Civil Rights/Civil Liberties

Proposed legislation would automatically seal eligible criminal records in Massachusetts

Published on: March 21, 2025 | by Niamh Gibbons

A group of Massachusetts lawmakers has introduced a bill this year that would require automatic sealing of many criminal records after specified waiting periods have passed from the end of the defendant’s sentence. The waiting periods have been part of the Commonwealth’s sealing laws for many years and, as we have previously written, were last amended in 2018, when they were reduced to seven years for a felony record and three years for a misdemeanor or delinquency record, provided the defendant has no subsequent convictions (sex offenses cannot be sealed for fifteen years or while the defendant remains required to register as a sex offender). But although the 2018 reforms made sealing more accessible, one estimate puts the number of applications for sealing at only ten percent of the total number of eligible defendants. The new legislation aims to dramatically increase the number of sealed records by eliminating the current petitioning process and automatically sealing records after the waiting period.

Sealing a criminal record can be an important step in allowing former criminal defendants to access to jobs, housing, and other opportunities that are not available to people with a criminal record. After a record is sealed, it doesn’t appear on the version of the defendant’s CORI that an employer or housing provider would receive, but it remains available to courts and various state and federal agencies including law enforcement and child services.

Under current Massachusetts law, former defendants whose records have passed the waiting period need to file a petition to the Probation Department to start the sealing process. The petition is free, but the defendant needs to know that they are eligible for sealing and submit the form, which includes identifying the correct statutory provision and attesting that the statute’s requirements are met. Some people’s records might also be more complex, such as those with a mix of eligible and non-eligible charges, which creates the added complexity of requiring a separate petition to the court that issued the charges. A separate petition is usually required if the defendant seeks to seal a record of a dismissed or dropped charge before the end of the waiting period (a process known as discretionary sealing).

Courts Enjoin Enforcement of Trump Executive Order Targeting Incarcerated Transgender People

Published on: February 16, 2025 | by Zalkind Duncan & Bernstein LLP

By Anton Kernohan, legal intern

Throughout history, the LGBTQ+ community has persisted despite repeated laws and attempts to restrict the community’s rights. Since assuming office, President Trump has undertaken the most recent iteration of actions that once again threaten the lives of LGBTQ+ persons, especially transgender, non-binary, and intersex individuals. CONTINUE READING ›

Massachusetts Law Prohibits Schools from Complying with Anti-Trans Athlete Executive Order

Published on: February 8, 2025 | by Naomi Shatz

Youth sports are a huge part of the American education system, something many parents, schools, and communities place a high value on maintaining. Studies demonstrate the many mental, social, emotional, and physical benefits children derive from participating in organized athletics. In fact, during Trump’s previous presidency the President’s Council on Sports, Fitness, and Nutrition Science Board published a pamphlet noting that “Research shows that participating in youth sports can lead to immediate and long-term benefits for youth, their families, and communities.” By executive order and federal agency guidance, President Trump is now trying to deny those benefits to trans girls and women who want to participate in sports with the rest of their peers. The Massachusetts Declaration of Rights, Title IX, and Massachusetts anti-discrimination statutes prohibit schools, colleges, universities, and athletic organizations from following the new executive order. CONTINUE READING ›

SJC Opinion Addresses Racially-Motivated Social Media Surveillance by Police

Published on: September 9, 2024 | by Tom Miller

In 2018, Richard Dilworth was charged with a variety of firearms offenses after an officer from Boston Police Department’s gang unit sent him a friend request on Snapchat under a false identity and viewed Dilworth’s videos showing what appeared to be guns. In 2022, a judge dismissed the case after prosecutors refused to provide discovery about police practices regarding social media surveillance. The prosecution appealed. This week—almost seven years after the beginning of the investigation—the dismissal was affirmed by a unanimous Supreme Judicial Court in an opinion that addresses a number of important legal issues for criminal defendants.

Over the course of the protracted case, Dilworth, who is Black, made a series of discovery requests aimed at developing a defense of selective enforcement based on race. The defenses of selective enforcement or selective prosecution typically require a defendant to show three things: (1) that a broader class of people than those prosecuted or investigated has violated a law, (2) that the failure to enforce the law across the board was either consistent or deliberate, and (3) that that the decision not to enforce or prosecute was based on a protected class like race. Dilworth accordingly sought information about individuals whose social media accounts police were secretly monitoring; he also requested user icons or bitmojis and the user names for the fake Snapchat accounts used by police, on the ground that these would “demonstrate the demographics of the groups they are trying to infiltrate.”

The judge granted most of Dilworth’s discovery motions, relying in part on the SJC’s landmark decision in Commonwealth v. Long, issued in 2020 during the pendency of Dilworth’s case. In Long, the SJC held that under constitutional guarantees of equal protection, a defendant subject to a traffic stop by police has a right to discovery about police practices in order to make out a selective enforcement claim, as long as the defendant can raise a reasonable inference that the particular stop at issue was motivated by race.

Legislature’s Expansion of Abuse Prevention Orders Raises Concerns of Vagueness and Confusion

Published on: June 26, 2024 | by David Russcol

As part of a bill broadly aiming to protect victims of abuse, including revenge porn and deepfakes, the Massachusetts legislature recently enacted an amendment to the restraining order statute that may have substantial unintended consequences. Although the well-intentioned provision allows a person suffering from “coercive control” to seek an abuse prevention order, there are numerous undefined or poorly-specified terms that are likely to create confusion in the courts. In addition, the amended statute may allow children to obtain restraining orders against their parents for normal parenting decisions, surely not what the General Court had in mind. CONTINUE READING ›

First Circuit Upholds Dress Code Prohibiting “There are Only Two Genders” Shirt

Published on: June 10, 2024 | by Naomi Shatz

Yesterday, the First Circuit issued its decision in L.M. v. Middleborough et al., a case we discussed previously on this blog. The case concerned whether a public middle school could prohibit a student from wearing a t-shirt that said “There are only two genders.” The district court had held that the school could, relying on the seminal case of Tinker v. DeMoines Independent Community School District. CONTINUE READING ›

Massachusetts Court Overturns Expulsion of Harvard Student on Contract and Basic Fairness Grounds

Published on: January 4, 2024 | by David Russcol

A recent decision against Harvard University in favor of a student accused of sexual assault demonstrates a viable path to challenging student discipline decisions. As we have discussed previously, courts are wary of interfering with academic decisions of universities, but have been willing to hold schools accountable for failing to follow their own established policies in student disciplinary processes. Where a student handbook or other policy promises certain protections, courts will defend the reasonable expectations of students who encounter a process significantly less fair than what the university agreed to provide. These principles came into play in the “Dr. Doe” case, recently decided by the Massachusetts Superior Court.

Title IX, Criminal Law and Civil Remedies: How to Approach Concurrent Proceedings

Published on: December 8, 2023 | by Naomi Shatz

We have repeatedly discussed on this blog how schools handle sexual misconduct allegations through internal grievance procedures. However, students involved in these processes must remember that the conduct that gives rise to Title IX allegations may also give rise to civil and criminal legal proceedings. Students involved in school misconduct cases need to understand how these different proceedings may intersect and impact one another before deciding how to approach their cases.

University Title IX and sexual misconduct policies prohibit sexual harassment, which includes sexual assault, dating violence, and stalking. All these behaviors are also criminal—though the definitions used in the criminal law and in school policies may differ. For example, in Massachusetts criminal law, indecent assault and battery is defined as an intentional, unjustified touching of a person’s private areas (a term that has been defined through case law to include various body parts). In many college and university policies sexual assault means sexual acts without consent, which is often defined as “affirmative, voluntary, knowing, and continuous agreement to engage in a specific form of sexual activity” (to quote the Wellesley College policy). All criminal sexual activity is generally also prohibited by school sexual misconduct policies, but there are categories of sexual misconduct that are prohibited by schools but may not be criminal.

Supreme Judicial Court Hears Argument on the Interaction Between Commissions and Overtime Pay Requirements

Published on: October 10, 2023 | by Jennifer M. Herrmann

This month, the Supreme Judicial Court heard argument in Sutton v. Jordan’s Furniture. This case addresses questions about how commission-based pay plans can be structured to comply with the Wage Act, Overtime, and now-repealed Sunday Pay laws.

The Statutes and Past Interpretation

Massachusetts’ overtime statute requires employers to pay employees time and a half for hours worked in excess of forty hours in a work week. Until it was repealed this year, the Sunday Pay statute similarly required a higher rate of pay for hours worked on Sundays. The Massachusetts Wage Act sets out requirements for payment of wages, including promptness, and extends that protection to commissions, which are treated as wages when the commission amount is “definitely determined” and “due and payable.” The Wage Act also prohibits special contracts designed to evade the Wage Act’s requirements.

Supreme Judicial Court to Decide Whether the Commonwealth Has a Duty to Investigate Misconduct by Springfield Police Department

Published on: September 26, 2023 | by Lucie Gulino

This month, the Supreme Judicial Court heard oral argument in Graham v. District Attorney for Hampden County, a case raising the questions of whether the Commonwealth has a duty to investigate the Springfield Police Department (SPD),what that duty entails, and what evidentiary disclosures state prosecutors must make about any exculpatory evidence that prosecution teams may have in events involving the police department. The decision will have significant implications for defendants wrongfully convicted of crimes based on false reports filed by police officers justifying use of force against defendants. CONTINUE READING ›