A. Civil Rights
“Persons who are incarcerated in a correctional facility due to a felony conviction” may not vote. Mass. Const. Amend. Art. 3 (as amended in 2000). A person sentenced to imprisonment for a federal or state felony forfeits any public office he currently holds. Mass. Gen. Laws ch. 279, § 30. Otherwise, conviction presumably does not affect the right to run for and hold future public office.
B. Jury service
Persons are disqualified if convicted of a felony within the past seven years, or in the custody of a correctional institution (including misdemeanants). Mass. Gen. Laws ch. 234A, § 4(7). The right to serve on a jury is automatically restored seven years after completion of sentence for felony offenders, and upon release for misdemeanants. However, a person convicted of a felony may still be challenged on voir dire.
Anyone convicted in any jurisdiction of a felony or serious misdemeanor, or of a violation of any drug law, may not obtain a license to carry a firearm, or a rifle or shotgun. Mass. Gen. Laws ch. 140, § 131(d)(i) (prohibition applies to anyone “convicted or adjudicated a youthful offender or delinquent child for the commission of (a) a felony; (b) a misdemeanor punishable by imprisonment for more than two years; (c) a violent crime as defined in section 121; (d) a violation of any law regulating the use, possession, ownership, transfer, purchase, sale, lease, rental, receipt or transportation of weapons or ammunition for which a term of imprisonment may be imposed; or (e) a violation of any law regulating the use, possession or sale of controlled substances . . .”) Any person prohibited from obtaining a license under § 131(d)(i), except someone convicted of trafficking in a controlled substance or a violent offense, may be issued a Firearm Identification Card necessary to possess a rifle or shotgun five years after conviction or release from confinement, whichever is later. ch. 140, § 129B(1). Sealing does not remove state firearm disabilities. ch. 140, § 122; Rzeznik v. Chief of Police of Southampton 373 N.E.2d 1128, 1132 (Mass. 1978). Partial restoration of state firearms rights is insufficient to relieve the federal bar in 18 U.S.C. §922(g). See Caron v. United States, 524 U.S. 308 (1998).
II. Discretionary Restoration Mechanisms
A. Executive pardon
The pardon power, except in cases of impeachment, is vested in the governor, who may grant a pardon only with the advice and consent of the Governor’s Council. Mass. Const. pt. 2, ch. II, sec. I, art. VIII. The Massachusetts Governor’s Council, also known as the Executive Council, is composed of eight individuals elected from districts statewide, and the lieutenant governor who serves ex officio. Mass. Const. pt. 2, ch. II, sec. III, art. I, amended by Mass. Const Amend. Art. 16. If the offense is a felony, “the general court [i.e., legislature] shall have power to prescribe the terms and conditions upon which a pardon may be granted.” Art. VIII, supra. Public reporting:
The governor shall, at the end of each calendar year, transmit to the general court [legislature] . . . a list of pardons granted with the advice and consent of the council during such calendar year, together with action of the advisory board of pardons concerning each such pardon, and together with a list of any revocations of pardons made under this section.
Every petition must be filed with the Parole Board, acting as the Advisory Board of Pardons, which makes recommendation to the governor and Council. Mass. Gen. Laws ch. 127, § 152. The Advisory Board sends all favorable recommendations to the governor, who may accept them only if the Council approves. Id. See also Ladetto v. Comm’r of Correction 369 N.E.2d 967 (1977) (requiring “concurrent exercise” of pardon power by both governor and Council). The Advisory Board functions as “gatekeeper,” and effectively also has a veto over pardon cases insofar as it does not send the governor ones it disapproves. ch. 127, § 154. The Parole Board is composed of seven members appointed by the governor to five-year terms. The Board is composed of full-time salaried employees; the chair is chosen by the governor. ch. 27, § 4. An overview of the pardon process is available at http://www.mass.gov/eopss/law-enforce-and-cj/parole/exec-clemency-unit/executive-clemency-overview.html.
Shortly after assuming office in 2015, Governor Charlie Baker rescinded all clemency guidelines put in place by his predecessor, Governor Deval Patrick, including those implementing special procedures for “particularly meritorious clemency petitions.” 1 Under Governor Baker’s new guidelines, the waiting period remains the same (5 years for misdemeanors; 10 for felonies), but the standards for consideration have changed significantly. See Office of the Governor, Executive Clemency Guidelines 4 (Dec. 10, 2015), available at http://www.mass.gov/eopss/law-enforce-and-cj/parole/exec-clemency-unit/executive-clemency-overview.html; “Standards for consideration,” infra.
The Baker clemency guidelines are analyzed in this article: William Cosmas, Jr., A Clear View of a Narrower Path: Examining the Baker Pardon Guidelines, Boston Bar Journal, May 11, 2017, https://bostonbarjournal.com/2017/05/11/a-clear-view-of-a-narrower-path-examining-the-baker-pardon-guidelines/
The governor, upon granting a pardon, orders the records of a state conviction sealed; thereafter, the records of the conviction may not be accessed by the public, and its existence may be denied for most purposes. Mass. Gen. Laws ch. 127, § 152.
Such sealed records shall not disqualify a person in any examination, appointment or application for employment or other benefit, public or private, including, but not limited to, licenses, credit or housing, nor shall such sealed record be admissible in evidence or used in any way in any court proceeding or hearing before any board, commission or other agency except in imposing sentence in subsequent criminal proceedings and when a person has subsequently been charged with certain crimes against the person.
Id. An applicant may deny the existence of the conviction on an application for employment, or in any other circumstance, and licensing authorities are prohibited from disqualifying the application based on his record. “The attorney general and the person so pardoned may enforce the provisions of this paragraph by an action commenced in the superior court department of the trial court.” Id.
Standards for consideration
The Advisory Board of Pardons considers favorably where a petitioner establishes, by clear and convincing evidence:
- a specific compelling need for such pardon relief;
- a substantial period of good citizenship subsequent to the criminal offense for which such pardon relief is requested, and
- that the ends of justice will be served by the granting of such pardon relief.
120 Mass. Code Regs. 902.01. The Clemency Guidelines, supra at 2, describe pardon as an “extraordinary remedy … mainly intended to remove barriers that are sometimes associated with a criminal record, thereby facilitating the reintegration of the petitioner into his or her community.”
“Absent compelling circumstances, a petitioner seeking a pardon should demonstrate both good citizenship and a verified, compelling need.” Clemency Guidelines, supra at 3. “Good citizenship means living a responsible and productive life and contributing to one’s community in a positive manner.” Id. at 4. In determining good citizenship, the Board “should make all reasonable efforts to investigate and verify, among other things:”
- Whether the petitioner has been the subject of any civil lawsuit, including any restraining order, during the period of claimed good citizenship;
- the circumstances surrounding any criminal charge that resulted in a noll prosequi, dismissal, or finding of not guilty.
Id. at 4. Denial of employment or licensure based on conviction may suffice to demonstrate a “compelling need” with appropriate documentation (including evidence that a pardon would likely result in issuance of a license and/or an explanation as to why sealing is not an adequate remedy for employment denial). Id. Denial of a firearms license may also demonstrate a compelling need if certain conditions are met, including 15 years without certain violent/civil rights convictions. Id. Petitions based on firearms licenses must also include a letter from licensing authority stating that a pardon would result in issuance. Id. Where a petitioner has other adequate administrative or judicial remedies, such as sealing, the need for a pardon will not generally meet the “compelling” standard.” Id.
The Clemency Guidelines list and explain the following general factors to be considered in executive clemency determinations:
- Nature and circumstances of the offense
- Character and behavior of the petitioner
- Acceptance of responsibility
- Pending appeals and other litigation
- Restitution to victims
- Substantial assistance to law enforcement
- Military, public, or charitable service
- Prior petitions
The Board “shall not review the proceedings of the trial court, and shall not consider any questions regarding the correctness, regularity or legality of such proceedings, but shall confine itself solely to matters which properly bear upon the propriety of the extension of clemency to the petitioner.” Mass. Gen. Laws ch. 127, § 154.
The regulations provide for a public hearing that is a matter of public record, and decision by a majority of the Board. 120 Mass. Code Regs. § 902.02-.12. The application form can be found at http://www.mass.gov/eopss/docs/pb/2016pardonpetition-finalwithforms.pdf. The Parole Board must process applications in accordance with procedures set out in Mass. Gen. Laws ch. 127, § 154, which include referral to concerned officials (including the attorney general, district attorney, and the sentencing court) for recommendation, and notice to the victim. 120 Mass. Code Regs. §§ 902.05, 400.04. See also Clemency Guidelines, supra at 2 (Board required to solicit input from victim, DA, and law enforcement). If an application has merit under statute and Clemency Guidelines, a hearing will be scheduled. 120 Mass. Code Regs. § 902.06. (Proposed denials also go to governor.) Hearing procedures are the same as in a parole hearing under tit. 120 Mass. Code Regs. § 301.06. Id. at § 902.08. Hearings may be conducted by a panel of the Advisory Board or by a single member. Id. at § 902.09(1). The panel reports to the full Board, which in turn sends its recommendations to the governor and Governor’s Council. Id. at § 902.10. The majority gives reasons, as does any dissenting minority. Id.
The Board must make its recommendation to the governor within 10 weeks of original submission, unless a hearing is deemed by the Board to be required, and in no case more than six months. Mass. Gen. Laws ch. 127, § 154. Sensitive parts of a recommendation may be kept confidential, but “in all cases a statement containing the facts of the crime or crimes for which a pardon or commutation is sought, the sentence or sentences received, together with all conclusions and recommendations shall be made public when the report is submitted.” Id. A second level of review is in the Council. If no action is taken within a year, the application will be deemed denied. 120 Mass. Code Regs. 902.12(2). See also Clemency Guidelines, supra, at 6 (if governor takes no action on a recommended denial within 90 days, the application is deemed denied).
Under Mass. Gen. Laws ch. 127, § 152, once a petition is filed with Parole Board it becomes a public record.
Payment for assistance in obtaining a pardon is prohibited, except for proper legal services. Mass. Gen. Laws ch. 127, § 166. Representatives must register with the state secretary, stating that services are only legal, and detailing those services. ch. 127, § 167. Violation is a criminal offense. ch. 127, § 168.
The governor may revoke a pardon if there is a misstatement of fact in the application, or if it was procured by fraud or misrepresentation. Mass. Gen. Laws ch. 127, § 152.
Frequency of Grants
Pardons in Massachusetts have been rare in recent years, only 57 since 1990. See William Cosmas, Jr., From Here to Clemency: Navigating the Massachusetts Pardon Process, Boston Bar Journal, April 22, 2015, https://bostonbarjournal.com/2015/04/22/from-here-to-clemency-navigating-the-massachusetts-pardon-process/. Governor Baker has issued no pardons since taking office in 2015. Governor Patrick approved four pardons on November 10, 2014, the first grants during his tenure, and the first since 2002. All of the recipients had been out of prison for a number of years.2 Patrick also approved one commutation, for a woman serving a 7 ½ year sentence for drug distribution. Two more pardons followed just before Patrick left office in 2015, including one to True-See Allah, who was convicted of armed assault with attempt to murder for his participation in a 1989 shooting that left the victim paralyzed for life. See Maria Cramer, As 2 felons earn pardons, time for others runs short, Boston Globe, https://www.bostonglobe.com/metro/2015/01/02/true-see-allah-granted-pardon-vote-governor-council/yO6t9mXHlGwIfNGgKA70AK/story.html (Jan. 2, 2015). The trend toward fewer grants in Massachusetts started in the 1990s under Governor William Weld. Governor Mitt Romney issued no pardons during his tenure, Governor Swift granted seven pardons, and Governor Cellucci granted 20.
Julie Ching Pease
Executive Clemency Unit, Massachusetts Board of Parole
12 Mercer Road
Natick, MA 01760
B. Judicial sealing and expungement
1. Sealing of misdemeanors and felonies
With certain exceptions, including firearms offenses, crimes by public officials, and crimes “against public justice” such as perjury and resisting arrest convicted persons are entitled to have their records sealed upon application to the department of probation if they can demonstrate a period of law-abiding conduct: 5 years for a misdemeanor and 10 years for a felony. Mass. Gen. Law ch. 276, § 100A.3 Records of conviction for decriminalized offenses may be sealed immediately “except in cases where the elements of the offense continue to be a crime under a different designation.” Id.4 Sex offenses are subject to a 15-year eligibility period. Firearms offenses, crimes by public officials and employees, and crimes “against public justice” such as perjury, witness tampering and resisting arrest, are never eligible for sealing.
Effect of sealing
Mass. Gen. Laws ch. 276, § 100A describes the effect of sealing:
Such sealed records shall not operate to disqualify a person in any examination, appointment or application for public service in the service of the commonwealth or of any political subdivision thereof; nor shall such sealed records be admissible in evidence or used in any way in any court proceedings or hearings before any boards or commissions, except in imposing sentence in subsequent criminal proceedings . . . .5
Sealing does not expunge a record, however, and it remains available to law enforcement authorities. Sealing does not restore state firearm disabilities. ch. 140, § 122; Rzeznik v. Chief of Police, 373 N.E.2d 1128 (Mass. 1978). The purpose of the statute is rehabilitative, to ensure privacy after a period of time, not to defeat law enforcement interests. See Com. v. Doe 648 N.E.2d 1255, 1258 (Mass. 1995) (statutes “protect individuals from unnecessary and overbroad dissemination of criminal record information”). The records of conviction of public officials and employees may not be sealed. ch. 276, § 100A.
Standard for sealing
In 1995, relying on precedent upholding a First Amendment right to access court records, Massachusetts Supreme Court held that records of closed criminal cases may be sealed by a court only if there has been an individualized finding that sealing is necessary to effectuate a compelling state interest. Com. v. Doe, 420 Mass. 142, 648 N.E.2d 1255 (1995). Some two decades later, the Massachusetts high court held that a lower standard of “good cause” was more appropriate in light of the concerns expressed by the legislature in intervening years about “the negative impact of criminal records on the ability of former criminal defendants to reintegrate into society.” See Com. v. Pon, 469 Mass. 296, 297 (2014). The Pon court noted several legislative developments in the intervening years that weighed against adhering to the strict standard announced in Doe:
Since our Doe decision in 1995, there have been significant changes in the availability of CORI records. These changes indicate a strong legislative policy of providing the public, and particularly employers and housing providers, with access to certain criminal records in order to make sound decisions while also enabling the sealing of criminal records where so doing would not present public safety concerns. . . . First, the Legislature extended access to official CORI records to a broader group, creating several tiers of access. Second, the Legislature implemented procedural protections for defendants seeking employment by limiting when employers may ask about criminal history and requiring employers to share criminal history information with applicants. . . . Third, the Legislature made changes to the sealing provisions by enabling earlier automatic sealing under G.L. c. 276, § 100A, and expanding discretionary sealing to a broader class of nonconvictions.
Given these clearly expressed legislative concerns regarding the deleterious effects of criminal records on employment opportunities for former criminal defendants, and the explicit expansion of opportunities for sealing to minimize the adverse impact of criminal records, it is apparent that the test articulated in Doe, 420 Mass. at 151, serves to frustrate rather than further the Legislature’s purpose by imposing too high a burden of proof on the defendant and articulating unhelpful factors for the defendant to determine how to meet his or her burden. Consequently, it is proper for us to revisit the meaning of “substantial justice” to ensure that we are interpreting the statute so as to give effect to present legislative intent.
469 Mass. at 303-305. In assessing whether good cause has been established, a court must balance the public’s “general right to know” with the interests of the defendant and the state in keeping the information private. The Pon Court established factors relevant to this good cause balancing test:
At a minimum, judges should evaluate the particular disadvantages identified by the defendant arising from the availability of the criminal record; evidence of rehabilitation suggesting that the defendant could overcome these disadvantages if the record were sealed; any other evidence that sealing would alleviate the identified disadvantages; relevant circumstances of the defendant at the time of the offense that suggest a likelihood of recidivism or of success; the passage of time since the offense and since the dismissal or nolle prosequi; and the nature of and reasons for the particular disposition.
Id. at 316.
Effect in Employment
Mass. Gen. Laws ch. 276, § 100A:
An application for employment used by an employer which seeks information concerning prior arrests or convictions of the applicant shall include the following statement: “An applicant for employment with a sealed record on file with the commissioner of probation may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a sealed record on file with the commissioner of probation may answer ‘no record’ to an inquiry herein relative to prior arrests or criminal court appearances. In addition, any applicant for employment may answer ‘no record’ with respect to any inquiry relative to prior arrests, court appearances and adjudications in all cases of delinquency or as a child in need of services which did not result in a complaint transferred to the superior court for criminal prosecution.” The attorney general may enforce the provisions of this paragraph by a suit in equity commenced in the superior court.
2. Deferred adjudication (“Continuance without a Finding”)
Mass. Gen. Laws ch. 278, § 18. Relevant procedure is explained in detail in Commonwealth v. Powell, 453 Mass. 320 (Mass. 2009). Courts (including municipal and juvenile courts) may dismiss a valid indictment, in certain circumstances, after accepting a guilty plea, even over the government’s objections, by continuing the case without a finding, and imposing conditions. This disposition avoids prejudice to the Commonwealth by accepting the defendant’s guilty plea before placing him on probation, so that a violation of the terms of probation would result in an adjudication of guilt and imposition of sentence. See also Commonwealth v. Cheney, 440 Mass. 568, 571 (2003) (explaining the CWOF procedure).
General “in the interests of justice” standard, but certain offenses are ineligible. See Powell, 453 Mass. at 326, n. 7, 8. In addition, CWOF is not available after trial. See Commonwealth v. Norrell, 423 Mass. 725, 727 (1996).
Information about pending CWOF charges may be obtained on the same basis as final convictions. See Mass. Gen. Laws ch. 6, § 172(a)(3). However, under the 2010 changes to the sealing laws, immediate sealing is allowed in CWOF cases once probation has been successfully completed. See 2010 Mass. Acts ch. 256, § 131 (amending Mass. Gen. Laws ch. 276, § 100C), available at http://www.mass.gov/legis/laws/seslaw10/sl100256.htm.
3. Pretrial Diversion
Mass. Gen. Laws ch. 276A, § 2 et seq. authorizes pretrial diversion for first offenders between the ages of 17 and 21.
4. Juvenile records
Mass. Gen. Laws ch. 120, § 21:
Whenever a person committed to the department by a court upon conviction of a crime is discharged from its control such discharge shall, when so ordered by the department, restore such person to all civil rights and shall have the effect of setting aside the conviction. The conviction of such a person shall not operate to disqualify him for any future examination, appointment or application for public service under the government either of the commonwealth or of any political subdivision thereof . . . . A commitment to the department shall not be received in evidence or used in any way in any proceeding in any court except in subsequent proceedings for waywardness or delinquency against the same child, and except in imposing sentence in any criminal proceeding against the same person.
Records on file with the office of the commissioner of probation must be sealed upon request if 3 years have elapsed since any court appearance or disposition in the case (including commitment supervision, probation and parole), and the person has not been adjudicated delinquent, found guilty of a crime (with exception for some motor vehicle offenses), nor been imprisoned or committed to custody in the preceding 3 years. Mass. Gen. Laws ch. 276, § 100B. Upon sealing by the commissioner, court records are also sealed:
When records of delinquency appearances and delinquency dispositions are sealed by the commissioner in his files, the commissioner shall notify forthwith the clerk and the probation officer of the courts in which the adjudications or dispositions have occurred, or other entries have been made, and the department of youth services of such sealing, and said clerks, probation officers, and department of youth services likewise shall seal records of the same proceedings in their files. ….
Such sealed records of a person shall not operate to disqualify a person in any future examination, appointment or application for public service under the government of the commonwealth or of any political subdivision thereof; nor shall such sealed records be admissible in evidence or used in any way in any court proceedings or hearings before any boards of commissioners, except in imposing sentence for subsequent offenses in delinquency or criminal proceedings.
5. Non-conviction records
Records that do not result in conviction may be sealed if the defendant is found not guilty, or a no bill has been returned by the grand jury, or a finding of no probable cause has been made by the court. Mass. Gen. Laws ch. 276, § 100C.6 Sealing is also available by court order where a case is nol prossed or dismissed if “it appears to the court that substantial justice would best be served.” Id.7 See Comm. v. Gavin G, 772 N.E. 2d 1067, 1073-74 (Mass. 2002) (citing Commonwealth v. Doe, 648 N.E. 2d 1255, 1260 (Mass. 1995)) (court may order immediate sealing only if it appears that substantial justice would best be served, and the interests of confidentiality and avoiding harm have specific application to the defendant; otherwise, a defendant denied request for immediate sealing may still request sealing after requisite waiting period specified in § 100A).
Sealed non-conviction records shall not operate to disqualify a person in any examination, appointment or application for public employment in the service of the commonwealth or of any political subdivision thereof. Mass. Gen. Laws ch. 276, § 100C. An application for employment used by an employer which seeks information concerning prior arrests or convictions of the applicant shall include the following statement: “An applicant for employment with a sealed record on file with the commissioner of probation may answer ‘no record’ with respect to an inquiry herein relative to prior arrests or criminal court appearances.” Id.
6. Effect of pardon
Conviction is automatically sealed by pardon. Mass. Gen. Laws ch. 127, § 152; see Section IIA, supra.
III. Nondiscrimination in Licensing and Employment:
A. Fair Employment Practices
Massachusetts’ general fair employment practices law makes it unlawful for any covered employer, public or private, to request any information from an employee or applicant for employment about: (1) an arrest without conviction; (2) a first conviction for misdemeanors such as simple assault or minor traffic violations; and (3) any conviction of a misdemeanor that occurred five or more years before the application date. See Mass. Gen. Laws ch. 151B, § 4(9) (It shall be an unlawful practice for an employer “to request any information . . . regarding: (i) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted, or (ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or (iii) any conviction of a misdemeanor where the date of such conviction or the completion of any period of incarceration resulting therefrom, whichever date is later, occurred five or more years prior to the date of such application for employment or such request for information, unless such person has been convicted of any offense within five years immediately preceding the date of such application for employment or such request for information”). The law is enforced by the Massachusetts Commission against Discrimination, and procedures are set forth in Mass. Gen. Laws ch. 151B, § 5.
While Massachusetts’ general nondiscrimination law applies only to misdemeanors, a “direct relationship” test applies to consideration of felony convictions in some licensing schemes. See, e.g., Mass. Gen. Laws ch. 112 § 52D (“The board . . . may [discipline] any dentist convicted . . . of a felony related to the practice of dentistry”); ch.112, § 61 (board may discipline holder of medical license for “a criminal offense which is reasonably related to the practice of the profession”); ch. 112, § 189 (real estate appraisers may be disciplined based upon conviction of “a crime which is substantially related to the qualifications, functions, and duties of a person developing appraisals and communicating appraisals to others, or convicted of any felony”).
The only general limitation on consideration of a felony conviction by employers and licensing boards is where a person has received a pardon and their record has been sealed. Mass. Gen. Laws ch. 127, § 152.
B. Limitation on Access to Records
Rather than directly limiting consideration of conviction in employment and licensing decisions, Massachusetts limits the availability of conviction-related information through the Criminal Offender Record Information System (CORI). Mass. Gen. Laws ch. 6, §§ 168, 172. The CORI system was reformed in 2010 to increase employer access to records but at the same time to limit the extent to which the employer may inquire into an applicant’s criminal record, to change the procedure by which employers may obtain and rely on criminal records, and to give employers who rely on CORI records protection against negligent hiring. See 2010 Mass. Acts, ch. 256, § 21, available at http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter256. See also Com. v. Pon, discussed supra; Massing, CORI Reform—Providing Ex–Offenders with Increased Opportunities Without Compromising Employers’ Needs, 55 Boston B.J. 21, 22, 24 (2011).In general, employers and licensing agencies will not have access to sealed records: five years in the case of misdemeanors and ten years for felonies. See above.8 Section 172 sets both a tiered system of access, with law enforcement and the subject of records given full access; requesters authorized or required by law to obtain criminal history information have access necessary to comply with their obligations; requesters seeking records for employment or licensing purposes (including volunteers) have access to pending charges, felony convictions for 10 years and misdemeanors for five years if there have been no intervening convictions; and members of the general public somewhat more limited access. See § 172 (a)(1)_through (5). Other entities are specifically authorized to obtain records, such as housing authorities and schools, and facilities caring for vulnerable populations. See § 172(a)(6) through (30). Employers and others will still be able to access indefinitely information on certain convictions, including those for murder, voluntary and involuntary manslaughter, and certain sex offenses, unless sealed. § 172(b). Employers who wish to question an applicant about the results of a CORI records check must first provide the applicant with a copy of any criminal record that it has obtained. § 172(c). If the employer decides not to hire an applicant in part or in whole because of the applicant’s criminal history record, the employer must, if it has not already done so, provide the applicant with a copy of the record. Id.
C. Protection against Negligent Hiring Liability and Exposure to Discrimination Claims
No employer or person relying on volunteers shall be liable for negligent hiring practices by reason of relying solely on criminal offender record information received from the department and not performing additional criminal history background checks, unless required to do so by law; provided, however, that the employer made an employment decision within 90 days of obtaining the criminal offender record information and maintained and followed policies and procedures for verification of the subject’s identifying information consistent with the requirements set forth in this section and in the department’s regulations.
Mass. Gen. Laws ch. 6, § 172(e). This provision also protects an employer who relies on CORI records from being sued under the nondiscrimination laws based upon erroneous information. Id.9
D. Prohibition on Employer Inquiry into Non-conviction and Misdemeanor records
Under Mass. Gen. Laws ch. 151B, § 4 (9) it is unlawful for an employer to inquire into arrest not resulting in conviction, a first conviction for a variety of misdemeanors (“drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace”) or any other misdemeanor conviction after five years, unless there are intervening convictions
E. State-wide “Ban-the-Box” Policy
In 2010, public and private employers were made subject to a “ban-the-box policy” that prohibits inquiry into criminal records on an initial job application, unless the particular job is one for which a convicted person is at least presumptively disqualified by law, or the employer “is subject to an obligation imposed by any federal or state law or regulation not to employ persons, in either 1 or more positions, who have been convicted of 1 or more types of criminal offenses.” See Mass. Gen. Laws ch. 151B, § 4(9 ½). Even when no exception applies, employers will still have the right to inquire into an applicant’s criminal history at any time after the initial application, such as in a job interview.
The City of Boston and several other Massachusetts jurisdictions have adopted even more stringent policies for their vendors and other private contractors, requiring them to determine whether particular positions are sufficiently sensitive to warrant a background check, and obligating them to give reasons to people who are turned down for employment because of their conviction record. Of special significance, Boston’s City Council ordinance, effective July 1, 2006, applies not only to hiring in city jobs, but also to the hiring decisions of an estimated 50,000 private vendors who do business with the City. See Ord. 2005 c. 7 (codified at 4-7), available at http://www.amlegal.com/nxt/gateway.dll/Massachusetts/boston/chapterivcontracts?f=templates$fn=default.htm$3.0$vid=amlegal:boston_ma$anc=JD_4-7. The successful campaign to reform Boston’s hiring policy was backed by a broad community coalition called the Massachusetts Alliance to Reform CORI (MARC). See Michelle Rodriguez, Beth Avery, National Employment Law Project, Ban the Box 16 (April 2016) available at http://www.nelp.org/content/uploads/Ban-the-Box-Fair-Chance-State-and-Local-Guide.pdf. According to the ordinance, the City of Boston and its vendors cannot conduct a criminal background check as part of their hiring process until the job applicant is found to be “otherwise qualified” for the position. Ord. 2005 c. 7, supra. This critical protection ensures that everyone is first considered for employment based on their actual skills and experience before the employer takes into account the presence or absence of a criminal record. The ordinance also requires that the final employment decision, which includes information about the individual’s criminal record, also considers the age and seriousness of the crime and the “occurrences in the life of the Applicant since the crime(s).” Id. In addition, the Boston ordinance creates important appeals rights for those denied employment based on a criminal record and the right to present information related to the “accuracy and/or relevancy” of the criminal record. Id.
F. State Employment Bars
A sweeping bar on employment of people with convictions in state and state-funded human service jobs, issued by Governor Weld in 1996, disqualified certain offenders for life (violent and drug offenders), and others for periods of 10 and 5 years. The bar was modified by Governor Swift in 2001, and further limited by Cronin v. O’Leary, 13 Mass. L. Rptr. 405, 2001 WL 919969 (2001) (striking down lifetime bar on constitutional grounds, and requiring a hearing to determine fitness).
- See Steve LeBlanc, Associated Press, Baker Rescinds Ex-Gov. Patrick’s Clemency Guidelines, CBS Boston, http://boston.cbslocal.com/2015/01/15/baker-rescinds-ex-gov-patricks-clemency-guidelines (Jan. 15, 2015). Governor Patrick’s guidelines made it easier to obtain a pardon by lowering waiting periods and by fast-tracking petitions where a person made “extraordinary contributions to society.” See Executive Guidelines for Particularly Meritorious Clemency Petitions (July 17, 2014), available at http://www.mass.gov/eopss/docs/pb/executive-guidelines-for-particularly-meritorious-clemency-petitions-7-17-14.pdf; Maria Cramer, Governor Patrick may grant his first pardons, Boston Globe, https://www.bostonglobe.com/metro/2014/10/09/gov-patrick-says-ready-grant-pardons/bdC51zgZf7QqxAGmiMf4QO/story.html (Oct. 9, 2014). The fast-track guidelines were primarily created to expand consideration for persons unable to demonstrate a “compelling need.” See Colleen Quinn, “Board recommends three pardons, Wall sees more coming,” WWLP.com (October 3, 2014), http://wwlp.com/2014/10/03/board-recommends-three-pardons-wall-sees-more-coming. Petitioners facing “deportation that is unnecessary for public safety [and] especially harsh or unfair consequences” were also considered for a gubernatorial pardon under those guidelines. See Guidelines for Particularly Meritorious Clemency Petitions, supra.
- The grants are described at http://www.bostonglobe.com/metro/2014/11/10/closer-look-governor-deval-patrick-commutation-and-pardons/cIZTlJtROBaMTGiUJZmiZI/story.html?p1=Article_Related_Box_Article. See Karen Young, Clemency for Criminals Increasingly Rare in Mass., Portland Press Herald, July 7, 2012, http://www.pressherald.com/news/Clemency-for-criminals-increasingly-rare-in-Mass.html?pagenum=full
- Prior to May 2012, these time periods were 10 and 15 years. See 2010 Mass. Acts ch. 256, § 128, available at http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter256.
- Recent low-level marijuana possession convictions are now eligible for sealing with no waiting as a result of decriminalization legislation enacted at the end of 2016. See ch. 94G, § 13(e).
- Exceptions for certain civil family law cases were added to the law in 2010 when the waiting periods to seal convictions were last reduced, including abuse prevention, divorce, paternity, separate support, guardianship, termination of parental rights, and care and protection cases related to a child.
- The automatic sealing provisions of § 100C were held unconstitutional in Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 506-07) (1st Cir., 1989) (sealed records must be made available to media unless there has been an individualized finding that sealing necessary to effectuate compelling governmental interest). In Comm. v. Doe, 420 Mass. 142 (Mass. 1995), the Massachusetts Supreme Court extended the holding of the Pokaski case to judicial sealing of closed criminal cases.
- 2010 amendments to § 100C struck the parenthetical phrase (“except in cases in which an order of probation has been terminated”) after “dismissed,” to the effect that cases “continued without a finding” may now be sealed immediately upon completion of probation. See 2010 Mass. Acts ch. 256, § 131, available athttp://www.mass.gov/legis/laws/seslaw10/sl100256.htm.
- Prior to the 2010 reforms, criminal justice agencies could see that a sealed record existed, but they needed to petition a court in order to view its contents. See Quirion & Russo, Sealing Criminal Records 8 (Mass. Cont. Legal Educ. 2009).
- See National Employment Law Project, States Adopt Fair Hiring Standards Reducing Barriers to Employment of People with Criminal Records 3 (August 2012), available at http://www.nelp.org/page/-/SCLP/ModelStateHiringInitiatives.pdf?nocdn=1 (“The bill uniquely tackles the issue of inaccurate commercial background screeners by creating an incentive for employers to use the state’s criminal history database, which then limits the length of time that criminal history information is available. It also ensures that a denied applicant receives a copy of his or her record, paralleling one component of the federal consumer protection law, the Fair Credit Reporting Act, which applies to commercially-prepared background checks.”).
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