Unlike many other states, Massachusetts law does not generally recognize expungement which is very different from sealing. Expungement would be preferable as it can essentially erase a criminal record, including police reports and arrest records as if it never existed. On the other hand, simply getting a record sealed doesn’t wipe clean a record; it merely keeps it confidential on some level. A sealed record in Massachusetts may keep most employers from learning of its existence, but there are exceptions. Police and courts will likely be aware of the record.
Still, it is important to do so. It could be catastrophic to one’s future if, let’s say, because of one bit of bad behavior in one’s youth or many years ago, one is made unemployable forever or prevented from furthering one’s education.
Sealing is almost never automatic.
Three Main Ways to Seal a Criminal Record
1. Some convictions or admissions can be sealed after a waiting period.
2. Cases that were dismissed without probation or resulted in a not guilty finding may be eligible for sealing.
3. A recorded offense that is no longer a crime may be sealed.
It is a good idea to request a recent CORI record of the defendant prior to attempting to seal records so that the eligibility for sealing is clear. The following is an overview of the law.
Sealing after a waiting period
- Under the present law, the waiting period to seal felonies is now 10 years. (A few years back, it was 15.)
- Under the present law, the waiting period to seal misdemeanors is now lessened to 5 years. (A few years back, it was 10.)
- Under the law the clock begins to toll (a) for those incarcerated, on the day one is released from custody or (b) if there is no incarceration, on the date of disposition.
- Any subsequent conviction causes the 5 or 10-year waiting period to begin tolling all over again. In other words, it must be 5 or 10 years from the date of the latest conviction in order to be eligible to get the entire rest of the record sealed.
The procedure is to submit a single page petition form, available on the web, to the Office of the Commissioner of Probation.
Sealing after a non-conviction
- In the case where there is no conviction, one must go in front of a judge at the court directly but can do so immediately without any waiting period. This pertains to cases that resulted in an acquittal at trial, no probable cause, or some kind of a dismissal. Under the law, for the first time, this includes a case that was dismissed after a continuance without a finding.
- In this instance, records may be sealed only after the court has made a specific, on the record finding that sealing is necessary for “good cause.”
- The petitioner must file a specific petition form and a motion/affidavit form available from the court that must be posted publicly at the court. It is a good idea to also submit a memorandum.
- A judge may rule based solely on the paperwork, but more frequently the petitioner is afforded a hearing where reasons can be made directly to a judge
- Sealing a record of an offense that is no longer a crime
If an offense that is on the defendant’s record has been decriminalized, this may also be sealed by submitting a single page petition form, available on the web, to the Office of the Commissioner of Probation. An obvious example would be those with a record for possession of marijuana.
Exception to sealing statute
- A person convicted of a sex offense is eligible to have the record sealed after 15 years after the disposition including supervision or after any incarceration is completed
- (a) if they have no duty to register as a sex offender and;
- (b) if they were never, at any time, classified as Level 2 or 3 sex offender.
- There are some crimes that can almost never be sealed concerning crimes against public justice (such as perjury, false reports, witness intimidation, disrupting court proceedings, escape from custody, resisting arrest), and unethical conduct concerning public officials and employees (such as various forms of corruption) can never be sealed. Additionally, certain firearms offenses are never sealable.
Who has access to your records?
- Employers, landlords and professional licensing authorities especially concerning firearms will have access to criminal records if they have signed authorization from the person with the record
- Special classes of people are permitted access to Massachusetts reports including non-convictions. These include those who run long-term care facilities over their employees and volunteers; home and community care for the elderly and disabled; and victim/witnesses. In certain child custody and visitation or domestic abuse and restraining order matters where safety is at stake there is even a right to look at sealed cases if a court order is obtained.
- Almost any office involved in the best interests of children including the Department of Children and Families, Department of Social Services, school bus drivers, camps, early education programs, foster care, etc.
- Municipalities may conduct criminal record checks in order to license particular designated positions and to assist their housing authorities in screening
- Law enforcement agencies have an automatic and immediate right to all CORI records included sealed records.
- Any private individual may make a written request to view the CORI of any other person concerning (a) felony convictions punishable by 5 years of imprisonment until 2 years after release from custody; (b) a misdemeanor until a year after return from incarceration; (c) any conviction that includes incarceration until any parole or probation is completed.
- If an individual is eligible to have a conviction sealed—10 years after a felony or 5 years after a misdemeanor– but does not take that action to seal, most employers still no longer have access to such records after that time period.
Record questions barred on initial employment applications
- Under the so-called “ban the box” rule, an employer is blocked by law from asking a job applicant on an initial written employment application to check off whether they have any criminal record. The exception is when state or federal law prohibits a specific job from being filled by a convicted individual. For example, under federal law, banks are barred from hiring people convicted of certain offenses, so, therefore, may inquire about a criminal record right from the start.
- After the initial application, employers do, eventually, have the right to inquire about the applicant’s criminal history such as during the job interview
- The employer must give the applicant a copy of his or her criminal record before questioning that person about their criminal record. If a person is denied a position because of their criminal record, they must also be provided with that criminal record.
- Correcting errors in ones CORI and also learning who accessed it
There is a procedure for correcting errors and even mistaken identity on one’s criminal record that an experienced criminal defense attorney can help you with.
Dissemination of non-convictions
- Non-convictions such as charges that resulted in acquittals or dismissals are not subject to dissemination except in the few instances where there is delineated statutory access to the non-conviction.
- Pending cases may be viewed.
- Continuances without a finding are to be treated as dismissals once they are dismissed, but not during the period pending that dismissal. Until the date of dismissal, a continuance without a finding is subject to be viewed.
- Visibility of sealed records and non-convictions
Previously, notification was given that a sealed record existed even though the contents of that sealed record could not be viewed. Currently, it will, usually, not be revealed whether a sealed file exists.
Previously, until a record was sealed, non-convictions (dismissal and not guilty verdicts) would be visible in a search. Under the current law, non-convictions will not be revealed in searches.
An experienced criminal defense attorney can help you seal your record. Contact me today for a free consultation to discuss the sealing of your criminal records in Massachusetts.