A few years back, I had a criminal case in Connecticut, worked out a plea and, while the judge was rendering the sentence, which would result in an eventual dismissal, I was surprised and taken a bit aback when the judge droned on at the end about how the case would be automatically expunged after three years. As an attorney practicing here in Massachusetts, it brought into sharp focus that expungement is fairly routine standard operating procedure in a huge number of states, with a dozen having it occur automatically. Massachusetts lags far behind.
Sealing a criminal record is not preferable to expungement since, with a sealed record, it still exists and can be seen by law enforcement and courts and by a variety of state agencies if one applies for such things as public housing, adoptions, child care and foster care. On the other hand, an expunged record vanishes as if it never existed.
Expungement essentially did not exist in Massachusetts until it was ushered in by the criminal justice reform bill of 2018, which provides for it in limited instances, particularly in a few juvenile cases.
However, in the wake of that landmark legislation, an astonishingly low number of expungements have been granted to date. The reason is that the 2018 legislation, while groundbreaking, was so narrowly drafted that few applicants qualified for it. Almost 85% who applied were denied.
In an attempt to expand the number of successful applicants, two bills titled An Act Relative to Expungement have recently been introduced in both branches of the legislature — H. 1451 and S. 936. For example, the new legislation would, among a number of things:
Greatly increase the number of offenses eligible for expungement. Currently, 20 categories are excluded.
Recognize that, in the occurrence of non-convictions, it should not be limited to expunging only up to two cases. In fairness, such a number should be limitless.
Attempt to rectify the current problem where, even if expungement is granted, the FBI record of all arrests through fingerprints is still frequently available.
Require yearly reporting by the Probation Department on expungement petitions, including the number of applications, how many were granted and, if denied, the reason for denial.
If passed, this legislation would still only be incremental; the floodgates would not open to expungement in Massachusetts. In fact, the mention above of Connecticut’s standard practice only illustrates that the commonwealth would not even be in the vanguard leading the way ahead of the other states.
Yet such legislation is important. There is a myth among the public that juvenile records are confidential, private and essentially sacrosanct in their confidentiality. In fact, they can come back to haunt in the years to come in terms of:
Access to college or any further education
Employment (I represented one male who, after college, because of a shoplifting case as a child that had been dismissed, was denied a job at a bank)
Housing, particularly public housing
The pursuit of a military career
Ever becoming a foster parent
Employment in daycare or early childhood education
But the benefits of expungement are not just limited to the previously offending juvenile. Expungement helps society at large. Numerous studies have indicated that, if the juveniles are not weighed down under the yoke of a record and can move on, this lowers the recidivism rate, thereby enhancing public safety.
The research further backs up the point that juvenile expungement does not increase danger to the public. In Massachusetts, approximately 15,000 juveniles a year are charged with some offense. Yet studies show that 95% of these cases are for nonviolent offenses.
Most significant are the numerous studies over the past several decades underscoring the fact that, because an individual gets into trouble in their youth, this is not the handwriting on the wall that there is a likelihood that they will continue to violate the law in adult life. Brain science research shows two things — (a) Children are much more likely than adults to act on impulse, which they do grow out of. (b) Juveniles truly are capable of reform as they evolve and grow, even those who have committed reprehensible violent crimes (which, parenthetically, would not be considered for expungement, anyway). The juvenile brain is genuinely different than the adult brain; children are not just miniature adults.
Aside from the science, even common sense suggests that, if individuals who commit bad behavior in their youth are not frustratingly held back and permanently blocked in their pursuit of such things as education and employment, their future participation in mainstream society does not just profit them, but rather the public as a whole.
Peter Elikann is a member of the Massachusetts Bar Association’s Executive Management Board, House of Delegates and Criminal Justice Section Council. He practices criminal defense law, is an instructor at Bridgewater State University, and is a legal analyst for Boston 25 News.