Cannabis Records Expungement: Progress report and guide to the process

The RI Cannabis Act signed into law on May 25, 2022, legalized recreational use and provided for automatic expungement of eligible criminal and civil records by no later than July 1, 2024. The effect is that a person whose records are expunged has a clean record, as if the offense never happened, subject to certain limited exceptions. The most important benefit of expungement is that, unless specifically provided otherwise by law (such as applying for a law enforcement or national security job, bar membership, or teaching certificate), the person whose records are expunged can decline to disclose the offense when applying for jobs, credit, housing, etc.

The Office of the Attorney General told Motif that the “requirements for records to be considered expungeable” are “prior civil violation, misdemeanor, or felony conviction for possession-only offenses that have now been decriminalized” that involved two ounces or less of cannabis.

A spokesperson for the RI state courts told Motif, “The judiciary identified approximately 5,000 criminal cases and approximately 15,000 civil violations where the charge was a single count of a now-decriminalized offense and is therefore eligible for expungement.” This is a floor rather than a ceiling, because possession counts may have been charged concurrently with other offenses, complicating the identification of records eligible for expungement.

Because such offenses have especially affected marginalized populations, expungement has been regarded as an important social justice issue. At the bill signing ceremony, Gov. Daniel McKee noted that new law “creates a process for the automatic expungement of past cannabis convictions. My administration’s original legalization plan also included such a provision and I am thrilled that the Assembly recognized the importance of this particular issue. The end result is a win for our state both socially and economically.”

State Representative Scott A. Slater (D-10, Providence), who for years sponsored legalization until it was finally passed into law, said, “Social equity has been a top concern for us throughout this whole process. Senator [Joshua] Miller [D-28, Cranston, Providence] and I represent some of the communities that have suffered disproportionate harm from prohibition for decades, resulting in generational poverty and mass incarceration. The starting line isn’t the same for people in poor, urban and minority communities, and they deserve support to ensure they get the full benefit of participating in legalization. I am grateful to my colleagues in the General Assembly for recognizing the importance of expungement of criminal records and equity in licensing, because they are absolutely critical to ending prohibition fairly.”

“Those who wish to expunge their records prior to [July 1, 2024] may petition the court for relief through an expedited process,” the Office of the Attorney General said, citing RI General Laws §12-1.3-5 (“Expungement of marijuana records”). “If the court determines that a record is to be expunged, it shall order all records and records of conviction or civil adjudication relating to the conviction or civil adjudication expunged and all index and other references to charges removed from public inspection.”

“Generally speaking, our role in the expungement process is to clear the state criminal history system of the charges and notify the FBI … We must manually send a request to the FBI to have it removed from the federal system,” the Office of the Attorney General told Motif. “Within a ‘reasonable time,’ the court shall send a copy of such order to the attorney general, the police department that originally brought the charge against the person, and any other agency known by the petitioner (person who is seeking to have their record expunged) to have possession of the records. If an amount is not stated within the record of conviction or any related record, report, or document, then the court shall presume the amount to have been two ounces or less.”

“The automatic expungement process is free and does not require the individual to file any court documents,” the courts spokesperson told Motif. “If you need your marijuana possession conviction expunged sooner… you can request an expedited expungement through the clerk’s office of the Superior or District Courts or the Rhode Island Traffic Tribunal. Requests will be processed within five business days. The expungement process is free but does require some documents to be filed. See the Rhode Island Judiciary’s website [https://publicportal.courts.ri.gov/PublicPortal] for detailed instructions.” As of March 1, 2023, no applications for expedited expungements had yet been received by the courts, Motif was told.

According to the courts spokesperson, because RI decriminalized simple possession by 2013, all criminal offenses would have occurred before then and all offenses after would have been civil violations similar to a traffic ticket. “All marijuana possession charges or counts that meet the criteria of amount and age of the person will be automatically expunged,” but this “does not apply to all other marijuana convictions including, but not limited to, the selling, delivering, or manufacturing of marijuana.”

“The Rhode Island Cannabis Act (Act) made possession of marijuana legal depending upon the amount and the age of the person. If the amount and age are met, the Act also provided for the automatic expungement of prior charges or counts where a person was convicted of possession.. A conviction is when a person is found guilty of committing the charge or count, which can be a crime or a civil violation,” the courts spokesperson explained.