Because of the inherent negative collateral consequences of a having a criminal record, e.g., becoming unemployable, difficulty obtaining housing, many people seek to have their record sealed.  In Massachusetts, the sealing of a criminal record – or more accurately, the sealing of certain criminal charges on a criminal record – is governed by both statutory and case law, and can be accomplished both with and without a hearing before a judge, depending on the circumstances.  Criminal record law reform in 2010 shortened the waiting time for sealing a criminal record administratively (without a hearing), and added dismissals after CWOFs to the list of charges that a judge may seal after a hearing.  The reform legislation also made criminal records more widely available to the public, in part to reduce the public’s reliance on unreliable internet sources of criminal record information.

As mentioned above, there are two ways to go about having one’s record sealed.  One way is to file a Petition to Seal with the Commissioner of Probation.  To seal a record through the Commissioner of Probation, the petitioner must be eligible for sealing pursuant to General Laws Chapter 276, sections 100A or 100B.  In general, a misdemeanor that is 5 or more years old may be sealed so long as the petitioner was not convicted of any crimes during those 5 years.  For felonies, the waiting period is 10 years.  Certain misdemeanors are treated as felonies for the purposes of the waiting period, and some sex crimes have an even longer waiting period.  Additionally, if someone is currently required to register with the Sex Offender Registry Board, no charges on their record can be sealed.  Juvenile offenses have only a 3-year waiting period.

Certain convictions cannot be sealed, such as offenses involving official corruption and bribery, escaping from jail, perjury, and firearms-related crimes, among others.

The Commissioner of Probation, upon receipt of a Petition to Seal Record, then performs what is essentially the ministerial function of determining whether the charges are eligible for sealing, and then sealing those that are in fact so eligible.

The other way to seek to seal a record is to go before a judge in the court where the offense was charged and make the request.  There is no waiting period associated with this procedure, but the individual must be eligible for sealing his or her record pursuant to General Laws Chapter 276, section 100C (nolle prosequi or dismissal and “substantial justice would best be served” by sealing); Chapter 94C, section 34 (first offense drug possession followed by a term of probation with no violation of probation conditions); or Chapter 94C, section 44 (finding of “not guilty,” or dismissal or nolle prosequi of drug possession charges).  Note that “dismissal” can be dismissal after a continuance without a finding (“CWOF”).

In 2014, in the case of Commonwealth v. Pon, the Massachusetts Supreme Judicial Court issued a decision regarding CARI sealing under General Laws Chapter 276, section 100C that “set forth a new standard for determining when substantial justice would best be served by the sealing of certain criminal records under G.L. c. 267, § 100C. . . .”

Pon involved a man who received a CWOF on charges of operating under the influence of liquor and leaving the scene of a property damage accident without identifying himself.  After he successfully completed probation, his charges were dismissed.  Three years later, the man petitioned to seal his record due to its effect on his employment opportunities.  The judge denied his petition after the prosecutor objected and asserted that the petitioner’s job prospects were not greatly affected by the OUI and leaving the scene charges.

On direct appellate review, the SJC noted the “State’s compelling interest in providing privacy protections for former criminal defendants to enable them to participate fully in society” and noted that “gainful employment is crucial to preventing recidivism.”

Under prior law, including a 1st Circuit case in 1989, an individual seeking to seal his or her record had to show “that sealing is necessary to effectuate a compelling governmental interest” which as a practical matter would occur “only in exceptional circumstances.”  This standard is known as “strict scrutiny” and was applied because the sealing statute, Massachusetts General Laws Chapter 276, section 100C impinged on the First Amendment right of public access, according to the 1st Circuit court.

In Pon, the SJC disagreed with the 1st Circuit, and held that the records of closed cases that were dismissed or nol prossed are not entitled to the 1st Amendment’s presumption of public access, and so strict scrutiny did not apply (although a common law presumption of public access did apply).

The SJC then held that only “good cause” was henceforth required for sealing a record of a dismissed of nol prossed case, which means a showing that good cause justifies the overriding of the general principle of publicity.

The Court then set forth a balancing test, to wit:

  1. Judges should begin by recognizing the public interests at stake.
  2. The public has a general right to know so that it may hold the government accountable for the proper administration of justice.
  3. The defendant and the Commonwealth have an interest in keeping the information private. These interests include the compelling governmental interests in reducing recidivism, facilitating reintegration, and ensuring self-sufficiency by promoting employment and housing opportunities for former criminal defendants.
  4. Judges should evaluate:
  5. the particular disadvantages identified by the defendant arising from the availability of the criminal record;
  6. evidence of rehabilitation suggesting that the defendant could overcome these disadvantages if the record were sealed;
  7. any other evidence that sealing would alleviate the identified disadvantages;
  8. relevant circumstances of the defendant at the time of the offense that suggest a likelihood of recidivism or of success;
  9. the passage of time since the offense and since the dismissal or nolle prosequi;
  10. the nature of and reasons for the particular disposition; and
  11. any other relevant information.

Once a charge has been sealed, it does not appear on a CARI (Court Activity Record Information, formerly called “CORI”) unless the entity viewing the CARI is authorized to obtain information about sealed records (e.g. law enforcement, DCF, firearm licensing authorities, certain entities dealing with children).   Moreover, an individual with a sealed record may truthfully answer “no” if asked if he or she has a record.

With these changes, an individual may face fewer obstacles to being reintegrated into society and obtaining gainful employment.  In light of the important interests involved, an individual petitioning to seal his or her record should be represented by experienced counsel.

Attorney Kevin D. Quinlan

Uxbridge, Massachusetts

(508) 723-6384

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