Commonwealth v. Pon , 469 Mass. 296 ( 2014 )

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SJC-11542
COMMONWEALTH vs. PETER PON.1
Suffolk. April 7, 2014. - August 15, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.2
Criminal Records. Criminal Offender Record Information.
Practice, Criminal, Record. Constitutional Law, Access to
criminal records, Privacy. Privacy.
Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on October 22, 2007.
After dismissal, a petition to seal the record, filed on
November 14, 2012, was heard by Robert E. Baylor, J., and a
motion for reconsideration was considered by him.
The Supreme Judicial Court granted an application for
direct appellate review.
Pauline Quirion (Susan Malouin with her) for the defendant.
Donna Jalbert Patalano, Assistant District Attorney, for
the Commonwealth.
Rahsaan D. Hall, for Lawyers' Committee for Civil Rights
and Economic Justice & another, amici curiae, submitted a brief.
1
A pseudonym.
2
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
Rebecca A. Jacobstein, for Committee for Public Counsel
Services & another, amici curiae, submitted a brief.
CORDY, J. Under G. L. c. 276, § 100C, second par.,
inserted by St. 1973, c. 322, § 1, a former criminal defendant
whose case resulted in the entry of a nolle prosequi or a
dismissal may obtain discretionary sealing of his or her
criminal record where a judge determines that "substantial
justice would best be served" by sealing. This provision, which
is part of the over-all criminal offender record information
(CORI) statutory scheme, is intended to enable such individuals
to overcome the inherent collateral consequences of a criminal
record and achieve meaningful employment opportunities. See
Globe Newspaper Co. v. District Attorney for the Middle Dist.,
439 Mass. 374, 384 (2003). In 2010, the Legislature enacted
extensive reforms to the CORI scheme, extending access to
official CORI records to more employers, housing providers, and
other organizations, for limited use, and simultaneously
broadening the scope of the sealing provisions to enable more
individuals to shield their records from public view. See
generally St. 2010, c. 256. Given the demonstrable legislative
concern in these reforms about the negative impact of criminal
records on the ability of former criminal defendants to
reintegrate into society and obtain gainful employment,
particularly in an age of rapid informational access through the
3
Internet and other new technologies, it is apparent that the
stringent standard for discretionary sealing we articulated
nearly twenty years ago, in Commonwealth v. Doe, 420 Mass. 142,
149-152 (1995), no longer achieves the proper balance of
interests. We granted the defendant's application for direct
appellate review following the denial of his request for
discretionary sealing of his criminal record under G. L. c. 276,
§ 100C, and now set forth a new standard for determining when
substantial justice would best be served by the sealing of
certain criminal records under G. L. c. 276, § 100C, second par.3
Background. The defendant was charged in October, 2007,
with operating a motor vehicle while under the influence of
alcohol (OUI) and leaving the scene of property damage following
a motor vehicle accident. He admitted to facts sufficient for a
finding of guilty. In September, 2008, a judge of the Boston
Municipal Court Department ordered a continuance without a
finding for one year with a rehabilitation program, pursuant to
G. L. c. 90, § 24D, involving probation and a recommended forty-
five day suspension of his driver's license. On October 22,
2009, a judge dismissed the case on the recommendation of the
probation department.
3
We acknowledge the briefs of amici curiae the Lawyers'
Committee for Civil Rights and Economic Justice, and the Union
of Minority Neighborhoods; and the Committee for Public Counsel
Services, and the Boston Workers Alliance.
4
Three years later, in November, 2012, the defendant filed a
petition to seal his criminal record, pursuant to G. L. c. 276,
§ 100C, due to its impact on his employment opportunities.4 At a
hearing on the petition, the Commonwealth objected to the
sealing of the case because, it contended, the employment
consequences articulated by the defendant were attributable to
earlier, more serious charges and not to the OUI charge at
issue. See note 34, infra. The judge denied the petition and
further denied the defendant's motion for reconsideration. We
granted the defendant's application for direct appellate review.
After oral argument before this court, the Commissioner of
Probation sealed the defendant's criminal record pursuant to the
administrative process set forth in G. L. c. 276, § 100A.5
4
In support of his petition, the defendant submitted an
affidavit discussing his difficulties obtaining employment and
his contributions to his community through extensive volunteer
work, a memorandum of law, a proposed order, and letters of
support and certificates of achievement. In particular, he
emphasized his sobriety and clean criminal record since the
incident. Because he lost his commercial driver's license due
to the incident, he has been unable to resume his career as a
driver. Despite applying for hundreds of jobs since 2007, he
asserts that employers have declined to hire him due to his
criminal offender record information (CORI).
5
General Laws c. 276, § 100A, provides for mandatory
sealing of "a record of criminal court appearances and
dispositions" on petition to the Commissioner of Probation after
a designated period of time if certain criteria are met. A
request for sealing under § 100A must be granted if "the
person's court appearance and court disposition records,
including any period of incarceration or custody for any . . .
5
Accordingly, the question of whether the judge abused his
discretion by denying the defendant's petition to seal his
criminal record is moot because the defendant has attained his
record to be sealed occurred not less than five years before the
request," in the case of a misdemeanor; not less than ten years
before the request, in the case of a felony; or not less than
fifteen years before the request, in the case of certain sex
crimes. Id. The person must not have "been found guilty of any
criminal offense" in Massachusetts, in any other State, or in a
Federal court, within the preceding five years. Id. In
addition, the person's record must "not include convictions of
offenses" that are not eligible for sealing. Id. Convictions
that are ineligible for sealing under § 100A include certain
firearms offenses, see G. L. c. 140, §§ 121-131H; crimes against
public justice, see G. L. c. 268; and crimes based on the
conduct of public officials and employees, see G. L. c. 268A.
See G. L. c. 276, § 100A. In addition, persons who have been
classified as a level two or level three sex offender may not
have such offenses sealed. G. L. c. 276, § 100A. See G. L.
c. 6, § 178K.
Most offenses that are eligible for sealing under G. L.
c. 276, § 100A, after the requisite period of time has passed,
will not appear in the CORI reports provided to most employers
and housing providers, even if the individual has not yet filed
a petition to seal them. See 803 Code Mass. Regs. § 2.05(4)(a)
(2012). However, if the individual has been convicted of a
subsequent offense, offenses that have not been sealed by an
affirmative request of the individual will be visible to such
employers. Id. In addition, convictions of murder,
manslaughter, and certain sex offenses are visible to employers,
even if they are eligible for sealing under § 100A, unless the
individual has affirmatively requested sealing. See id.
The defendant apparently met the criteria for § 100A
sealing with regard to his OUI and accompanying property damage
charges from 2007. Although the Commonwealth contends on appeal
that G. L. c. 276, § 100A, is unconstitutional, we decline to
address this issue, as it is not properly before us.
6
desired relief through another process.6 See Ott v. Boston
Edison Co., 413 Mass. 680, 680 (1992); Blake v. Massachusetts
Parole Bd., 369 Mass. 701, 703 (1976).
Nonetheless, we exercise our discretion to revisit the
standard for discretionary sealing under G. L. c. 276, § 100C.
We may answer a question that is no longer important to the
parties "where the issue [is] one of public importance, where it
was fully argued on both sides, where the question [is] certain,
or at least very likely, to arise again in similar factual
circumstances, and especially where appellate review could not
be obtained before the recurring question would again be moot."
Lockhart v. Attorney Gen., 390 Mass. 780, 783 (1984). The
sealing of criminal records is of public importance, and the
parties have addressed the merits of the current standard and
the need for clearer guidance. Moreover, this issue undoubtedly
will arise again for offenders who seek to seal their criminal
records prior to the eventual sealing provided for in G. L.
c. 276, § 100A, and will again be rendered moot by the passage
of time inherent in the due course of litigation and appellate
review. See Commonwealth v. Humberto H., 466 Mass. 562, 574
(2013), quoting Lockhart, supra. Further, the issue has
"general application to the work of the trial court" and merits
6
As far as we can discern from the record before us, all of
the defendant's past charges on his CORI record have now been
sealed.
7
discussion by this court "in order to promote the proper
administration of justice." Doe, 420 Mass. at 143.7,8
Discussion. This case concerns the balance between the
public's right of access to criminal court records and the
State's compelling interest in providing privacy protections for
former criminal defendants to enable them to participate fully
in society. In particular, we must consider that balance in
relation to the substantive and procedural standards that govern
review of a petition for discretionary sealing under G. L.
c. 276, § 100C, second par. The defendant asserts that our
existing substantive standard does not adequately recognize the
compelling interests in support of sealing, and asks that we
7
Although we typically decline to decide constitutional
questions unnecessarily, see Blake v. Massachusetts Parole Bd.,
369 Mass. 701, 707 (1976), this case involves a question of
interpretation of a Massachusetts statute, G. L. c. 276, § 100C,
as it relates to a right under the First Amendment to the United
States Constitution, and therefore does not signal a departure
from our practice of judicial restraint in the realm of
constitutional matters.
8
Ensuring that the proper test is in place for review of a
petition for discretionary sealing under G. L. c. 276, § 100C,
is of particular importance where sealing is the only remedy for
limiting access to certain classes of criminal records.
"[W]here a sealing statute is applicable to a particular
individual's circumstances, judges generally have no equitable
authority to expunge court or probation records, because the
Legislature has provided sealing as the exclusive remedy to
protect the confidentiality of the records." Commonwealth v.
Moe, 463 Mass. 370, 373 (2012), cert. denied, 133 S. Ct. 1606(2013), and cases cited (discussing G. L. c. 276, § 100C, second
par.). See Commonwealth v. Boe, 456 Mass. 337, 342-344 (2010).
8
adopt a more flexible standard that advances the legislative
intent behind the 2010 CORI reforms.9 The Commonwealth contends
that our existing jurisprudence properly captures the balance of
interests at stake and merits only minor clarification. It
further asks this court to affirm the two-step hearing procedure
articulated in Doe, 420 Mass. at 149-150, in order to ensure
that adequate constitutional safeguards are afforded to the
public. We conclude that a new substantive standard is
necessary to achieve the legislative purpose of discretionary
sealing and modify the procedure currently in place for
reviewing petitions for sealing.
1. Substantive standard for sealing under G. L. c. 276,
§ 100C. a. Statutory framework and legislative history. Under
G. L. c. 276, § 100C, second par., an individual may petition
the court for sealing of a criminal case ending in a dismissal
or entry of a nolle prosequi, as early as the time of the
disposition or at any point thereafter.10 Id. If "it appears to
the court that substantial justice would best be served, the
9
Specifically, the defendant contends that the standard set
forth in Commonwealth v. Doe, 420 Mass. 142, 149-152 (1995), is
unworkable, because it provides minimal guidance to judges and
renders it nearly impossible for defendants to succeed on
sealing petitions.
10
The second paragraph of G. L. c. 276, § 100C, provides in
full: "In any criminal case wherein a nolle prosequi has been
entered, or a dismissal has been entered by the court, and it
appears to the court that substantial justice would best be
served, the court shall direct the clerk to seal the records of
the proceedings in his files."
9
court shall direct the clerk to seal the records of the
proceedings in his files." Id.
This provision was introduced in the 1970s shortly after
the passage of the initial CORI Act (act), which authorized the
creation of a comprehensive criminal justice information system
that would afford limited access to court-based criminal
records. See G. L. c. 6, §§ 167-178B; St. 1972, c. 805. See
also St. 1973, c. 322, § 1, inserting G. L. c. 276, § 100C. The
act and its subsequent amendments attempted "to balance the
public interest in having access to certain types of criminal
justice information against the interest of personal privacy,"
Brant, Barron, Jaffe, Graceffa, & Wallis, Public Records, FIPA
and CORI: How Massachusetts Balances Privacy and the Right to
Know, 15 Suffolk U. L. Rev. 23, 59-60 (1981), "recognizing that
ready access to a defendant's prior criminal record might
frustrate a defendant's access to employment, housing, and
social contacts necessary to . . . rehabilitation." Globe
Newspaper Co., 439 Mass. at 384.
Section 100C, and related sealing provisions in G. L.
c. 276, §§ 100A and 100B, facilitated this balance by requiring
or permitting the sealing of records of certain convictions,
juvenile records, and nonconvictions, whose availability did not
serve criminal justice purposes. See G. L. c. 276, § 100A,
inserted by St. 1971, c. 686; G. L. c. 276, § 100B, inserted by
10
St. 1972, c. 404; G. L. c. 276, § 100C, inserted by St. 1973,
c. 322.11 See also Rzeznik v. Chief of Police of Southampton,
374 Mass. 475, 479 (1978); Brant, supra at 65 & n.292. Once an
individual's record is sealed, he or she may answer "no record"
to any question regarding criminal history, and courts and the
probation department must report that "no record" exists to
anyone who inquires. See What Is Sealing of a Record?,
Massachusetts Criminal Offender Record Information Law § 5.2
(Mass. Cont. Legal Educ. 1st ed. 2012). Sealing therefore
removes some of the social and economic barriers created by a
criminal record. See Globe Newspaper Co., 439 Mass. at 384.
The substantive standard for discretionary sealing under
§ 100C, second par., where "substantial justice would best be
served," is not defined in the statute, nor does the phrase lend
itself to a clear definition. See Wheatley v. Massachusetts
Insurers Insolvency Fund, 456 Mass. 594, 601 (2010), S.C., 465
Mass. 297 (2013). Where the words of the statute are ambiguous,
we strive "to make it an effectual piece of legislation in
harmony with common sense and sound reason" and consistent with
legislative intent. Wolfe v. Gormally, 440 Mass. 699, 704
11
Other statutory provisions also provide for the sealing
of certain charges or convictions of unlawful possession of a
controlled substance or marijuana. See G. L. c. 94C, §§ 34, 44;
St. 1973, c. 1102.
11
(2004), quoting Massachusetts Comm'n Against Discrimination v.
Liberty Mut. Ins. Co., 371 Mass. 186, 190 (1976).
Nearly twenty years ago, this court adopted an
interpretation of "substantial justice" based on the
determination of the United States Court of Appeals for the
First Circuit that G. L. c. 276, § 100C, implicates concerns
under the First Amendment to the United States Constitution and
therefore requires a heightened burden of proof on the part of
the defendant in order to overcome a constitutional presumption
of public access. See Doe, 420 Mass. at 147-150, discussing
Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989).
In Pokaski, supra at 502-507, 510, the First Circuit concluded
that because the right of public access guaranteed by the First
Amendment was implicated by G. L. c. 276, § 100C, sealing under
§ 100C must survive a "traditional compelling interest/least
restrictive means test." Id. at 505. To justify sealing, a
defendant must make a specific showing "that sealing [is]
necessary to effectuate a compelling governmental interest."
Id. at 511. Given this heightened standard, the Pokaski court
stated that sealing under § 100C could occur only in exceptional
circumstances. See id. at 506 n.17, 507 n.18.
In Doe, 420 Mass. at 151, this court adopted the reasoning
of Pokaski and required that, in order to obtain discretionary
sealing under § 100C, the defendant must show "that the value of
12
sealing . . . clearly outweighs the constitutionally-based value
of the record remaining open to society." As part of this
burden of proof, the defendant must establish that "he or she
risks suffering specific harm if the record is not sealed." Id.
at 152. See Pokaski, 868 F.2d at 507 n.18. In conducting this
balancing, the judge may consider "all relevant information,"
including "the reason for the nolle prosequi or dismissal," Doe,
supra at 151, and whether "it is substantially probable that
future opportunities are likely to be affected adversely by the
existence of an arrest record," id. at 152. The court also
observed that the pool of defendants able to meet this burden
would be small. Id. at 149 n.7, citing Pokaski, supra at 507-
508.
b. Recent CORI reform. 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.
The 2010 CORI reforms consisted of three major components
relevant to the analysis here. See Massing, CORI Reform --
Providing Ex-Offenders with Increased Opportunities Without
Compromising Employers' Needs, 55 Boston B.J. 21, 22, 24 (2011).
13
First, the Legislature extended access to official CORI records
to a broader group, creating several tiers of access. See G. L.
c. 6, § 172; St. 2010, c. 256, § 21; 803 Code Mass. Regs. § 2.05
(2012). Any employer, housing provider, professional licensing
authority, or volunteer organization can generally access the
following CORI information for authorized purposes: pending
criminal charges, including cases that have been continued
without a finding, until they are dismissed; any convictions
that are not yet eligible for automatic sealing under G. L.
c. 276, § 100A; and any murder, manslaughter, and certain sex
offense convictions, unless they have been sealed affirmatively
under G. L. c. 276, § 100A, regardless of their eligibility for
such sealing.12 See G. L. c. 6, § 172 (a) (3), (b); 803 Code
Mass. Regs. § 2.05(4)(a). Other employers, volunteer
organizations, and local government agencies that work with
vulnerable populations such as children, the elderly, or
individuals with disabilities may access "all available criminal
12
CORI reports available online to employers who do not
work with vulnerable populations do not include any convictions
eligible for sealing under G. L. c. 276, § 100A, or
nonconvictions that would be eligible for discretionary sealing
under G. L. c. 276, § 100C. See 803 Code Mass. Regs. § 2.05(4)
(2012); Massing, CORI Reform -- Providing Ex-Offenders with
Increased Opportunities Without Compromising Employers' Needs,
55 Boston B.J. 21, 23 (2011). If, however, an individual is
convicted of a new crime, convictions eligible for sealing under
§ 100A will be visible unless the individual has officially
requested sealing. G. L. c. 6, § 172 (a) (3); 803 Code Mass.
Regs. § 2.05(4). See Massing, supra.
14
offender record information," which includes nonconvictions but
implicitly excludes any sealed records. See G. L. c. 6,
§§ 172 (a) (8), (10)-(16), (18), (23), 172C, 172E, 172G, 172H,
172I; G. L. c. 71, § 38R; 803 Code Mass. Regs. § 2.05(1),
(3)(b). Members of the public may request conviction
information on specific individuals within certain time
limitations. See G. L. c. 6, § 172 (a) (4); St. 2010, c. 256,
§ 21; 803 Code Mass. Regs. § 2.05(5). Finally, criminal justice
agencies,13 firearms licensing authorities, and some government
agencies that work with children are authorized to obtain all
criminal offender record information, including sealed records.
See G. L. c. 6, §§ 172 (a) (1) (criminal justice agencies and
firearms licensing authorities), 172 (a) (9), (13) (children's
agencies), 172B, 172F.
This expansion of access to official CORI records reflects
a recognition of two important policy needs: that employers,
housing providers, and licensing authorities have "legitimate
business reason[s]" for wanting to know prospective employees'
or recipients' criminal histories, and that making official CORI
13
"Criminal justice agencies" are defined as "agencies at
all levels of government which perform as their principal
function, activities relating to (a) crime prevention . . ; (b)
the apprehension, prosecution, adjudication, incarceration, or
rehabilitation of criminal offenders; or (c) the collection,
storage, dissemination or usage of criminal offender record
information." G. L. c. 6, § 167.
15
records available more broadly would help steer employers and
others away from reliance on potentially inaccurate sources of
criminal history information made possible by technological
advances since the initial passage of the CORI act (and since
our decision in Doe). See Massing, supra at 21-22. Where
criminal records are increasingly available on the Internet and
through third-party background service providers, criminal
history information that is available only briefly to the public
through official means can remain available indefinitely,
despite subsequent sealing or impoundment. See Jacobs & Crepet,
The Expanding Scope, Use, and Availability of Criminal Records,
11 N.Y.U. J. Legis. & Pub. Pol'y 177, 186-187, 203-208 (2008)
(hereinafter Jacobs & Crepet); Massing, supra at 22, 24. By
providing an official avenue for criminal history information
and offering incentives for use of official CORI,14 the
Legislature sought to balance a recognized need for broader
access to criminal history information with a desire to minimize
reliance on inaccurate or unauthorized criminal history
information sources. See Governor Patrick Signs Strong Anti-
Crime Package to Protect Public Safety, Expand Job
14
The reforms offer protection from negligent hiring claims
based on failure to check other sources of criminal history, and
from claims stemming from adverse employment decisions based on
erroneous CORI. See St. 2010, c. 256, § 21. In contrast, if an
employer relies on information from a private company, it does
not receive protection from negligent hiring claims.
16
Opportunities, State House News Service, Aug. 6, 2010
(legislation "ensures law enforcement agencies, employers and
housing providers have access to accurate and complete records
in appropriate circumstances"); State House News Service, July
30, 2010 (statement of Sen. Cynthia S. Creem on Senate Doc. No.
2583) ("There is no accountability or reliability. This bill
would allow for a web-based program to give potential employers
access to information that is accurate and consistent"); State
House News Service, Nov. 18, 2009 (statement of Sen. Creem on
Senate Doc. No. 2210) ("The bill encourages users to conduct
their background checks through this system and not any other").
See also Cheney, Record Access Debate Juxtaposes Needs of Ex-
Prisoners, Employers, State House News Service, July 27, 2009.
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.15,16 See G. L.
15
The reforms also improved the processes for correcting
inaccurate information on a CORI record and filing a complaint
for violations of the CORI statute, and created a self-auditing
mechanism for individuals to receive reports on access to their
records. See G. L. c. 6, §§ 168, 175; St. 2010, c. 256, §§ 12,
21, 35.
16
Employers may not ask about criminal history until after
the initial written job application, unless such information is
required by law for the particular job (the so-called "ban the
box" provision). See G. L. c. 151B, § 4 (9 1/2); St. 2010,
c. 256, § 101; Massing, supra at 23.
17
c. 6, § 171A; St. 2010, c. 256, § 19. These protections were
intended to minimize the discriminatory use of CORI information
by employers and, again, promote accuracy of information where
criminal history is considered. See Massing, supra at 23 (so-
called "ban-the-box" provision "forces employers to consider ex-
offenders' job qualifications on the merits, rather than
automatically reject applicants who honestly answer the
[criminal history] question in the affirmative").
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. The shortened waiting periods for
automatic sealing17 reflect the consensus of recidivism research
that "past convictions followed by a lengthy period of law-
abiding conduct simply are not relevant in predicting future
criminal activity or assessing credibility." Massing, supra at
23. See State House News Service, Nov. 18, 2009 (statement of
Sen. Creem on Senate Doc. No. 2210) ("Research tells us that ex-
offenders who don't commit crimes in these timeframes are just
as likely to reoffend as anyone else"). Further, where
17
The reforms shortened the waiting periods for eligibility
for automatic sealing under G. L. c. 276, § 100A, from 15 years
to 10 years for eligible felonies, and from 10 years to 5 years
for eligible misdemeanors, and count time served on probation or
parole toward the waiting period. See St. 2010, c. 256, § 128.
18
continuances without a finding previously had been excluded as a
category of dismissed cases eligible for sealing under § 100C,
their addition through the 2010 reform suggests that the
Legislature specifically intended to make earlier sealing more
widely available. See G. L. c. 276, § 100C, as amended by
St. 2010, c. 256, § 131. These reforms, coupled with the
procedural protections aimed at minimizing discrimination in the
hiring process, strongly indicate that the Legislature was
concerned with the collateral consequences of criminal records
and sought to make sealing broadly available to individuals
whose criminal histories or records no longer presented concerns
of recidivism. See State House News Service, July 31, 2010
(statement of Rep. Christine Canavan on Senate Doc. No. 2583)
("This is a bill that's all about [a] second chance at what all
of us want, a good job, a good wage, and the ability to raise a
family"). Cf. In re Kollman, 210 N.J. 557, 568 (2012). In
light of these expanded opportunities for sealing, the
Legislature also granted criminal justice agencies immediate and
automatic access to sealed and nonsealed CORI information,
further indicating that the Legislature anticipated that more
criminal records might be sealed following the reforms.18 See
18
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 &
19
G. L. c. 6, § 172 (a) (1); G. L. c. 276, § 100D; St. 2010,
c. 256, §§ 21, 133.19
Together, these reforms reflect what has been articulated
widely in criminal justice research: that gainful employment is
crucial to preventing recidivism, and that criminal records have
a deleterious effect on access to employment. See Massing,
supra at 24. See generally Pager, The Mark of a Criminal
Record, 108 Amer. J. of Soc. 937 (2003). 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. See G. L. c. 276, § 100A,
fifth par.; G. L. c. 276, § 100C, fourth par.
Overall, the legislative history unmistakably suggests that
the Legislature's intent in enacting the 2010 reforms was to
Russo, Sealing Criminal Records 8 (Mass. Cont. Legal Educ.
2009).
19
Another justification for changes to the sealing
provisions was the concern among legislators that allowing
criminal records to be available without limit would impose
further punishment than the underlying crimes merited. See
State House News Service, July 31, 2010 (statement of Rep.
Eugene O'Flaherty on Senate Doc. No. 2583) ("The idea is to keep
the time frame briefer and stop the further punishment of what
you've already paid for"); State House News Service, July 30,
2010 (statement of Sen. Harriette L. Chandler on Senate Doc. No.
2583) ("These people have served their time but the stigma of
jail time remains, and this bill will help them become full-
fledged members of society again"); Office of Governor Deval
Patrick, Patrick Administration Announces CORI Reforms, State
House News Service, Jan. 11, 2008 (statement by Gov. Patrick)
("CORI was never intended to turn every offense into a life
sentence").
20
recalibrate the balance between protecting public safety and
facilitating the reintegration of criminal defendants by
removing barriers to housing and employment.20 See House Speaker
Robert A. DeLeo, House Passes Criminal Offender Record
Information Reform, State House News Service, May 26, 2010;
State House News Service, Nov. 18, 2009 (statement of Sen. Creem
on Senate Doc. No. 2210) ("This bill strikes a great balance
. . . between providing information that the public has a right
to know and protecting people's privacy").
20
Legislators emphasized the positive impact that the
gainful employment of former criminal defendants can have on
both preventing recidivism and benefiting the community at
large. See State House News Service, Nov. 18, 2009 (statement
of Sen. Sonia R. Chang-Diaz on Senate Doc. No. 2210) ("No work
makes a lot of people return to crime, drugs, prison"); State
House News Service, May 26, 2010 (statement of Rep. O'Flaherty
on House Doc. No. 4703) ("This proposal is grounded in facts, is
smart on crime, and is protective of the population. . . . It is
hard for individuals to assimilate back into neighborhoods when
they are unable to get work"). This was also the governor's
message in his advocacy on the issue. See Governor Patrick
Signs Strong Anti-Crime Package to Protect Public Safety, Expand
Job Opportunities, State House News Service, Aug. 6, 2010 ("The
best way to break the cycle of recidivism is to make it possible
for people to get a job . . . . This legislation . . . helps
people get back to work so they can support their families");
Massachusetts Exec. Order 495 (Jan. 11, 2008) ("[T]he
Commonwealth has compelling interests in . . . empowering
individuals to obtain gainful employment and housing"). In
furtherance of this message, CORI reform was at times framed as
an economic bill, stimulating employment and full economic
participation by reducing barriers. See Governor Patrick Signs
Strong Anti-Crime Package to Protect Public Safety, supra; State
House News Service, July 30, 2010 (statement of Sen. Cynthia S.
Creem on Senate Doc. No. 2583); CORI Reform Supporters Push for
Record Overhaul, State Capitol Briefs, State House News Service,
June 3, 2009.
21
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. See Wolfe, 440 Mass. at 704.
c. New standard. Given the extent to which Doe frustrates
the legislative intent behind the recent reforms to the sealing
provisions, it is necessary to begin our analysis at the same
point at which the Pokaski court did: asking whether the First
Amendment is indeed implicated by G. L. c. 276, § 100C, second
par.
"[A]lthough we give respectful consideration to such lower
Federal court decisions as seem persuasive," Commonwealth v.
Hill, 377 Mass. 59, 61 (1979), quoting Commonwealth v. Masskow,
362 Mass. 662, 667 (1972), "we are not bound by decisions of
Federal courts except the decisions of the United States Supreme
22
Court on questions of Federal law." Commonwealth v. Montanez,
388 Mass. 603, 604 (1983). Because the United States Supreme
Court has yet to address whether the records of criminal cases
that have been dismissed or subject to nolle prosequi are
entitled to a First Amendment presumption of access, we are not
bound by any particular conclusion.21
We turn now to the two-step analysis set forth by the
Supreme Court to determine whether a First Amendment presumption
of access applies. See Press-Enterprise Co. v. Superior Court,
478 U.S. 1, 8-9 (1986) (Press-Enterprise II).
First, we "consider[ ] whether the place and process have
historically been open to the press and general public." Press-
Enterprise II, 478 U.S. at 8. At the core of the First
Amendment right of access is the criminal trial proceeding,
whose openness has been an "indispensable attribute of an Anglo-
21
It is worth observing that neither the First Circuit nor
the District of Massachusetts has revisited the question of
access to the records of closed criminal cases for more than
twenty years. See Globe Newspaper Co. v. Fenton, 819 F. Supp.
89, 100-101 (D. Mass. 1993) (denial of "public access to court-
maintained alphabetical indices of defendants in closed criminal
cases without an individual judicial determination . . . that a
particular defendant's name must be sealed or impounded to serve
a compelling state interest" violates First Amendment). It is
indisputable that our society has changed drastically since
either we or the Federal courts have given great thought to the
consequences of sealing. Clearly, the issue is ripe for
revisiting, and we are not concerned that in so doing we are
disturbing well-settled jurisprudence that remains readily
applicable.
23
American trial" since time immemorial, Richmond Newspapers, Inc.
v. Virginia, 448 U.S. 555, 569 (1980) (plurality opinion), and
whose value is ensuring the accountability of the judiciary to
the public. See Globe Newspaper Co. v. Superior Court, 457 U.S.
596, 604-606 (1982). Court records also historically have been
accessible to citizens of the Commonwealth, for the same reason.
Republican Co. v. Appeals Court, 442 Mass. 218, 222 (2004). See
Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 604 (2000);
Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546
(1977). See also Roe v. Attorney Gen., 434 Mass. 418, 435
(2001), citing Globe Newspaper Co. v. Fenton, 819 F. Supp. 89,
91, 100-101 (D. Mass. 1993). But see Cowley v. Pulsifer, 137
Mass. 392, 395-396 (1884) (certain papers filed in court not
open to public inspection). However, we have long recognized
that some classes of court records should not be available for
public review, such as records relating to cases brought in
juvenile court, see Commonwealth v. Gavin G., 437 Mass. 470,
473-475 (2002), citing G. L. c. 119, §§ 60, 60A, and 65, G. L.
c. 276, §§ 100 and 100B, and Police Comm'r of Boston v.
Municipal Court of the Dorchester Dist., 374 Mass. 640, 652, 667
(1978), and that court records properly can be impounded and
made unavailable for public inspection upon a showing of good
cause, see Republican Co., supra at 223, and cases cited.
Further, by statute, the records of certain completed criminal
24
cases may not be presumptively open for public view in the same
way as the court room or the filings in an ongoing criminal
prosecution. See St. 1972, c. 805 (introducing CORI statutory
scheme limiting public access to criminal records); St. 1971,
c. 686 (introducing statutory sealing of certain criminal
records).
Importantly, the elements of the criminal judicial process
that we have historically recognized as open to the press and
the general public are not affected by the sealing of criminal
records that occurs by way of G. L. c. 276, § 100C:
"The public's ability to attend a criminal trial is
not hindered. The media's right to report on the
court proceedings is not diminished. The statute does
not restrict the media's right to publish truthful
information relating to the criminal proceedings that
have been sealed. . . . [Indeed,] the public had a
right of access to any court record before, during,
and for a period of time after the criminal trial
[until the request for sealing was granted]."
State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St. 3d
382, 385 (2004). Accordingly, we conclude that the records of
closed cases resulting in certain nonconvictions have not been
open historically in the same sense as other, constitutionally
cognizable elements of criminal proceedings.
Second, we consider "whether public access plays a
significant positive role in the functioning of the particular
process in question." Press-Enterprise II, 478 U.S. at 8,
citing Globe Newspaper Co., 457 U.S. at 606. Here, we again
25
answer in the negative. There is no indication that the
availability of records of criminal cases that have been closed
after nonconviction "enhances . . . the basic fairness of the
criminal trial and the appearance of fairness," as the openness
of criminal trials does. Press-Enterprise II, supra at 9,
quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501,
508 (1984) (Press-Enterprise I). The First Amendment
presumption of openness stems in large part from the goal of
"making the operations of government institutions subject to
effective public scrutiny," see Fenton, 819 F. Supp. at 94-95,
and the sealing of a small subset of criminal records after the
cases have closed does not truly impede the functioning of this
process. See Winkler, 101 Ohio St. 3d at 385. Sealed records
are available to a number of entities and licensing commissions
that, in the Legislature's determination, may have a particular
need to know about such information. See G. L. c. 6, §§ 172-
178B. Further, sealing does not compromise law enforcement or
criminal justice efforts because such records remain available
to criminal justice agencies and may be used as relevant in
subsequent criminal proceedings. See G. L. c. 6, § 172; G. L.
c. 276, § 100D. See also G. L. c. 276, §§ 100A, 100B.
Therefore, sealed records remain available in ways that are
needed to preserve the integrity of the processes at issue.
26
As the Press-Enterprise II Court noted, "history and
experience shape the functioning of governmental processes."
Press-Enterprise II, 478 U.S. at 9. Where "experience and
logic" do not call for a First Amendment right of public access,
the right does not attach. See id. It bears repeating that the
class of records we are considering here is a narrow one: the
records of closed criminal proceedings that resulted in a
dismissal or an entry of nolle prosequi. We conclude that the
records of closed criminal cases resulting in these particular
dispositions are not subject to a First Amendment presumption of
access, and therefore that the sealing of a record under G. L.
c. 276, § 100C, need not survive strict scrutiny. This
conclusion, although at odds with that of the First Circuit and
the implicit rationale of some of its sister circuits,22 is
consistent with that of at least one other State supreme court,
see State v. D.H.W., 686 So. 2d 1331, 1336 (Fla. 1996), and with
22
According to a recent opinion by the United States
District Court for the District of Maryland, every Federal
circuit court except the United States Courts of Appeal for the
Federal Circuit and the Tenth Circuit has applied the Press-
Enterprise II test and concluded that the First Amendment right
of public access applies to "documents entered into evidence at
a criminal trial or filed in connection with at least some types
of substantive pretrial criminal proceedings." Center for
Constitutional Rights v. Lind, 954 F. Supp. 2d 389, 402 (D. Md.
2013). Of the cases cited for this proposition, however, only
the First Circuit opinion, Globe Newspaper Co. v. Pokaski, 868
F.2d 497 (1st Cir. 1989), explicitly pertains to the sealing of
court records in closed criminal cases. See Lind, supra at 402
n.11.
27
our own jurisprudence on impoundment, see, e.g., Republican Co.,
442 Mass. at 222-223 (certain court documents not subject to
First Amendment presumption may be impounded on lesser showing
than required where constitutional right implicated).
Although these records are not subject to a First Amendment
presumption, we conclude that they are subject to a common-law
presumption of public access. See Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597 (1978) ("courts of this
country recognize a general right to inspect and copy public
records and documents, including judicial records and
documents"); New England Internet Café, LLC v. Clerk of the
Superior Court for Criminal Business in Suffolk County, 462
Mass. 76, 82-83 (2012), and cases cited. See also Massachusetts
Body of Liberties, art. 48 (1641) ("Every inhabitant of the
Country shall have free liberty to search and review any rolls,
records or registers of any Court or office"). Although this
common-law presumption is of paramount importance, like its
constitutional counterpart, it is not absolute. See Nixon,
supra at 597-598; Sharpe, 432 Mass. at 604. Rather, it may be
restricted on a showing of "good cause." New England Internet
Café, LLC, supra at 83, citing Republican Co., 442 Mass. at 223.
Our conclusion that only a common-law presumption of public
access applies enables us to depart from the exacting
constitutional standard requiring narrowly tailored means toward
28
achieving a compelling government interest. Consequently, we no
longer will require that a defendant seeking sealing under G. L.
c. 276, § 100C, second par., prove "that the value of sealing
. . . clearly outweighs the constitutionally-based value of the
record remaining open to society." Doe, 420 Mass. at 151.
Instead, we interpret the legislative directive that
"substantial justice [will] best be served" by sealing to mean
that the defendant must establish that good cause exists for
sealing. See G. L. c. 276, § 100C. This is consistent with our
case law regarding the appropriate substantive standard where a
common-law presumption applies. See, e.g., New England Internet
Café, LLC, 462 Mass. at 78, 83; Republican Co., 442 Mass. at 223
("The public's right of access to judicial records . . . may be
restricted, but only on a showing of 'good cause'"), citing
Sharpe, 432 Mass. at 604; Newspapers of New England, Inc. v.
Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403
Mass. 628, 631-632, 637-638 (1988), cert. denied, 490 U.S. 1066(1989), and cases cited.23 Although a good cause analysis
23
This test is analogous to the test employed for
impoundment of certain court records, which raises similar
concerns of privacy and public access. See Boston Herald, Inc.
v. Sharpe, 432 Mass. 593, 604 n.22 (2000), quoting Rule 7 of the
Uniform Rules on Impoundment Procedure (West 2000). Where we
have recognized a common-law presumption of access in a
particular court record, we have employed a "good cause"
standard to determine when impoundment is permissible. See
Republican Co. v. Appeals Court, 442 Mass. 218, 223 (2004). See
also New England Internet Café, LLC v. Clerk of the Superior
29
requires consideration of similar factors as an analysis where
the First Amendment is implicated, see Republican Co., supra at
223 n.8; Sharpe, 432 Mass. at 605 n.24, the weight of the scales
is more balanced, and the burden on the defendant somewhat
lessened. See New England Internet Café, LLC, supra at 83.
Nonetheless, the basic framework remains the same: sealing may
occur only where good cause justifies the overriding of the
general principle of publicity.24 Cf. Republican Co., supra at
223.
Court for Criminal Business in Suffolk County, 462 Mass. 76, 83-
84 (2012) (impoundment requires showing of "good cause");
Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware
Div. of the Dist. Court Dep't, 403 Mass. 628, 632 (1988), cert.
denied, 490 U.S. 1066 (1989), quoting H.S. Gere & Sons, Inc. v.
Frey, 400 Mass. 326, 329 (1987) (search warrant affidavits,
entitled to common-law presumption, may be impounded "when
justice so requires"; this requires judge to "balance the
parties' privacy concerns against the general principle of
publicity" to determine if "'good cause' to order the
impoundment exists"). The broader scope of sealing presents
somewhat different consequences and has an impact on different
interests than impoundment does, and judges must be cognizant of
these heightened consequences in conducting a good cause
analysis. See Pixley v. Commonwealth, 453 Mass. 827, 836 n.12
(2009) (discussing difference between sealing and impoundment).
24
It is worth discussing briefly the first paragraph of
G. L. c. 276, § 100C, although it is not at issue here. That
paragraph provides for mandatory sealing following the
completion of a criminal case that ends in a finding of not
guilty, a finding of no probable cause, or a failure to indict
by a grand jury. See id. In Pokaski, 868 F.2d at 509-511, the
United States Court of Appeals for the First Circuit held that
this automatic, mandatory sealing of cases violated the First
Amendment presumption of public access to court records with
regard to cases ending in "not guilty" or "no probable cause"
findings, but not with regard to cases ending in "no bill" from
30
a grand jury. The Pokaski court indicated, however, that
discretionary sealing of such cases would be constitutional
where the judge has made "specific, on the record findings that
sealing [is] necessary to effectuate a compelling governmental
interest" -- in other words, where the standard set forth in
that opinion for G. L. c. 276, § 100C, second par., is
satisfied. See id. at 511.
Following Pokaski and our adoption of the Pokaski reasoning
in Doe, 420 Mass. at 149, the District Court Department of the
Trial Court determined that, with the exception of "no bill"
cases, which were not disturbed by these decisions, it would
seal criminal records under either paragraph of G. L. c. 276,
§ 100C, pursuant to the standard set forth in Doe. See The
Administrative Office of the District Court, Guide to Public
Access, Sealing & Expungement of District Court Records, at 13,
13 n.42, 17, 42-44 (rev. Sept. 2013) (hereinafter Guide to
Public Access). Accordingly, rather than automatically sealing
cases resulting in a finding of "not guilty" or "no probable
cause," the District Court requires a defendant to file a
petition for sealing and demonstrate that "the value of sealing
. . . clearly outweighs the constitutionally-based value of the
record remaining open to society." Doe, supra at 151. See
Guide to Public Access, supra. Sealing may occur only after a
judge makes specific findings on the record that this standard
has been met. See Doe, supra at 152-153; Guide to Public
Access, supra. If the petition is granted, the District Court
judge signs a form which the defendant may then provide to the
probation department for sealing of his or her record there.
See Guide to Public Access, supra.
We suspect that other trial courts in the Commonwealth also
may be taking this approach of employing one process and
substantive standard for sealing decisions, regardless of
whether the case resulted in a finding of not guilty, a finding
of no probable cause, a dismissal, or an entry of nolle
prosequi. See Guide to Public Access, supra. Because sealing
under G. L. c. 276, § 100C, first par., is not directly at issue
in this case, we decline to extend our holding and the analysis
we employ to that portion of the statute. However, until the
Legislature revisits the language of G. L. c. 276, § 100C, first
par., or until the issue of its interpretation comes before us,
we observe that the solution adopted by the District Court is a
reasonable one, as long as it is modified consistent with our
holding in this case: that sealing may occur where good cause
justifies the overriding of the general principle of publicity.
31
In assessing whether the defendant has established good
cause for sealing his or her record, judges must balance the
interests at stake. Cf. Republican Co., 442 Mass. at 223;
Sharpe, 432 Mass. at 604-605, and cases cited. If, after
balancing those interests, the judge determines that the
defendant has done so, the substantial justice standard will be
satisfied. This test achieves the necessary balance between the
common-law presumption of access and the privacy interests at
stake.25
Other jurisdictions with discretionary sealing statutes or
judicial standards for sealing have adopted such balancing
tests. See, e.g., Fla. Stat. Ann. § 943.045(19) (West Supp.
2014); Ohio Rev. Code Ann. § 2953.52(B)(2)(d) (West 2006 & Supp.
2014) (in determining whether sealing is appropriate, judge must
consider statutory factors and "[w]eigh the interests of the
person in having the official records pertaining to the case
sealed against the legitimate needs, if any, of the government
to maintain those records"); Johnson v. State, 50 P.3d 404, 406
(Alaska Ct. App. 2002), quoting Anchorage v. Anchorage Daily
25
It is only logical that the standard for the closure of a
court record from public view after the completion of the
criminal proceeding be a lesser one than that for closure of the
criminal proceeding itself. Yet the standard articulated in Doe
and Pokaski is essentially the same standard as articulated for
closure of ongoing judicial proceedings in criminal cases. See,
e.g., Commonwealth v. Cohen (No. 1), 456 Mass. 94, 107 (2010),
and cases cited.
32
News, 794 P.2d 584, 590 (Alaska 1990) ("In cases where there is
no express exception to the state's disclosure laws, we balance
'the public interest in disclosure on the one hand, and the
privacy and reputation interests of the affected individuals
together with the government's interest in confidentiality, on
the other,'" and in cases involving criminal records, court
"balance[s] the public's right to know about an individual's
past crimes against the convicted individual's right to
privacy"); D.H.W., 686 So. 2d at 1336 ("policy of public access
to old records must be weighed against the long-standing public
policy of providing a second chance to criminal defendants who
have not been adjudicated guilty"); In re Kollman, 210 N.J. at
577 ("judges will balance . . . [articulated] factors as they
decide whether expungement [akin to sealing] serves the public
interest in a particular case" and will "weigh the risks and
benefits to the public of allowing or barring expungement");
Winkler, 101 Ohio St. 3d at 384-385 (discussing Ohio balancing
test).
We turn now to what this balancing test will entail.
Judges should begin by recognizing the public interests at
stake. The public has a general right to know so that it may
hold the government accountable for the proper administration of
justice. See Nixon, 435 U.S. at 598; Pokaski, 868 F.2d at 502;
George W. Prescott Publ. Co. v. Register of Probate for Norfolk
33
County, 395 Mass. 274, 279 (1985). As this court acknowledged
in Doe, 420 Mass. at 151, "[e]ven [where] a case has not been
prosecuted, information within a criminal record may remain
useful" to the public.
Next, judges evaluating a petition for sealing must
recognize the interests of the defendant and of the Commonwealth
in keeping the information private. These interests include the
compelling governmental interests in reducing recidivism,
facilitating reintegration, and ensuring self-sufficiency by
promoting employment and housing opportunities for former
criminal defendants. See DeLeo, House Passes Criminal Offender
Record Information Reform, State House News Service, supra;
Massing, supra at 23-24. Where there is persuasive evidence
that employers and housing authorities consider criminal history
in making decisions, there is now a fully articulated
governmental interest in shielding criminal history information
from these decision makers where so doing would not cause
adverse consequences to the community at large.26 See Globe
26
The corollary that the sealing of nonconvictions does not
have deleterious effects on the safety of the community is
evidenced by the fact that, according to one national survey,
the vast majority of States either permit the sealing of
nonconviction information or do not make such information
available to the public at all. See Mukamal & Samuels,
Statutory Limitations on Civil Rights of People with Criminal
Records, 30 Fordham Urb. L.J. 1501, 1509-1510 (2003) (forty
States permit expungement/sealing of some or all nonconviction
criminal records, whereas only sixteen permit sealing of some
34
Newspaper Co., 439 Mass. at 384; Doe, 420 Mass. at 146, 151.
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.
See Pokaski, 868 F.2d at 505-506; Fenton, 819 F. Supp. at 97.
See also Rasmusen, Stigma and Self-Fulfilling Expectations of
Criminality, 39 J.L. & Econ. 519, 519 (1996) ("A convicted
criminal suffers not only from public penalties but from stigma,
the reluctance of others to interact with him economically and
socially"). These concerns are heightened by the immediate and
effectively permanent availability of criminal history
information on the Internet. See Jacobs & Crepet, supra.
With these interests in mind, we turn next to the factors
relevant to conducting this balancing, noting at the outset that
judges may consider any relevant information in weighing the
interests at stake. See New England Internet Café, LLC, 462
Mass. at 92 ("'good cause' analysis is sufficiently flexible" to
allow consideration of any factors relevant to specific facts of
case); Globe Newspaper Co., petitioner, 461 Mass. 113, 122
(2011) (under good cause standard, judge must "consider and
conviction records). See also United States Dep't of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754 n.2
(1989).
35
balance the relevant factors that apply to a particular case").
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. We
consider each of these factors in greater detail.27
First, of central importance are the disadvantages the
defendant claims to face due to the availability of his or her
criminal record. Although the defendant need not establish a
risk of specific harm, contrast Doe, 420 Mass. at 152, he or she
must allege with sufficient particularity and credibility some
disadvantage stemming from CORI availability that exists at the
time of the petition or is likely to exist in the foreseeable
future.28 This can include, but is not limited to, a risk of
27
Although we have numbered the factors here for ease of
comprehension, this list is not exhaustive, and the factors
should be tailored appropriately to the particular circumstances
of each case.
36
unemployment, underemployment, or homelessness attributable to
CORI availability; a demonstrated desire to pursue an occupation
in which employers have access to nonconviction records; an
impeded ability to participate in community or volunteer
activities due to CORI availability; or the potential for
reduced opportunities for economic or professional advancement
due to CORI availability. It may also involve a demonstration
that under- or unemployment, despite efforts to achieve gainful
employment, has led the defendant to rely on public assistance
to support him or herself, and his or her family.29 As noted
above, judges may take judicial notice of the well-known
consequences for employment and housing prospects from the
existence of a criminal record.
Second, evidence of rehabilitation should be considered in
conjunction with the judge's assessment of whether sealing would
28
As the facts of this case demonstrate, it may be
difficult to attribute causation to nonconvictions where a
defendant has convictions or other criminal matters on his or
her CORI. It is unrealistic, however, to require a defendant to
prove causation in any circumstance, and instead, we entrust the
assessment of a plausible relationship between CORI availability
and the alleged adversity, and the extent to which the alleged
adversity may be relieved by the sealing of the particular
nonconviction at issue, to the sound discretion of the judge.
29
This consideration is particularly important where we
have recognized a compelling State interest in ensuring that
parents are able to support their children. See L.W.K. v.
E.R.C., 432 Mass. 438, 446 (2000); Gray v. Commissioner of
Revenue, 422 Mass. 666, 675 (1996), quoting Duranceau v.
Wallace, 743 F.2d 709, 711 (9th Cir. 1984).
37
assist the defendant in overcoming the identified disadvantages.
Employment attempts, community or civic engagement, successful
completion of a probationary period or a sobriety or mental
health treatment, lack of further contact with the criminal
justice system, or other accomplishments may weigh in favor of
sealing by demonstrating that the defendant bears a low risk of
recidivism and a likelihood of success in future employment.
See In re Kollman, 210 N.J. at 576-577. This evidence of
rehabilitation can begin from the date of the alleged offense,
and need not be limited to the date of the disposition, given
the significant passage of time that can occur between these
events.30
Third, judges should consider other evidence on whether
sealing would alleviate the identified disadvantages. In this
respect, it may be useful to consider the nature of the
underlying crime, the stigma or stereotypes attached to it, and
whether the defendant would be benefited by the sealing of the
record without posing an additional safety threat to the
30
This factor may place the defendant in somewhat of a
"Catch-22" situation, in that sealing is intended to enable
rehabilitation and reintegration where a criminal record impedes
such progress. Nonetheless, the defendant should be able to
show some meaningful effort toward rehabilitation, even in the
face of the barriers that the availability of his or her
criminal record may impose.
38
community.31 Similarly, where the crime or the case was
newsworthy, the judge should consider whether the defendant
maintains any sense of privacy, such that sealing could still
have a positive impact.32
Fourth, consideration of the defendant's circumstances at
the time of the offense may prove instructive in assessing his
or her likelihood of recidivism or success. For example,
significant criminal justice research suggests that younger
individuals have a great capacity for rehabilitation and should
not face the harshest consequences for their youthful
indiscretions. See Diatchenko v. District Attorney for the
Suffolk Dist., 466 Mass. 655, 669-671 (2013). On the other
hand, a history of prior criminal activity leading up to the
offense weighs against sealing, as it suggests a greater
likelihood of reoffense.
31
It is no longer necessary, however, to consider the value
to law enforcement of keeping the record open to the public.
See Police Comm'r of Boston v. Municipal Court of the Dorchester
Dist., 374 Mass. 640, 656 (1978). Under the revised CORI
framework, law enforcement have automatic access to sealed and
unsealed records. See G. L. c. 276, § 100D. See also G. L.
c. 6, §§ 167, 172 (a) (1). Cf. State v. Noel, 101 Wash. App.
623, 628 (2000).
32
Where the defendant is a public figure, a different
analysis may be necessary. Cf. Sharpe, 432 Mass. at 611-612.
As those facts are not before us, we decline to discuss this
analysis further.
39
Fifth, the passage of time since the date of the offense
and the date of the dismissal or nolle prosequi is an important
factor that can weigh in favor of either interest. If sealing
is sought immediately following the disposition, there may be
concerns that the public has not had sufficient opportunity for
access, and that the defendant may be likely to reoffend. With
the passage of at least some time, however, the potential damage
resulting from public availability is done, and the record may
exist in the databases of third-party background check services,
immune in practice (but not in law) from sealing. See Doe, 420
Mass. at 152; Calvert & Bruno, When Cleansing Criminal History
Clashes with the First Amendment and Online Journalism: Are
Expungement Statutes Irrelevant in the Digital Age?, 19 CommLaw
Conspectus 123, 123-124 (2010). But see G. L. c. 93, § 54
(requiring background check services to update records). In
addition, as the passage of time since the offense lengthens,
the risk of recidivism lessens, and the case for enabling full-
fledged participation in the workforce becomes even stronger and
the burden on the public weaker.33 See Police Comm'r of Boston,
374 Mass. at 658 (after time, maintenance of records "cannot be
said to serve any valid law enforcement purpose").
33
Once the defendant has reached the five- or ten-year
marks from the date of the disposition, he or she likely will be
eligible for automatic sealing under G. L. c. 276, § 100A.
40
Sixth, the nature of and reasons for the disposition,
meaning whether the case was dismissed with prejudice, without
prejudice, as part of an agreed-upon disposition, or as the
result of a nolle prosequi, should be considered. Cf. N.J.
Stat. Ann. § 2C:52-2(a)(2) (West Supp. 2014); Ohio Rev. Code
Ann. § 2953.52(B)(2) (West 2006 & Supp. 2014). Defendants who
were subject to wrongful accusations present the strongest case
for sealing. See Commonwealth v. Roberts, 39 Mass. App. Ct.
355, 358 (1995) ("It is peculiarly unjust to saddle an
individual with a record in a case that should never have been
begun"). Dismissals after admission of guilt and periods of
probationary conditions may require more evidence of
demonstrated rehabilitation.
d. Application of new standard. For the purpose of
providing guidance to the lower courts on how to apply the
balancing test we announce today, we consider how the defendant
in this case would fare under the test, recognizing that his
record has already been sealed under G. L. c. 276, § 100A.
First, the defendant alleged specific difficulties in
obtaining employment, including noting that he had applied to
over 300 positions and obtained a small number of interviews,
identifying specific employers who had rejected his applications
and specific challenges he faced in obtaining employment or
educational opportunities in his chosen field of social work.
41
He also alleged that because of his OUI charge, he was unable to
resume his prior work as a commercial truck driver, and instead
has had to pursue new career opportunities. The Commonwealth
contends that the defendant's prior criminal history, portions
of which at the time of his petition for sealing had not yet
been sealed and which reflected long-past firearm and drug
convictions, was the basis for his employment challenges.34 The
defendant's prior, serious criminal history weighs against
sealing here, but it is notable that these convictions occurred
over twenty years ago. We therefore do not find it dispositive
that the defendant cannot demonstrate that the specific charges
he seeks to seal are the ones that have prevented his
employment, and consider his allegations sufficient to
demonstrate meaningful employment disadvantages stemming from
the availability of his record.
34
The defendant pleaded guilty in 1995 to seven crimes
arising out of two sets of indictments. These charges were for
unlawful possession of a firearm, distribution of cocaine in a
school zone, and criminal conspiracy. At the time of his
petition for sealing of his OUI and property damage charges, the
defendant indicated that portions of his CORI record had been
sealed "administratively," presumably under G. L. c. 276,
§ 100A, but that his record still contained several dismissed
charges from District Court, for which he would be petitioning
for sealing separately. Although it appears that the
defendant's record has since been sealed in full, it is unclear
from the record before us whether the drug and firearms
convictions from 1995 were sealed at the time of the instant
petition, and it is further unclear what the defendant's
criminal history is over-all. In conducting the balancing test
we introduce here, it is important that the judge have a
complete record of the defendant's criminal history.
42
Second, the defendant submitted significant evidence of
rehabilitation, demonstrating his sobriety, his successful
efforts to obtain at least occasional employment, his efforts
toward self-improvement through enrollment in financial
workshops, and his extensive volunteer work, which was
corroborated by three letters of recommendation from individuals
who work at the volunteer organizations. The evidence on this
factor weighs heavily toward sealing where the defendant seems
clearly capable of contributing fully to society, and sealing
would remove the barrier that prevents him from doing so.35
This evidence, along with the fact that five years had passed
between the date of the dismissal and the date of the
defendant's petition, suggest minimal if any risk of recidivism.
The Commonwealth urges us to place great weight on the
defendant's admission to sufficient facts for a finding of
guilty on the OUI charge and the accompanying charge of leaving
the scene of property damage, and the subsequent dismissal of
these charges only after a continuance without a finding.36
35
We are not persuaded by the Commonwealth's assertion that
sealing would have no effect on his employment prospects because
private background check services are available. Were we to
accept this argument, sealing would never be justified. The
operations of third-party providers who disregard sealing orders
do not dictate our analysis.
36
This disposition was previously excluded from the sealing
provision of G. L. c. 276, § 100C. See St. 2010, c. 256, § 131.
43
However, we are not persuaded that this factor outweighs the
significant evidence of rehabilitation and disadvantages that
may be remedied from sealing. Accordingly, a judge properly
could conclude that the defendant carried his burden of
demonstrating that good cause exists to justify sealing. The
evidence presented by the defendant illustrates that the
governmental interest of removing stigma to enable a
rehabilitated individual to obtain gainful employment in his or
her area of training or chosen profession would be well served
here, and that there is little need to keep the defendant's
record available for public inspection where so much time has
passed.
2. Procedure for discretionary sealing under G. L. c. 276,
§ 100C. We turn finally to the question of the procedure courts
should employ with regard to petitions for sealing under G. L.
c. 276, § 100C. In Doe, 420 Mass. at 149-150, we adopted a two-
stage hearing process suggested in Pokaski, 868 F.2d at 507-508,
for the resolution of petitions for sealing under G. L. c. 276,
§ 100C.
The Commonwealth asks this court to affirm the two-stage
hearing process because it enables judicial efficiency by
providing for summary dismissal of sealing requests without a
prima facie case and reserves only the potentially meritorious
petitions for full hearings conducted with notice to the public.
44
In contrast, the defendant asserts that a one-stage hearing
process is a more effective case management tool that promotes
judicial economy and access to justice and does not depart from
any procedural requirement imposed by Doe and Pokaski. We agree
with the defendant that an initial hearing may no longer be
necessary, and accordingly modify the procedure articulated in
Doe.
Under the procedural framework set forth in Doe, after a
defendant files a petition for sealing under G. L. c. 276,
§ 100C, the defendant must appear for an informal hearing at
which he or she must make a prima facie case for sealing.37 Doe,
420 Mass. at 149. If a prima facie showing is not made, the
petition is dismissed summarily. Id. If, however, the
defendant makes an adequate showing, a second, more extensive
hearing is held, with notice provided to the district attorney's
office, the probation department, and the public. Id. at 150.
According to the parties, some courts have departed from
this two-hearing process in the interest of judicial economy,
opting instead to conduct a single, final hearing. See Survey
of Greater Boston Area Court Procedures for Criminal Record
Sealing, Mass. Legal Services (Oct. 22, 2013). Given that we
announce today a lower standard for sealing and no longer
37
No notice is provided to the public or any other
interested party of this initial hearing. See Doe, 420 Mass. at
149-150.
45
require defendants to overcome the weight of a constitutional
presumption, we conclude that an initial hearing may not be
necessary. We are satisfied that eliminating the requirement of
an initial hearing will go far in improving judicial efficiency
and minimizing the burden on pro se litigants without
compromising public access to such determinations or depriving
defendants of an adequate opportunity to be heard.38
Where a defendant files a petition and accompanying
documents setting forth facts that demonstrate good cause for
overriding the presumption of public access to court records, a
judge may determine on the pleadings whether a prima facie
showing has been made.39 If such a showing is made, the petition
should proceed to a hearing on the merits. Notice of the
hearing must be provided to the public and other interested
parties, as detailed in Doe, 420 Mass. at 150.40 See United
States v. Kravetz, 706 F.3d 47, 59 (1st Cir. 2013) ("It is
axiomatic that protection of the right of access suggests that
the public be informed of attempted incursions on that right.
38
Under this revised procedure, courts may hold a single
sealing petition session, at which many such petitions are heard
and resolved expeditiously.
39
In some cases, where a prima facie case is not made on
the papers, a preliminary hearing may be desirable. We leave
this determination to the discretion of the motion judge.
40
If a prima facie showing is not made, the sealing
petition may be summarily dismissed on the pleadings. See Doe,
420 Mass. at 149.
46
Providing the public with notice ensures that the concerns of
those affected by a closure decision are fully considered");
Globe Newspaper Co., 457 U.S. at 609 n.25, quoting Gannett v.
DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)
(public and press must have opportunity to be heard on "question
of their exclusion" where case-by-case assessment employed).
After hearing the arguments and balancing the interests at
stake, if the judge is satisfied that good cause merits sealing,
the judge must make "specific findings on the record setting
forth the interests considered by the judge and the reasons for
the order directing that such sealing occur." Doe, 420 Mass. at
152-153. This requirement reflects the gravity of the decision
and ensures that the common-law presumption of public access is
afforded careful consideration.
Conclusion. The case is remanded for dismissal of the
action as moot.
So ordered.