“I was young and dumb in the early ’90s and got into some trouble,” Michelle says, shrugging. By trouble, she means two non-violent felony charges: one drug-related, the other assault on a police officer.
Before these charges, she had received her Certified Nursing Assistant (CNA) license and had managed to hold down a steady job at the Rhode Island Hospital for years, until she left the state in 2014. When she returned last December, she applied for her old job at the Rhode Island Hospital. To her surprise, she was rejected.
She applied to 30 more CNA-related positions; the response she got back became familiar: “Unfortunately, we chose another candidate.”
She says she is certain that the felonies have been holding her back from employment. It doesn’t matter that they are over 18 years old and that she has an excellent employment history. When employers inevitably learn she has a criminal record, they pass her over.
Her friend, Beverly, a middle-aged woman, agrees.
“I’ve been out of trouble for 16 years,” says Beverly, who, like Michelle, requested that her last name be withheld. “That’s including ten years of probation.” Her record contains two misdemeanors for possession of marijuana and a felony charge for possession of an unregistered gun. She says the gun was her boyfriend’s, and he left it at her apartment. She didn’t serve time, but the felony, along with her two marijuana misdemeanors, has continued to haunt her: she hasn’t been able to get a job since 2008.
“Filling out the applications, then knowing you’re not going to get it...” Beverly says, bitterly, her voice trailing off. Both women have also been unable to receive public housing due to their records, and as a result, currently stay with family members. We’re standing outside the McAuley House, a large red building in South Providence that serves as a transitional housing program for low-income individuals and hosts a free monthly clinic on expungement; that is, having past convictions removed from a criminal record. Michelle and Beverly aren’t residents of the McAuley House, but they’ve come to learn about their legal options for getting their criminal records cleared. Unfortunately, as with most people who come to the clinic, their legal options are very few.
“It can be really heartbreaking, the worst part of my day,” says Emmett Hardiman, Community Outreach Liaison for the Public Defender’s Office, of having to explain to people that they are not eligible for expungement. People like Michelle and Beverly often come to him to learn about their eligibility for the process.
In the month of March, Hardiman screened 43 people for expungement, and of the 29 people who did not qualify to have their records cleared, the majority (16) were ineligible because of multiple misdemeanors.
“People come in with a lot of misinformation, they think it [expungement] is a sure thing,” Hardiman. “They think that I’m telling them they can’t, but it’s not me, it’s the laws.” Having multiple misdemeanors, he adds, is the number one reason why people are not eligible for expungement.
“First time offender equals the first and only time,” says Mike Dilauro, Assistant Public Defender of Rhode Island, explaining why people with multiple felonies or misdemeanors cannot get them cleared. “No matter when, how far apart, how insignificant [the convictions], you are forever banned from getting any of that expunged if you have more than one.”
Yet a series of bills making their arduous way through the Rhode Island General Assembly could, if passed, provide some measure of relief for many Rhode Islanders who want to get their records with multiple charges expunged. One of the most important of these bills, House Bill 7417, would allow people with six or fewer misdemeanors to apply for a motion of expungement ten years after they have finished serving out their last conviction—a massive expansion of the current law, which only applies to those with a single misdemeanor.
“I grew up in South Providence and lots of guys I knew went to jail,” says House Representative Joseph S. Almeida, the sponsor of Bill H-7417 and a former police officer. “They were good people who made bad mistakes. They’re doing well now, but it took a while for them to get their lives turned around.”
The issue of making expungement laws more lenient, particularly with regard to nonviolent misdemeanors, reveals the extent to which certain portions of the population—low-income individuals, people of color, people experiencing homelessness, or those who struggle with substance abuse or mental illnesses—end up with lasting records for often trivial offenses, leading to extensive repercussions for the rest of their lives. Many of the issues that lead to individuals attaining records in the first place, particularly mental health and substance abuse, are not being properly addressed by Rhode Island, says assistant Attorney General Joee Lindbeck. Instead, “the first time many people get their mental health or substance issues addressed is when they get into the criminal justice system.” Instead of being rehabilitated, the system often leaves them back where they started, except now with a permanent record.
“If I’m an employer and there are three candidates, one with a record, who am I more likely to hire?” says Andrew Horwitz, director of the criminal defense clinic at Roger Williams Law School. “If I’m a landlord, and I have an apartment free, who am I more likely to rent it to? That’s the daily reality that expungement seeks to address.”
Legal discrimination is the biggest roadblock most homeless individuals face when trying to apply for housing, says Jim Ryczek, Executive Director of the Rhode Island Coalition for the Homeless, despite the fact that the state saves some $8,000 per person annually when a homeless person is granted public housing. “You can’t do that on the basis of race or gender, but it’s not illegal to discriminate against a person with a criminal record.”
Although Rhode Island has adopted “Ban the Box” legislation, which prevents employers from asking about an applicant’s criminal record until after the first interview, the reality is that most employers and public housing officials can easily check background records without forcing people to report their record beforehand. And many do.
If you walk into the arraignment courtroom in Providence’s Garrahy Judicial Complex, where a person’s charges are read against them, it won’t take long before one thing becomes very clear: almost everyone is being charged with driving on a suspended license, or else for not having one in the first place. Both the Public Defender’s office and the Attorney General’s office, along with other legal professionals, have confirmed that this is one of the principal causes of misdemeanors, especially first-time offenses.
This is essentially a crime of poverty, says Horwitz, and one that most often leads to people ending up with permanent and unexpungeable criminal records. People usually get their licenses suspended in the first place on economic grounds, for being unable to pay a speeding ticket or driving-related offense. Later, if they get pulled over by a police officer, they will be arrested for the suspended license—a misdemeanor charge, unless you can pay to have your license reinstated. There isn’t even a payment plan for suspended license charges, meaning that if you can’t pay your fines straight out, you won’t be able to get your license back. Instead, you’ll end up with a misdemeanor.
“It’s very unfair that we allow people who can get it dismissed to do so [by paying the fine], but a person who can’t afford it can’t get it dismissed,” Horwitz says. “If they had the money they wouldn’t be convicted. It’s driven entirely by the person’s ability to pay unpaid fines.”
It’s also driven by a person’s legal status. Rhode Island law requires a social security number to apply for a driver’s license, disqualifying anyone without legal residence in the country from having a license and greatly increasing the odds that they will end up with a criminal record because of it. (Bill H-7610, currently being reviewed by the Rhode Island legislature, would allow undocumented immigrants to receive licenses, as reported in an article in last week’s College Hill Independent).
The misdemeanors that primarily affect those of lower socioeconomic status extends beyond suspended licenses. Jim Vincent, President of the Providence NAACP, says that many people ended up with misdemeanors for possession of an ounce of marijuana. In 2009, the law decriminalized possession to a mere fine. Still, “even though it’s a fine, if you don’t pay it, it becomes a misdemeanor,” Vincent says. “A lot of people can’t pay the fine because they’re destitute.”
Horwitz says that this initial inability to pay fines often leads to a snowball effect where people end up with misdemeanors and increased fines for small offenses, leading to an extensive criminal record for a minor offense.
Others, like one woman I interviewed, a 50-year-old we’ll call Mary, go through periods of relapse into a drug addiction and end up with a string of convictions in an extremely short of amount of time. Following these periods, they end up with a record that renders them permanently ineligible for expungement. In Mary’s case, she shoplifted to support the crack addiction she had been battling since age 21. Before slipping back into addiction in December of last year, she had received her Certified Nursing Assistant license and had been going through programs at the Amos House, a shelter-like program providing transitional housing and support for the homeless. As of two weeks ago, she is back at the program, but with three shoplifting convictions. She will likely never be able to make use of her CNA license.
“Who wants somebody who shoplifts their possessions?” she says, sighing. “I think that I need to take responsibility for what I done. I take responsibility for it; you punish me, okay, and I did my time in jail, then I also have probation, all this time that I’m doing, and then I gotta come out on the outside and then serve more time because I can’t find a job.”
Assistant Public Defender Dilauro says that he believes more low-level misdemeanors such as Mary’s shoplifting violations should be reclassified as civil violations, making the consequences less drastic and the expungement process down the road more lenient.
Even when people are eligible for some form of expungement, they often remain unaware.
“Low-income people just don’t have sufficient access to information about their rights,” says Eliza Vorenberg, who runs the McAuley House expungement clinic and is the Director of Pro Bono & Community Partnerships at Roger Williams University School of Law. “They often don’t know how to access and secure their rights.”
Many people simply don’t know that when a case is dismissed against them, the charges remain on their record, although they have an automatic right to get them removed each time.
“People with means get it filed to remove,” says Dilauro. “But poor people often develop a criminal history, even of dismissed cases. You go back to court, and the prosecutor looks at your record [of dismissed cases] and holds it against you, as can any employer or landlord.”
And most people who qualify for misdemeanor expungement don’t apply for expungement after five years, the minimum number required to do so. If they end up with another charge outside of this period, it will not be possible for either conviction to be taken off.
“Unfortunately, most of them laugh it off. They make jokes, ‘Oh, I’m never gonna get my record expunged so why bother,’” says Carol Leveillee, a McAuley House employee who has been working with chronically homeless people for ten years. “I don’t think people know the importance of having their record expunged. I don’t think people realize that even if they have something dismissed, it’s gonna be in there until even after they die.”
But for those who have suffered the lasting consequences of a record, the significance of expungement cannot be overstated, even if solely as a weight off the shoulders.
Dorothea Jackson, 50, a resident of the Amos House, recently succeeded in clearing six charges of prostitution, which are easier to expunge than other misdemeanors and felonies. She had received letters of support from the Amos House, as well as from the church where she volunteers. She told the judge of how she had graduated from a three-month women’s program at the Amos House in December.
“God was on my side,” she says of her day in court. She knew the judge would clear her record when he started smiling. “I cried in the courthouse I was so happy…I was jumping up and down, I was hugging the lawyer, I was hollering. It was just such a relief that I was able to get some of it done.”
It will be up to the Rhode Island General Assembly to determine whether or not cases like Dorothea Jackson’s become more common. Given that it is currently an election year, legislators tend to want to avoid appearing soft on crime, says Joee Lindbeck, which may be a reason why they would vote against the proposed bill. But supporters of Bill H7417, like Lindbeck, say that increasing the number of misdemeanors a person can get expunged is, at its core, a matter of basic human decency.
“I’m hopeful that letting people know that they have the ability to get their record cleared will inspire them to work towards that,” Lindbeck says. “Hope is what will empower people to change and work to better their lives.”
In addition to Almeida’s bill, others in the works would reduce shoplifting, disorderly conduct and trespassing to mere civil violations. Another would redefine the term “first time offender” to not include convictions of driving on a suspended license, further increasing the number of people who would be eligible for expungement.
Although the passage of such bills alone can only do so much, each would be a step towards slowly dismantling a system that essentially amounts to, as Horwitz and others stress, the criminalization of poverty.
The criminal justice system tends to be only punitive. But it is also about rehabilitation. Yet when we saddle people with convictions that permanently remain on their records and prevent them from improving their lives, regardless of how far they have come, we’re not helping anyone.
JACK BROOK B’19 thinks people deserve second chances.