Restoration of Rights & Record Relief
Last updated: March 29, 2020
I. Loss & restoration of civil/firearms rights
A. Civil rights
A sentence of imprisonment for any term of more than one year and less than for life suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority, or power during such imprisonment. V.I. Code Ann. tit. 14, § 91. The right to vote is automatically restored to every person convicted of a felony upon completion of all the conditions of the person’s sentence, including payment of restitution. 18 V.I. Code § 263(c). The right to hold office depends upon being a qualified voter. See Election System of the Virgin Islands, Qualifications for Office, https://www.vivote.gov/candidates/qualifications-offices. Citizens are “competent to serve as a juror unless” inter alia he or she “has been convicted in a state, territorial, or federal court of record of a crime punishable by imprisonment for more than one year and his civil rights have not been restored by pardon or amnesty.” tit. 4, § 471(1).
A person convicted in any court for a crime punishable by imprisonment for a term exceeding one year, or of misdemeanor domestic violence, is ineligible for a license to carry a firearm. V.I. Code Ann. tit. 23, § 456a(a)(1).1 A person who has previously been convicted of a felony in any state, territorial, or federal court of the United States faces higher penalties for unlawful (i.e., unlicensed) possession than a person convicted of simple unlawful possession of a firearm. See tit. 14, § 2253(a).
II. Pardon policy & practice
The governor has power to pardon violations of local law. V.I. Organic Act of 1954, § 11. People with felony convictions are prohibited from sitting on any board or commission of the government of the Virgin Islands unless pardoned. V.I. Code Ann. tit. 3, § 65d. Pardoning in the Virgin Islands appears to be a fairly informal matter, with each governor establishing their own procedure and standards for pardons. See this article about a number of clemency grants issued by outgoing Governor Kenneth Mapp in December 2018. https://stthomassource.com/content/2018/12/24/mapp-pardons-releases-15-before-leaving-office/.
III. Expungement, sealing & other record relief
Chapter 314 of the Virgin Islands Code (“Expungement”) was added in November 2009. Among other things, Chapter 314 defines the “records” that shall be expunged upon the entry of an expungement order (V.I. Code Ann. tit. 5, § 3731); identifies circumstances when expungement of non-conviction records “may” and “must” be ordered (tit. 5, §§ 3732 & 3733).
A. Expungement of misdemeanors
B. First offender deferred adjudication and expungement
V.I. Code Ann. tit. 5, § 3711(c) provides procedures for a person with a non-violent offense with no prior felony or misdemeanor convictions to have judgment deferred and charges dismissed after successful completion of probation: “Upon fulfillment of the terms of probation the defendant shall be discharged without court adjudication of guilt, and an order shall be entered expunging the finding, verdict or plea of guilty and all records as defined in chapter 314 of this title as the case may be.” Id.
C. Deferred adjudication for drug possession
V.I. Code Ann. tit. 19, § 607(b)(1) provides for deferred adjudication for first-time drug possession, with no conviction resulting if probation is successfully completed. Expungement of records is available only if an offense committed when under 21. tit. 19, § 607(b)(2). (It is not clear whether this authority is intended to limit the authority in tit. 5, § 3711(c).)
D. Youthful offenses
V.I. Code Ann. tit. 5, § 3712 provides for probation and expungement of any offense, after a five-year waiting period, for individuals with no prior conviction whose offense was committed when they were under 21 years of age.
E. Non-conviction records
Expungement is mandatory upon petition for most non-conviction records, including is cases where charges dismissed or not prosecuted after the statute of limitations has expired.
The records of an arrest, a criminal complaint or an information that does not result in a conviction must be expunged by petition to the court: (1) Where the case has been dismissed without prejudice and the statute of limitation has expired. (2) Where the case has been tried and there was an acquittal. (3) Where there is a statement of Nolle Prosequi, and the People have not filed an information or complaint and the statute of limitation has expired.
V.I. Code Ann. tit. 5, § 3733(a) (emphasis added). In all other cases, non-conviction records may be expunged by petition to the court except where a person flees the jurisdiction to avoid prosecution, or where a person has a subsequent arrest, “unless there are extraordinary circumstances to which the court finds expungement in the best interest of public policy.” tit. 5, § 3733(b). See People v. Creque, Nos. ST-06-CR-426, ST-06-CR-427, ST-06-CR-428, 2010 WL 7371955 (V.I. Feb. 23, 2010) (in connection with action under tit. 5, §3733(b), holding that “[d]efendant failed to offer any evidence establishing that his Constitutional Rights were violated during his arrest nor did the People concede that they were dropping the charges because Defendants was innocent,” and thus “the defendant’s argument does not demonstrate the presence of extraordinary circumstances that outweigh the Government’s need to preserve arrest records”).
F. Juvenile record sealing
Juvenile records may be sealed on motion two years after discharge if the person has not been convicted of a felony or misdemeanor, and no proceeding is pending seeking a conviction or adjudication. See V.I. Code Ann. tit. 5, § 2531.
IV. Criminal record in employment & licensing
Effective November 10, 2018, public and private employers are prohibited from asking job applicants, seeking information about, or using as a factor in determining a condition of employment information concerning any of the following: (1) arrests not resulting in a finding of guilt or a conviction; (2) diversion programs; and (3) dismissed or sealed convictions or findings of guilt. V .I. Code Ann. tit. 24, §§ 465-469. Nonetheless, an employer may ask an applicant about an arrest for which the person is out on bail or on his or her own recognizance. Id. § 465. These provisions do not apply to a government agencies seek information about peace officers or applicants for peace officer or criminal justice employment. Id. §§ 465-66. They also do not prohibit employers at health facilities from asking applicants for positions with regular access to patients or access to drugs about certain arrests. Id. § 466. Also, these provisions do not apply if: (1) “state or federal law requires an applicant to be rejected based on criminal history”; (2) “the employment requires a satisfactory criminal background as an established bona fide occupational position or a group of employees”; (3) “a standard fidelity or equivalent bond is required and a conviction of one or more specified criminal offenses would disqualify the applicant from obtaining such a bond”; or (4) “the employment is within a facility that provides programs, services, or direct care to minors or vulnerable adults including the educational system or child care.” Id. § 469.