The Kickham Comment - Boston Criminal Attorney Blog
Many clients have asked me whether they can or should seal a criminal record that they have. While people who have a criminal record might think that sealing that record (if possible) is a no-brainer, it’s not so cut-and-dried. This question is becoming especially popular now that legislation is being weighed at the State House, about reducing the periods of time that persons who have a criminal record have to wait before they can request that those record(s) be sealed.
Almost anyone who has been arrested or arraigned on criminal charges in Massachusetts, even when a case is dismissed or results in a “Not Guilty” verdict, generates a CORI report (criminal offender record information.) Having such a record can often make it difficult for such people to find housing or employment.
To begin with, the current law on sealing criminal, records in Massachusetts is as follows:
- Felony convictions cannot be sealed prior to ten years from the date of conviction. Note: Sex offenses cannot be sealed prior to fifteen (15) years from the date of conviction
- Misdemeanors cannot be sealed prior to five (5) years from the date of conviction.
For anyone who thinks these waiting periods are long, they used to be even longer, several years ago. Sealing criminal records is generally governed by M.G.L. Chapter 276, Sec. 100A and M.G.L., Chapter 276, Sec. 100C.
The process of sealing a criminal record can involve two separate approaches:
- Petitioning the state Commissioner of Probation, who must follow a certain statutory scheme in reviewing the request. A standard form must be used, and the process is done largely by mail.
- In-court petition before a judge: A judge has the authority to seal any cases that were either dismissed or in which an entry of not guilty or a finding of “nolle prosequi” was entered on the docket. “Nolle prosequi” is Latin for saying that the prosecution essentially dropped the case. For dismissals, not guilty findings, and nolle prosequi entries, the typical waiting periods above do not apply. Importantly, for first-time drug offense convictions, a judge can also seal a record so long as the defendant has not violated any court orders relating to a disposition called “Continued Without A Finding” (CWOF,) or violated any probation conditions.
A current proposal up at the State House would shorten the waiting periods to seal criminal records even further, as follows: Persons convicted of a felony-level offense could petition to have their records sealed seven years after the date of conviction, down from the current ten years. Misdemeanor-level offenses could be sealed three years from the conviction date, vs. the current five. Important: What’s the difference between felony and misdemeanor offenses? Felony-level offenses are those crimes which carry a state prison sentence, which is, generally speaking , any sentence that calls for incarceration of more than 2 ½ years. By contrast, misdemeanor sentences allow for a maximum incarceration of 2 ½ years, and that time is served in a county House of Correction (County Jail,) not a state prison. It should go without saying that state prisons are much more severe environments, reserved for felony-level and violent offenders (even though those two are not necessarily the same things.)
As of the date of this post, the above proposed changes in sealing criminal records are the state Senate’s version. The state Senate is currently the more liberal of the two legislative chambers, and its version must now be considered by the House of Representatives, which is more conservative than the Senate.
What should the final version look like? Or should no changes be made at all, to the present law? That, of course, depends on who you talk to. Social service activists and liberals argue that convicts, once they have served their sentence, are hampered too long by having to wait ten years to seal a felony record, or five years to seal a misdemeanor record. Law-and-order advocates, conservatives, and business groups argue that it is important to be able to have access to a job applicant’s, or a housing applicant’s, CORI, before accepting that person as a tenant or hiring that person as an employee
When my clients and others ask me if they should seal a criminal record, my answer always remains: It depends. If someone seals a criminal record and a potential employer or landlord later discovers this, they may react with understandable suspicion and anxiety. The thinking in the mind of such a person goes like this: “I don’t know what this applicant did – but whatever it was, it was apparently serious enough to have him/her seal the record.”
As a criminal defense attorney who has spent over 25 years defending a variety of Massachusetts criminal defendants, including those accused of sex crimes, and drug crimes, I always tell my clients that circumstances mean everything on this issue. If the offense was a serious or violent offense, such as rape, sex offenses, and other serious crimes, it may well be worth sealing the record. If the offense were a less serious, misdemeanor-level offense, sealing a record may cause more problems than it ‘solves.’ You don’t want to raise even more doubts about yourself. If the crime you were convicted of was a misdemeanor that you can adequately explain to a potential employer or similar, honesty is often be the best policy.