Journey Out of Neverland: CORI Reform, Commonwealth v. Peter Pon, and Massachusetts’s Emergence as a National Exemplar for Criminal Record Sealing

INTRODUCTIONIn August of 2010, Massachusetts Governor Deval P atrick issued a press release in which he stated that "[t]he best way to break the cycle of recidivism is to make it possible for people to get a job." 1 Yet for years, many individuals with criminal records in Massachusetts faced serious roadblocks in their efforts to obtain employment and otherwise reintegrate into society. 2 John C. Williams, one of many ex-offenders living in Massachusetts, remarked in 2008 that "[i]f you're not able to take care of yourself, your family, then it's hard to assimilate back into society. For me, this is personal . . . . A lot of people forget about the struggle there is." 3Incarceration, fines, probation, and other legal restrictions placed on an individual following a criminal conviction do not account for the totality of the punishment that an individual faces following a brush with the criminal justice system. 4 For many, a one-time lapse of judgment leads to involvement in the criminal justice system that in turn can have a profoundly adverse impact on an ex-offender's attempts to reintegrate with society or to obtain employment and housing. 5 Faced with a myriad of roadblocks, the risk of recidivism for ex-offenders remains high. 6 In light of these realities, the availability of criminal record sealing represents a potential path to facilitate reintegration and rehabilitation through opportunity and access to economic and social resources. 7Although many states have developed pathways through which individuals can seek to transcend their criminal records, very few states actually provide individuals with meaningful paths to opportunity or chances for rehabilitation. 8 In recent years, there has been a growing call for the adoption of a more comprehensive and efficacious approach in order to encourage rehabilitation and combat recidivism. 9 In accordance with this trend, numerous state legislatures have proposed, enacted, or revised statutes that allow individuals to seal or expunge criminal records. 10Beginning in 2010, the Massachusetts legislature and Supreme Judicial Court have made substantial changes to the way that criminal records are sealed, accessed, and distributed in the state. 11 These changes include shorter waiting times to seal conviction records, increased access to records by employers and agencies, and a new, more permissive standard for sealing non-conviction records. 12 Despite these changes, some observers assert that the Massachusetts legislature should have made additional reforms to the state's criminal record management system. 13This Note argues that a slightly modified form of the Massachusetts schema for criminal record sealing should serve as the model for nationwide reform of criminal record sealing and expungement statutes. 14 Although Massachusetts's approach responds to many of the issues facing ex-offenders, certain changes need to be made before Massachusetts can be recognized as a true exemplar for criminal record sealing. 15 Part I of this Note explores the underlying rationales for and against sealing criminal records, and the current approaches to sealing at the state and federal levels. 16 Part II examines the recent legislative and judicial overhaul of Massachusetts's approach to criminal record sealing. 17 Finally, P art III argues for the nationwide adoption of certain aspects of Massachusetts's system, as well as for the revision of certain aspects by the Massachusetts legislature and Supreme Judicial Court. 18I. THE DIVISIVE ISSUE OF SEALING AND EXPUNGEMENT AT THE STATE AND FEDERAL LEVELThis Part examines the debate over criminal record sealing and then discusses the different approaches that the federal government and state governments have taken.19 Section A of this Part analyzes the various societal and penological arguments that weigh against and in favor of criminal record sealing.20 Section B of this Part examines the narrow routes to expungement and sealing at the federal level through judicial and statutory remedies. …