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National News

FBI Has Your Sealed Record and It Can Be Used Against You

February 04, 2020 posted by Steve Brownstein

Tens of thousands of people have sealed criminal records under a 2-year-old state law that allows them to wipe clean some prior arrests and convictions, but the records are still turning up in federal background checks widely used by schools, banks, hospitals and casinos.
The 2018 law, part of a criminal justice bill signed by Gov. Charlie Baker, shortened the waiting period for people found guilty of misdemeanors to ask that a case be sealed from five years to three. It shortened the waiting time for felons from 10 years to seven. The law also allows sealing of juvenile records and expands the list of offenses eligible to be scrubbed.
Under the law, the state is required to notify the Federal Bureau of Investigation, which tracks state arrests and convictions, when records are sealed. But two years after the reforms went into effect, that still hasn’t happened, according to state and federal officials and private attorneys who work on clemency issues.
Felix Browne, a spokesman for the Executive Office of Public Safety and Security, said there isn’t a process for the FBI to accept criminal records sealed by the state.
A spokeswoman for the FBI’s Criminal Justice Information Service declined to say what is causing the delay or when the process might get underway, but said the agency is “working with the state to facilitate the sealing of records at the state’s request.”
“The FBI will process requests for sealings or expungements as directed by the state of Massachusetts,” the agency said in a statement.
Attorneys who work with clients trying to seal their records say the process is stalled and they can’t get answers.
“This has been going on for a very long time,” said Phillip Arnel, a Westwood attorney. “I have a lot of clients who are extremely frustrated because they can’t understand why their FBI records can’t be sealed.
“The state and FBI have been very close-mouthed about it,” he added. “They keep saying they’re working on specifications for processing records, but they’ve been extremely vague.”
When someone is arrested by state or local police, their fingerprints and information are sent to the FBI for review. The agency creates a federal record of the charges.
The FBI generally doesn’t update those records, however, so they show up even if someone is found not guilty, if the charges are dismissed or if the records are sealed.
Sen. William Brownsberger, D-Belmont, who helped write the 2018 law, said lawmakers and criminal justice reform advocates wanted to ensure records sealed by the state wouldn’t turn up in the FBI background checks popular in the education, finance and health care fields.
“We kept getting complaints from folks that sealing doesn’t work,” said Brownsberger, a criminal defense attorney. “No matter what happens to the state record, the FBI record lives on.”
Brownsberger said he has asked about the delay in implementing the 2018 law and was told the state and FBI are working on a new computer system designed to transfer sealed records to the FBI. He wasn’t sure when it would be running but said “a lot of people are waiting for this thing to get going.”
A major issue is that the state and federal governments handle sealings differently, he said. The FBI seals a person’s entire criminal record, while the state seals just individual charges.
Massachusetts is known for being particularly unforgiving when it comes to allowing people to get out from under the shadow of a conviction.
Criminal records can haunt people long past their punishment, criminal justice advocates say, preventing them from getting jobs or housing, or from getting into college.
The overhaul approved by the Legislature and Baker in 2018 was meant to help people get on with their lives. It allows for an individual’s criminal record to be wiped clean provided the offense occurred before their 21st birthday and they stayed out of trouble.
Major convictions — such as for murder, felony assault, drunken driving, domestic battery, rape and other sexual offenses — cannot be sealed.
The changes, which took effect in October 2018, prompted a surge in requests to seal records, with state officials processing an average of 7,000 per month.
The new law also allows juvenile records and some adult crimes to be permanently removed from a person’s criminal record through a process known as expungement. Unlike sealing a criminal record, which can still be viewed by law enforcement, expungement permanently erases charges from someone’s official record.
Browne said the state has “finalized” 133 expungements since it began putting through requests in July. Those records have been forwarded to the FBI for consideration.
The FBI also allows people to make direct requests to seal records, but criminal justice reform advocates say the process is costly and cumbersome.
“It’s a bureaucratic nightmare,” said Margaret Love, executive director of the Washington D.C.-based Collateral Consequences Resource Center. “They don’t make is easy for people.”
Christian M. Wade covers the Massachusetts Statehouse for North of Boston Media Group’s newspapers and websites.

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