Collateral Consequences

Collateral consequences are legal restrictions that limit or prohibit people beyond the terms of a sentence. An Act relative to criminal justice reform includes several provisions to ensure that many of the collateral consequences in the areas of criminal record information, fees & fines, and license suspension for non-driving offenses are eliminated.

CRIMINAL RECORD INFORMATION

An individual’s criminal record can trigger collateral consequences that remain well after the originating case has concluded. Loss of employment, eviction from housing, and loss of occupational licensing are just a few of the obstacles commonly experienced by people with criminal records.

In accordance with the first amendment, publicly available court records can be obtained by any member of the public during regular court business hours. In addition, individuals and third party background checkers can acquire and redistribute criminal record information reported in newspaper publications and other media platforms. The type of information disclosed and the category of employers with access depends on the type of record being requested and the stage of the case.

Massachusetts utilizes 2 classifications of criminal record information. 1) Name-based court arraignment records (CORI) which are maintained by the Massachusetts Department of Criminal Justice Information Services (DCJIS) and 2) fingerprint-based background records, which are created by police departments at the time of arrest and reported to the Federal Bureau of Investigations (FBI).

CORI Check

A CORI check discloses information pertaining to Massachusetts cases post arraignment. This type of criminal record check is completed by submitting the name and date of birth for a person. That information is then searched against Massachusetts court records to determine if there is an existing record for that individual.

What is included in a CORI check?

	Open Cases	Recent Convictions	Older Convictions	Non- Convictions	Juvenile	Sealed
General Public	X	[Only very recent]
Employers/Housing	X	X
Banks, Hospitals, etc.	X	X	X
Elder Care, Assisted Living	X	X	X	X
Camp Counselors	X	X	X	X	X
Early Education, DCF, Law Enforcement	X	X	X	X	X	X

The criminal justice reform legislation eliminates many of the barricades associated with criminal record information by:

• Preventing cases dismissed before arraignment from appearing on criminal records,
• Providing that youthful offender cases tried in juvenile court are treated as juvenile instead of adult CORI,
• Reducing the sealing availability period from 10 years to 7 years for felonies and from 5 years to 3 years for misdemeanors,
• Allowing resisting arrest charges to be sealable,
• Excluding juvenile arrest data from public police logs,
• Requiring licensing authorities to disclose disqualifying offenses in advance,
• Clarifying that sealed records need not be mentioned in applications for housing or professional licensure, and
• Preventing employers from inquiring about sealed or expunged cases.

Fingerprint-Based Background Check

Fingerprint-based background checks return information on arrests made in Massachusetts as well as other states. This type of check is completed by cross-referencing an individual’s fingerprints with fingerprints maintained within the FBI’s national database. This check only reflects information received by the FBI from individual states and municipalities.

According to the Department of Criminal Justice Information Services, a fingerprint based criminal record check can return the following information:

• Arrests both in Massachusetts and out-of-state,
• Adult and juvenile convictions in both Massachusetts and out-of-state,
• Non-convictions and pending offenses in both Massachusetts and out-of-state,
• Federal and international arrests/charges,
• Civil offenses in both Massachusetts and out-of-state, and
• Sealed offenses both in Massachusetts and out-of-state

The FBI will honor sealing and expungement orders but must first receive the necessary disposition information.

The criminal justice reform bill ensures that fingerprint-based criminal record checks return the most accurate information by:

• Requiring that an offense based tracking number (OBTN) be created for each set of fingerprints taken at arrest and recorded in court files,
• Providing that disposition information be transmitted to the national system (using the OBTN), and
• Assuring that sealing and expungement orders are transmitted for parallel action in the FBI database.

Expungement

Additionally, the new law establishes an  expungement process for eligible petitioners with the following criminal records:

• Adjudicated delinquent or adjudicated youthful offender records for certain offenses committed before the age of twenty-one,
• Records created as a result of false identification, unauthorized use, or identity theft,
• Former offenses that are no longer a crime, and
• Demonstrable errors by law enforcement, witnesses, court employees, or fraud upon the court

FEES & FINES

Criminal justice fees and fines can place a heavy burden on people living below the poverty line. The disproportionate impact of these payments on the poor can lead to considerable levels of debt and even incarceration due to failure to remit payment. Although there are many instances where courts are statutorily required to assess fees or fines, an exception can apply where the statute allows for waiver and evidence is presented to meet the legal standard of waiver.

Prior to the enactment of An Act relative to criminal justice reform, there was no uniform legal standard for the waiver of a fee or fine due to inability to pay. “Instead, the many statutes that set forth mandatory fee assessments [contained] distinct legal standards for the waiver of each fee.” The new law allows for greater judicial discretion by making previously unwaivable fines and fees waivable and standardizing waiver language across fees. It also provides the following:

• Increases rate of fine repayment from $30 per day to $90 per day
• Eliminates parole fee for the first year post prison release
• Eliminates counsel fee for juvenile defendants
• Eliminates probation fee for first 6 months post prison release

RMV LICENSE SUSPENSION

Although collateral consequences most commonly affect those who have been charged or convicted of a crime, civil infractions can also trigger a collateral consequence. The use of license suspension can compound an individual’s legal troubles and result in the creation of a criminal record. Unfortunately, the most common motor vehicle violations throughout Massachusetts district courts are license suspensions unrelated to underlying driving offenses.

The criminal justice reform law seeks to decrease unnecessary entanglement between the Registry of Motor Vehicles (RMV) and the criminal justice system in the areas of child support enforcement, default warrants, and tagging or vandalism.

Child Support

Federal law mandates that Massachusetts authorize procedures for the state to withhold, suspend, or restrict the use of a noncustodial parent’s driver’s license due to his or her failure to meet child support obligations. In order to ensure that the noncustodial parent receives notice of the state’s intention to suspend his or her license, the criminal justice reform law provides that parents will not lose their license for non-payment of child support if the warning notice is going to a bad address.

Default Warrants

A default warrant is sometimes issued when a defendant fails to appear in court. Prior to the bill’s passage, the court would notify the Registry of Motor Vehicles (RMV) each time a default warrant was issued.  The RMV would subsequently suspend that individual’s license. Although the court has the ability to remove the default warrant for good cause at any time, that individual would still be required to go through the RMV’s license reinstatement process before being able to legally drive again.

Under the new law, court defaults will no longer trigger license suspension.

Vandalism + Tagging

Prior to the bill’s enactment, a conviction for vandalism and tagging (graffiti) could be punished by a one year license suspension in conjunction with any applicable criminal penalties. An act relative to criminal justice reform ensures that licenses are no longer suspended due to these convictions.