In light of public discussion about changes in the rules on expungement, a 2000 Brown University Taubman Center for Public Policy study undertaken by Professor Ross Cheit looked at expungement policy between 1993 and 1998. As the following information demonstrates, his study revealed a number of serious problems with how past expungements have been handled.

For those who are interested in how the process works, expunged records are withdrawn from public access, allowing courts to give deserving people a chance to rebuild their lives without the stigma of a criminal conviction.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.

If you would like further information on this study, the full report "Public Courts, Private Records" is available free and online at www.brown.edu/Departments/Taubman_Center (under Research Program).