By David Russcol & Niamh Gibbons
The ability to seal criminal records can be essential to helping former criminal defendants find jobs, housing, education, and other opportunities that help them move on with their lives. Recent amendments to the Commonwealth’s sealing statutes (G.L. c. 276, §§100A–100D) and recent case law have simplified the sealing process. This article focuses on one of the avenues for sealing under the statute—discretionary sealing of nol prossed or dismissed charges—and provides practical guidance for practitioners.
Administrative vs. discretionary sealing
There are two main avenues to seal a criminal record in Massachusetts: administrative and discretionary sealing.
Sections 100A-100B of the sealing statutes outline the process for administrative sealing. Both sections allow a defendant to petition the Commissioner of Probation (Probation) to seal their record after a specified period from the end of their incarceration or custody: three years for a delinquency record or other misdemeanor record, and seven years for a felony. See G.L. c. 276, §§100A-100B. Certain offenses are ineligible for administrative sealing, unless they are part of a delinquency record. If a defendant has been convicted or imprisoned recently, the waiting period resets.
Another type of administrative sealing is set out in Section 100C, first paragraph, which applies in cases where the defendant was acquitted, a grand jury returned a no bill, or a court made a finding of no probable cause. See G.L. c. 276, §100C. In 2023, the Supreme Judicial Court (SJC) held that Probation must automatically seal those records unless the defendant requests otherwise. See Commonwealth v. J.F., 491 Mass. 824, 837 (2023).
The discretionary sealing process is governed by Section 100C, second paragraph, and applies in situations where the Commonwealth has nol prossed the charges or the court dismissed them. See G.L. c. 276, §100C, second par. The court may order those records sealed, if “it appears to the court that substantial justice would best be served” by sealing. Id. In its 2014 decision in Commonwealth v. Pon, the SJC held that the “substantial justice” language in Section 100C means the defendant must show “good cause” for sealing. See Commonwealth v. Pon, 469 Mass. 296, 312 (2014).1
Pon identified six factors the court must evaluate to determine “good cause” for sealing:
- Disadvantages arising from the criminal record’s availability.
- Evidence of rehabilitation.
- Other evidence showing that sealing would mitigate disadvantages.
- Circumstances at the time of the offense affecting recidivism risk.
- Passage of time since the offense and its dismissal or nolle prosequi.
- The nature and reasons for the case’s disposition.
Id. at 316.
Practice tips for discretionary sealing
At the outset of representing a client in a sealing matter, obtain a copy of the client’s CORI to determine whether the client is eligible for administrative or discretionary sealing, or if their records require both. Administrative sealing under Sections 100A-100B is not limited to convictions–if a dismissal, nol prosse, or continuance without a finding (CWOF) is old enough, the client can petition Probation to seal the record without court action. If all charges can be administratively sealed, the petition should be filed with Probation using this form.
If discretionary sealing is required for a dismissal, nol prosse, or CWOF, the petition should be filed in the court where the client was originally charged, using this form. The form includes a set of questions that guide petitioners to provide relevant information, but counsel should attach a memorandum addressing relevant Pon factors. The client should provide an affidavit and letters of support highlighting both disadvantages faced due to the record and evidence of rehabilitation. Proof of medical or substance abuse program completion also strengthens the petition in appropriate cases.
Once the petition is filed, the last paragraph of Pon describes the procedural requirements for the court. See Pon, 469 Mass. at 322. The court first determines whether the petition makes a prima facie showing of good cause. If so, a hearing is scheduled; otherwise, the judge may deny the petition without a hearing. Court clerks provide public notice, typically through courthouse postings. The Commonwealth may object at the hearing. If sealing is granted, the judge must make findings based on the Pon factors. The decision can be appealable.
What happens after a record is sealed? Once a record is sealed, the defendant may respond “no record” if asked about their criminal record on a job or housing application. See G.L. c. 276, §§100A, 100C. It is important to advise clients, however, that even sealed records remain accessible to child services agencies, state and federal law enforcement, and courts in future cases. See, e.g., G.L. c. 276, §100D. Clients may want to know how sealing affects current or future immigration cases. Clients should obtain certified copies of case documents before sealing, as immigration applications often require criminal history disclosure. The Commonwealth informs the FBI of sealing or expungement, but federal authorities may retain records they previously received and may use them for various purposes including immigration enforcement. Applicants for professional licenses do not need to disclose sealed records. However, licensing authorities, such as the Board of Registration in Medicine, may consider sealed records in disciplinary actions if discovered. See Doe v. Bd. of Registration in Med., 485 Mass. 554, 562 (2020).
Lastly, private background check companies may have obtained case details before sealing. Clients should submit proof of sealing to request removal from these databases if possible.
Conclusion
Sealing criminal records can help clients overcome significant barriers to employment and housing. Understanding administrative and discretionary sealing processes, as well as related legal consequences, is essential for practitioners assisting clients in this area.
David Russcol is a partner at Zalkind Duncan & Bernstein LLP, focusing on plaintiff-side employment cases, criminal defense, and Title IX and other academic misconduct. He attended Harvard Law School, and previously clerked for Judge Mark Wolf and Justice Scott Kafker.
Niamh Gibbons is an associate at Zalkind Duncan & Bernstein LLP, where her practice includes both State and Federal criminal cases, employment litigation, and a range of academic misconduct proceedings. She is a graduate of Suffolk University Law School and was previously a law clerk at the Massachusetts Appeals Court and a program manager for non-profit and academic organizations.
