In Massachusetts, the second you are arrested, the damage is
done. The criminal charge will follow you forever. Nobody is
perfect. We all make mistakes. Don't we deserve a second chance?
Expungement gives people a second chance. It wipes the record
clean. It gives them a "clean slate."
In Massachusetts, the court has the power to order expungement.
However, the court almost never orders expungement, even
in cases that cry out for it. The reason why expungement is
practically unattainable in Massachusetts is because we have
record-sealing statutes instead. A sealed record is nothing like an
expunged record. A sealed record provides some protection, but does
not give the person the "clean slate" they want and need. On top of
that, getting your record sealed in Massachusetts is no easy task.
Courts will always deny expungement whenever a defendant has some
remedy under the record-sealing statutes. So why do we even have an
expungement statute?
Sealing: Not a Clean Slate
The sealing of records pertains to the papers and docket entries
in a particular case maintained by the Clerk-Magistrate's Office,
and records of the case kept by the court's Probation Department,
as well as records maintained by the commissioner of probation.
When a record is sealed, it only becomes unavailable to the public.
Sealing does not mean that the record is wiped out completely, as
most would think. A sealed record will always be
accessible to law enforcement, probation officers, the court, and
certain entities authorized by statute. G.L. c. 6, §§ 172 provides
a list of entities with authority to heightened CORI access. The
biggest benefit of a sealed record allows an applicant for
employment to answer "no record" to an inquiry relative to prior
arrests or criminal court appearances and the commissioner of
probation must corroborate that statement by reporting that no
record exists.
Sealing Your Record: A Difficult Task
There are two principal sealing-statutes: G.L. c. 276, §100A
(applicable to convictions) and G.L. c. 276, §100C (applicable to
non-convictions).
G.L. c. 276, §100A permits the sealing of a conviction upon the
passage of time. A person must wait five years to seal a
misdemeanor conviction and ten years to seal a felony
conviction.
G.L. c. 276, §100C ¶ 1 gives the commissioner of probation
discretion to seal certain non-convictions, such as when the
defendant has been found not guilty, a no bill has been returned by
the grand jury, and upon a finding of no probable cause by the
court. G.L. c. 276, §100C ¶ 2 gives the court the discretion to
seal certain non-convictions in which the court has entered a
dismissal or in which a nolle prosequi has entered subject
to a finding by the court that "substantial justice would best be
served."
It is no easy task to seal one's record under §100C ¶2.
"[S]ealing of the court record of a criminal defendant should only
occur in exceptional cases." Commonwealth v. Doe,
410 Mass. 142, 149 (1995). The defendant must undergo an onerous
process consisting of two hearings. At the first hearing, the
defendant must make out a prima facie case entitling him to
sealing. Passing that hurdle, the defendant must undergo a second,
more extensive hearing in which the public, the press, the police,
the prosecutor, the probation department, the victim, or anyone
else may intervene and present their objections. Now comes the hard
part. The defendant "must show that specific harm is
threatened by the continued existence of the record." Doe
at 149. The court will not seal a record based on general
reputation and privacy interests. The defendant's showing of
specific harm must be strong enough and "clearly outweigh" the
constitutional value of the record remaining available to the
public. Oftentimes, defendant's try to seal their records pro se
and they are routinely denied because the defendant (a non-lawyer)
cannot sustain the heavy burden of showing specific harm.
Expungement: A Clean Slate
Unlike sealing, expungement erases everything associated with a
person's criminal case. Expungement involves the removal and
destruction of records "so that no trace of information remains."
Police Commissioner of Boston v. Municipal Court of Dorchester
District, 373 Mass. 640, 648 (1978). Whereas sealing involves
records kept by the court and probation, expungement eliminates all
traces (e.g., complaints, arraignments, fingerprints, photographs,
police reports, arrest registers, etc.). Expungement is the best
remedy because it gives the person the "clean slate" they
desperately want. However, expungement is difficult if not
impossible in Massachusetts. The court has declined to expunge
records in cases of mistaken identity, clerical errors, and false
allegations. Basically, whenever a defendant has a remedy under any
of the sealing-statutes (G.L. c. 276, §100A-C), the trial court
lacks the authority to order expungement. Only in the rarest of
circumstances will the court find that there is no statutory remedy
other than expungement.
Mistaken Identity
In Commonwealth v. S.M.F., 40 Mass. App. Ct. 42 (1996),
S.M.F. was the victim of identity theft. Jane Doe (most likely the
thief) was charged with unrelated crimes and identified herself to
authorities as S.M.F. As a result, all records of Jane Doe's case
(arrest, criminal complaint, arraignment, and disposition) were
entered on S.M.F.'s permanent record, which she sought to have
expunged. In a rare case, the court upheld expungement only because
they could not fit the bizarre circumstances within the broad reach
of the sealing-statutes.
Although S.M.F. involved an imposter, the Supreme
Judicial Court declined to uphold epungement in a clear case of
mistaken identity in Commonwealth v. Boe, 456 Mass. 338
(2010). In Boe, the defendant was the victim of poor
police work and mistaken identity. A vehicle registered to the
female defendant (Boe) was involved in a car accident in which the
sole occupant of Boe's vehicle (a Hispanic male operator) fled the
scene. The police misidentified Boe as the perpetrator of the
hit-and-run when the offense was committed by a male, and Boe was
clearly a female. As a result, a criminal complaint issued against
Boe for leaving the scene of an accident causing personal injury.
Obviously, the complaint was later dismissed. Anyone looking at
these facts would think that expungement was a no-brainer because
Boe clearly didn't commit the crime and was the victim of poor
police work. The SJC, however, declined to expunge Boe's record
because she had a remedy under §100C of the sealing statute, as her
case ended in a dismissal by the court.
Clerical Error
In Commonwealth v. Alves, 86 Mass. App. Ct. 210 (2014),
the Appeals Court held that expungement was warranted only because
of rare and unusual circumstances. In Alves, the defendant
was the victim of a clerical error. The defendant and the
perpetrator of a hit-and-run accident shared the same unique name
(Octaviano Alves) but they had different dates of birth. The
clerk's office mistakenly issued the criminal complaint against the
innocent Alves by using his date of birth (1983) instead of the
real Alves' date of birth (1977). Obviously, the complaint against
the innocent Alves was dismissed. In a rare move, the Appeals Court
granted expungement finding that sealing was not an appropriate
remedy due to the narrow and exceptional nature of the case because
"the person originally charged with the crime was not only
factually innocent, but was never the intended target of law
enforcement." Id. at 215.
In Commonwealth v. Boe, 456 Mass. 338 (2010), the
defendant was also the victim of an error committed by the court.
Upon receiving a summons for a show cause hearing on a charge she
didn't even commit, Boe dutifully appeared in court on time. A
court employee mistakenly directed Boe to the arraignment session
instead of the clerk's office where the show cause hearing was to
be held. Due to the court employee's mistake, the criminal
complaint was issued against Boe. Alves and Boe were both victims
of a court mistake and both Alves and Boe were factually innocent
but Alves was entitled to an expungement and Boe was not.
Fraud on the Court & False Allegations
In Commonwealth of Probation v. Adams, 65 Mass. App.
Ct. 725 (2006), the Appeals Court affirmed an order expunging all
records associated with a 209A order issued against the defendant
by her ex-boyfriend. The circumstances of Adams, however,
were extreme because the 209A order was obtained through a "fraud
on the court," which gives the court broad discretion to invoke its
inherent powers. The ex-boyfriend made 19 allegations in four
different affidavits against the defendant that were "false and
perjurious." His behavior was "extremely alarming" and indicative
of obsessive compulsion. In ordering expungement, the Appeals Court
appeared to be more focused on the court being the victim of fraud
rather than the defendant being the victim. Expunging Adams' record
was necessary to protect the integrity of the courts.
In Commonwealth v. Moe, 463 Mass. 370 (2012), the
defendant was not the victim of fraud but something much worse -
extortion. In Moe, the defendant was charged with assault
with a dangerous weapon stemming from false allegations by the
alleged victim, a disgruntled employee. After the complaint issued,
the alleged victim called the defendant's lawyer on several
occasions and threatened to report the allegations on national
television unless the defendant paid him $5,000. Even the detective
admitted to the prosecutor that he did not believe the alleged
victim's story. The prosecutor filed a nolle prosequi.
Citing Adams, Moe moved for expungement, arguing that the
alleged victim committed a fraud on the court. One may view the
alleged victim's actions in Moe to be more egregious than
the ex-boyfriend's actions in Adams. Even the SJC admitted
that the alleged victim made intentional misrepresentations and
basically acknowledged that he committed the crime of attempted
extortion. The SJC, however, found Adams to be
distinguishable because the alleged victim never made false
statements under oath like the ex-boyfriend did in Adams.
Relying on Boe, the SJC declined to expunge Moe's record
because he had a remedy under §100C of the sealing statute, as a
nolle prosequi had been entered.
New Expungement Legislation is Needed
Expungement provides a better remedy than sealing, as it gives
the defendant a second chance with a "clean slate." However, the
existing law makes expungement impossible because the court will
always deny expungement whenever the defendant has a remedy under
the sealing statute regardless of how unjust the circumstances may
be. Therefore, new legislation is needed to correct these
wrongs.
Those Who Should be Entitled to Expungement
First, expungement should be made available to first-time
offenders, depending on the nature of the charge. Everyone makes a
mistake and a first-time offender (regardless of age) should not be
forced to live the rest of their life with a blemish on their
record. Quite commonly, I have represented middle-aged persons and
elderly persons with no prior involvement with police or the court
system, but they made a mistake and got arrested. These people went
their whole lives without getting into trouble, but they made a
mistake (it happens) on one occasion. They should be given a second
chance.
Second, young, first-time offenders should be eligible for
expungement depending on the nature of the charge. Obviously, if
somebody is young and commits a petty, non-violent misdemeanor
offense (shoplifting, disorderly conduct, whatever) they should
have the benefit of automatic expungement. Even when the offense is
more serious, a young, first-time offender should be entitled to
discretionary expungement. Young people have the capacity to make
small mistakes and big mistakes. I have represented high-school and
college students (good kids) who've done some pretty reckless
things and were whacked with some serious charges. I'm not saying
that we should look the other way, but they should be afforded the
opportunity to make their pitch for expungement in a hearing
similar to the hearings we have for record sealing.
Third, first-time drug offenders should have the benefit of
automatic expungement depending on the nature of the drug charge.
Presently, G.L.c. 94C, §44 allows a defendant to seal his record
for a drug offense (usually simple possession) if found not guilty,
if the complaint is dismissed, or if the indictment nol prossed. If
the defendant is a first-time drug offender under Ch. 94C §34, he
should be entitled to automatic expungement in the same
circumstances (not guilty, dismissal, nolle pross). Even
if a first-time offender is convicted of simple possession, he
should be entitled to automatic expungement. The rationale being
that first-time drug offenders ought to be given the opportunity
for treatment and rehabilitation rather than being convicted and
imprisoned due to their substance dependency.
Incorporate the Sealing Laws
§100C ¶ 1 of the sealing statute (permitting sealing in cases of
not guilty, no bill, and no probable cause) should be incorporated
into a new expungement statute where a defendant's record shall be
automatically expunged in cases of not guilty, no bill, and no
probable cause.
It baffles me that someone is not entitled to automatic
expungement when a judge or jury finds them "not guilty." Imagine
being falsely accused of a crime; the stress, the anxiety, the
embarrassment, the humiliation, and the day finally comes when
you're exonerated and found not guilty. Then, you're told that you
can't have your record expunged even though you're innocent! When a
grand jury (who can indict a ham sandwich) returns a "no bill" a
defendant should have his record automatically expunged. Automatic
expungement is warranted when the commonwealth fails to sustain the
low burden of probable cause. If the commonwealth can't even
present the minimal evidence necessary to pass the low threshold of
probable cause, the defendant's record should be automatically
expunged.
§100C ¶ 1 of the sealing statute (permitting discretionary
sealing in cases of dismissal and nolle prosequi) should
be incorporated into a new expungement statute where a defendant's
record may be expunged in cases of dismissals and nolle
prosses -- subject to a hearing similar to that contemplated
in §100C ¶ 2. The defendant's difficult burden of demonstrating
"specific harm" should be less rigid and there should be more of an
analysis on how the case ended with a dismissal or nolle
prosequi. For example, if the case was dismissed or noll
prossed because the charges were rubbish, than expungement is
appropriate. On the other hand, if there's considerable validity to
the allegations but the charges were dropped for whatever reason
than that should be considered against expungement.
The benefits of expungement should be made available to the
people of Massachusetts, as it is in other states. Expungement
shouldn't be impossible (as it now is) but made available to the
first-time offender, the young and immature, the drug addicted, the
misidentified, the wrongly accused, the wrongly prosecuted, the
over-prosecuted, the exonerated and those who can make the case for
a second chance.