March 5, 2024
Pamerson O. Ifill
Commissioner of Probation
One Ashburton Place # 405
Boston, MA 02108
Re: Sealing of erroneously denied youthful offender sealing petitions
Dear Commissioner:
We are writing on behalf of youth, community, legal services, and other organizations to request that you direct the Sealing Unit in your office to comply with the law and seal the youthful offender records of petitioners who were previously denied sealing due to the Sealing Unit incorrectly applying the adult sealing statute (G.L c. 276, § 100A) rather than the juvenile
sealing statute (G.L. c. 276, § 100B) to youthful offender offenses. On February 14, 2024, the Supreme Judicial Court (SJC) ruled that the delinquency sealing statute (G.L. c. 276, § 100B) “is the proper statute for the sealing of records of youthful offenders.” Matter of Impounded Case, No. SJC-13465, 2024 WL 590605, at 1 (2024). However, our understanding from General Counsel Nina Pomponio is that, except for the petitioner in this particular SJC case, the Sealing Unit will take no action to seal the records of individuals who were previously denied sealing of their youthful offender records based on the erroneous application of the adult sealing statute unless they file a new petition. We respectfully submit that this position is flatly inconsistent with the Court’s decision, a dereliction of the Sealing Unit’s basic responsibility as a government agency, profoundly unjust, and unnecessary based on the Sealing Unit’s practice of treating youthful offender records as sealable under the juvenile statute less than a decade ago.
This position is particularly disappointing when compared to the laudable steps your office is taking to seal adult offenses ending in a not guilty finding to implement the SJC’s recent decision in Commonwealth v. J.F.1 The number of sealing requests related to youthful offender offenses is almost certainly much smaller than the number of adult offenses that ended in a not
guilty finding which your office is now sealing.
The failure to seal these records is legally unsupportable. The SJC’s unanimous decision last week is unambiguous: “We conclude that § 100B, the juvenile delinquency statute, is proper statute for the sealing of records of youthful offenders.” Slip op. at 2 (emphasis supplied). Nothing in the opinion remotely suggests that its holding was limited to the individual youthful offender who brought the petition. To the contrary, its language is not restricted to the case before it. “After review of the text of §§ 100A and 100B and an analysis of legislative intent as to youthful offender adjudications as revealed in §§ 53 and 60A and more broadly, we conclude that the Legislature intended that, in the context of record sealing, youthful offender adjudications be treated more like delinquency adjudications than adult criminal adjudications.” Slip op. at 13 (emphasis supplied). Any reading other than that youthful offender records are to be treated for sealing purposes as juvenile records is baseless.
The failure to seal these records disregards the agency’s basic responsibility to do its job. The refusal to seal these records effectively deprives persons eligible for sealing of its benefits because the sealing unit misled them. Before this decision, the Sealing Unit sent letters to individuals who requested sealing of all juvenile offenses that erroneously instructed them in some instances that they could never seal their youthful offender offenses and in other instances that the longer seven-year waiting periods applied to any felony offense. Sealing is a non-discretionary duty under section 100B if a person has filed a petition to seal and the offenses are eligible for sealing. See G.L c. 276, § 100B (the commissioner “shall” seal eligible
offenses after filing of a petition). The Sealing Unit has a responsibility to correct its errors.
This inaction by the Sealing Unit is profoundly unjust. It deprives Black, Latinx and LGBT+ individuals the opportunity to mitigate the racism and collateral consequences related to the disproportionate involvement of these young adults in the juvenile court system. It also places an undue burden on the public to follow SJC slip opinions. Those with youthful offender records also are a vulnerable population because so many children in the juvenile court are from poor and low-income communities and have families that are, or were, involved with the Department of Children and Families.
This inaction is also utterly unnecessary and simply cruel. Less than a decade ago the Sealing Unit routinely (and correctly) treated youthful offender records as akin to delinquency records for sealing purposes. Attorneys from Greater Boston Legal Services and Northeast Legal Aid recall having past clients who sealed their youthful offender records under G.L c. 276, § 100B after a three-year juvenile waiting period in 2018 or 2019. Moreover, a 2013 chapter in an MCLE publication authored by your office’s then-deputy legal counsel stated that delinquency and youthful offender offenses can be sealed after the same three-year waiting period without any exclusions. 2
Thus treating youthful offender records like juvenile records for sealing purposes is well within the Sealing Unit’s ability, and the relatively short period of its erroneous application of the law suggests there are a small number of persons affected.
Individuals with juvenile court records are as deserving of second chances as adults, and as the SJC has held, less culpable for their past offenses given what is known about brain development. See Diatchenko v. Dist. Att’y for Suffolk Dist., 466 Mass. 655, 660 (2013).
In sum, we urge you to instruct your office’s Sealing Unit to approve all the prior requests for sealing which were denied because of the misapplication of the adult sealing law to youthful offender records without requiring individuals to file new petitions. This is the only way to prevent continuing stigma and harm in the form of collateral consequences related to wrongful denial of these petitions. Thank you for your attention to this matter.
Sincerely,
Pauline Quirion, Director, CORI & Re-entry Project, Greater Boston Legal Services
Mia Alvarado, Executive Director, Roxbury Youthworks, Inc.
Virginia Benzan, Director of Racial Justice Advocacy, Massachusetts Law Reform Institute
Hon. Jay Blitzman (Ret.)
Mary Bonauto, Senior Director of Civil Rights, GLBTQ Legal Advocates and Defenders
Stacey Borden, Director, New Beginnings Reentry Services, Inc.
Jonathan Cohn, Policy Director, Progressive Massachusetts
Jessica Collins, Executive Director, Public Health Institute of Western Massachusetts
Professor Margaret Drew, UMass School of Law Human Rights at Home Clinic
Ryan Dominguez, Executive Director, Mass CultivatED
Daniel French, Board President, Citizens for Public Schools
Ed Gaskin, Executive Director, Greater Grove Hall Main Streets
Lauren Gibbs, End Mass Incarceration Together (EMIT)
Alyssa Golden, Senior Supervising Attorney, CORI/ Re-entry, Community Legal Aid
Rahsaan Hall, Executive Director, Urban League of Eastern Massachusetts
Sophia Hall, Deputy Litigation Director, Lawyers for Civil Rights
Phillip Kassel, Executive Director, Mental Health Legal Advisors Committee
Paul Kominers and Kristen Gagalis, Anderson & Kreiger
Susan Malouin, Senior Attorney, Criminal Record Sealing Unit, Northeast Legal Aid
Julie McCormack, Director, Safety Net Project, Legal Services Center of Harvard Law School
Dave McMahon, Co-Executive Director, Dismas House
Rev. Jo Murphy, Executive Director, Unitarian Universalist Mass Action (UU Mass Action)
Kayla Hamlett Murray, Executive Director, Bethel Institute for Community Development
Ariel Nelson, Criminal Justice Debt & Reintegration Project, National Consumer Law Center
Matthew Parker, Director, Union of Minority Neighborhoods
Marlene Pollock, Coalition for Social Justice Action
Nichelle Sadler, Executive Director, UTEC Training Center for Excellence
Professor David Siegel, New England Law | Boston CORI Initiative
Leon Smith, Executive Director, Citizens for Juvenile Justice
Rev. Chris Sumner, Boston Reentry Collaborative
Jessica Tang, President, Boston Teachers Union
Lisa H. Thurau, Executive Director, Strategies for Youth, Inc.
Vincent Ware, Greater Boston Reentry Taskforce
cc: Nina Pomponio, General Counsel, Office of Commissioner of Probation
1 J.F. overruled a 1995 decision prohibiting immediate sealing of any offenses ending in not guilty dispositions. See Commonwealth v. Doe, 420 Mass. 142 (1995), overruled by Commonwealth v. J.F., 491 Mass. 824, 831, (2023).
2 See Nicola J. Pangonis, Criminal Records: Sealing and Expungement, § 18.4.4, CRIME AND CONSEQUENCE-THE
COLLATERAL EFFECTS OF CRIMINAL CONDUCT (MCLE 2013 ed.).
