Pauline Quirion

Greater Boston Legal Services

March 20, 2018

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CORI BASICS

CORI Barriers

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Housing

Jobs

Driving and trade licenses

Training and education

Legal immigration

Adoption

Foster parenting

Child custody

Admission to programs

Pending CORI Legislation

Reform of laws to get people backto work, reduce recidivism, andbarriers to opportunity.

Shorten waiting periods to sealcriminal cases.

Increase felony larceny thresholdto $1500.

Make resisting arrest convictionssealable.

Eliminate unfair fees for the poorand other barriers.

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Changes in the Law Can seal decriminalized

marijuana offenses by mail.

Drivers licenses no longersuspended for drug convictionsand convictions removed fromdriving record.

Sex offender registry status nolonger a bar to sealing cases thatare not sex offenses. Someformer level 2 or 3 registrantscan now seal. Koe v. Comm'rof Prob., 478 Mass. 12 (2017).

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Racial DisparitiesMedia and officials focus on MA having lower incarceration thanother states, not on rates of people of color in jail or prison.

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Blacks are 7% of MApopulation and 26%of those incarcerated.

Blacks and Hispanicsare over 50% ofthose incarcerated,but only 17% of theMA population.

www.prisonpolicy.org/profiles/MA.html

Extent of the CORI Problem

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The number of people with

criminal records has reached

epidemic proportions.

Nationally, as many as 1 in 3people and over 100 millionpeople have criminal arrestrecords on file in a staterepository.

Sources: Bureau of Justice Statistics. Survey of Criminal History Systems, 2012 (USDept. of Justice 2014). U.S. Dept. of Justice Bureau of Statistics (2007); Pew Centeron the States, One in 100: Behind Bars in America 2008 (2008); The AttorneyGeneral's Report on Criminal History Background Checks (U.S. Department of Justice,Office of the Attorney General, June 2006).

Racial DisparitiesMedia and officials focus on MA having lower incarceration ratesthan other states, not rates of people of color in jail or prison.

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• Blacks are 7% of MApopulation and 26%of those incarcerated.

• Blacks and Hispanicsare over 50% ofthose incarcerated,but only 17% of theMA population.

www.prisonpolicy.org/profiles/MA.html

Getting Ready for Sealing

Get certified copiesof the complaint,docket beforesealing in case youneed them later.

You can no longeraccess your file atcourthouse aftersealing.

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Check if You Can Re-OpenConvictions Before Sealing

Dookhan and Farak drug lab scandals.

CPCS has special unit to re-open drugconvictions between 2003 and 2012.

Convictions or CWOF can be groundsfor removal or deportation as well asloss of jobs and other opportunities.

CPCS has forms online to help clients.

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How Can I Seal My Cases?There are two ways to seal most cases:

Through probation by mail after a 10year wait for a felony and a 5 yearwaiting period for a misdemeanor (G. L.c. 276, § 100A), or

by a judge without a waiting period incourt in some types of cases. (G. L. c.276, § 100C).

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Cases That Can Be Sealed inCourt Without Waiting

A judge in the court that handled the criminal case hasthe power to seal:

(a) any case where you were found not guilty;

(b) any case that was dismissed or ended in a nolleprosequi (a case dropped by the District Attorney); and

(c) a first time drug possession conviction where theperson did not violate any court orders connected tobeing on probation such as going to drug treatment ordoing community service.

Statutory Authority: G. L. c. 276, § 100C; G.L. c. 94C, §§ 34, 44.

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Court Process to Seal Cases The process to seal cases in court is

free under G.L. c. 276 Section 100C.

It involves filing a petition to seal andgoing to court for 1 or 2 hearings.

Limited to District Court, SuperiorCourt and Boston Municipal Court.

No sealing of federal court or out-of-state case sealing cases.

What to File in Court

Petition to seal in court whichhandled the case. See exception:Boston Municipal Court StandingOrder 1-09.

Affidavit (preferable).

Often helpful to file support letters,certificates, favorable documents.

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Petition Form

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Petition Form

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One or two hearings

Some courts may require a preliminaryhearing and a second final hearing.

Others will hold a single hearing.

The SJC sanctioned use of a onehearing process in Commonwealth v.Pon, 469 Mass. 296 (2014).

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Public Posting

Courts must post notice of a final hearing on asealing petition at least 7 days before the hearing.Commonwealth v. Doe, 420 Mass. 142, 150 (1995)(“notice should be afforded by means of posting in aconspicuous place at the court for an adequateperiod sufficient (we suggest a minimum of sevendays) ‘to give the public and press an opportunity tointervene and present their objections to the

court.’ ”)

The posting is in or near the clerk’s office.

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Legal Standard

It is easier to seal cases.

In Commonwealth v. Pon, 469 Mass. 296(2014), the SJC overruled prior case law andlowered the legal standard for sealing of cases to“good cause.”

The prior standard created by case law wasonerous and required former defendants to showthat the value of sealing the records clearlyoutweighed the First Amendment protected rightof the public to have access to the record.

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Legal Standard (cont.)

The SJC gave guidance in Pon as to how judgesshould approach criminal sealing cases.

Previously, clients often struggled to show there was“a compelling state interest” in sealing their cases.

The SJC said the Commonwealth has “compellinggovernmental interests in reducing recidivism,facilitating reintegration, and ensuring self-sufficiencyby promoting employment and housing opportunitiesfor former criminal defendants.”

The SJC said there is a compelling state interest inparents being able to support their children.

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Guidance in Com. v. Pon

For the first time, the SJC said judges may takejudicial notice that the existence of a criminal record,regardless of what it contains, can present barriers tohousing and employment opportunities.

Petitioners no longer have to prove a “risk of specificharm” or link a particular charge on their record to aspecific harm. “It is unrealistic . . . to require adefendant to prove causation . . . and instead, weentrust the assessment of a plausible relationshipbetween CORI availability and the alleged adversity .. . to the sound discretion of the judge.”

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Burden of Proof: a Present orForeseeable “Disadvantage”

After Pon, petitioners can meet the burden of proof ifthere is “good cause” which entails a present orfuture foreseeable “disadvantage” that stems fromthe CORI that is credible. Factors to consider:

risk of unemployment/underemployment related toCORI;

housing problems or risk of homelessness related toCORI;

use of CORI by employers in one’s presentoccupation or desired occupation;

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Factors and Evidence of aDisadvantage (continued)

Potential for “reduced opportunities for economic orprofessional advancement” due to CORI availability;

receipt of public assistance for oneself or one’s familydespite efforts to get a job;

denial of or impeded ability for participation involunteer or community activities;

amount of time since the offense or arrest (a greateramount of time favors sealing);

sobriety and rehabilitation efforts of the petitioner;

efforts at self-improvement by the petitioner;

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Factors and Evidence of aDisadvantage (continued)

Work efforts and community contributions;

successful completion of probation;

lack of further contact with the criminal justice system;

other accomplishments or evidence of rehabilitationafter the date of the offense;

circumstances at the time of the offense (e.g. youthmay be a mitigating factor); stigma or stereotypesattached to a particular offense if the defendant will notpose an additional safety threat to the community; and

reason for the disposition.

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Courtroom Process

Judge will have CARI report.

Not unusual for prosecutor to objectespecially if violent offense.

Order needs to signed by both judge,probation and mailed to Commissioner.

If you lose, motion to reconsider orappeal due within 30 days.

Re-filing a petition allowed if you lose.24

Rights after Sealing Records

If employers ask for information that involvesyour sealed cases, you may answer that youhave “no record” with regard to those sealedcases. G.L. c. 276, § 100A.

The law requires clerks’ offices and probationto report “no record exists” to all who askabout a record, except for “any lawenforcement agency,” “any court” or“appointing authority”–-meaning those whoare given special access to sealed recordsunder the law. G.L. c. 276, § 100A.

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Access to Sealed RecordsThe law permits only certain employers and state agencies to getinformation about sealed records. For example:

Criminal justice agencies (police, probation, courts, etc.) can seesealed records.

The Department of Early Education and Care sees sealedrecords in the hiring process.

The Department of Youth Services & the Department ofChildren & Families see sealed records if you try to adopt orbecome a foster parent.

Juvenile records and most sealed adult criminal records may beconsidered at the time of sentencing if you are found guilty in alater criminal case.

Sealed adult criminal records may be used in restraining orderand Probate and Family Court cases after review by a judge ifrelevant to safety of a child or party or custody or visitation.

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Anti-discrimination Protections

It is illegal for an employer or any other screener torequest that applicants bring a copy of their CORI.

“Ban the Box” makes it illegal for most employers toask about criminal records on an initial jobapplication. MCAD takes complaints about Ban theBox violations and enforces the law.

The employer or landlord has to provide a copy ofthe CORI report before asking questions about it.

If you are rejected due to CORI by the employer orlandlord, they must provide you a copy of the reportthey used and information on how to correct errors.

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Federal Law on theDisparate Impact of Records

The U.S. Equal Employment Opportunity Commission (EEOC) has indicated thatblanket hiring policies that automatically reject any job applicant with a criminalrecord are discriminatory and are likely to violate civil rights laws. This isbecause using criminal records as a reason not to hire workers has a “disparateimpact” (a greater effect) on racial minority groups.

Hiring or firing policies that reject all workers with criminal records violate TitleVII of the Civil Rights Act of 1964 unless the employer can show it is necessaryfor the business to do so or a particular law makes the person ineligible for thejob. The EEOC cautions employers that they should conduct an individualizedassessment that considers the age of the offense, the seriousness of theoffense, and the relationship between the type of offense and the job.

The EEOC explains this topic in more detail on its web site.

Thank You!

It takes a villageto give people asecond chance toovercome theirCORI.

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