By Pauline Quirion
Within the last year, the Supreme Judicial Court (SJC) issued two decisions, Commonwealth v. K.W., 490 Mass. 619 (2022) and Commonwealth v. J.F., 491 Mass. 824 (2023), which consider the legal standard for expungement and revitalization of an older provision in the law requiring immediate sealing of any criminal offense that ends in a not guilty finding. The two cases are of great significance because a criminal case is never too old or too minor to trigger barriers to employment and other opportunities. Because individuals from communities of color are disproportionally involved in the criminal legal system, they are disproportionately affected by these barriers.
Background of Expungement
Massachusetts enacted its first expungement statute as part of criminal justice reform in 2018. After that time, however, data indicated that few individuals succeeded in expunging their records.
The expungement of a criminal record is the only way for people with criminal histories to wipe their slate clean. By contrast, criminal record sealing only limits who has access to a record, with law enforcement and certain employers, licensors, and agencies continuing to have access. As the SJC has acknowledged, a “cloud of prosecution” remains even if a case ends favorably and is sealed because police and others have access to information about sealed offenses. Police Comm’r of Bos. v. Mun. Ct. of Dorchester Dist., 374 Mass. 640, 659 (1978).
Expungement is “the permanent erasure or destruction of a record so that the record is no longer accessible to, or maintained by, the court, any criminal justice agencies or any other state agency, municipal agency or county agency.” G.L. c. 276, § 100E. Thus, expungement is often preferable to sealing, except in cases when destruction might later create other issues. For example, clients seeking expungement who are not U.S. citizens may need access to the records to obtain lawful immigration status or to vacate a past conviction that is a basis for deportation.
Reason-Based Expungement and K.W.
Section 100K of Chapter 276 permits expungement of criminal and juvenile cases if the record resulted from:
(1) unauthorized use or theft of the petitioner’s identity;
(2) an offense at the time of the creation of the record which at the time of expungement is no longer a crime, except in cases where the elements of the original criminal offense continue to be a crime under a different designation;
(3) demonstrable errors by law enforcement;
(4) demonstrable errors by civilian or expert witnesses;
(5) demonstrable errors by court employees; or
(6) demonstrable fraud perpetrated upon the court.
These grounds for expungement reflect situations where it is unfair to list an offense on a criminal background report because the charge is no longer a crime or a person suffered an obvious injustice. Section 100K, nevertheless, requires the court to make written findings of fact indicating that the expungement is in the “best interests of justice.” G.L. c. 276, § 100K(b). The phrase “best interests of justice” is not defined in the statute. After the law took effect, some courts were reluctant to expunge records because they were uncertain about the applicable legal standard.
In the K.W. case, the trial court denied a request under Section 100K to expunge old, decriminalized offenses for possession of cannabis. The court’s findings simply stated that expungement was “not in the interest of justice.” The District Attorney’s office did not object to the expungement at the hearing, and later assented in writing to the expungement when the petitioner filed a motion for reconsideration. The court denied the reconsideration motion and reiterated that expungement was not in the interest of justice.
On appeal, the SJC vacated the order denying expungement and held that petitions satisfying one of the six eligibility categories under section 100K “are entitled to a strong presumption in favor of expungement, and petitions for expungement in such cases may be denied only if a significant countervailing concern is raised in opposition to the petition.” K.W., 490 Mass. at 620. The SJC also distinguished the legal standard for expungement from the legal standard for sealing of criminal records. For example, the “good cause” showing required for sealing records, as detailed in Commonwealth v. Pon, 469 Mass. 296, 316-21 (2014), does not apply to expungement cases. Specifically, the SJC ruled:
Unlike petitioners seeking to seal their records, whose criminal records may still be of some value to society, petitioners who clear the high bar of G.L. c. 276, § 100K(a), need not articulate the particular disadvantages they might confront as a result of their records remaining accessible to those who have access to sealed records.
After K.W., courts must also make written findings explaining why it is not in the interest of justice to expunge a record if they deny an expungement petition. K.W., 490 Mass. at 632. This is because there “must be some mechanism by which an appellate court can meaningfully assess whether a judge acted appropriately in granting or denying … [the petition].” Id. Therefore, unless a “substantial countervailing” concern is raised by the Commonwealth, courts must allow the petition for expungement if one of the six grounds for expungement exists. Id. “What is required for the denial of a petition for reason-based expungement on the grounds of ‘the best interests of justice’ is a countervailing consideration regarding the expungement of that particular record that is sufficient to weigh against the presumption in favor of having that record expunged.” Id. at 633.
The SJC declined to articulate what a substantial countervailing factor might be. However, it cautioned that “the existence of any other criminal record belonging to a petitioner, regardless of whether that record is sealed, may not factor into judges’ analyses regarding whether reason-based expungement is ‘in the best interests of justice’ under G.L. c. 276, § 100K(b).” Id. at 632. “Judges, therefore, may not deny an otherwise-eligible, reason-based petition on the theory that a petitioner’s other records make negligible the benefits of expunging the reason-based record or records in question.” Id. at 633.
Practice Tips after K.W. and Legislative Action
K.W. greatly eased a petitioner’s burden of proof in expungement cases. The new presumption in favor of expungement of eligible offenses may obviate the need to request an in-person hearing in many instances. Under the expungement statute, no hearing is required unless requested by the petitioner or the district attorney. G.L. c. 276, § 100K. However, because some courts routinely schedule all petitions for an in-person hearing, counsel may need to request the court to rule on the papers. Counsel is also permitted to submit an affidavit of the client with information demonstrating that the record qualifies under one or more of the six grounds for expungement under Section 100K.
While the K.W. case was in the appellate pipeline, the Massachusetts Legislature was concerned about access to expungement and added section 100K¼ to the Chapter 276, which ensured greater access to expungement of decriminalized cannabis offenses. This new law essentially removed judicial discretion to deny a petition to expunge a decriminalized cannabis offense and required the ruling to be made within thirty days of the date of the filing of the petition. G.L. c. 276, § 100K¼. In addition, section 100K¼ expands the category of cannabis offenses that may be expunged to include distribution offenses that arose out of the underlying possession offense.
The new section also specifies that, upon entry of any order for expungement under Chapter 276, “the court clerk’s office shall provide the petitioner with a certified copy of the order, the docket sheets and the criminal complaint related to the expunged charge.” G.L. c. 276, § 100K¼(c). The Massachusetts Legislature’s amendment complemented and built on the SJC’s K.W. decision, which also provided greater access to expungement.
J.F. and Not Guilty Findings
G.L. c. 276, § 100C (first paragraph) requires that cases ending in a not guilty finding be immediately sealed. However, the practice of automatically sealing such offenses stopped because the SJC held that the First Amendment provided a right to access these records in Commonwealth v. Doe, 420 Mass. 142, 151-53 (1995). More recently in Commonwealth v. Pon, the SJC abrogated its ruling in Doe. In Pon, the SJC held that criminal cases that end in a dismissal or an entry of nolle prosequi are not subject to a First Amendment presumption of public access. 469 Mass. 296 (2014). However, the SJC did not address whether cases ending in a not guilty finding could or should be sealed automatically. It did rule that holding a hearing for cases filed pursuant to Section 100C (second paragraph) was reasonable until it or the Legislature addressed the issue and as long as lower courts applied the standard for sealing of “good cause.” Pon, 469 Mass. at 313, n.13.
On May 5, 2023, the SJC decided Commonwealth v. J.F., 491 Mass. 824 (2023), holding that offenses ending in a not guilty disposition are subject to mandatory sealing under G.L. c. 276, § 100C. The J.F. case involved a petitioner who unsuccessfully invoked G.L. c. 276, § 100C (first paragraph) to request sealing of a charge that ended in a not guilty finding. The SJC’s ruling has larger implications on record sealing. It means that individuals no longer need to file petitions or participate in hearings to seal these dispositions because G. L. c. 276, § 100C (first paragraph) requires immediate sealing of charges ending in a not guilty finding. Section 100C (first paragraph) specifically provides:
In any criminal case wherein the defendant has been found not guilty by the court or jury . . . the commissioner of probation shall seal said court appearance and disposition recorded in his files and the clerk and the probation officers of the courts in which the proceedings occurred or were initiated shall likewise seal the records of the proceedings in their files. The provisions of this paragraph shall not apply if the defendant makes a written request to the commissioner not to seal the records of the proceedings.
Id. The Commissioner of Probation’s office has indicated that plans are now underway to implement the SJC’s ruling.
Practice Tip Pending Implementation of J.F.
Until sealing of a not guilty dispositions is automatic, advocates and petitioners can continue to list the charges on sealing petitions filed with the court using the court process for sealing of cases. G. L. c. 276, § 100C (second paragraph). At the hearing, however, counsel can affirmatively ask for sealing of the charge citing J.F. and G. L. c. 276, § 100C (first paragraph), which provides that the Commissioner and court clerk “shall” seal the offense absent a written objection from the defendant. There is no discretion to deny the sealing. Similarly, after a reading of the verdict or upon entry of a not guilty finding by the court, defense counsel may request immediate sealing of the offense by citing J.F.
Race and Criminal Records Intersectionality
The impact of access to criminal records is the most profound in Black and Latinx communities. A Harvard study completed at the request of the late and esteemed SJC Chief Justice Ralph Gants indicated that institutional racism permeates every stage of the criminal legal system. Black and Latinx individuals are more likely to face prosecution and, upon conviction, receive harsher and longer sentences. Once a person’s case is completed, including any incarceration, the punishment does not end. It continues in the form of over 760 collateral consequences, including disqualifications for jobs, occupational licensing, housing, and even volunteer opportunities. Furthermore, while work is often a path to upward mobility and a better life, employers are reluctant to hire people with records and, again, Black job applicants fare the worst.
Included with the unequal treatment in the adjudication of criminal offenses, studies show that Black individuals are disproportionally arrested for cannabis offenses. Thus, decriminalization of cannabis along with expungement of criminal records take on new relevance when viewed through a racial lens as a means to address some of the damage caused to low-income communities of color by disproportionate arrests and the past war on drugs.
Sealing and expungement are an indispensable part of the system for administration of justice given the far-reaching consequences of any criminal legal system involvement. The “Letter from the Seven Justices of the Supreme Judicial Court to Members of the Judiciary and the Bar” after the murder of George Floyd stated that:
as members of the legal community, we need to reexamine why, too often, our criminal justice system fails to treat African-Americans the same as white Americans, and recommit ourselves to the systemic change needed to make equality under the law an enduring reality for all. This must be a time not just of reflection but of action. (Emphasis added).
While the SJC’s decisions in K.W. and J.F. do not mention race, their “action” is to make clear the framework and tools to mitigate some of the damage inflicted on communities of color related to disproportionate arrest, prosecution, and punishment.
Pauline Quirion is the Director of the CORI & Re-entry Project at Greater Boston Legal Services, counsel in K.W., Pon, and amicus in J.F.
 Dan Adams, ‘An utter failure’: Law meant to clear old convictions, including for marijuana possession, helps few, The Boston Globe (Nov. 28, 2021).
 Dan Adams, Massachusetts Legislature is pressured to ease burden of criminal records | Minor charges shouldn’t haunt former defendants, reformers say, urging focus on rehabilitation, The Boston Globe (Jan. 3, 2022).
 Devah Pager, The Mark of a Criminal Record, 108 Amer. J. of Soc. 937, 955, 958-959 (2003); Harry J. Holzer et. al, Perceived Criminality Criminal Background Checks, and the Racial Hiring Practices of Employers, 49 J.L. & Econ. 451, 453-454 (2006).
 David Scharfenberg, Blacks are Still More Likely than Whites to be Arrested for Marijuana, The Boston Globe (Oct. 6, 2016).