Record Sealing & Expungement under the Massachusetts Criminal Justice Reform Act

Of the many recent changes to Massachusetts’s criminal justice system under the Massachusetts Criminal Justice Reform Act, changes to the state’s record sealing and expungement laws are arguably the most important. Massachusetts keeps detailed records of its citizens’ court appearances in its Criminal Offense Record Information (“CORI”) database. Such records are often shared with prospective employers, landlords, and others for appropriate reasons such as to screen applicants whose criminal histories could reveal that they are not a good fit for a particular job. Nevertheless, given that the CORI database keeps detailed records of charges a person faced, regardless of their inevitable dispositions, citizens are often haunted by charges that were eventually dismissed. Employers can implement “zero-tolerance” policies where the fact that a person has a CORI disqualifies them from a job despite that the charges detailed in the CORI could be old, unrelated to the job, or for misdemeanor crimes. Changes to Massachusetts’s record sealing and expungement laws under the Massachusetts Criminal Justice Reform Act alleviate the burden of having a history of court appearances by broadening the number of people eligible for having their records sealed or expunged and clarifying how prospective employers, landlords, or others should treat sealed and expunged records.
With respect to existing laws governing sealed records, there are significant changes under the Massachusetts Criminal Justice Reform Act. First, provided that the person meets the other criteria under the statute, he or she may seal a misdemeanor case after three years have gone by since the petitioner’s last court appearance relating to the charge rather than five. For felony offenses, petitioners may seal their records after seven years have gone by since the petitioner’s last court appearance relating to the charge rather than ten. Further, the new law clarifies that sealed records are not to be used for employment, housing, or occupational or professional licensures, and that under such circumstances, applicants with a sealed record may answer that they have “no record.”
There are also significant changes to existing laws governing expunged records under the Massachusetts Criminal Justice Reform Act. A person is eligible to have a record expunged so long as: the offense that is the subject of the petition is not otherwise barred under the statute; the offense that is the subject of the petition occurred before the petitioner’s twenty-first birthday; the offense occurred no less than seven years before the date of the petition for a felony and no less than three years before the date of the petition for a misdemeanor; the petitioner does not have any other records of court appearances, juvenile court appearances, or dispositions on file with the Probation Commissioner or in any other state, the United States, or in a court of federal jurisdiction; and, the petition includes a certification that the petitioner is not the subject of an active criminal investigation. Despite the foregoing, any person might also be eligible to have a record expunged if the record was created as a result of: false identification of the petitioner; an offense that was a crime at the time the record was created but is no longer a crime at the time of expungement (e.g. marijuana possession); demonstrable errors by law enforcement; demonstrable errors by civilian or expert witnesses; demonstrable errors by court employees; or, demonstrable fraud perpetrated upon the court.
Despite that changes under the Massachusetts Criminal Justice Reform Act were helpful to many people with criminal backgrounds, critics argue that the reforms were not progressive enough. For example, eligibility for expungement is generally limited to persons who have only been charged with one crime so long as those crimes occurred before their twenty-first birthdays. This law is underinclusive because it ignores the reality that good people can mess up more than once in their adult lives and move on from it. Moreover, research suggests that some adults do not fully mature until their mid-twenties, so to not include crimes committed after someone’s twenty-first birthday in the reform punishes some people for their immature behavior. Though someone ineligible for expungement might nonetheless be eligible to have their record sealed, expungement is much more favorable than sealing since it destroys your record entirely rather than limiting the number of people that can access it.
Although current laws governing record sealing and expungement under the Massachusetts Criminal Justice Reform Act are a step in the right direction, the laws can continue to improve. For example, eligibility for expungement should account for the types of crimes petitioners are charged with on a case-by-case basis rather than simply disqualifying anyone with more than one charge. Once the law catches up to the realities of peoples’ lives, only then will there be justice.