Can a drug convict’s records be expunged?
DEAR MRS MACAULAY,
Can a twice-convicted person in the United States (USA) for a drug offence and illegal entry, who served prison terms there and was deported each time, be treated as a rehabilitated person and have his record expunged and obtain a clean record to enable his wife to successfully file for him?
DEAR MRS MACAULAY,
I am an American citizen, Jamaican by birth. I have been married for the past eight years to my husband who was deported twice from the USA for drug charges. The first offence for possession of cocaine with intent to distribute, he served a sentence of four years after which he was deported to Jamaica. After two years he attempted to return to the US illegally and was apprehended on the shores of Florida.
He was convicted and served 38 months in prison in the US. After serving his sentence, he was again deported to Jamaica in February of 2014. I’ve known him for over 40 years. We got back in touch with each other and were married in January, 2015. We have always stayed in touch, prior to and during his incarceration.
I am a registered nurse, gainfully employed as such for the past 17 years. I have been visiting him in Jamaica at least five to six times a year for the entirety of our marriage. He has been an upstanding citizen since his return. He is self-employed, doing agricultural work as a farmer.
My question is, what are the chances of him being successful in being able to visit me in USA, if I were to file for him?
I know this is a seemingly difficult case. However, I will trust in God and anxiously wait with faith for your reply. Thank you.
I am answering both these questions in one response, as they are similar. Let me, without too much legalese, relate the position in law. The relevant law is the Dangerous Drugs Act and the Criminal Records (Rehabilitation of Offenders) Act 1988 (which is the principal Act). The Criminal Records (Rehabilitation of Offenders) (Amendment) Act of 2014 amended the principal Act, and in its Third Schedule, deals with offences for which convictions may NOT be expunged. Among the list of offences are several sections of the Dangerous Drugs Act.
The long and short of this is that the first offence your husband was convicted of falls squarely within the offences for which convictions may not be expunged. The principal Act also provides that a person who has been convicted and sentenced in any country other than Jamaica for an offence under the Criminal Records (Rehabilitation of Offenders) Act, shall have the law applied in the same way as they apply to convictions and sentences which occur in Jamaica. If there is a record of the conviction and sentence in the Criminal Records Office of Jamaica, the other country’s offence would also constitute an offence under Jamaican law.
It is clear that as your husband was deported, the particulars of his offences, convictions, sentences and deportations would be in the records of the Criminal Records Office. In order for you to be able to file for him, the first thing he would do is apply to have his criminal records expunged, and as in the 3rd Schedule of the amending Criminal Records Act of 2014 provides, his offence of distributing cocaine is a very serious offence here. Then he would also have to deal with the fact of re-offending after being deported to Jamaica, which would be during any rehabilitation period which may have existed, and which would have extended any period of rehabilitation which may have existed.
I must point out that I note that the 3rd Schedule used the words “may not be expunged” and not “shall not be expunged” and so the use of “may” might give the Criminal (Rehabilitation of Offenders) Board a discretion after sufficient time has passed since his last recorded offence and the sentences for such offences to consider his application favourably, or they might indicate that sufficient time has not passed as yet.
I would suggest that your husband obtain an official copy of his criminal records and then he should approach the board and put his situation fully and honestly to them and enquire if there is any chance of his being able to succeed in having his record expunged. If he is informed that there may be, then he should then make his application.
This is the best that I can advise in the circumstances your husband put himself in. But he has clearly rejected such conduct for about 10 years and has become a productive and settled citizen, and may in fact be given a second chance. Only the board can decide this and he should at least try by approaching them as I have suggested. If he does not try, then he has no chance at all.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
DISCLAIMER:
The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.
