Sealing / Expungement
Sealing or expunging your criminal record can have great impact on your ability to obtain employment, housing, and other opportunities. Fortunately, in 2012, Massachusetts changed its Criminal Record Offender Information (“CORI”) law for the benefit of people with criminal histories and for those seeking to seal their criminal records and put past crimes behind them. In 2018, Massachusetts further expanded the opportunities for sealing and expungement through the Criminal Justice Reform Act.
Many people do not know that simple arrests, even when there was no conviction, create a criminal record. The same is true for cases that are nolle prossed (not prosecuted), that end in not guilty verdicts after trial, or that are dismissed after a term of probation following a pre-trial diversion program or a continuance without a finding (“CWOF”). However, access to information regarding non-convictions like those listed above is restricted to certain types of agencies and employers, like the police and schools. Most employers cannot see dismissed cases through the CORI system. If you have questions about your criminal record and what employers may have access to, please call us and we can advise you on whether you should try to seal your record.
“Sealing” a record means removing public access to the record; but certain entities may still be able to see that the record exists. “Expunging” a record completely wipes away any trace of the record, so that even law enforcement and the courts do not know it ever existed. Under the Criminal Justice Reform Act, employers are prohibited from requesting information about sealed or expunged records.
Most criminal convictions can be sealed. If you have been convicted of a crime, you may seal your criminal record by submitting a petition to the Commissioner of Probation, pursuant to Mass. G. L. c. 276, § 100A. You are eligible to have your record sealed three years after a misdemeanor conviction or the end of the sentence served for that conviction, seven years after a felony conviction or the end of the sentence served for that conviction, or fifteen years after a sex offense or the end of the sentence served for that conviction—as long as you have not committed any new crimes during that period. You can view the form that must be sent to the Commissioner of Probation here. We have advised clients on whether their criminal offenses qualify for this form of relief and have assisted them in filling out the form correctly and submitting it to the appropriate person and have successfully sealed their records for misdemeanor and felony charges.
If you have not been convicted of a crime (i.e. your case ended with a finding of not guilty, a dismissal, a finding of no probable cause, or a nolle prosequi), there is no waiting period, but you must file a motion to seal the records. The district court motion form can be found here. If your case is in the Boston Municipal Court, you may file a single petition to seal up to three different records in a single petition, as explained in BMC Standing Order 1-09. In your petition to seal your records, you must convince a judge that the public’s interest in having your criminal record remain public is outweighed by the substantial and specific harm to you if it is not sealed. Because the courts have determined that the public has an important and substantial interest in knowing about criminal records, you must show that you will suffer specific harms, not just state in general terms that having a criminal record is damaging to you. We work with you, your school, your employer, your family, and any other appropriate persons to develop the information necessary so that the court knows that you are facing very real and specific consequences because of your criminal record. We can argue this persuasively in legal briefs, but also at the court appearance, where the judge will want to know about you, what you have done since the criminal charges, what your plans are for the future, and in what ways having a criminal record hinders those plans. The judge is not required to grant your petition to seal; the law says that it is in his or her discretion whether to allow it or not. That is why it is important for you to have a passionate and committed advocate who will be willing and able to get the information crucial to getting your petition allowed and your charges sealed.
On top of these remedies, the law now allows for expungement in certain circumstances. To have a record expunged, the charged offense must have taken place before your 21st birthday. The charge cannot be within one of several categories that are ineligible for expungement (such as a sex offense, an offense against an elderly or disabled person, violation of a restraining order, and operating under the influence). You must wait 3 years for a misdemeanor or 7 years for a felony. And you cannot have any other criminal court appearances on his or her record other than minor motor vehicle offenses. If these requirements are met, you can apply to the Commissioner of Probation, who will notify the relevant District Attorney, and after the prosecution has a chance to object or not object, the court will decide whether expungement is in the interests of justice. If the prosecution objects the court will hold a hearing on the petition for expungement, if the prosecution does not object the court will grant or deny the expungement based on what is in the “interest of justice.” This is a lengthy process, but it is important to give people an opportunity to prevent a youthful mistake from affecting their record permanently.
Please contact us if you would like to find out more about sealing or expunging your criminal record at (617) 742-6020.