Leonardo Angiulo: Changing the Standard for Sealing Criminal Records in MA

Monday, August 25, 2014

Leonardo Angiulo, GoLocalWorcester Legal Contributor

August can be a slow time for some people. For the Supreme Judicial Court, however, it is just another month for business. Take the August 15, 2014 case of Commonwealth v. Pon as an example. While everyone else was going back to school shopping, the justices of the SJC were writing a 46 page ruling that could make it a little easier for some people to find jobs and get on with their lives.

We can all agree that employers, professional licensing bodies, landlords, and even some volunteer organizations want to do criminal background checks before being involved with a person. For those out there with criminal records, this can be a major stumbling block to moving forward themselves or helping their family get ahead. Some people find the situation so uncomfortable that they never even try and may find themselves underemployed or worse.

At the heart of our district and superior courts is the probation department. The staff of those offices work hard with their probationers to meet the dual goals of public safety and rehabilitation. The ultimate goal, of course, is to help defendant's lead productive and successful lives after being under supervision.

In recognition that people make mistakes, and that criminal records can have significant consequences for even first time offenders, the Massachusetts procedures for sealing records have developed significantly over the past several years. Since May of 2012, the terms of the sealing statute found in MGL c. 276, §100C were expanded and more people became eligible to apply. As the law reads now, whenever a person's case is dismissed a judge may order the record sealed if “substantial justice would best be served.” Interestingly, there are several ways cases get dismissed, but one of the more common in Massachusetts is if a defendant admits to sufficient facts, their case is continued without a finding, and a dismissal enters after successfully completing a term of probation.

What's Changed -- and What Hasn't

The court's opinion in Commonwealth v. Pon does not change who is eligible to have their record sealed, but it does affect what evidence is required for a court to act in a defendant's favor and how the process occurs. Until now, a sealing under 100C could only occur when it was “necessary to effectuate a compelling governmental interest.” The court chose to modify this standard after thoroughly outlining the recent legislative history, relevant Constitutional principles, as well as public policy concerns regarding the need for public access to records and the importance of sealing.

The court now requires a defendant show “good cause” to justify a court using its discretion to seal a record. Whether this new standard is met requires a judge to balance the common law principles of public access with the defendant's interest in having privacy. Some of the factors that may be used to support a defendant's interest include disadvantages caused by the record being available, evidence of rehabilitation, behavior over time indicating potential for recidivism or success, and even the reasons for the underlying case being dismissed. Importantly, even if the balance falls in the defendant's favor and a record is sealed from the public, members of law enforcement and the courts will still be able to see a person's criminal history no matter the outcome of such a hearing.

The second change the court made is unifying the procedure for hearings across the Commonwealth. The previous protocol required a defendant to file an application, present themselves for an initial hearing with a judge acting as preliminary gatekeeper, and then return for a subsequent hearing after the application had been published giving members of the public an opportunity to object. The new process takes some of the old principles, giving notice to interested parties and the public, as well as simplifying the hearings. Now, a judge reviews the application and decides whether or not an initial showing of good cause is made from the papers. If it is, the appropriate notice is generated and a defendant appears at a single hearing to state their case.

This new standard has the potential to help many people who have put in the effort to move past their mistakes. Where the balancing test focuses on limited court involvement, evidence of rehabilitation and evidence that sealing will help a person achieve their goals there should be no question that this discretionary act on the part of judges will not be automatic. In that way, this could be seen as a reward to those people who internalize the lessons that come from court involvement.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected].

Related Slideshow: 10 Big Companies with Recent Major Security Breaches

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Global Payment Systems

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Zappos

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Adobe Call Center: 1-800-833-6687

For more information, MA residents may contact the Consumer Protection Division at the Office of Attorney General at 617-727-8400 or by email at [email protected].

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Target

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For more information, MA residents may contact the Consumer Protection Division at the Office of Attorney General at 617-727-8400 or by email at [email protected].

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Neiman Marcus

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Yahoo Call Center: 1-800-318-0612

For more information, MA residents may contact the Consumer Protection Division at the Office of Attorney General at 617-727-8400 or by email at [email protected].

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For more information, MA residents may contact the Consumer Protection Division at the Office of Attorney General at 617-727-8400 or by email at [email protected].