Anyone who has gone through the criminal justice system—whatever the outcome—knows that criminal charges can have a significant and lasting effect on their lives. Especially if someone has been convicted of a crime, but even if the case ended in an acquittal or a dismissal, information about criminal charges can affect their employment, housing, and other important aspects of life. What can someone do to literally “close the books” on past criminal charges and move on?
In the vast majority of cases, the possible remedy is to have records of these charges sealed. Sealed charges generally do not show up on a person’s CORI (criminal record) report and are not accessible to the public, although courts, law enforcement agencies, and a few other entities can access them. If asked in an employment application whether they have been convicted of or arrested for a crime, an individual whose records have been sealed can answer “no” under the law. A more drastic step than sealing would be expungement – deletion of all traces of a charge so that nobody knows it ever existed – but that is only available in very rare circumstances, such as when someone was accidentally charged instead of an individual with the same name due to a clerical error, or when someone was charged because an identity thief pretending to be them committed a crime. Even if charges are dropped because the defendant is innocent, expungement is not possible as long as the authorities intended to charge them with a crime.
In Massachusetts, there have been two significant changes on the issue of criminal history in the last few years. First, effective in 2012, the CORI reform law imposed significant restrictions on the use of criminal record information and altered how courts, employers, and others dealt with these records. Among other things, the waiting periods to get past convictions sealed were reduced, and courts were given the ability to seal records of cases dismissed after a continuance without a finding (CWOF) – more on that later. Another important aspect of that complex law is the “ban the box” provision, which makes it illegal for employers to ask about arrests or criminal convictions on the initial job application, and, if an employer does so illegally, allows even those previously convicted of crimes to answer no.
The second change, in 2014, came in the Supreme Judicial Court’s decision in Commonwealth v. Peter Pon. In that case, the court scrapped its old standard for sealing a criminal record under General Laws Chapter 276, Section 100C, which was difficult to meet, and instead gave judges significant discretion to determine whether there was “good cause” to seal the record.
After these changes, there are two ways to achieve the goal of sealing a criminal record: administrative and judicial. The administrative route is as simple as filling out a form and sending it to the Commissioner of Probation. If you were convicted (pleaded guilty or found guilty), this is the only way to get your records sealed. The key for the administrative process is the waiting period. It starts from the disposition or the defendant’s release from prison, and restarts if the defendant is convicted of any other crime (excepting certain minor motor vehicle offenses). For misdemeanors, the period is 5 years; for felonies, 10 years; and for sex offenses, 15 years (and certain sex offenses can never be sealed). But if enough time has passed, the process is simple.
The judicial route can be more complicated. There is no waiting period, but the sealing statute only applies to specified outcomes of criminal cases. In the event of a not guilty verdict at trial; a no-bill (refusal to indict) by the grand jury; or a finding of no probable cause at a show cause hearing, court and probation records are automatically sealed. On the other hand, if the result of a charge is a nolle prosequi (charges dropped by the Commonwealth) or a dismissal (including after a CWOF), then a defendant may request that the records be sealed based on the factors in Peter Pon. After a defendant files a motion, a judge takes an initial look to see whether the reasons given in favor of sealing might conceivably rise to the level of “good cause.” If so, the judge gives notice to the District Attorney, posts a notice publicly in the courthouse for at least a week, and schedules a hearing.
At the hearing, the defendant bears the burden of showing “good cause” to seal the records. Among the various factors the court identified in Peter Pon are:
- “[T]he disadvantages the defendant claims to face due to the availability of his or her criminal record” (including trouble finding employment, housing, or other opportunities)
- “[E]vidence of rehabilitation [such as] [e]mployment attempts… successful completion of a probationary period… [and] lack of further contact with the criminal justice system… may weigh in favor of sealing by demonstrating that the defendant bears a low risk of recidivism and a likelihood of success in future employment.”
- “[J]udges should consider other evidence on whether sealing would alleviate the identified disadvantages. In this respect, it may be useful to consider the nature of the underlying crime, the stigma or stereotypes attached to it, and whether the defendant would be benefited by the sealing of the record without posing an additional safety threat to the community.”
- “[C]onsideration of the defendant’s circumstances at the time of the offense” (including young age or prior criminal history)
- “[T]he passage of time since the date of the offense and the date of the dismissal or nolle prosequi is an important factor that can weigh in favor of either interest.” (The more time has passed without any new criminal charges, the less likely the defendant is to reoffend.)
- “[T]he nature of and reasons for the disposition…. Dismissals after admission of guilt and periods of probationary conditions may require more evidence of demonstrated rehabilitation.”
In essence, there is a limited background presumption that court records should be open to the public. But the existence of past criminal charges causes real harm to people, and the Legislature in the CORI reform law made clear that it wanted it to be easier for former defendants to move on. So if there is a low chance of reoffending and sealing would make it easier for the defendant to be a productive member of society, courts are more likely to seal criminal records. Someone who made a mistake in the past, and especially someone against whom charges were dropped, should not suffer indefinitely just for having been involved in the criminal justice process.