Restoration of Rights, Pardon, Expungement & Sealing
Last updated: Aug. 27, 2013
I. Restoration of Civil Rights/Firearms Privileges
A. Civil Rights
Persons sentenced to a term in prison of more than one year and less than life lose all civil rights “and forfeit all public offices and all private trusts, authority or power during such imprisonment.” V.I. Code Ann. tit. 14, § 91. 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 is ineligible for a license to carry a firearm. V.I. Code Ann. tit. 23, § 456a(a)(1) (this statute was added in 2005, see No. 6730, § 29, Sess. L. 2005, pp. 106-08). 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. Discretionary Restoration Mechanisms
A. Executive pardon
The governor has power to pardon violations of local law. V.I. Organic Act of 1954, § 11. Felony offenders 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. No information is available on process or frequency of grants.
B. Judicial sealing or expungement
First Offender Deferred Adjudication and Expungement
V.I. Code Ann. tit. 5, § 3711(c) provides procedures for a non-violent offender 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.
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.
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).)
Under title 5 of the Virgin Islands Code
“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, nonconviction 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”).
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); provides for submission of expungement petitions in misdemeanor cases; sets forth the requirements for a “petition” for expungement (tit. 5, § 3735); explains the “effect” of expungement ( 5, § 3738); lists the circumstances in which expunged records can be disclosed (tit. 5, § 3739); and sets forth the process for “enforcement” of an expungement order (tit. 5, § 3740). See also V.I. Super. Ct Rule 400 et seq. (Expungement of Criminal Records).
III. Nondiscrimination in Licensing and Employment: N/A