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

In Commonwealth v. JF, Supreme Judicial Court Makes Sealing Non-Convictions Easier


Criminal records can have a devastating impact on access to life-affirming resources such as housing and employment. To address this issue, Massachusetts has steadily passed legislation that has made it easier for people to seal their records. My colleague has previously written about CORI reform law, including the 2018 legislation, and the Supreme Judicial Court (SJC) decision in Commonwealth v. Pon, which made it easier for people to seal their criminal records under M.G.L. c. 276, § 100C by laying out six factors for judges to evaluate whether there is “good cause” to seal the criminal records as discussed in our previous blog post.

Most recently, in Commonwealth v. JF, the SJC further strengthened defendants’ abilities to seal their records. The SJC held that M.G.L. c. 276, § 100C requires sealing records where a court or jury found the defendant not guilty, a grand jury returned a no bill, or a jury found no probable cause. The Court further determined that the judge who denied the sealing abused their discretion in evaluating the Pon factors. In JF, the defendant was arraigned in 2014 on two counts of rape while armed with a firearm, one count of armed and masked robbery, one count of armed kidnapping with sexual assault, one count of assault with intent to rape, and one count of carrying a firearm without a license. After a jury trial in 2015, the defendant was acquitted on one count of rape while armed, assault with intent to rape, and carrying a firearm without a license, but the jury was deadlocked on the other three counts resulting in a mistrial. In 2018, the Commonwealth filed a nolle prosequi (no longer pursuing charges) with respect to those three counts after the alleged victim was unable to testify due to a relapse in her substance use. None of the charges resulted in conviction, so in 2021, the defendant filed a petition to seal his records under M.G.L. c. 276, § 100C. The judge denied the defendant’s petition to seal because he found insufficient time had passed since the nolle prosequi to accurately assess the defendant’s likelihood of recidivism or to determine whether sealing the defendant’s record would pose an additional safety threat to the community. The defendant appealed the decision arguing that the plain language of section 100C requires sealing when the case disposition is not guilty, a grand jury returned a no bill, or a jury found no probable cause. The defendant further argued that with respect to the entries of nolle prosequi, the judge did not adequately apply the “good cause” standard for sealing under the Pon factors because he did not fully consider how criminal records create barriers for individuals’ employment and housing opportunities.

The SJC held that section 100C mandates sealing when a case has resulted in one of the outcomes listed in the statute. Therefore, the judge was required to seal the defendant’s records on the counts of acquittal, unless the defendant submitted a statement requesting that the records not be sealed. Similarly, the SJC held the statute requires a judge to seal the defendant’s records when there is a nolle prosequi or dismissal and the court determines there is “good cause” to seal the records. Although the SJC did not determine whether the JF defendant’s records on the charges for which the Commonwealth filed a nolle prosequi should be sealed, it remanded the case to allow the judge to adequately explain all the relevant Pon factors he weighed when determining that the defendant failed to meet the “good cause” standard for sealing.

Commonwealth v. JF represents a victory for individuals with criminal records that ended in non-convictions because it removes any judicial discretion where there is a disposition of not guilty, a no bill, or finding of no probable cause. Although the statute was clear on this point, the Commonwealth had argued that the First Amendment right of public access to the courts prevented the categorial sealing of such charges. Additionally, JF builds on the Pon decision by emphasizing that judges must adequately address and explain the Pon factors, such as barriers to housing and employment that criminal records create, when determining whether there is “good cause” for sealing.

While Massachusetts has steadily made it easier to seal criminal records over the past few decades especially regarding non-convictions, there is still a push for further CORI reform. Last year, CORI reform advocates worked with Massachusetts Representative Elizabeth Malia and Massachusetts Senator Cindy Friedman on House Bill 1783/Senate Bill 1037, “An Act providing for easier and greater access to record sealing,” which required automatic sealing of records that ended in convictions after the applicable waiting periods for both adult and juvenile offenses. Senator Friedman reintroduced the bill this year and it was referred to the Joint Committee on the Judiciary, but no legislative hearings have yet been scheduled. Even though proposed legislation has not gained enough traction in Massachusetts, other states including New Jersey, Michigan, Pennsylvania, and Utah have enacted automatic sealing bills indicating there may be increasing appetite for such legislation.

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