Taking Sides on Timing of Sealing Criminal Records

The Massachusetts State House at night. Photo by J. Graham Pearsall/BU News Service

By Katie Milliken
Boston University Statehouse Program

This article was also published in the Worcester Telegram & Gazette.

BOSTON – When Fitchburg resident David Gonzalez left the prison system in 2000, he felt fortunate to find a job. He initially worked at a factory, transferring a year later to the Sisters of Mercy Convent. However, after working there for less than a year, the organization conducted a background check and fired him for his criminal record.

“After I left the convent, I relapsed (into drug use),” Gonzalez said. “I was very depressed and attempted suicide many times … I still have depression.”

Gonzalez said he juggled short-term jobs and collected disability for years. He finally found steady employment in 2017, when he was hired by the Latin American Health Alliance as a substance-abuse counselor. His new employer disregarded his criminal record, allowing Gonzalez to start over.

“I think people should be given the opportunity to start (fresh),” Gonzalez said. ”(Open criminal records) keep people in shackles.”

A comprehensive criminal justice reform proposal approved by the Massachusetts Senate would reduce the time frame for sealing these criminal records. Under the bill, felony records could be sealed after seven years instead of 10. Misdemeanors would be closed in three years instead of five.

The Senate bill has advanced to the House, where Speaker Robert DeLeo has said he anticipates his chamber will take up its own plan within the next two weeks to enable a conference committee to begin work before the Legislature’s 2017 session ends on Nov. 15.

“Most people who are rearrested will be arrested in the first year,” said Ben Forman, a research director at MassINC. “When you get to seven years out, (the recidivism rate for felonies) is roughly similar to someone who has never been arrested.”

Further, data from the National Institute of Justice reports that 56.7 percent of former prisoners were rearrested during their first year of release. By the third year, the recidivism rate drops to 11 percent.

“The big issues (created by open criminal records) are getting hired and getting housing,” said Sen. William Brownsberger, the legislation’s sponsor who represents Belmont.

Brownsberger said he expects the proposal to have a more significant impact on housing. However, the bill could also help people approaching the job search with an open record and large gaps in their résumé.

Advocates say new provisions would help former convicts transition to life outside of the criminal justice system. However, employers worry that the bill would leave businesses unable to perform thorough background checks.

While not all employers will hire people with a record, businesses that employ former convicts better understand the challenges that ex-prisoners may face, said Chris Geehern, a spokesperson from the Associated Industries of Massachusetts.

According to Geehern, employers that have more information about a person’s criminal history can create an environment to make the transition to work easier.

“The employers know what he or she is taking on, and ex-offenders (can find a job) with some sort of support system when they go into work,” Geehern said.

Protecting patrons’ personal information creates another area of concern. According to Ryan Kearney of the Retailers Association of Massachusetts, putting employees with a history of identify theft behind the register could endanger customers’ credit card information.

Kearney also said the retail industry faces a $1 billion loss of merchandise from shoplifting, both by customers and employees. Background checks help safeguard employers from these losses.

″(Retail) employees have access to … cash and merchandise,” Kearney said. “Limiting the ability to access (criminal records) exposes employers to liabilities.”

A background check may not necessarily hurt a candidate, said Joseph D. Early Jr., the district attorney for Worcester County. Employers can decide to overlook outdated or minor charges.

“Once it’s sealed, the person looking at your record doesn’t know if it was shoplifting or a murder,” Early said. Employers may choose to err on the side of caution and toss out a candidate’s résumé.

Early said the Senate’s proposal is too absolute and that records should be sealed on a case-by-case basis, making it easier to seal misdemeanors but not necessarily violent crime.

″(Sealing records for) violent crime creates concerns,” he said. “These might be people working in nursing homes and schools.”

Meanwhile, advocates, including members of Jobs Not Jail, say that sealing records sooner reduces the number of obstacles former convicts face after leaving the criminal justice system.

″(Criminal record requests) create barriers to everything someone needs to survive in the real world,” said Delia Vega, a Worcester resident and community organizer for the coalition.

Vega argues that if someone does not return to crime immediately out of jail, when opportunities are the most limited, they should not be penalized for misdemeanors five years down the road.

According to Allison Jordan of the Criminal Justice Policy Coalition, the barriers former prisoners face when re-entering society increase the risk of recidivism. She said background checks inhibit these individuals from participating productively in their communities.

“When released, society expects (ex-convicts) to be productive model citizens,” Jordan said in a written statement. “However, we give them absolutely no tools to make the change we expect to see of them.”

She calls reducing the time frame for sealing records a small step in the right direction.

While the legislation makes its way to the House, community groups continue outreach on sealing records.

Ex-Prisoners and Prisoners Organizing for Community Advancement is a Worcester-based nonprofit. On Wednesdays, staff makes house calls, helping eligible former prisoners learn how they can seal their records.

Kevin Lynch, executive director at EPOCA, said he has seen people jump for joy and offer blessings once the process is finally complete. According to Lynch, former prisoners are overwhelmed with opportunity after their records are sealed. They can find higher-paying jobs and move to better neighborhoods, reducing the likelihood that they will return to crime.

“We try to assist those … (who) are seeking gainful employment to (become) a productive citizen,” Lynch said. “People have already paid their debt to society.”


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