How is expungement eligibility determined?

The process of expungement of a criminal record is defined in MA G.L. c.276, § 100E-100U. This was a 239-part law passed in 2018 allowing sealing or expungement of certain criminal records that occurred before a person's 21st birthday. The Massachusetts government provides this summary of eligibility for expungement.

This law is complex! To begin to understand, we have summarized some aspects of the law, and provide links to MA websites with additional interpretation or explanation. This law has changed since we began our work, and may change again -- this is in part why we are analyzing how many individuals may be impacted by the current or future regulations.

Time-based expungement.

This is one of two main paths to expungement. The Clean Slate Data team is focused only on this path.

Under current law, offenses are eligible for expungement if:

• All offenses were committed prior to the individual’s 21st birthday
• The offense must be one that qualifies for expungement under G.L. c.276, § 100E-100U (added by St. 2018, c. 69). For an offense to qualify, it must meet all of these criteria:
  • The offense didn't result in death or serious bodily injury nor was the offense committed with the intent to cause death or serious bodily injury
  • The offense wasn't committed while armed with or carrying a dangerous weapon
  • The offense wasn't committed against an elderly or disabled person
  • The offense isn't a sex offense, a sex offense involving a child, or sexually violent offense
  • The offense isn't Operating Under the Influence (of liquor or drugs)
  • The offense isn't a firearms violation or a violation for illegal sale of a firearm
  • The offense isn't a violation of any restraining or harassment prevention orders
  • The offense isn't an assault or assault and battery on a household member; and
  • The offense isn't a felony violation of G.L. c. 265
• The individual must have no more than 2 records (but multiple offenses arising out of the same incident are considered a single offense).
• If the offense is a felony, the individual must have completed all parts of their sentence at least 7 years ago. If the offense is a misdemeanor, they must have completed all parts of their sentence at least 3 years ago.

The list of offenses which are not eligible for expungement are further detailed in G.L. c.276, § 100J. We have annotated these criteria in an internal document here: Determining offense-level eligibility for expungement.

Implications for our analysis

The MA law defines offenses which are not eligible for expungement. It does not provide a list of those which are. The list of ineligible offenses actually contains many sub-references to additional laws or definitions. This makes it difficult to assign each individual offense as potentially eligible for expungement (if all else about the record is eligible).

Non-time-based expungement

This information is included for completeness. However, we are not attempting to estimate the number of individuals eligible for this type of expungement. Per the mass.gov website, The law allows you to expunge a record if the record was created based on:

• False use of your identification
• Unauthorized use of your identity
• Theft of your identity
• Offense(s) that is/are no longer a crime (i.e. possessing small amounts of marijuana)
• Errors by law enforcement
• Errors by civilian or expert witness(es)
• Errors by court employees
• Fraud perpetrated upon the court