Sealing your record.
The existence of any criminal record may be a barrier to employment, housing, professional licensing, and other opportunities for personal and professional success. While there is no such thing as “expunging” a record in Massachusetts, there is a provision for “sealing” of a record.
In Massachusetts, your criminal record is known as your “CORI”.
“CORI” is the acronym for “criminal offender record information.” The state agency responsible for maintaining and disseminating criminal offender record information is the Department of Criminal Justice Information Services (DCJIS). Previously, the Criminal History Systems Board (CHSB) performed these functions. The DCJIS is a department within the Executive Office of Public Safety and Security (EOPSS), which was created by the passage of CORI reform legislation.
For criminal convictions, there is a waiting period before they can be sealed. Misdemeanors can be sealed after five years. Felonies can be sealed after ten years. These are eligible for sealing after the waiting period through an administrative process by mail.
The clock begins at release from incarceration or custody. If the sentence did not include incarceration, the clock begins at the time of disposition (the conclusion of court proceedings) which includes up to the end of probation.
Any intervening convictions reset the clock. If you get a new conviction, the clock is reset for all of your prior convictions.
Note: Sealing does not occur automatically. When a person’s record becomes eligible for sealing (after the waiting period), he or she can apply to have the record sealed by completing a form available through the Office of the Commissioner of Probation, or by petitioning a judge.
A first-time drug possession conviction can be sealed without a waiting period, but the decision is up to a judge.
A criminal charge that ends in a dismissal, nolle prosequi, or finding of not guilty or no probable cause may be sealed by a judge without a waiting period.
The statutory provisions on the sealing of records say nothing about how early one can seek to seal a finding of not guilty, a nolle prosequi, or a dismissal on the CORI. While most individuals file a petition to seal a record after the final disposition of the case, the Supreme Judicial Court has indicated that a judge is permitted to seal the records at the time of the dismissal, acquittal, nolle prosequi, or no-probable-cause finding.
So, you can and should seek to seal the record as soon as it is practical and reasonable, which may be at the time the case is dismissed or otherwise ends favorably. When everyone is on board as to the disposition, you can seize that opportunity; where everyone is not on board, there is no harm in asking for sealing of the case. The assent of the prosecutor, or at least no opposition, improves the client’s chances of sealing the case at the time of the
Grounds for sealing of a criminal record that did not end in a conviction.
Sealing of your record is not guaranteed.
A judge can order sealing of the charges only upon entry of specific findings on the record “showing closure is necessary to achieve a compelling interest.” The value to the defendant of sealing the record must clearly outweigh the constitutionally based value of the record remaining open to the public. The defendant must show that sealing the record furthers “substantial justice” and “that he or she risks suffering specific harm if the record is not sealed.” The judge should consider all relevant information in deciding whether substantial justice would be served by sealing. This includes the reason for the nolle prosequi or dismissal.
Sex offender exclusion.
A defendant who is presently registered as a sex offender is not permitted to seal any adult or juvenile cases through the administrative process (mailing the form to the Commissioner of Probation) while registered as a sex offender. This exclusion does not apply to requests to seal records that ended in a dismissal, nolle prosequi, or finding of not guilty or no probable cause. You can still petition a judge to seal these.
However, ongoing criminal justice system involvement such as sex offender registration, open criminal cases, and present incarceration are likely to be considered by a judge in deciding whether or not to allow a petition to seal a criminal case at the time of disposition or later on.