A Primer On Expunging Criminal Records

Issue May/June 2022 June 2022 By Peter Elikann
Criminal Justice Section Review
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Peter Elikann

Until the criminal justice reform bill of 2018, there was virtually no expungement of criminal records in Massachusetts, unlike a number of states, such as neighboring Connecticut, where expungement can often be automatic after a period of time without even being requested. It has long been possible to eventually get some records sealed in Massachusetts, but sealing is different than expungement. A sealed record is saved and continues to exist and, while hidden from individuals and most employers, it can be accessible to law enforcement agencies, the courts, Probation, and certain state agencies, such as those monitoring adoptions, foster care and child care. On the other hand, an expunged record is intended, through permanent erasure, to wipe any trace of the criminal record off the face of the earth forever, so to speak.

Yet, once it became law, the number of people applying for expungement has been startlingly low. Reasons for that have ranged from insufficient outreach, so the average ex-defendant is not even aware such a thing as expungement exists, to the theory that few people know how to go about the actual application procedure. 

However, another difficulty exists. Of those who have, in fact, applied for expungement, it has been reported recently that only 16% have been successful. This can be attributed to the fact that the criteria are so narrow that most applicants do not qualify. Also, by the time the application for those found to be eligible works its way through the process, the granting of it is left to the complete discretion of the judge based on the standard of “the best interests of justice.”

Expungement is available in limited circumstances for a limited number of less serious offenses for juvenile offenders and those under the age of 21 after a period of time has elapsed. Additionally, a second kind of non-time-based expungement can be available in a very narrow group of circumstances, including for those adults who were charged as the result of mistaken identity; for those who were innocent; for those charged with offenses that have since been decriminalized, such as possession of marijuana; and for other miscarriages of justice, such as, for example, cases that were dismissed due to the drug lab scandal, police misconduct or fraud. See M.G.L. ch. 276 §§ 100E-100U.
The procedure for juveniles, youthful offenders and those under 21 is as follows:

  1. A person who, as a juvenile or young adult under the age of 21, has a record of no more than two convictions (multiple offenses arising out of the same incident shall be considered a single offense), including no subsequent convictions (other than for some motor vehicle offenses not exceeding a fine of $50), may file a petition for expungement with the Office of the Commissioner of Probation. The petition is a form provided online. There is no filing fee.

  2. In the petition, the petitioner certifies that, to the petitioner’s knowledge, the petitioner is not currently the subject of an active criminal investigation by any criminal justice agency. 

  3. In the case of misdemeanors, the petition may be filed no earlier than three years from the disposition (even including a dismissal), probation or release from incarceration, whichever is later. For a felony, the waiting period is seven years.

  4. More than 20 categories of offenses are excluded. Among these are any offenses resulting in or committed with the intent to cause death or serious bodily injury; offenses committed while armed with a dangerous weapon; offenses against an elderly or disabled person; sexually violent offenses; a sex offense involving a child; restraining order violations; operating under the influence; sex offenses by a juvenile; firearms cases; cases centering around safety during divorce proceedings; harassment prevention orders; assault and battery on a family or household member; and almost any crime of violence. M.G.L. c. 276 § 100J. 

  5. Once filed, the Office of the Commissioner of Probation conducts a vetting process to determine eligibility against all the requirements, including interstate criminal record checks.

  6. If one was not convicted or adjudicated for the offense, the commissioner has 30 days to review the petition and, if it appears the defendant may be eligible to expunge his or her records, a copy of the petition is sent to the district attorney (D.A.), who has 30 days to object. If the defendant was convicted, or adjudicated to be delinquent or a youthful offender, the timeline is 60 days, not 30 days. 

  7. Within 65 days of the objection or no response from the D.A., the commissioner sends the petition to the court that handled the case. If there is an objection from the D.A., the court must hold a hearing within 21 days. If there is no objection by the district attorney, the court has the option to allow the petition based solely on the submitted paperwork or to conduct a hearing.

  8. A judge rules on the petition based on the discretionary standard of “best interests of justice.” Written findings of fact must be made. The judge may consider how long it has been since the charges were filed, potential hardships if the record is not expunged, the defendant’s age when charged, seriousness of the offense, rehabilitation undergone, and community service.

  9. Although almost all offenses committed from age 21 or older are ineligible for expungement, there are a very few narrow exceptions for the second kind of expungement — a non-time-based expungement — when there exists “clear and convincing evidence” that the adult offender was charged as the result of mistaken identity; for those who were innocent and charged by fraud or other demonstrable error; for those charged with offenses that have since been decriminalized, such as possession of marijuana; and for other miscarriages of justice, such as fraud or law enforcement misconduct.

  10. If the petition is successful, an order is forwarded to the court clerk and the commissioners of both Probation and the Department of Criminal Justice Information Services (DCJIS). The records of the court and criminal justice agencies (police, Probation, Department of Youth Services, Department of Children and Families, etc.) for the case must then be destroyed. The law requires the DCJIS to send the expungement order to the FBI and the Department of Justice with a request that they too expunge their records. 

  11. After expungement, one can legally reply they have “no record” if questioned in any legal proceeding or by any potential employer in any application or interview.

  12. Before seeking expungement, one is advised to get numerous certified copies of their record since, if successful, such a record may not exist if it is ever needed by the individual. This is because, while one’s statewide criminal record is expunged and notification is sent to the FBI to also expunge their record of it, it has not yet been established whether the FBI can always be relied upon to abide by the state court ruling. Also, if one is not a citizen, they should speak with an attorney on whether to seek expungement. This is because, if the FBI still has the record, it may be incomplete and, for example, the FBI may not know that the charge was dismissed, in which case the defendant would have no way to prove it. 
Critics complain that the current expungement statute as drafted is so rigid in its qualifications that few are eligible for expungement, and so it is anticipated that more legislation will, at the least, be proposed to expand and widen the net for increased eligibility. 

Peter Elikann is a member of the Massachusetts Bar Association’s Executive Management Board, House of Delegates and Criminal Justice Section Council. He practices criminal defense law, is an instructor at Bridgewater State University, and is a legal analyst for Boston 25 News.