By Nicholas Babaian, New England Law School
Third place winner of the second annual law student writing competition.
"It is like a stamp, a badge of inferiority, one that has been affixed by the law."1
This quote from the Plessy v. Ferguson dissent resonated with me while I pondered the topic of criminal records. While the “stamp” in the quote refers to race, a criminal record can similarly be seen as a stamp of inferiority, one that has been affixed by the law. I do not propose there is a comparison between the color of one’s skin and the retention of criminal records; however, I do intend to draw a line between the law’s creating of inferior groups. There are many concerns with the justice system, such as the effects of race or socio-economic status with the administering of justice; however, these will not be explored in this essay. I aim to focus only on the effects of criminal record retention and offender re-assimilation, emphasizing that those with criminal records unjustly bear the characteristics of a deplorable substandard within our society, an inferior class. When attempting to re-assimilate, this “badge of inferiority” will show your past, whether reflective, inaccurate, or misleading; it will always be visible, creating doubt in the wearers mind, doubt of their capabilities.
During my first year of law school, I saw first-hand the kind of discrimination and prejudice that those with a criminal record faced. While volunteering with the CORI Initiative of New England Law | Boston, it was immediately evident the severe impact a criminal record has on someone’s life, an impact greatly affecting someone’s ability to get their life back on track. I can recall how having a criminal record was devastating for one client, when her ability to pursue something meaningful was hindered by the metaphorical stamp, which had been affixed upon her by the law.2
“Are you employed or have you been seeking employment?” I asked. “Why bother, I always get denied as soon as they run a CORI check, there would be no point” she replied solemnly. Massachusetts currently allows individuals with a criminal record to file a petition to seal their “criminal offender record information” or “CORI” after five years for misdemeanors and ten years for most felonies. A person’s CORI contains a report of every criminal case filed within Massachusetts state courts. Even if the criminal case ends favorably, with a dismissal or finding of not-guilty, the criminal filings will still be recorded. Depending on the status of the offense (if it has timed out or was dismissed), individuals can file a motion to seal their criminal record by filing either a form 100C3 or form 100A4 Like most court procedures, this process can be very daunting to those without legal training. Between searching for the correct forms and drafting affidavits, the average offender may not have the resources available to them to properly carry out the process.
The FBI Criminal Justice Services Division states that there were 9,390,472 charged offenses in the United States in 2012.5 That is over nine million people in the United States that must bear their stamp, a display of inferiority, crippling their re-assimilation. This is something that needs to be changed, as too many walk with this stamp, pinned to them like a badge, their past choices waiting to be revealed and cast doubt on their personal qualities. To properly rehabilitate people caught in the justice system, marking them with their mistakes cannot be the proper strategy to aid their re-assimilation.
“Do you know how many jobs that you have applied to and did not receive because of your CORI?” Another question for my client. “I’m not sure, I guess most of them, I don't know. When they ask about my CORI, I don't usually get a call back.” she replied.
Unequivocally, criminal records have a negative effect upon the re-assimilation of individuals that have faced hard times, some that may not be reflective of their abilities as a person. Massachusetts citizens with criminal records “often face unique challenges when re- entering society. Among these challenges are barriers to securing employment and housing – key parts of productive participation in our society and critical pathways to economic security.”6 It was 15 years ago that this client was charged with possession of a controlled substance. That is 15 years of bearing a badge of inferiority, attached to her by the law, casting a burdensome shadow. She can recall countless times that she was denied employment or housing opportunities, always after authorizing a CORI check.
“Have you obtained housing?” I asked. “To be honest, I have been denied three times because of my CORI, this thing haunts me. I have been forced to accept housing in this awful place, only because they were willing to rent to me” she replied.
Having a CORI can affect more than just employment opportunities; it can have a tremendously negative effect on obtaining reliable and permanent housing. Criminal background checks are often authorized for landlords seeking to verify suitability of a potential tenant. Private landlords regularly deny housing to individuals because of their CORI, making it even more difficult for previous offenders to re-assimilate into society. Imagine someone that has just spent the last five years in prison for a minor felony. They are released from prison with very limited resources, and seeking employment and housing is even more difficult because of the record and stigma that now will shadow this offender. This badge of inferiority will walk beside the offender, long after they are released from prison, always following them, waiting to be shown.
As stated above, there are two ways to seal a criminal record in Massachusetts. A CORI can be sealed by an administrative process by mail or by a judge.7 The administrative process is used when the waiting period for the record has timed out, and the process involves mailing a form to the Office of the Commissioner.8 Additionally, in certain cases, a judge is able to seal cases that may not have timed out.9 There are other parameters to these two processes, both of which can be understood through careful evaluations of the current CORI laws. Individuals who have struggled for many years to re-assimilate into society because of their criminal record may find a “careful evaluation of the current CORI laws” to be rather difficult, making their re- assimilation even more difficult.
There are likely many who are unware that it is even possible to seal a criminal record; they walk around with the burden of their past, without knowledge of its ability to be erased. For these people, they will continue to bear the burden of poor choices, and the punishment with which they were originally sentenced bears no comparison to the everlasting burden of the record that shadows them.
Like most problems within the criminal justice system, the solution to the retention of criminal records is not easy, and neither is the solution to facilitating proper re-assimilation.
“Although 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.”10
There are underlying policy concerns that cannot be avoided when evaluating a change to the criminal record retention policies. Criminal records serve many important functions. Employers and landlords deserve to know whether a potential employee or tenant has committed crimes in the past. Police need to know if they are dealing with someone with a history of violence. Judges and lawyers need to know how to properly administer justice to individuals with prior convictions. There are many advantages to criminal record retention, but these must also be evaluated against relevant drawbacks.
For someone who has been convicted of a minor offense, the current policies around the retention of criminal records make it extremely difficult for these individuals to obtain employment or housing. Our justice system’s focus should shift from punishment to rehabilitation and re-integration into society. By punishing individuals through traditional punishment such as sentences or fines, and then having them carry the badge of criminal punishment upon them for many years after, the justice system is effectively cataloguing an individual as a “criminal” for their life. This classification bears all the burdens that one would expect, including difficulty in seeking employment and housing opportunities.
The current policies regarding the retention and decimation of criminal records need reform. There must be dramatic changes that will facilitate - instead of inhibit - the re- assimilation of offenders, creating a more prosperous and efficient community. However, the simplicity of this should not be undermined, as the implementation of such policies are likely very difficult. Stating that there is a broad scheme that employs a safe and fair retention system for criminal records would be oversimplifying the issue.
On the other side of the debate, there are very important aspects of criminal records that must remain. Most would likely agree that we wouldn’t want a past bank robber to be working in a bank, or a child molester to be working in a school, two examples of situations that criminal records seek to prevent. A broad change in policy would likely be too over- or under-inclusive to be effective or efficient. However, there are a few policy changes that I would propose as being an effective step toward facilitating the re-assimilation of offenders while still maintaining the purpose of criminal records.
First, I would propose that a council or research team be brought together to assign specific and customized timing requirements for each individual crime. This would serve two important functions. First, when requiring the state to provide an exact date for when an offender’s record can be sealed, it would put the offender on immediate notice as to when they could begin the sealing process. Second, it will revamp the current method that, in my belief, is both over-inclusive and under-inclusive. The current method, at least in Massachusetts, allows for the sealing of a conviction of a misdemeanor after five years and after ten years for a felony conviction. This broad scheme is not the most effective and fair way of dealing with the decimation of criminal records. There are some misdemeanors that arguably should not include the retention of a criminal record, and likewise, there are some misdemeanor offenses that should require a longer retention or felonies that should have a five-year wait. Having a very individualized scheme for each offense would not only be efficient and fair, but could greatly reduce the limitations on an offender’s ability to re-assimilate.
Second, I would propose that the process for sealing criminal records be simplified, making it accessible to all who are affected by it. Each state will have a developed criminal record database. This database will need to be easily accessible, with minimal charge. Once the offense has “timed out” there would be the option of having the record sealed. After submitting this option, a magistrate judge would review the request, considering the offender’s behavior during the wait period, and either accept or deny the request. Every offender would have an equal opportunity to have their request heard, and decisions would be subject to a similar appeal process as they are today. This access will greatly affect the ability for offenders to seek the record sealing process, easily and efficiently. Further, some crimes, after being evaluated by the board, will be eligible for automatic decimation. Offenses that have minimal social impact would be eligible to be sealed automatically after having been “timed out.”
“In your own words, why do you want to have you CORI sealed?” is the last question I usually ask clients. “I want to have my CORI sealed because it isn’t representative of who I am today. I made one mistake 10 years ago, but I’m not that person anymore. I have a family now, and I need to be able to get a good job, one that provides for them. Who I was then, is not who I am today.”
The policies regarding criminal record retention and decimation need change. They create a brand, burned into the offender’s life, branded by the law. In one of the most atrocious legal decisions in United States history, Plessy v. Ferguson, Justice Harlan dissented with the proclamation that separate but equal facilities create a standard of inferiority, like a badge, one that had been affixed by the law. Criminal records also create a level of inferiority, one that significantly hinders an offender’s ability to re-assimilate. This essay has not explored the unequivocal distribution of race and offenses that lead to records. However, that exploration would likely show another significant policy reason behind a re-evaluation of criminal record retention and decimation. As outlined above, there are numerous steps that can be taken to significantly improve the standards today, and the proposed steps are narrow enough to avoid conflict with the significant policy reasons in favor of criminal records.
|Plessy v. Ferguson, 163 U.S. 537, 540, 16 S. Ct. 1138, 1139 (1896)|
|Personal information will not be used to retain confidence. The following quotes are only reflections of the client interview, used with permission.|
|Mass. Ann. Laws ch. 276, § 100C|
|Mass. Ann. Laws ch. 276, § 100A|
|Crime in the United States. 2016. Accessed 14 June 2018. Available from https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-5. Internet.|
|Know Your Rights, Criminal Records, Office of the Attorney General. (2017)|
|Know Your CORI Rights, GREATER BOS. LEGAL SERVS. 12 (2018)|
|ARTICLE: JOURNEY OUT OF NEVERLAND: CORI REFORM, COMMONWEALTH v. PETER PON, AND MASSACHUSETTS'S EMERGENCE AS A NATIONAL EXEMPLAR FOR CRIMINAL RECORD SEALING, 57 B.C. L. Rev. 337, 339|