Massachusetts State House.
Boston Bar Journal

Automate What Works – A Proposal to Seal Criminal Records and Grow the Workforce with Clean Slate

August 31, 2023
| Special Edition 2023: Community Justice Reimagined

By David Siegel

A criminal conviction, even just a charge, keeps people from jobs, housing, education, and occupational licenses years after any sentence. The Massachusetts legislature recognized this in 2018 by shortening waiting periods to “seal” old criminal records, but the sealing process is complicated and confusing. Last year about 5,700 of the roughly 1.7 million state residents with criminal records filed sealing petitions with the Massachusetts Probation Service.[1] Nineteen states and the District of Columbia have a better way. Automating record sealing saves time and money, more effectively reintegrates those with criminal records into free society and expands the workforce. With the state’s severe worker shortage, it’s time the Commonwealth joined this “Clean Slate” movement as pending bills would do. An Act providing easier and greater access to record sealing, S.979 and H.1598, 193rd Session (2023) would automate sealing of convictions and non-convictions after the existing required waiting period. An Act to remove collateral consequences and protect the presumption of innocence, S.998 and H.1493, 193rd Session (2023) would require immediate sealing of non-convictions.

A 2017 Boston Federal Reserve Bank report estimated 25% of Massachusetts residents, or 1,716,000, have a criminal record – often for just being charged with a crime.[2] A criminal record makes it much harder to find work. For example, testers applying for entry-level jobs with a felony drug conviction got half the number of job offers or call backs as those without one, and the disparity was almost twice as big for Black applicants as for white ones.[3] A recent study involving entry-level job applicants for mostly restaurant and retail employers found those without a criminal conviction received 60% more callbacks than applicants with a single, low level felony conviction for either a drug or property offense.[4]

The stigma of a criminal record endures. Rental applicants with even a ten-year-old felony conviction were rejected nearly half the time in one study.[5] In Massachusetts these collateral consequences disproportionately harm persons of color. A 2020 Harvard Law School study found Black persons were overrepresented in the state’s criminal justice system compared to their proportion in the population by a factor of three and Latinx residents by a factor of two.[6]

Sealing the record of a Massachusetts conviction requires filing a one-page legal petition with the Probation Service. This may trivially inconvenience a lawyer, but it’s enough that lay persons must pay a lawyer to file the petition. Otherwise, years after a case ends a person must know or remember to find the appropriate form online, correctly complete it, sign it under penalty of perjury, and mail it to the Probation Service. Then the Service must take the time, effort, and personnel to manually process this paperwork. If the required waiting period has passed and there are no new or pending charges, the Service must seal the record. Why require this procedure when the legislature has already specified the outcome? Two bills (S.979 / H.1598) would provide for automatic sealing of convictions within 90 days of their becoming eligible for sealing. Both provide that defendants could still access their own sealed records (e.g., to adjust their immigration status, for civil matters, or to show an employer the facts involved) without a court order.

Sealing records of “non-convictions” is even more cumbersome. In Massachusetts, an arraignment produces a record even for cases that are not prosecuted or that end in dismissal or acquittal. Unless sealed, non-convictions appear in record checks by many entities without time restriction. Sealing non-convictions now requires an individual to know about the process, prepare a judicial petition setting forth “good cause” to seal the record, lose pay to attend a hearing, and convince a judge with full discretion to seal. The twenty jurisdictions that now automatically seal or expunge most non-convictions save valuable court time, resources, and costs.[7] Immediate sealing of non-convictions does not require changing computer systems or spending money: Court clerks and Probation can seal non-convictions at disposition and could immediately seal all non-convictions. Two bills (S.998 / H.1493) would require it.

Automating record sealing will not change eligibility to seal or keep police or judges from seeing a person’s criminal record. It will not keep appropriate records of convictions from employers and institutions who work with vulnerable populations, or who are required by law not to employ persons with particular types of convictions. Automating record sealing will make sealing happen, and that will significantly improve reintegration of those who have been involved with the criminal justice system. And it will restore the presumption of innocence to those with records of a non-conviction.

In June, the National Federation of Independent Businesses reported 42% of small businesses could not fill their job openings, nearly twice the historical average.[8] The state’s Clean Energy Center estimates the Commonwealth needs nearly 30,000 full time workers in the next seven years, and the T estimated in April it needed nearly 3,000 just to maintain operations.[9] Simplifying and speeding sealing of criminal records will grow the work force and reintegrate returning citizens more quickly and effectively. That will benefit all of us.

David M. Siegel, Professor of Law at New England Law | Boston, has since 2011 directed the CORI Initiative that seals indigent clients’ criminal records.

[1] Isaiah Thompson, CORI reform advocates call for changes in state law, Bay State Banner, April 26, 2023.

[2] Robert Clifford & Riley Sullivan, The Criminal Population in New England: Records, Convictions, and Barriers to Employment, Policy Report 17-1 (Federal Reserve Bank of Boston, New England Public Policy Center, March 2017), 13.

[3] Devah Pager, Bruce Western, and Naomi Sugie, Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records, Am. Acad. Pol. Soc. Sci. 2009 May; 623(1): 195-213.

[4] Amanda Agan & Sonja B. Starr, The Effect of Criminal Records on Access to Employment, Am. Econ. Rev.: Papers & Proc. 107, no. 5 (2017): 560-564.

[5] Peter Leasure & Tara Martin, Criminal records and housing: an experimental study, 13 J. Experimental Criminology 527 (2017).

[6] Elizabeth Tsai Bishop, Brook Hopkins, Chijindu Obiofuma, & Felix Owusu, Racial Disparities in the Massachusetts Criminal System, A Report by The Criminal Justice Policy Program, Harvard Law School Submitted to Chief Justice Ralph D. Gants, Supreme Judicial Court of Massachusetts (Sept. 2020) 1.

[7] DC enacts progressive new record-clearing law,  Collateral Consequences Resource Center, April 6, 2023 (“D.C. now joins the 19 states that have enacted automatic record-clearing relief for arrest records and other non-convictions.”).

[8] National Federation of Independent Businesses, NFIB Jobs Report: Small Businesses Increasing Compensation Eases in June, June 2023.

[9] Colin A. Young, Report: Labor Crunch Threatens Clean Energy Expansion, Nearly 30,000 New Workers Needed To Hit 2030 Emissions Goal, State House News Service, July 19, 2023.