Sealing and Expungement in Massachusetts: Opportunities for Reform

By Crispin Birnbaum

When leaving prison or ending probation and parole supervision, individuals must secure basic necessities, such as a place to live and a source of income. Having a criminal record for life, though, creates barriers to housing, employment, education, and other opportunities. The impact is far worse for people of color.[1] Rather than accept these negative consequences, it can be empowering for individuals to learn how to mitigate them via sealing and expungement. These remedies, however, are challenging for individuals to navigate and need improvement. This article provides an overview of Massachusetts criminal records relief and a call for reform.

Obtaining and Analyzing the Record

An important first step in pursuing criminal records relief is for an individual to obtain a copy of their Massachusetts criminal record, a “CORI” (Criminal Offender Record Information). The individual’s level of access to their CORI includes their adult Massachusetts open cases, convictions, and non-convictions.[2] The individual does not have access to any juvenile or sealed charges they have. A CORI does not include out-of-state or federal charges.

It can be instructive, even motivating, for an individual to review their CORI. The CORI contains most of the information required to pursue criminal records relief, but most individuals do not know what steps to take. Attorneys trained in criminal records work assist individuals in understanding eligibility criteria and which avenues of relief to pursue. If eligible, the attorney prepares the appropriate paperwork and represents the client at any hearings. If ineligible, the attorney provides the individual with the future date to file a petition. Each type of records relief takes months to process.

Sealing

There are two ways to seal criminal records in Massachusetts: administrative and discretionary. Once a criminal charge is sealed, there is no access to it for most background checkers, and even for the individual. Only criminal justice entities, child protective agencies, and the federal government or federally-funded programs can access sealed records. If every charge is sealed on the CORI, the individual may state they have “no record” when applying for jobs, housing, or professional licensure in Massachusetts. G.L. c. 276, §§ 100A-C.

Administrative Sealing

The Massachusetts Probation Service (“Probation”) performs administrative sealing for free upon receipt of a mailed petition. G.L. c. 276, §100A-B. Probation mails the individual a decision letter indicating the charges it has sealed and the date to resubmit a petition for any charges not yet eligible. To be sealed by mail, the record must meet numerous criteria, including no open cases and charges that meet or exceed the waiting periods (7 years for a felony, 3 years for a juvenile charge or misdemeanor). Some charges can never be sealed. Juvenile charges and adult convictions can only be sealed administratively.

Discretionary Sealing

Judges are authorized to use their discretion to seal adult, non-convictions, after a non-evidentiary hearing.[3] G.L. c. 276, §100C. The individual mails a petition to the clerk at no cost.

At the hearing, the individual must show “good cause” of present or future disadvantage due to having a CORI. Commonwealth v. Pon, 469 Mass. 296, 312 (2014). While disadvantage because of a CORI is not difficult to show, most successful petitioners also present positive developments since their last arrest, using affidavits, letters of support, and oral argument to bolster the petition.

Expungement

The 2018 Act Relative to Criminal Justice Reform created two avenues for expungement, both of which are limited.[4] G.L. c. 276, §§ 100E-K. An expungement order permanently removes a criminal charge from the CORI. The federal government has agreed to honor Massachusetts expungement orders and remove the charge from the federal criminal records system. Expungement requires the filing of a free petition and a hearing before a judge.

Under Age 21 Expungement

Individuals can file an expungement petition if they meet numerous criteria, including being under age 21 at the time of the charges, and having no more than two, low-level criminal cases. G.L. c. 276, §§ 100E-J. Probation screens the petitions and forwards those that meet the statutory criteria to the court. At a non-evidentiary hearing, a judge applies a “best interests of justice” standard.

Section 100K Expungement

Regardless of age, individuals can submit a petition to the court to expunge a charge if one of the statutory criteria is met, such as being the victim of stolen identity, having a serious error in the case, or having a decriminalized offense. G.L. c. 276, § 100K. Two recent changes give marijuana expungement petitions a greater chance of success. G.L. c. 276, § 100K 1/4; Commonwealth v. K.W., 490 Mass. 619, 620 (2022).

Cautionary Considerations

Individuals who are not United States citizens and their attorneys will not have access to sealed or expunged records to use in immigration defense. Records relief advocates should refer the individual to an immigration attorney to consult about the impact of filing a petition.

Additionally, individuals might wait to seal or expunge until the end of any civil suits against the government, such as a claim of denial of medical care in custody or erroneous conviction.

Protective steps prior to sealing or expungement include the individual obtaining and retaining a copy of the CORI and clerk’s file in the underlying cases.

Criminal records relief work is complicated and evolving. Individuals can benefit from referrals to trained attorneys who will treat them with respect and not judge them. The list below identifies free resources for criminal records relief in Massachusetts, as well as pro bono opportunities.

Needed Improvements

Individuals deserve a fair chance to get beyond their records and have real opportunities for a productive future. Our current system is not user-friendly and can be improved in a few significant ways.

Given the constitutional presumption of innocence, all non-convictions should be immediately sealed. Convictions that meet the waiting periods should be sealed automatically, relieving the individual of the burden of a myriad of affirmative steps. The time frame within which charges are visible to most employers and landlords on a standard background check should be reduced to match the sealing waiting periods. Expungement should be broadened to apply to far more people. After five years in use, few have benefited from this important remedy.

Records relief attorneys have the expertise to offer practical suggestions, mechanical and substantive, for reform. Government leaders should give them an opportunity to be heard and collaborate on creating a better system. Reforms that enhance access to criminal records relief lift up not just the individual with the record, but their families and entire communities. The changes will reduce the effects of racial and economic disparities in the criminal justice system, which negatively affect the individual long after the criminal case is closed.

Free Criminal Records Resources in Massachusetts

Attorney Crispin Birnbaum is an Access to Justice Fellow who provides free trainings on criminal records, sealing, and expungement for a wide variety of groups. She also supports free CORI clinics at Lawyers Clearinghouse, Veterans Legal Services, Harvard Law School, and Western New England Law School. The SJC honored her with an Adams Pro Bono Publico award in 2020. Prior to retirement, Attorney Birnbaum served the Commonwealth of Massachusetts for 34 years.

[1] See Racial Disparities in the Massachusetts Criminal System, Harvard Law School 2020.

[2] Non-conviction dispositions include not guilty, dismissed, nolle prosequi, court costs, and others.

[3] An exception to discretionary sealing of non-convictions is a finding of not guilty, which “shall” be immediately sealed. See G.L. c. 276, § 100C, 1st ¶; Commonwealth v. J.F., 491 Mass. 824, 837-39 (2023).

[4] For an overview of expungement, see In the Matter of Expungement, 489 Mass. 67 (2022).