The Kickham Comment - Boston Criminal Attorney Blog
Readers of this blog know that I’ve written previously about Massachusetts CORI reform, and that I’ve advocated a balanced approach to any reform measures, preserving the privacy rights of those convicted of certain (but not all) crimes, while preserving employers’ and other organizations’ rights to legitimate criminal history data.
I believe that goal has been realized. Yesterday, August 6, Governor Deval Patrick signed into law a reform measure that many informed observers think strikes the right balance between these two competing objectives. The bill signed yesterday was a long-awaited and hard-fought overhaul of Massachusetts’ criminal records system. Notable within the measure, is a provision that appears to make Massachusetts the first state in the nation to ban the majority of employers from asking job applicants about their criminal history on job application forms. This is key, because under the previous system, most standard job applications in Massachusetts required the applicant to answer “yes” or “no” to a question that asked if they had ever been charged or convicted of a crime in this state. If an applicant who had been convicted of a crime answered “yes,” he or she was almost always immediately eliminated from consideration for the job. Hence, the system incentivized job applicants to lie, often frustrating employers and defeating the entire purpose of the law.
Under the new statute, all employers, including licensing authorities, housing providers, and volunteer organizations will have access, for a fee, to a new state database that lists only convictions or pending charges. If someone has been convicted of a felony, such as a Massachusetts drug offense, but has not been charged with any subsequent offenses, most felony convictions will be erased from the database 10 years following the completion of a sentence, and misdemeanor convictions will be removed five years after any sentence is completed. Murder and Massachusetts sex offense convictions will always appear in the database. Under the old law, felonies could be sealed after 15 years and misdemeanors after 10 years, but doing so required a court order, and those orders are difficult to get.
Under the previous system, only about 3 to 5 percent of employers, usually organizations such as schools and nursing homes, had access to the state’s CORI system. As a result, many employers hired private investigative companies to obtain criminal records which were sometimes inaccurate, and an applicant’s convictions could show up indefinitely in the reports.
With this new law the state will now create a database that will make criminal records available to many more employers, but will also hide certain convictions after five or 10 years. Because all employers will have access to the new database – not just the small minority that previously did — job application forms cannot inquire into criminal history. I believe this is a key improvement, as employers will still have ready and legitimate access to a rapid and accurate source for criminal records, but many job applicants won’t be either encouraged to lie on a job application, or otherwise be prevented from getting a foot in the door. This defeats the whole purpose of a criminal offender records system. Very importantly, this provision (not requiring a job applicant to provide information about his or her criminal history on an application,) will not apply to employers who by law cannot hire ex-convicts. Employers can still decline to hire somebody if they have a criminal record. None of that has changed. But a key benefit in this reform, I believe, is that employers will now be encouraged to have conversations with applicants as individuals, instead of weeding people immediately because of one question they’ve answered on an application.
Additionally, this new law makes nonviolent offenders who serve mandatory minimum sentences in houses of correction (i.e., convicts who are sentenced to jail terms of 2 ½ years or less) eligible for parole halfway through that sentence and allows those inmates to receive job training during incarceration. There is an additional provision in the new law that also allows prosecutors to argue illegal gun possession as a reason to jail suspects prior to trial. This provision was a concession to the Massachusetts District Attorneys Association, and law enforcement organizations.
Opponents have said the law would weaken the CORI system, making it difficult for public housing providers, for example, to screen for felons. As a Boston criminal defense lawyer, I don’t agree. I think this reform balances the key objectives of preserving access to a fast and accurate database of a person’s criminal history, with reasonable restrictions that will prevent someone who has been convicted of a crime, from being forever locked into a cycle of unemployment and crime.
The new database is scheduled to be operational by 2012. Let’s hold onto the optimism that fueled this new law. Time will tell, but I think it will be a vast improvement over what we had before.