As a result of the increasing difficulties former defendants in criminal prosecutions are facing in obtaining employment and housing because of their criminal records, the Massachusetts Supreme Judicial Court recently ruled to lessen the legal burden on former defendants who wish to have their criminal records sealed after an entry of nolle prosequi or dismissal. This decision effectively opens the door for more individuals to seal their past criminal records, thereby preventing most employers and landlords from accessing their criminal information, and creating more opportunity for obtaining gainful employment and comfortable housing.

In the matter of Commonwealth v. Peter Pon, the defendant was charged with an OUI and leaving the scene of property damage following an accident. After admitting to the facts alleged by the Commonwealth, a Boston Municipal Court judge ordered that the case be continued without a finding for one year and a 45-day license suspension. Since the defendant complied with the conditions of the continuance, his case was subsequently dismissed but a judge denied the defendant’s petition that his records be sealed in order to prevent any employment or housing discrimination resulting from his criminal history. Although the Commissioner of Probation ultimately sealed the records before the Supreme Judicial Court issued its ruling on appeal, the Court nonetheless used this case to reconsider the current law on criminal record sealing and impoundment.

The OLD Standard for determining whether to seal records

Prior to the Peter Pon decision, Massachusetts state courts relied on the reasoning of the Supreme Judicial Court in a case titled Commonwealth v. Doe (420 Mass. 142 (1995)). The Doe decision ultimately adopted the First Circuit court’s ruling that the public has a First Amendment right to access criminal records of individuals who face criminal prosecution. The First Circuit’s decision (published under Global Newspaper Co. v. Pokaski, 868 F. 2d 497), as adopted in Doe, required a defendant to establish that the value of sealing clearly outweighs First Amendment right of the public to access the records. The defendant was also required to show that he risks suffering specific harm if record remains unsealed.

State Legislation Since Doe

Almost twenty years after the Doe decision, the Massachusetts high court decided to lower the bar for defendants seeking to seal a record of a nolle prosqui or dismissal. Finding that the state legislature’s reforms to the CORI legislation in 2010 were intended to protect defendants seeking employment by limiting who and when employers may inquire about their criminal history, the legislature intended to effectively minimize discrimination in the hiring process since criminal records often play a bearing hiring.

The Court also recognized the importance of gainful employment for defendants who have been charged with a past offense from reverting back to committing criminal offenses. According to the Court, one of the keys to a lawful and happy life is being able to find employment that provides a good job, a good wage, and the ability to raise a family, and this vision is promoted through sealing past records. In the Court’s exact words: “Sealing is a central means by which to alleviate the potential adverse consequences in employment, volunteering, or other activities that can result from the existence of such records.”

The NEW, LOWER Standard of Proof

The new legal test articulated by the Court in Peter Pon reflects this understanding and legislative intent. Although the Court keeps the final decision of whether to seal records in the hands of the judge, the Court did provide a very specific outline for judges to follow in assessing whether the state’s interest in removing barriers to opportunities resulting from unsealed criminal records outweighs the public’s interest in accessing those records.

The Court ultimately rejected the First Circuit’s ruling that the public has a constitutional right to access criminal records under the First Amendment, thereby removing constitutional protections from the Commonwealth’s argument against sealing. The Court then ruled that a defendant must only establish “good cause” for sealing the records. In determining whether good cause exists to seal, the presiding judge must balance the public’s interest in accessing the records against the interests of the defendant and the state in keeping the records private in order to reduce recidivism, facilitate reintegration, and ensure self-sufficiency by promoting housing and employment opportunities for former defendants, among other factors.

Big Changes in Procedure

Another important implication of the Peter Pon decision is the procedure by which a record is sealed. The Court in Peter Pon reduced the earlier two-stage hearing to a single hearing on the merits where the judge first determines whether a prima facie case has been made in the pleading, and then hears the arguments from both sides. At the conclusion of his analysis, the judge must make specific findings on the record. This ensures that judges act cautiously in sealing records to ensure that the public’s interest in accessing records is carefully considered.

Because of the enormous impact that a criminal record – even if just a dismissal – could have on one’s future livelihood, it is critical that a defendant inquire about the possibility of sealing his records. While not all records can be sealed, many records – such as the nolle prosqui determinations discussed in Peter Pon – can be protected from the eyes of employers or landlords. Therefore it is important to retain an experienced Massachusetts criminal defense attorney to determine whether you have a case, and to successfully petition the court to seal your records.