Major aspects of the 2010 Criminal Offender Record Information
(CORI) Reform Act affecting the sealing of criminal records in
Massachusetts will go into effect on May 4, 2012. Most significant
are the sections that shorten the waiting period before one is
eligible for sealing certain felonies and misdemeanors and that put
greater limits on criminal record information given to employers
Sealing is almost never automatic. Essentially, there are three
circumstances under which a record may be sealed:
1. Some convictions or admissions may be sealed after a waiting
2. Cases that were dismissed without probation or that resulted in
a not guilty finding may be eligible for sealing immediately;
3. A recorded offense that is no longer a crime may be
Unlike many other states, Massachu-setts law does not provide for
expungement, which is substantively different from sealing.
Expungement essentially erases a criminal record, including police
reports and arrest records, as if it never existed. On the other
hand, simply getting a record sealed does not erase a record; it
merely keeps it confidential on some level. In fact, an order to
seal in Massachusetts applies only to court and probation records
and does not affect records of arresting agencies.
It is a good idea to request a recent criminal record of a
defendant prior to attempting to seal records so that the
eligibility for sealing is clear. One does this through the
Department of Criminal Justice Information Systems (DCJIS),
formerly known as the Criminal History Systems Board
The following is an overview of the law.
THE EFFECT OF CORI REFORM ON SEALED RECORDS
Sealing after a waiting period
• Under the new law, the waiting period to seal felonies is
lowered from 15 to 10 years.
• Under the new law, the waiting period to seal misdemeanors is
reduced from 10 to five years.
• Unlike the old law, where the waiting period did not begin to
toll until all court supervision ended, including incarceration,
parole or probation, under the new law, the clock begins (a) for
those incarcerated, on the day one is released from custody, or (b)
if there is no incarceration, on the date of disposition.
• Any subsequent conviction causes the five- (for misdemeanors) or
10- (for felonies) year waiting period to begin tolling all over
again. In other words, there must be five or 10 years from the date
of the latest conviction for one to be eligible to get the entire
• The procedure is to submit a single page petition
to the Office of the Commissioner of Probation pursuant to M.G.L.
c. 276, § 100A.
Sealing after a non-conviction
• In the case where there is no conviction, one must petition the
court directly, but can do so immediately, without any waiting
period. This pertains to cases that resulted in an acquittal at
trial, a finding of no probable cause, a dismissal or a nolle
prosequi. Under the new law, this includes cases dismissed
after a continuance without a finding. The exception is where a "no
bill" has been returned by a grand jury, in which case, sealing is
• In this instance, records may be sealed only after the court has
made a specific finding on the record that by sealing, substantial
justice is served. The defendant must show a specific harm. For
example, in the case of Commonwealth v. John Doe, 420
Mass. 142, 648 N.E.2d 1255 (1995), the court refused to seal the
record of a college student whose rape charges had been nolle
prossed by the commonwealth. The defendant there had argued
that the stigma of such a charge could hurt him for future graduate
school or employment opportunities. The court ruled that "no more
was shown than a general threat to reputation or privacy" and this
vague risk of harm was too speculative.
• The petitioner must file a specific petition form and a
motion/affidavit form (available from the court) that must be
posted publicly at the court. It is a good idea to also submit a
memorandum. A judge may rule based solely on the paperwork, but
more frequently, the petitioner is afforded a hearing pursuant to
M.G.L. c. 276, § 100C.
Simultaneous sealing after a waiting period and after a
Occasionally, an offender's record may have very old convictions
or admissions that are eligible to be sealed because the required
waiting period has already tolled. However, at the same time, the
offender may have a very recent charge that was dismissed.
Therefore, one can make efforts to seal the record on two tracks at
the same time. The offender may file the petition to seal on all of
the convictions as long as the five- or 10-year period has passed
with no recent convictions or admissions. Simultaneously, the
offender can file a petition to seal cases that resulted in no
conviction or admission no matter how recent.
Sealing a record of an offense that is no longer a
If an offense on the defendant's record has been decriminalized,
it may also be sealed by submitting a single-page petition (form
available on the web) to the Office of the Commissioner of
Probation pursuant to M.G.L. c. 276, § 100A. An obvious example
would be those with a record for possession of marijuana. However,
in that specific instance, since only possession of an ounce or
less of marijuana has been decriminalized, one would have to
supplement the petition with documentation of the weight in that
case by way of a drug certification or police report.
Exceptions to the sealing statute
• A person convicted of a sex offense is eligible to have the
record sealed after 15 years following final disposition,
supervision or incarceration if (a) he/she has no duty to register
as a sex offender and (b) he/she was never, at any time, classified
as a Level 2 or 3 sex offender.
• Convictions for numerous offenses under M.G.L. c. 268 and 268A,
concerning crimes against public justice (such as perjury, false
reports, witness intimidation, disrupting court proceedings, escape
from custody and resisting arrest), and unethical conduct
concerning public officials and employees (such as various forms of
corruption) can never be sealed. Additionally, certain firearms
offenses, under Chapter 140, §§121-131H, are still never
Who will still have access to sealed records? (See G.L. c. 6, §
• Law enforcement agencies have an automatic and immediate right
to all CORI records, including sealed records.
• Municipalities may conduct criminal record checks in order to
license particular designated positions, and to assist their
housing authorities with screening.
• In certain custody/domestic abuse cases where safety is at
stake, the court may look at sealed cases in camera.
Visibility of sealed records and
• Previously, under some circumstances, notification was given
that a sealed record existed even though the contents of that
sealed record could not be viewed. Under the new law, it will
usually not be revealed that a sealed file exists.
• If an individual is eligible to have a conviction sealed - 10
years after a felony or five years after a misdemeanor - but does
not take action to seal, the record generally will not be
disseminated by the Department of Criminal Justice Information
OTHER CHANGES RESULTING FROM CORI REFORM
Record questions barred on initial employment
• Under the so-called "ban the box" rule, an employer is barred by
law from asking a job applicant on an initial written employment
application to check off whether he/she has a criminal record. The
exception is when state or federal law prohibits a specific job
from being filled by a convicted individual. For example, under
federal law, banks are barred from hiring people convicted of
certain offenses and therefore may inquire about a criminal record
right from the start.
• After the initial application, employers do eventually have the
right to inquire about the applicant's criminal history, such as
during the job interview.
• The employer must give the applicant a copy of his/her criminal
record before questioning that person about his/her criminal
record. If a person is denied a position because of his/her
criminal record, he/she must also be provided with that criminal
Who else has access to CORI?
• Employers, landlords and professional licensing authorities will
have access to CORI reports if they have signed authorization from
the CORI subject.
• Particular types of employers are required by law to have access
to CORI, including non-conviction information. These include, for
example, those who run long-term care facilities, home and
community care for the elderly, schools, camps and
• Any member of the public may receive, upon written request, the
CORI of any other person if that person was (a) convicted of a
felony punishable by five years or more, or (b) incarcerated and is
under supervision by probation or parole, or, (c) the request is
made within two years after disposition or release from custody for
a felony, and (d) within one year after disposition or release from
custody for a misdemeanor. DCJIS will likely further define time
parameters regarding public requests.
Correcting errors in one's CORI and also learning who
• The commonwealth will publish guidelines outlining the procedure
to correct erroneous information in one's CORI record and may
assist individuals in fixing inaccuracies.
• Individuals have the right to a free audit every 90 days to view
who may have looked at their CORI record and for what reason.
• If an employer violates any CORI statute or regulation, such as
failing to provide the applicant with a CORI report after denying
employment because of it or prior to being interviewed about it,
the new Criminal Record Review Board will investigate and hear
• An employer may be held liable for reliance on an erroneous
criminal record report provided by a private record search
• However, an employer cannot be held liable for an employment
decision based upon erroneous information learned in a CORI report
within 90 days of receiving the report. Still, the employer may be
held accountable for employment discrimination: The federal Equal
Employment Opportunity Commission continues to take the position
that, at least in many employment contexts, an automatic ban on
hiring those convicted of criminal offenses is unlawful employment
Dissemination of non-convictions
• Non-convictions such as charges that resulted in acquittals,
dismissals or nolle prosequis are not subject to
dissemination except in the few instances where there is delineated
statutory access to the non-conviction information.
• Pending cases will be disseminated.
• Continuances without a finding will be treated as dismissals
once they are dismissed, but not during the period pending that
dismissal. Until the date of dismissal, a continuance without a
finding is subject to dissemination.
PETER ELIKANN is a Boston-based criminal defense attorney and regular on-air
expert legal commentator on CNN. He is the author of three books,
has published nearly 60 articles in legal publications and is the
former chair of the MBA's Criminal Justice and General Practice,
Solo & Small-Firm section councils.