A primer on sealing criminal records

Issue April 2012 April 2012 By PETER ELIKANN

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 and others.

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 period;

2. Cases that were dismissed without probation or that resulted in a not guilty finding may be eligible for sealing immediately; and

3. A recorded offense that is no longer a crime may be sealed.

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 (www.mass.gov/eopss/agencies/dcjis/).

The following is an overview of the law.


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 record sealed.

• 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 mandatory.

• 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 conviction

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 crime

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 sealable.

Who will still have access to sealed records? (See G.L. c. 6, § 172)

• 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 non-convictions

• 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 Services.

Record questions barred on initial employment applications

• 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 record.

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 victims/witnesses.

• 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 accessed it

• 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.

Complaint procedure

• 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 complaints.

• An employer may be held liable for reliance on an erroneous criminal record report provided by a private record search company.

• 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 discrimination.

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.