Lynch Now Favors Expungement for Some Criminals

April 8, 2010 - 10:09am

by Katherine Gregg, Providence Journal State House Bureau

PROVIDENCE — In a sharp turnaround, Attorney General Patrick C. Lynch is now backing the early expungement of the case files of an entire class of admitted criminals, regardless of what they did.

The bill that was considered by the Senate Judiciary Committee on Tuesday night is one in a slate of measures introduced on Smith Hill again this year to allow convicted criminals to legally tell potential landlords, employers and professional licensing authorities that they have never been convicted.

Defense lawyers and advocates for the minority community have long argued that a criminal record is an impediment to getting a job.

Nearing the end of his stretch as the state’s top prosecutor, Lynch still opposes most of the expungement bills introduced this session. But he is backing — and had legislators introduce on his behalf — a bill to remove from public view the record of cases in which someone agreed to plead no contest in exchange for a deferred sentence, and then stayed out of trouble for five years.

 

The legislation would eliminate any further waiting period and remove, for this class of criminals, the notion that expungement is limited to first offenders.

Deferred sentences are not uncommon, especially in cases where a defendant has negotiated a plea that spared the state a trial.

Judges have handed out deferred sentences to stalkers, domestic abusers and, in at least one case, an admitted child molester, along with an admitted co-conspirator in the Lincoln bribery scandal, the executive secretary for the Barrington police chief who pleaded no contest to embezzling town money, the admitted accomplice to a gunpoint robbery in Waterplace Park, and the former director of operations at Amtrol who pleaded no contest to stealing $186,000.

In past years, Lynch cited a litany of concerns about allowing the actual destruction of records of people who, in exchange for no-jail sentences, had to admit their guilt in court.

He warned lawmakers that the destruction of the records would allow many more admitted criminals to declare to a potential employer that they had never been convicted of a crime. He told them it would undermine existing statutes that require background checks for job applicants, and “permanently erase the entire records of individuals who may now apply to work with our most vulnerable citizens — children and the elderly — without the standards and protections of the expungement statute.”

As “one of the few states that allows for the expungement of an adult offense,” Lynch told them, “Rhode Island already has one of the nation’s most liberal expungement statutes.”

On Tuesday, however, Lynch spokesman Michael J. Healey said the attorney general felt compelled to reconsider his own position by what has happened in the years since the Rhode Island Supreme Court stopped the early expungement of the records of these admitted criminals, as soon as their five-year deferral periods ended, without any regard to the severity of their crime or criminal histories.

“Since that decision,” Healey said, “defendants have been less willing to enter into deferred sentence agreements with us. This is unfortunate because the deferred sentence is such an effective tool for both parties, the state and defendant.”

In that November 2007 decision in a case known as state v. Briggs, the Supreme Court took the position that a “a plea of nolo contendere is an implied confession of guilt” for purposes of weighing who is and is not eligible for expungement, regardless of whether their cases resulted in deferred sentences.

Since the records would be sealed rather than destroyed as called for in earlier versions of the bill, and thus available for use by the police in subsequent investigations, Healey said Lynch views the current bill as “a compromise of public safety, the integrity of criminal records and the integrity of the process.” The sponsors include Sen. Charles Levesque, D-Portsmouth, and Providence Senators Harold Metts, Paul Jabour and Juan Pichardo.

Rhode Island judges are already allowed to permanently seal the record of nonviolent crimes by first-offenders 5 years after completion of their sentence for a misdemeanor, 10 years after the completion of a sentence for a felony. A related law allows a court clerk to automatically seal the records of anyone “acquitted or otherwise exonerated” of a crime with no prior felony record.

In 2009 alone, state court judges expunged a total of 8,755 records. While the majority involved people who ultimately were not tried or convicted, that included the records of 291 felonies and 2,803 misdemeanors in which the defendant was found guilty or pleaded no contest.

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