ExSPONGing Away Criminal Records: Fighting for automatic expungement in RI

Leaders in the Rhode Island General Assembly have introduced a bill to legalize cannabis for professional and personal use, possession and purchase for up to one ounce starting October 1, 2022. With the discussion of legalization, expungement has become a topic of priority among cannabis advocacy groups. 

Expungement refers to clearing an individual’s record of prior criminal convictions. The clearance would eliminate all records of a conviction and reduce the hardships that come with it , such as losing housing or employment access that depends on a clean criminal record.

According to the RI Cannabis Act, expungement could be issued upon request and at the discretion of the Chief Justice. With cannabis legalization, if an individual has been convicted of possession, use or purchase of up to one ounce of cannabis, then they are eligible to have those records expunged.

Harrison Tuttle, executive director at BLM RI PAC, advocates for the RI Cannabis Act to include the automatic expungement of incarcerated individuals’ records.

State initiated automatic expungement would mean that the state would take it upon itself to expunge the records of all prior convictions without requiring requests by individuals.

Tuttle is concerned about the current bill’s stipulation that expungement is solely executed upon request of the individual and at the discretion of the Chief Justice. “There were other elements that were far more equitable in the previous year’s bill,” said Tuttle. He claimed that unless there is automatic expungement of individuals’ records, the RI General Assembly should refrain from legalizing marijuana until it is just to all individuals, especially those criminalized by the war on drugs.

Sen. Josh Miller (D-Providence), one of the sponsors of this bill, is prepared to hear from stakeholders at upcoming hearings. “If there are proposals to expedite expungement, both Rep. Slater and myself are willing to incorporate anything deemed feasible,” said Senator Miller.

Jared Moffat of the Marijuana Policy Project (MPP) has been advocating for the automatic expungement of cannabis records along with the Yes We Cannabis RI coalition, which MPP is associated with, and other organizations. 

Moffat said that for decades the harmful cannabis policy was funded and perpetuated by the state using taxpayer dollars. The court system was used to stigmatize people with criminal records which stopped them from getting education, housing, employment, and many other life necessities and resources.  

“My position from a moral standpoint is the state created this mess, prosecuted all these people, [and] arrested all these people, and spent enormous amounts of resources on criminalizing people for cannabis,” Moffat said. “Now you’re telling me you don’t want to sit down for an hour-long meeting to work out some language and figure out how to undo this harm; that’s just not acceptable.”

Moffat expressed that if expungement is granted on an individual basis and upon request, that many people won’t know the policy exists, let alone that they are qualified to ask for the expungement of their records. According to The Star-Ledger, New Jersey courts have expunged over 362,000 cannabis convictions since July 1, 2021 with automatic expungement. Moffat suggests they were able to save state resources while also eliminating the burden of the expunged convictions from falling on the backs of individuals. “We see that in states that lack an automatic system, that a small fraction of people who are eligible actually did the release they’re entitled to,” said Moffat. 

Moffat was told by a court representative that they could run a computer program and could expunge at least 18,000 records. He also stated that the courts and Attorney General are not opposed to a state-initiated expungement if it is what the General Assembly tells them to. Without resistance from the court or General Assembly, Moffat said there seems to be a disconnect around who or what is stopping the state-initiated automatic expungement from being implemented in the bill.

Cherie Cruz, co-founder of Yes We Cannabis RI as well as various other advocacy groups, is certain the Ocean State can implement efficient equity measures that coincide with the legalization of cannabis and advocates for the state-initiated automatic expungement.

“When we have so many examples from other states of their failures and their wins that we can learn from, we don’t have to make those same mistakes twice, we can do this,” said Cruz. 

Cruz says there is a daily limit to the number of petitions that can be heard by a court, which will cause more difficulty and delay for the expungement of many individual records. She says this limits the number of records expunged if the bill is not altered to include state-initiated automatic expungement of records.

Michael DiLauro, Director of Legislative Initiatives at the RI Office of Public Defenders, has been working on expungement for 20 years and is supportive of automatic expungement.

DiLauro said it would be relatively easy to automatically expunge records of individuals who were convicted of up to one ounce of cannabis. The challenge of automatic expungement predicted by DiLauro regards those who have multiple other convictions, because one part of a more extensive record cannot be withdrawn as easily. He is not aware of any solutions for this hurdle, which affects thousands of individuals with multiple convictions. It means there can’t be a “one size fits all” solution. 

“I think the automatic is very tempting and it should be done that way,” said DiLauro. “It shouldn’t be on the person who has the marijauna conviction.” 

Cruz claims the work of advocacy groups has just begun. “When legalization passes, and if there’s an automatic expungement – state initiated automatic – implemented, we at Yes We Cannabis and other activists and advocates are going to have to make sure they follow through and expunge these records. And then we are going to have to follow up and make sure it’s off their BCI’s,” said Cruz. “It’s not ‘Yay we passed the bill’ and it’s going to be done; we are going to have to follow up to make sure … that it’s done. The fight is that we’ve got to get it in, then we have to fight by making sure they do their job.”