Second Chances: Implications of Massachusetts’ New Criminal Record Sealing Law

February 20, 2012

On May 4, an amendment to M.G.L. c. 276 s. 100A will significantly relax the requirements for sealing a criminal record. As a criminal defense attorney, I anticipate the potential stream of business from individuals looking to finally put their pasts, in the past, for good. From trivial poor choices to first-degree felonies, everyone makes mistakes and has regrets. But it is only with time for reflection, along with opportunity, that people can grow and better themselves. I trust that this amendment will provide second chance opportunities to many who had previously counted themselves out.

Under the current law, a person convicted of a misdemeanor must wait at least ten years from any misdemeanor conviction, all court supervision, probation, and the completion of any sentence before his or her record may be sealed upon request. A felony conviction requires a fifteen-year waiting period from all such court contact.

As of May 4, 2012, the required waiting period to seal a misdemeanor conviction will be cut in half, to five years, and a felony conviction may be sealed after ten years. Additionally, under the new amendment, the waiting period begins from either the time of conviction or release from incarceration; probation no longer tolls the start of the waiting period. This is a significant advantage for anyone seeking to seal his or her record after serving a lengthy probation sentence. For example, if an April 2007 misdemeanor conviction resulted in a five year term of probation, under the current law, the person would have to wait until 2022 before requesting to seal the record (five years of probation from date of conviction, plus applicable waiting period). Now, on May 4, the person can walk into court and have his or her misdemeanor conviction sealed that day.

I expect this law to cause initial concern among the general public, stirring up thoughts of convicted felons working in law enforcement, or sex offenders teaching our children. If I thought the new amendment had the potential for such unintended consequences, I would be outraged as well. But even with the amendment to s. 100A, the safeguards and exceptions remain in place. Crimes against public justice, such as perjury, escape from prison, resisting arrest, and public official corruption, as well as firearms offenses, are excluded from being sealed under M.G.L. c. 276 s. 100A. Sex Offenses require a fifteen-year waiting period from any and all court supervision and probation before such records may be sealed, and any level 2 or level 3 Sex Offender is prohibited from having any sex offenses sealed.

Further, the statute provides for sealed records to be “unsealed” in specific circumstances. As of May 4, records may be unsealed to be used as evidence in custody or child visitation hearings, abuse in restraining order proceedings, and for sentencing in subsequent criminal proceedings. Under M.G.L. c. 6 s. 172, certain requestors of criminal offender record information (CORI) are provided access to sealed records, including firearm licensing authorities, foster home agencies, law enforcement, and school departments or other organizations working with children. So the entities that protect the public and are entrusted with the care of our children still have unfettered access to all criminal record information; even sealed records. In fact, M.G.L. c. 71 s. 38R requires school districts to conduct criminal background checks on any employees, contractors, and volunteers who may have direct and unmonitored contact with children. The affirmative, mandatory CORI checks should promote public confidence and reinforce the notion that our children’s safety comes above all else.

With the statutory exceptions to record sealing, we can alleviate the fear of having the most violent and predatory criminal offenders gaining access to firearms and employment that might jeopardize public safety. The amendment to M.G.L. c. 276 s. 100A was not intended for, and still protects us from, such results. The beneficiaries of the amendment are otherwise law-abiding people, and their families, whose lives have been stifled by convictions from several years prior.

While a person with a criminal record will still be prevented from pursuing certain jobs and careers, there is no reason to prevent someone, several years after a minor conviction, from finding a job and finally becoming a contributing member of society. A person with one minor misdemeanor conviction should not have to wait as long as a person convicted of a felony before applying to seal his or her record, and the new law still recognizes that premise. As a former prosecutor, I am well aware that most new criminal cases are brought against defendants who already have several prior arrests or convictions on their record. This amendment was not drafted to protect the career criminal. It was drafted in a way that allows the 23 year-old college graduate trying to start a career to not be prevented from doing so by the disorderly conduct conviction he received in high school, at 17 years old. It allows for someone who was convicted of a violent offense twenty years ago, and who subsequently served ten years in prison as a twenty year-old, from now obtaining employment at age forty in order to feed his family. After twenty years to reflect on his mistake and grow as a person, this amendment could provide hope for a second chance, where he might otherwise have given up. This man is grateful for his chance at a fresh start; and so is his family.