By Jennifer S. Lynn
Massachusetts circulates criminal record information through a report known as a “CORI” (Criminal Offense Record Information). This report lists all criminal charges filed against an individual. A CORI will include all offenses, whether they ultimately result in a conviction or non-conviction, and are accessible by potential employers, landlords, and the public, to varying degrees, until the individual takes steps to seal their CORI. Within the last several years, the Commonwealth enacted the CORI Reform Act, which has changed who may access a CORI, what levels of access is available the person or entity requesting the CORI, and how records are sealed.
Impact of CORI Records Which Have Not Been Sealed
Under the new CORI standards, all employers, housing providers, professional licensing authorities, and volunteer organizations may generally access a CORI for (1) criminal charges which are pending, (2) felony and misdemeanor convictions which are too recent to have “timed out” and may not be administratively sealed, (3) convictions which have not been sealed, even if they are eligible for sealing, and (4) convictions for murder, manslaughter, or certain sex offenses, unless they have previously been sealed. Employers, volunteer organizations, and local government agencies who work with “vulnerable populations,” such as children, elderly, or disabled, have access to all pending offenses, convictions, and non-convictions, with the exception of any sealed records. Furthermore, general members of the public are free to request CORI access and may access (1) convictions for murder, manslaughter, or certain sex offenses, unless they have previously been sealed, (2) misdemeanor convictions that were disposed of less than one year prior to the request, (3) felony convictions that were disposed of less than two prior to the request, and (4) felony convictions for crimes punishable by five or more years in prison, which were disposed of less than ten years prior to the request.
What Does All This Mean for You
By taking steps to seal your CORI, you may prohibit an employer, housing provider, or other organization from gaining access to sealed criminal record information. Criminal charges will only be removed from your CORI once they are eligible and are sealed. Completing the sealing process is an effective step to take in order to secure both employment and housing. If you are eligible to completely seal your record, you gain the additional benefit of being able to answer “no record” when applying for jobs or housing.
How to Seal Your CORI
Even after the CORI Reform Act was enacted, it is still the individual’s duty to actively seal charges from their CORI. Charges may be removed from your CORI by obtaining either an administrative sealing through the Office of the Commissioner of Probation or a discretionary sealing from the Trial Court which originally prosecuted each offense. The availability of either option depends on the circumstances of how, and when, each criminal offense was ultimately terminated.
Misdemeanors vs. Felonies
In Massachusetts, misdemeanors are generally classified as a crime punishable by up to two and one half (2 ½) years in county jail or a house of correction or a fine up to $1,000, or both. The statute governing each misdemeanor provides the exact sentencing information for the crime. Crimes not classified as a felony, under the relevant statute, are considered to be a misdemeanor.
Felonies are generally categorized as a crime punishable by death or by incarceration in a state prison. At this time, Massachusetts does not have a death penalty, so the highest penalty for a felony conviction is life in prison, without the possibility of parole. The statute governing each felony will also provide sentencing information for that crime.
Applying to Administratively Seal Convictions and Non-convictions
Administrative sealings are performed in accordance with the terms of G.L. c. 276, § 100A and may be used to seal both convictions and non-convictions which are considered to have “timed out” under the statute. A criminal charge has “timed out” once the required wait period has passed. The wait period for sealing starts at the time of entry of the final disposition for the offense or at the time of release from incarceration. In order to qualify for an administrative sealing, felony charges must have been disposed of at least ten years prior to the date of application to seal. Misdemeanor charges must have been disposed of at least five years prior to the application to seal. Applications to administratively seal are submitted to the Office of the Commissioner of Probation and will be granted so long as all statutory requirements are met.
Applying to Discretionarily Seal Non-convictions Which Have Not “Timed Out”
Discretionary sealings are available pursuant to G.L. c. 276, § 100C and may be used to seal non-convictions prior to the five or ten year wait period. Section 100C permits the Court to seal a criminal charge, which resulted in a non-conviction, as early as the time the disposition is entered or at any point thereafter. Sealing criminal charges under this section is more time consuming and complicated than an administrative sealing, at it requires filing a motion and arguing to the Trail Court why you deserve to have charges removed from your CORI. However, it provides the benefit of removing non-convictions from your CORI without having to wait years for those charges to time out. This process is particularly beneficial for individuals who would otherwise have not have an accessible CORI and are attempting to volunteer or work with a “vulnerable population” (see discussion above).
Section 100C authorizes sealing a non-conviction where “substantial justice would best be served” by sealing the criminal charge. However, this standard is not defined by the statute. As a result, the Supreme Judicial Court of Massachusetts provided interpretative analysis of this phrase and has set the standards for when CORI records may be discretionarily sealed. Recently, the Supreme Judicial Court altered the requirements for granting discretionary sealings by lowering the standard a petitioning individual must meet.
Under the new standard for discretionary sealings, substantial justice is served once it is demonstrated that you have a “good cause” for the Court to seal your non-convictions. The Court will balance the public’s general right to access public records, in order to hold the government accountable, against your interest, and the government’s, in keeping information private. In weighing these factors, the Court is free to consider any relevant information presented and is encouraged to consider a variety of factors including any disadvantages associated with the availability of your CORI, evidence of rehabilitation, the amount of time passed since the offense was committed, and the nature/reasons for the disposition.
The process of obtaining a discretionary sealing varies substantially from that of the administrative sealing. In order to seal non-convictions before the charges “time out,” you will be required to petition the Court, in person, to seal all eligible charges. In order to present the best possible argument to the Court, it is advised that you file a written motion, and supporting affidavit and exhibits, with the Court prior to your hearing date. The motion and affidavit are used to demonstrate the burden the CORI has imposed on you and argue why you meet the standards for sealing. Whether or not you decide to file a motion and affidavit with the Court, it is required that you appear for a hearing, after notice is given to the public, to allow the Court to determine if the charges should be sealed. Filing for a sealing and appearing before the Court is the only way to seal non-convictions prior to passage of the five or ten year wait periods.
Results of Sealing Charges from Your CORI
By taking steps to seal criminal charges from appearing on your CORI, you gain the advantage of prohibiting others from accessing portions, or possibly all, of your record. Given the accessibility of criminal record information, employers and housing providers in the Commonwealth regularly conduct a CORI check prior to offering a position or housing to an individual. Additionally, it has become increasingly popular for general members of the public to search for criminal information about others they commonly interact with, such as co-workers, neighbors, babysitters, or for social/dating purposes.
The above information is meant to provide a general summary of the CORI Act and the process of sealing criminal records. Because each case presents a different set of facts, the process and outcome of attempting to seal CORI records will vary depending on the circumstances. If you are uncertain about anything in the process of sealing your criminal record, you should contact an attorney to ensure the necessary steps are taken to achieve the best possible outcome.