News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Criminal Justice Reform Act Expands Ability of Defendants to Seal or Expunge Criminal Records

On April 13, 2018, Governor Baker signed a law overhauling many aspects of the Massachusetts criminal justice system. My colleague Naomi Shatz recently covered the ways that the bill made pretrial diversion available to more defendants, and introduced a new program of diversion through restorative justice. Both of those programs, if successfully completed, allow defendants to move forward without a record of conviction, or even without a record of arraignment.

The reform legislation also takes several steps to expand the ability of defendants to turn the page on prior criminal cases by sealing or expunging their prior records. Although these provisions will not become effective until October, at that point they will have far-reaching effects for many individuals. I previously addressed the pre-reform state of the law a few years ago for this blog. As things stand until the new law takes effect, a defendant must wait 5 years after a conviction of a misdemeanor before being able to seal his or her record, 10 years for a felony, and 15 years for sex offenses that can be sealed. Non-convictions (such as dismissals after a continuance without a finding) can be sealed either after those waiting periods, or by petitioning a judge to seal the record sooner.

The new law shortens those time frames. Under the new law, the waiting period for a felony is reduced to 7 years, and 3 years for a misdemeanor. In addition, a quirk in the old law meant that a conviction for resisting arrest could never be sealed; this has been corrected in the new law. Defendants cannot have committed new crimes during these waiting periods in order to successfully use this sealing procedure. With these changes, individuals with criminal records will more quickly be able to move on from those records and apply to jobs and schools without worrying that these records will be an impediment.

On top of these remedies, the criminal justice bill introduces new processes of expungement, which previously was available only in extremely limited circumstances. If a defendant is eligible for expungement, their record can be wiped clean so that there is no indication that the case ever existed – even to law enforcement and the courts. In order to have a record expunged in the normal course, the charged offense must have taken place before the defendant’s 21st birthday. The charge cannot be within one of several categories that are ineligible for expungement (such as a sex offense, an offense against an elderly or disabled person, violation of a restraining order, and operating under the influence). The defendant must wait 3 years for a misdemeanor or 7 years for a felony. And the defendant cannot have any other criminal court appearances on his or her record other than minor motor vehicle offenses. If these requirements are met, the defendant can apply to the Commissioner of Probation, who will notify the relevant District Attorney, and after the prosecution has a chance to object or not object, the court will decide whether expungement is in the interests of justice. This is a lengthy process, but it is important to give people an opportunity to prevent a youthful mistake from affecting their record permanently.

In addition, the law contains a catchall provision permitting the court to expunge records based on specific kinds of mistakes or occurrences. In order to take advantage of this provision, the individual with the record must show by clear and convincing evidence that the record was created because of false identification or identity theft; an offense that has been decriminalized; demonstrable errors by law enforcement, civilian witnesses, or court employees; or demonstrable fraud on the court. These are not easy showings to make in many cases, but for some people this will make a significant difference. If the court finds it in the interests of justice, people who were wrongly identified, or charged or even convicted based on mistakes by law enforcement can have their records cleared.

These reforms are extremely positive steps for allowing those who have criminal records but have been obeying the law to move on from past charges or errors. The new law takes these and other steps to ease the stigma of a criminal record and promote the critical goal of rehabilitation. We applaud these efforts and encourage the Legislature and the Governor to continue taking a reasonable and balanced approach to the criminal justice system.

Please call us if you would like to find out more about sealing your criminal record at (617) 742-6020, or contact us here.

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