A criminal record — or even an accusation long ago dismissed — can be the gift that keeps on taking. Taking away opportunities for a good job, an apartment, a loan.
Layered with the racial disparities in the state’s criminal justice system, disparities confirmed by a 2020 Harvard Law School study, the way Massachusetts deals with criminal records can confine tens of thousands to a life lived on the edge — the edge of poverty, of menial employment and substandard housing.
As a community, Massachusetts must be better than this, especially when the solutions are so apparent in a handful of bills that could truly make a difference, offering a fresh start to thousands by sealing —removing from public access — or permanently expunging records.
It has been nearly eight years since the state’s highest court ruled, “Given the evidence of the long-term collateral consequences of criminal records, judges may take judicial notice that the existence of a criminal record, regardless of what it contains, can present barriers to housing and employment opportunities.” The 2014 ruling set a new, lower bar for sealing criminal records and described the balancing act that judges needed to engage in to set that in motion.
Four years later that standard of being “in the best interests of justice” became part of the state’s landmark 2018 Criminal Justice Reform Act.
Today, four more years have passed and yet the courts and the Legislature continue to wrestle with making the promise of that law a reality.
The Supreme Judicial Court returned to the issue earlier this month in a case involving a Dorchester District Court judge’s denial of an expungement request by a defendant for two sets of records involving possession of small quantities of marijuana dating back more than 15 years.
Katy Naples-Mitchell of Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice, who filed an amicus brief on the issue, made the case, in an interview with the Globe editorial board, that the judge’s denial wasn’t “in the best interests of justice” as demanded by the law. It “didn’t address the harms to employment or housing,” nor did it “pay conscientious attention to the racial implications” of the state’s expungement law and “the history of disparate enforcement.”
A second case is also pending in the Appeals Court involving a Vietnamese immigrant who was falsely identified (by his own brother) in a drug sting back in 2003 and also went into Dorchester District Court to get his record expunged.
The judge’s ruling said only, “The court does not believe that destroying all records of this offense is in the interest of justice.”
An amicus brief filed in that case by Lawyers for Civil Rights argues, “Maintaining a false record furthers no legitimate judicial interest and is harmful to the Appellant’s ability to gain meaningful employment” — one of the “collateral consequences” the 2018 law was intended to address. Joining in the brief were organizations representing minority firefighters and minority police officers — groups whose mission of recruiting minority personnel to those professions is often hampered by minor — and long past — criminal infractions still on a recruit’s record.
The 2018 statute made a number of improvements in the law, shortening the time period, in many cases, before defendants could ask for expungements (crimes of violence do not come under that law and are not eligible for expungement). The law also allows immediate expungement for cases involving offenses that are no longer a crime, such as the possession of small amounts of marijuana and cases involving fraud or misidentification.
But the system is still fraught with red tape even for cases that didn’t end in a conviction.
And that’s where the Legislature can help to set things right.
One bill given a hearing by the Judiciary Committee in December would provide for the immediate and automatic sealing of any non-conviction at the time of the disposition of the case. Some lawyers have noted that it’s often more difficult to seal a non-conviction than an actual conviction.
Another bill provides for the automatic sealing of a record for all of those crimes eligible under the current law and in the time frames already set. Other bills propose the sealing of juvenile records automatically after three years.
None of these ideas are new or radical. “Currently, 20 states have at least one statutory automatic record clearing provision,” according to the National Conference of State Legislatures. Some states — Michigan, New Jersey, Pennsylvania, and Utah — have enacted “clean slate laws” that provide for automatic record clearing for non-convictions and, over time, for certain convictions (but not including crimes of violence). The Michigan law, for example, provides that, in cases dismissed before trial, all biometric data, fingerprints, and the arrest record will be expunged from the criminal records database.
Ah, yes, the database. Therein lies another problem in bringing the Massachusetts criminal justice system into the 21st century.
In a recent letter to the chairmen of the Judiciary Committee, Probation Commissioner Edward J. Dolan wrote that his agency “fully supports the practice of sealing and expungement, as it serves our mission of assisting individuals and families in achieving long-term positive change.”
Yet there was also a big “but” in Dolan’s letter, and that’s the need to continue “modernizing and standardizing data management across the criminal justice system.” He went on to describe a system — or rather multiple systems — that aren’t yet integrated. “In short,” Dolan wrote, “we cannot seal or expunge a record we cannot find.”
It’s a shocking admission — especially in a state that is hardly a technology backwater. It’s also an admission that cries out for more resources to build that infrastructure — it is state budget time, after all. A good system — singular — can aid law enforcement and at the same time help those seeking the kind of clean slate that will allow them to get on with their lives. The technology and the policy have to go hand in hand.
But at the heart of the issue are still flesh and blood human beings waiting for that chance for a new beginning, an opportunity that has been promised again and again by the courts, by the Legislature, and yet still remains unfulfilled.
Correction: An earlier version of this editorial mischaracterized the records a defendant in a marijuana case at Dorchester District Court seeks to expunge. There are two sets of records.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.