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November 28, 2021

Notable accounting of the "utter failure" of Massachusetts new expungement law

The Boston Globe has this great lengthy new piece about Massachusetts expungement practices headlined "‘An utter failure’: Law meant to clear old convictions, including for marijuana possession, helps few." I recommend the full piece, and here is how it starts:

When state legislators passed a criminal justice reform bill in 2018, Massachusetts residents won the ability to clear away certain criminal records — including convictions for marijuana possession and other now-legal activities — that can make it difficult to land a job, rent an apartment, and otherwise move on with life.

But three years later, only a fraction of those who are likely eligible for relief have had their records expunged. Massachusetts Probation Service data suggest that people who were previously arrested for, charged with, or convicted of a crime submitted just 2,186 petitions to expunge their records between January 2019 and July, of which 352 were eventually approved by state judges, or about 16 percent.  And of those 352, probation officials could definitively identify only 17 related to marijuana, a statistic they first began tracking (partially) in January.

While the state could not say exactly how many people are potentially eligible for expungements, advocates insist the pool runs into the tens of thousands.  For example, there were about 68,800 civil or criminal violations for marijuana possession issued in Massachusetts from 2000 through 2013, and 8,000-plus arrests for selling or possessing marijuana each year from 1995 to 2008, according to a Cannabis Control Commission research report and an ACLU analysis.  And cannabis charges are only one of a number of past incidents that can be wiped clean under the law after enough time has passed.

Critics attribute the low numbers of expungements to restrictive eligibility criteria, a lack of outreach to former defendants, disorganized state records, and a lengthy application process that ultimately gives judges wide latitude to reject even seemingly qualified requests with little explanation.

“Our expungement statute has been an utter failure,” said Katy Naples-Mitchell, an attorney at Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice who specializes in criminal justice policies.  “We could be helping people on a much grander scale, but instead we’re seeing this paltry, piecemeal effort — and even that has been almost totally frustrated, in part by a bench that is often a lot less progressive than the legislation it’s charged with carrying out.”

The 2018 law bars the expungement of violent or sexual crimes, and practically any offense committed after the age of 21.  And, importantly, it prohibits anyone with more than one entry on their record from obtaining an expungement, unless the other offenses are motor vehicle violations that resulted in a fine of less than $50.  The only exceptions are special circumstances such as mistaken identity or conduct that is no longer illegal, as with marijuana, which together accounted for just 298 attempted petitions.

It also makes former defendants responsible for learning of the expungement program, determining their eligibility, tracking down the relevant records within the state’s patchwork of police and court filing systems, and submitting them along with a petition to the state probation department.  Probation officials reject the vast majority of expungement petitions they receive (around 79 percent) as ineligible under the law, suggesting there is widespread confusion among applicants about which charges can be cleared.

If an application is cleared by the probation department to go before a judge, the office of the district attorney who originally brought the charges is then given a chance to object.  And even when prosecutors endorse a petition, judges can still reject an expungement request on the grounds it would not be in the “best interests of justice.” Attorneys for former defendants say judges have used that clause to block dozens of otherwise eligible requests.

November 28, 2021 at 10:40 PM | Permalink


MA lawyer here with experience submitting a successful petition, although not for a marijuana offense.

I think the criticisms here are mostly on point, especially about the massive administrative burden that's just dumped on individuals seeking expungement. For example, in my client's case, she was an intelligent, college-educated person who even had some past work experience in state gov't, but I doubt even she would have been able to properly navigate the process without help from counsel. So I can't imagine how difficult it is for indigent folks who might not be as savvy or lack access to legal assistance.

The process also has another hurdle that's not mentioned in the article. Even assuming you run the whole gauntlet and then prevail in court, actually implementing the expungement is still not automatic for the most part. The court will of course expunge its own records. But for anything held by executive agencies and local entities—and usually something like that exists—you're pretty much on your own. The court won't really do it for you. So you have to go each of those entities separately and basically plead with them to do it. They don't care much either that you even have some court judgment. If they end up agreeing to do it—which happened in our case, thankfully—great, but otherwise, you don't have much recourse. I suppose you could file a whole separate new case against each entity, although it's a serious pain to do that.

I still think the statute is a good first step (FSA pun intended) in the right direction, and Brownsberger (the main sponsor) is a good guy with good intentions, but clearly lots more work needs to be done. The proposals to establish an essentially automatic, gov't-driven process in line with CT and other states would seem to address many of the current problems. Why that wasn't just done in the first instance, I'm not sure; maybe the legislative sausage making history and back and forth the Gov. would illuminate any compromises that were made.

Finally, I am curious about the pending SJC case mentioned in the article. Not many details seem to be available, maybe unsurprisingly because the case is impounded, but if anyone knows more, please do share.

Posted by: Danimal | Nov 30, 2021 10:45:45 AM

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