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SJC says Boston judge erred in denying marijuana expungement

Ruling by highest court in Massachusetts eases path to wipe away old charges

Serge Georges Jr., an associate justice of the Supreme Judicial Court of Massachusetts, questioned an attorney during arguments in March. Georges authored an unanimous opinion that expands access to expungements in the state.Pat Greenhouse/Globe Staff

The Supreme Judicial Court of Massachusetts ruled Thursday that a Boston judge “abused his discretion” when he denied a request by a former defendant to permanently erase legal records of two marijuana possession arrests in the early 2000s.

The unanimous opinion, written by Associate Justice Serge Georges Jr., found that people previously arrested for cannabis crimes that have since been legalized are entitled to “a strong presumption in favor of expungement.” It orders a lower court to grant the request and effectively removes the power of state judges to deny similar petitions, unless they can cite a “significant countervailing concern.”

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“This is huge,” said Pauline Quirion, the lead attorney for Greater Boston Legal Services, who represented the former defendant in the case. “It’s a fabulous decision that reflects basic common sense: It’s clearly unjust to have to carry a criminal record for something that’s no longer a crime.”

By easing the path for other former defendants to obtain expungements, Quirion added, the SJC’s ruling would “help deal with the harm to communities of color that was inflicted by the war on drugs and tough-on-crime policies.”

Thursday’s decision puts new muscle behind a 2018 reform law that nominally allowed former Massachusetts defendants to clear old criminal records resulting from one-off, low-level crimes committed before the age of 21, conduct that is no longer illegal (such as marijuana possession), cases of mistaken identity, or “demonstrable errors” by police, prosecutors, and judges.

Lawmakers at the time hailed the measure as a significant step toward remedying past injustices and stark racial disparities in the state’s criminal justice system, saying the ability to destroy records of long-ago arrests and convictions that still appear on background checks would help former defendants secure jobs, apartments, college admission, and so on.

In practice, however, few people have been able to take advantage of the system. A Globe investigation last year found that just 17 people had successfully expunged past marijuana offenses, a minuscule fraction of the tens of thousands of cannabis-related arrests carried out by Massachusetts law enforcement officers before possession of the drug was decriminalized in 2008.

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Critics attribute the minimal impact of the law to several factors, including a lack of official outreach to former defendants and restrictive eligibility criteria. Another barrier has been a carve-out that allowed judges to reject even clearly eligible expungement applications without explanation by citing a fuzzy legal standard in the 2018 law: whether granting the petition would be “in the best interests of justice.”

That was the obstacle faced by the former defendant at the center of Thursday’s ruling, a man referred to in legal documents only as “K.W.”

In 2019, he sought to permanently expunge marijuana possession charges brought in 2003 and 2006, records of which he had already successfully sealed. (The first charge was dismissed; the second resulted in a guilty plea and one year of probation, a sentence that also reflected two related minor charges that are not eligible for expungement.)

State probation officials determined K.W.’s marijuana records were eligible for expungement, and the office of the Suffolk district attorney — which prosecuted the 2003 and 2006 cases — said it did not object to their destruction. Nonetheless, Boston Municipal Court Judge Jonathan R. Tynes twice denied the petitions, saying only that granting them would not be “in the best interests of justice,” prompting appeals that eventually brought the matter before the SJC.

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The seven-member court acknowledged Thursday that the law’s vague language lent itself to a “nearly endless number of plausible interpretations.” However, the justices concluded that the clear intent of lawmakers was to “make expungement more available where the Legislature has determined that the continued existence of those types of records would be unjust.”

“In light of this legislative directive,” Georges wrote, “it would be a mistake to interpret ‘the best interests of justice’ provision as allowing judges wide latitude to deny otherwise-eligible... petitions for expungement.”

The new ruling directs judges to make detailed written findings when they deny expungement requests, allowing the rejections to be appealed.

And in expungement cases where the records cannot be completely destroyed because they concern other crimes that are ineligible for expungement, other defendants, or may be of use to an ongoing investigation, the SJC said judges should order them to be redacted.

Georges went on to call K.W.’s past charges “canonic candidates for expungement.”

The decision is a “huge relief” for K.W., Quirion said.

K.W. was forced to unseal his marijuana records to apply for the expungements, which cost him an employment offer while the case was pending, she said.

More broadly, Quirion said, the ruling — along with similar provisions in a recent package of revisions to the state’s cannabis laws — will throw open the doors to thousands more expungements of all kinds of criminal records. It will likely also encourage more pro-bono attorneys to take on expungement applications, she argued, since the likelihood of success is now much higher.

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“If you can’t even expunge a little no-brainer marijuana case without spending a million hours in court and writing briefs, it really deters people from trying,” Quirion said. “This is going to help countless people.”


Dan Adams can be reached at daniel.adams@globe.com. Follow him on Twitter @Dan_Adams86.