EXPUNGEMENT OF CRIMINAL RECORDS IN MASSACHUSETTS
An Act Relative to Criminal Justice Reform which was signed into law on April 13, 2018 makes major changes to the remedies of expungement and sealing that can greatly benefit persons with criminal records. This legal guide is an overview of the new expungement and sealing laws at the state level.
Major Changes in Expungement and Sealing LawMassachusetts recently passed a sweeping criminal justice reform bill called An Act Relative to Criminal Justice Reform. Portions of that new law pertaining to expungement and sealing of criminal records go into effect on October 13, 2018. These new laws provide additional avenues towards expungement of criminal records, shorter waiting periods for sealing of criminal records, and procedures to minimize the discovery of sealed or expunged records through fingerprint -based checks.
Prior to the passage of the of the new law, the remedy of expungement was limited to cases where someone had stolen your identity, or when the government intended to charge person A for a crime but ended up charging person B. The new law expands the possible bases for expungement beyond the mistaken or stolen identity situations, and make it possible to expunge a charge where you were convicted in certain circumstances.
Prior to the passage of the of the new law, a person had to wait to seal 5 years to seal a misdemeanor conviction and 10 years to seal a felony conviction. Under the new law, the waiting periods for sealing are shortened to 3 and 7 years, respectively for misdemeanors and felonies.
Another significant change under the new law is a provision which directs the Department of the State Police to 1) update the Federal Bureau of Investigation to update the FBI databases to reflect the outcome of a case, and 2) to direct the FBI to seal or expunge its fingerprint database of records that are the subject of a sealing or expungement order.
Expungment vs. Sealing: What Is The Difference?Sealing of criminal records makes the charges on a person record unavailable to certain entities who request to see the criminal record. When a person has a sealed record (also known as Criminal Offender Record Information of CORI), certain entities, for example law enforcement entities and the courts, can see past a seal to see what charges are on a person's criminal record. Other entities, for example potential employers, landlords and schools, cannot see past the seal and are told that the person with the sealed record has "No Available CORI". The information still exists on the persons CORI, but only certain entities can see it.
Expungement, in contrast, is the permanent erasure or destruction of a criminal record so that the record is no longer accessible to, or maintained by a court, any criminal justice agency or any other state, municipal or county agency. The person who's record is expunged simply has no record, whereas the person with a sealed record has a record that only certain entities can see.
Prior to the passage of the new law, the remedy of expungement was only available in stolen identity or mistaken identity cases. In all other cases where a person was charged with a crime, that person's only recourse was to have his or her record sealed.
Expungment: Can My Record Be Expunged?The passage of the new law introduced additional grounds for expunging criminal records. The new laws pertaining to expungement are contained in General Laws chapter 276, Section 100E-U.
Sections 100F and 100G create ways to expunge eligible records even when a person has been "convicted" of a crime; Section 100H pertains to expungement when one has not been convicted; Section 100K allows for expungement in circumstances where one cannot expunge under 100F, 100G or 100H.
The following is a brief summary of the requirements under each Section:
Section 100F and 100G: Sections 100F and 100G pertain to expungement of criminal convictions, juvenile delinquency adjudications and youthful offender adjudications. A criminal conviction would appear as a "G" (for Guilty) on your criminal record; a delinquency adjudication would appear as a "DEL" (for delinquent) on your criminal record. Under 100F and 100G, a person who has been convicted or adjudicated delinquent may have a charge expunged if certain conditions are met. These conditions are detailed in Sections 100I and 100J but can be summarized as follows: 1) the crime is not on the list of crimes ineligible for sealing under 100J; 2) the offense occurred before the defendant/petitioner's 21st birthday; 3) not less than 7 years have passed since the person was convicted and the filing of the petition to expunge (3 years if the charge was a misdemeanor); 4) the petitioner has not have any other charges on his/her record in any state or federal jurisdiction, 5) the petitioner is not the subject of an active criminal investigation to the best of his or her knowledge. If these requirements are met, the petitioner can get a hearing before a judge who will decide if the "interests of justice" warrant expungement of the petitioner's record.
Section 100H: Sections 100H pertains to expungement of criminal or delinquency charges where the petitioner was not convicted or adjudicated delinquent. The requirements for expungement of a non-conviction are the same as the requirements of expungement under 100F and 100G, above.
Section 100K: Section 100K allows for expungement under circumstances where the criteria of 100I and 100J are not satisfied. For example, if the charge is an offense that is excluded from expungement under 100J, or the charge occurred after a person turned 21, it might still be possible to expunge that charge using 100K. 100K allows for expungement in 6 situations: 1) when the petitioner was the victim of identity theft or false identification (this is unchanged from before); 2) when the offense is no longer a crime; 3) when there have been demonstrable errors by law enforcement; 4) when there have been demonstrable errors by civilian or expert witnesses; 5) when there have been demonstrable errors by court employees, and; 6) when there have been demonstrable fraud upon the court.
Analyzing a record to determine the most effective method of expungement can be complicated, and the new law is untested in the courts. A person exploring expungement should consult with an attorney who knows the law of expungement to maximize chances of success
Sealed or Expunged Records and the FBI Interstate Identification Index (Triple I)Currently, a person with a sealed record could still have that record discovered if there was a fingerprint check done. This is because when a person is arrested, they are fingerprinted. These fingerprints are transmitted to the State Police, who in turn send them to the FBI to be collected in the FBI's arrest database. The problem with the current law is that the FBI does not update the fingerprint data base to reflect the result of a case, nor does the FBI seal the database even when the person arrested got their state criminal record sealed or expunged.
The new law specifically adds language to G. L. Ch. 22, Section 36, EFFECTIVE JULY 1, 2019, directing the State Police to "transmit the case disposition information, including any order of dismissal and any order to seal or expunge a record. The transmission of any sealing order to the Federal Bureau of Investigation shall be accompanied by an order to seal such information within the bureau's Interstate Identification Index. The transmission of any expungement order to the Federal Bureau of Investigation shall be accompanied by an order to expunge such information within the bureau*s Interstate Identification Index."
In theory, the provisions of Section 36 should solve the problem of the (unsealed or unexpunged) fingerprint database causing a person with a sealed or expunged record to still have a discoverable fingerprint-based arrest record. The downside is that the law does not go into effect until July 1, 2019.
Final ConsiderationsThe costs of criminal charges on your record are burdensome and long lasting. The remedies available under the new criminal justice reform law can help you achieve a better life. Contact The Law Office of Dominic L. Pang at (617) 538-1127 for a free consultation about having your record sealed or expunged.