Amendment #1 to H3768

Expungement of Marijuana Arrest Records

Representatives Vega of Holyoke, Rushing of Boston, Balser of Newton, Barber of Somerville, Connolly of Cambridge, Farley-Bouvier of Pittsfield, Fernandes of Falmouth, Gentile of Sudbury, Goldstein-Rose of Amherst, Gonzalez of Springfield, Hecht of Watertown, Heroux of Attleboro, Higgins of Leominster, Holmes of Boston, Keefe of Worcester, Livingstone of Boston, Provost of Somerville, Tosado of Springfield, Tyler of Boston and Walsh of Framingham move to amend the bill by adding the following:

Section XX: Chapter 276 of the general laws is hereby amended by adding, after section 100D, the following new section:

Section 100E: Expungement of records of marijuana arrest, detention, conviction and incarceration.

(a) Expungement of marijuana records. Any person having a record of criminal court appearances and dispositions in the commonwealth on file with the office of the commissioner of probation, or the Department of Criminal Justice Information Services established by c. 6, sec. 167A et seq., for a marijuana offense as defined by c. 94C or other provisions of law committed before the enactment of c. 334 of the Acts of 2016, shall have all such records expunged forthwith from all criminal record information systems collected or distributed by any state agency, court or municipality. Any person with a criminal record eligible for expungement hereunder may apply to the commissioner, the department or the clerk of court where an expunged record exists, for expedited expungement in compliance with the provisions hereunder, and have the application acted on forthwith.

(b) Notice of expungement. When records of criminal appearances and criminal dispositions are expunged by the commissioner or department in their files, the commissioner or department shall notify forthwith the clerk and the probation officer of the courts in which the convictions or dispositions have occurred, or other entries have been made, of such expungement, and said clerks and probation officers likewise shall expunge records of the same proceedings in their files.

(c) Effect of expungement. Such expunged records shall not operate to disqualify a person in any examination, appointment or application for public service in the service of the commonwealth or of any political subdivision thereof; nor shall such expunged records be admissible in evidence or used in any way in any court proceedings or hearings before any boards or commissions. Anyone with an expunged marijuana record whose license to operate a motor vehicle remains under suspension pursuant to G.L. c. 90, sec. 22 or other provision of law, due to a marijuana infraction unrelated to a conviction for operation under the influence, is entitled to have the suspension terminated forthwith, and to have their license to operate restored forthwith.

(d) Employment applications. An application for employment used by an employer which seeks information concerning prior arrests or convictions of the applicant shall include the following statement:

“An applicant for employment with an expunged record on file with the commissioner of probation may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with an expunged record on file with the commissioner of probation may answer ‘no record’ to an inquiry herein relative to prior arrests or criminal court appearances. In addition, any applicant for employment may answer ‘no record’ with respect to any inquiry relative to prior arrests, court appearances and adjudications in all cases of delinquency or as a child in need of services which did not result in a complaint transferred to the superior court for criminal prosecution.”

The attorney general may enforce the provisions of this paragraph by a suit in equity commenced in the superior court.

(e) “No record” report of expunged records. The commissioner or the department, in response to inquiries by authorized persons, shall in the case of an expunged record or in the case of court appearances and adjudications in a case of delinquency or the case of a child in need of services, report that no record exists.

(f) Prisoners serving sentences for expunged offenses. The commissioner of correction, and the sheriffs and masters of all county Houses of Correction shall forthwith review the sentencing mittimus’ of all prisoners in their custody to identify any prisoner held (i) pursuant to a conviction for a marijuana offense as defined by c. 94C, committed before the enactment of c. 334 of the Acts of 2016; or (ii) the revocation of probation or parole regardless of the nature of the underlying offense, where the only ground for revocation was the prisoner’s use of marijuana committed before the enactment of c. 334 of the Acts of 2016. Any prisoner so identified shall be reported to the committee for public counsel services, and the district attorney for the county of the sentencing court, along with a copy of the sentencing mittimus. Any prisoner being held only for sentence under an expunged marijuana offense, or held on a probation or parole surrender based only on drug testing or other probation or parole violation regarding the parolee or probationer’s use of marijuana, may apply to the sentencing court for an order of discharge and release. An initial hearing shall be held within ten days of court application, to determine whether any basis other than a marijuana law violation exists for the prisoner’s continued detention. If no other basis exists the prisoner shall be released forthwith at the initial hearing; if other non-marijuana related cause for custody appears to exist, the prisoner may seek a continuance of the initial hearing to further investigate and present evidence regarding a claim that the only basis for the prisoner’s custody is a conviction or probation or parole surrender for the violation of an expunged or other marijuana offense or the prisoner’s use of marijuana while on probation or parole.