Legal Assistance and Law Reform Help Right a Decades-Old Wrong

In the fall of 1982, 20-year-old Belle* did what many of us with significant others do routinely and casually: she borrowed her then-partner’s car to run some errands. She couldn’t have known then the impact this decision would have on her life nearly 40 years later. While driving that day, she suddenly saw the flashing lights of a police car behind her and pulled over. The officers arrested her and took her to the local county jail. Disoriented and confused at why police officers were arresting her, she learned she was being arrested because the car she was driving was stolen. Prosecutors filed charges against her for larceny of a motor vehicle and not having the required insurance for it.

Belle played no role in the car being stolen. Instead, her partner had knowingly exchanged his old car for this stolen one. She just happened to need it for a quick trip. Belle demanded her partner clear things up with law enforcement and prosecutors to tell them that she had nothing to do with the vehicle being stolen, had no knowledge prior to her arrest that it was stolen, and that he was fully responsible. Her partner did so at a court hearing, and prosecutors eventually dismissed both charges against Belle. She received no convictions. She was innocent in every sense of the word.

For most individuals, that would be the end of the story. A traumatic event no doubt—but an incident with no lasting consequences. But for Belle, it was unfortunately just the beginning. After breaking up with her then-partner a few years later, Belle began a career in childcare in 1992. She started her own daycare and ran her thriving business for over 20 years. Belle successfully passed the first of her Department of Early Education and Care’s background checks in 1992, and continued to do so every three years in order to renew her daycare license. Flash forward to 2015; Belle decided to take a break from her job in order to help care for her grandson who has autism.

Last year, with her grandson needing less care, Belle applied to become a part-time Certified Family Child Care Assistant to again work in daycare, planning to join a friend in running their home-based program. And here’s where that nearly 40-year-old incident comes back into play: despite having no problems with passing the background check conducted by the Department of Early Education and Care for over 20 years, the Department refused to issue Belle the required license. Why? Because of her criminal record, often referred to as a CORI in Massachusetts, which stands for Criminal Offender Record Information.

To be clear, the only things on Belle’s criminal record are the dismissed charges from the early 1980’s over her then-partner’s stolen car. Other than those dismissed charges, Belle has lived a completely lawful life. And yet she was denied an opportunity to be a Certified Family Assistant—a job which lines up perfectly with her decades-long experience running her daycare—because of meritless charges prosecutors filed against her 40 years ago.

Thankfully, Belle’s story doesn’t end here. Feeling the acute injustice of her situation, she researched ways to get these charges off of her record. She quickly realized that sealing her record wasn’t going to solve the problem, because the Department of Early Childcare can still see sealed items on an individual’s criminal record. Thus, she knew that expungement was the only option.

M.G.L. c.276, §1001 provides for a limited category of instances in which an individual is qualified for expungement. The individual must have been under 21 years old at the time of the offense, the offense must be at least seven years old for a felony and three years old for a misdemeanor, the individual does not have any other criminal court appearances (other than motor vehicle offenses in which the penalty does not exceed a fine of $50) in any the Commonwealth or any other state, and the individual certifies that to the individual’s knowledge, the petitioner is not currently the subject of an active criminal investigation by any criminal justice agency.

Belle meets all of the criteria except for one. She was 20 years old at the time of the alleged offenses, it has been nearly 40 years since she was charged, she has no other offenses in any other state (indeed, these two charges are her only involvement with the criminal justice system), and she is not currently the subject of an active criminal investigation. So, why is she ineligible for expungement? Because prosecutors decided to charge her with two offenses rather than just one. Had they just charged her with larceny of a motor vehicle (and not charged her with violation of failing to have motor vehicle insurance), Belle would be eligible for expungement. Similarly, if prosecutors had charged her with failing to have motor vehicle insurance and not with larceny of a motor vehicle, she also would be eligible. Or better yet, had prosecutors waited to learn more about the facts of the case before initiating any charges, they would have realized that they shouldn’t charge her at all, in which case Belle would be working as a day care assistant right now without having to deal with this injustice.

But here we are. Belle’s story underscores just how pervasive and intrusive our criminal justice system can be. It reminds us how unforgiving and impersonal it can be. And it reminds us how hard it is to navigate our complicated legal system in general. What makes Belle’s situation all the more shocking is that she hasn’t done a single thing wrong. Her then-partner recognized that. The judge recognized that. Even the prosecutors 40 years ago recognized that when they dismissed her charges. And yet the meritless, long-ago charges not only prevented her from receiving a license to be a daycare assistant and precluded her return to the work she loves, but because there are two charges, they prevent her from being eligible for expungement and leave her without any legal remedy to right a decades-old wrong.

When the law is wrong, we cannot accept the law as it is; we must reform it. That’s why LSC’s CORI Sealing Initiative (CSI) joined forces with other advocates, including the CORI & Re-entry Project at Greater Boston Legal Services, to advocate with legislators that expungement laws be broadened to include people like Belle. Julie McCormack, Director of LSC’s Safety Net Project and founder of the CSI, spearheaded the effort; talking to local representatives and highlighting Belle’s story as an example of the real-life impact of the unjust law. A provision allowing for multiple charges from the same incident to be treated as a single offense (thereby making them eligible for expungement) was included in a bill before the Massachusetts legislature late last year. The law—An Act Relative Justice, Equity and Accountability in Law Enforcement in the Commonwealth—included updates to the criminal justice reform bill passed in 2018, and significant reforms for police training, use of force, and accountability. After a cascade of calls and emails from advocates, the bill passed with overwhelming support from the legislature, and was signed into law by Governor Baker on December 31, 2020.

With assistance from Marcus Miller, a second-year student at LSC, in January Belle filed for expungement of her record—one of the first, if not the first, petitions under the expanded rule. Due to pandemic-related delays at the Department of Probation, her expungement has not yet been processed, but Belle is hopeful it will be in the near future, and that she will soon be able to return to the work she loves.

Studies and the lived experiences of our clients show that low-income and minority communities are disproportionately over-charged and over-prosecuted in encounters with law enforcement. Even dismissed, these charges remain as an “eternal criminal record,”[1] contributing to and exacerbating discrimination and economic adversity (called “The New Civil Death” by Gabriel J. Chin[2])  just as has happened to Belle. Everyone deserves dignity and the opportunity to reach their maximum potential. This is why LSC started the CSI, and will continue to work to ensure low-income folks throughout the greater-Boston area have access to representation in a wide variety of critical matters essential to that dignity, including but not limited to family, housing, veterans affairs, consumer and tax issues, and safety net public benefits.

* Name has been changed to protect client privacy.

[1] James B. Jacobs. The Eternal Criminal Record, Harvard University Press 2015.

[2] Gabriel Chin. The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. PA. L. REV. 1789, 1807–1814 (2012)

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