in cases of acquittal after trial.” § 12-1-12.1(a).
Records of arrests determined to be “wrongful” by law enforcement (whether due to mistaken identity, lack of probable cause, or “any other reason”) must be sealed 60 days after the determination if no charges are brought. § 12-1-12.2(b). See also § 12-1-12.2(f):
The person arrested, detained or otherwise identified as a suspect and who is thereafter exonerated may deny for any purpose that the arrest ever occurred and under no circumstances shall such an arrestee be required to disclose the arrest for any purpose including, but not limited to, any application for employment, professional license, concealed weapons permit or the purchase of a firearm or other weapon.
5. Juvenile records
Records are automatically sealed, with limited exceptions, upon final disposition of a juvenile case, which includes dismissal, a finding of not guilty, and adjudication and completion of any sentence. R.I. Gen. Laws §§ 14-1-6.1, 14-1-64(b). Juvenile adjudication can be used for sentencing purposes in adult court and does constitute a conviction for impeachment purposes.
Frequency of grants
According to statistics compiled by the Rhode Island Judicial Technology Center, as reported in the Providence Journal, in 2014 Rhode Island courts sealed the records of 2,798 felonies and 8,800 misdemeanors, where there was an admission of guilt, a no contest plea, or a conviction. In 2013, the number of expunged cases totaled 13,385, including 2,076 felonies and 10,974 misdemeanors. http://www.providencejournal.com/article/20150413/NEWS/150419664. These numbers represent a marked increase from the previous two years: in 2012, 269 felonies were expunged and 3,929 misdemeanors were expunged, and those numbers represent a 36 percent increase from the 3,091 total expungments granted in 2011. According to court statistics, in the nine years between 2000 and 2008, Rhode Island courts expunged the records of 42,080 convictions, of which 4,304 were felonies. The total number of records expunged between 2000 and 2008, including non-conviction dispositions, was 74,941. The numbers in all categories have been trending upwards each year since 2000.
III. Nondiscrimination in Licensing and Employment
Rhode Island has no general law regulating consideration of conviction in employment or licensure. It applies a direct relationship test in connection with disciplinary action for certain regulated professions, but a higher standard applies for medical and dental licensure. See R.I. Gen. Laws § 5-37-5.1 (unprofessional conduct includes “Conviction of a crime involving moral turpitude; conviction of a felony; conviction of a crime arising out of the practice of medicine”); id. § 5- 31.1-10 (same for practice of dentistry and dental hygiene).
Juvenile court adjudications do not “operate to disqualify the child in any future civil service application, examination, or appointment.” R.I. Gen. Laws § 14-1-40.
B. Certificate of recovery & re-entry
Effective July 1, 2014, a person with no more than one non-violent felony conviction may apply to the Parole Board for a “certificate of recovery & re-entry” which may serve to “relieve the petitioner, in appropriate cases, of some of the collateral consequences resulting from his or her criminal record.” R.I. Gen. Laws § 13-8.2-1. Specifically, the certificate may “serve as one determining factor as to whether the petitioner has been successful in his or her rehabilitation.” See also § 13-8.2-2(5)(a certificate “shall serve as one determining factor, consistent with concerns of public safety, of the person’s ability to obtain employment, professional licenses, housing and other benefits and opportunities. Provided, further, that said instrument shall serve as a determination that the person receiving it has successfully achieved his or her recovery & re-entry goals as provided for in § 13-8.2-4.”) Eligibility criteria are established in § 13-8.2-2(4)(no more than one felony conviction) and (8) (violent crimes ineligible), and those with convictions from other jurisdictions are eligible to apply. The “minimum period of recovery & re-entry” is one year where the most serious conviction is a misdemeanor, and three years for a non-violent felony. The waiting period “shall be measured either from the date of the payment of any fine imposed upon him or her, or from the date of his or her release from the institutional facility, custody by parole or home confinement, whichever is later.” The certificate does not result in expungement or sealing, or limit the procedure for applying for a pardon. § 13-8.2-6.
R.I. Gen. Laws § 28-5-7(7) prohibits as an unlawful employment practice any inquiry orally or in writing to an applicant for public or private employment about arrests and (effective January 1, 2014) convictions until the first interview. The statute includes an exception for positions related to law enforcement agencies, positions for which federal or state law or regulation creates “a mandatory or presumptive disqualification from employment” based upon conviction, and positions for which the requirement of a standard fidelity bond would require disqualification based upon conviction.
- Prior to 2006 constitutional amendment, art. II, § 1 provided that “No felon shall be permitted to vote until completion of such felon’s sentence, served or suspended, and of parole or probation.” That provision, approved by the voters in 1986, replaced a provision requiring persons convicted of a felony wishing to regain the vote to petition the General Assembly.
- In 2011, Governor Chafee issued a pardon to a man who was infamously hanged in 1845 who many believe was wrongfully convicted of murder. The pardon was ostensibly granted to recognize and uphold the state’s commitment to opposing the death penalty. See Rhode Island Government Press Releases, Governor Lincoln D. Chafee Pardons John Gordon (June 28, 2011), available at http://www.ri.gov/press/view/14182.
- Probationary sentences following a nolo contendere plea to a felony are not considered convictions for the purpose of determining sealing eligibility. § 12-18-3(a); see also State v. Poulin, 66 A.3d 419 (R.I. 2013).