WEBVTT
1
00:00:00.000 --> 00:00:05.000
SJC-13465 in the matter of an Impounded Case.
2
00:00:09.180 --> 00:00:12.093
Okay, attorney Curien, whenever you're ready.
3
00:00:14.850 --> 00:00:16.920
Good morning, Your Honors,
4
00:00:16.920 --> 00:00:19.290
may it please the court, my name is Pauline Curien,
5
00:00:19.290 --> 00:00:23.124
and I represent the petitioner in this matter,
6
00:00:23.124 --> 00:00:25.920
which poses the question as to whether
7
00:00:25.920 --> 00:00:30.270
the juvenile record ceiling statute Chapter 276,
8
00:00:30.270 --> 00:00:33.600
Section 100B applies to the sealing
9
00:00:33.600 --> 00:00:36.300
of juvenile court youthful offender records
10
00:00:36.300 --> 00:00:41.043
rather than the adult criminal record sealing statute.
11
00:00:42.030 --> 00:00:44.820
The commissioner's present application
12
00:00:44.820 --> 00:00:48.940
of the adult sealing statute to youthful offender offenses
13
00:00:49.920 --> 00:00:53.370
not only puts children in the hopeless situation
14
00:00:53.370 --> 00:00:56.970
of having lifetime never sealable records
15
00:00:56.970 --> 00:01:01.970
and also poses longer waiting periods,
16
00:01:02.100 --> 00:01:03.840
at a critical time in their lives
17
00:01:03.840 --> 00:01:06.792
when they might be entering the workforce
18
00:01:06.792 --> 00:01:11.792
or pursuing higher education of some kind.
19
00:01:12.270 --> 00:01:15.450
But more importantly,
20
00:01:15.450 --> 00:01:20.010
the commissioners action in applying the adult statute
21
00:01:20.010 --> 00:01:23.550
flies in the face of the decision of this court
22
00:01:23.550 --> 00:01:25.050
and the legislature's action
23
00:01:25.050 --> 00:01:28.770
in creating a separate juvenile justice system
24
00:01:28.770 --> 00:01:31.350
apart from the criminal justice system.
25
00:01:31.350 --> 00:01:34.507
Would you agree that really 100A and 100B
26
00:01:36.870 --> 00:01:39.990
don't answer the question that we need to
27
00:01:39.990 --> 00:01:44.990
sort of dig into Chapter 119, Section 53 and Section 60,
28
00:01:46.830 --> 00:01:51.150
and see which one of those two is most applicable?
29
00:01:51.150 --> 00:01:54.060
Well, I think that there is some language,
30
00:01:54.060 --> 00:01:59.060
for example, in Section 100A,
31
00:01:59.160 --> 00:02:03.780
that uses the terminology criminal court
32
00:02:03.780 --> 00:02:08.400
and criminal court appearance or disposition.
33
00:02:08.400 --> 00:02:10.380
And so I think there,
34
00:02:10.380 --> 00:02:14.970
in terms of excluding youthful offender offenses,
35
00:02:14.970 --> 00:02:16.020
from Section 100A,
36
00:02:16.020 --> 00:02:19.140
I think, from the perspective of the appellant,
37
00:02:19.140 --> 00:02:21.240
that language can be helpful,
38
00:02:21.240 --> 00:02:24.423
though obviously-
Does B say delinquency?
39
00:02:25.470 --> 00:02:26.523
Yes.
Yeah, I mean,
40
00:02:26.523 --> 00:02:27.900
it's a problem.
41
00:02:27.900 --> 00:02:29.250
I think something's,
42
00:02:29.250 --> 00:02:31.680
clearly the legislature didn't contemplate.
43
00:02:31.680 --> 00:02:34.230
Sort of the jump ball, maybe go to the other two.
44
00:02:35.130 --> 00:02:36.753
Well, I think, you know,
45
00:02:38.340 --> 00:02:40.650
I'll jump further into the argument
46
00:02:40.650 --> 00:02:44.940
as to Section 60A, which I think-
47
00:02:44.940 --> 00:02:45.773
It's a question.
48
00:02:45.773 --> 00:02:47.010
It's not an answer, honestly.
49
00:02:47.010 --> 00:02:48.570
It's not an answer, it's a question.
50
00:02:48.570 --> 00:02:51.840
The question is whether 276, you know,
51
00:02:51.840 --> 00:02:55.890
whether 100A and 100C really considering
52
00:02:55.890 --> 00:02:59.820
the period of time when the youthful offender statute passed
53
00:02:59.820 --> 00:03:02.760
comparison to when 100B passed.
54
00:03:02.760 --> 00:03:05.370
If we're really, gee, we really don't know.
55
00:03:05.370 --> 00:03:10.260
And Section 53 broadly protects juveniles
56
00:03:10.260 --> 00:03:15.030
and Sections 68 seems to say, wait a minute,
57
00:03:15.030 --> 00:03:19.140
interpret youthful offender records, sort of like adults.
58
00:03:19.140 --> 00:03:20.460
And what's the interaction
59
00:03:20.460 --> 00:03:22.230
between those two might be more helpful
60
00:03:22.230 --> 00:03:24.270
in trying to get this right.
61
00:03:24.270 --> 00:03:28.290
Well, I can specifically address the interaction
62
00:03:28.290 --> 00:03:32.130
between Section 60A and Section 53,
63
00:03:32.130 --> 00:03:35.190
but I would note that in Commonwealth versus Gavin,
64
00:03:35.190 --> 00:03:38.500
this court specifically referred to the fact that
65
00:03:39.600 --> 00:03:43.650
Section 100C pertained to the criminal court,
66
00:03:43.650 --> 00:03:46.950
and therefore it was not applicable to juveniles
67
00:03:46.950 --> 00:03:49.260
who wanted to seal records
68
00:03:49.260 --> 00:03:51.930
immediately after a positive disposition.
69
00:03:51.930 --> 00:03:56.820
But jumping to Section 60A.
70
00:03:56.820 --> 00:03:59.700
First of all, there is no language whatsoever
71
00:03:59.700 --> 00:04:04.320
in Section 60A of Chapter 119
72
00:04:04.320 --> 00:04:08.940
that says anything about criminal record sealing.
73
00:04:08.940 --> 00:04:11.430
And there's no legislative history
74
00:04:11.430 --> 00:04:14.700
that indicates the legislature ever intended
75
00:04:14.700 --> 00:04:17.790
to deal with criminal record sealing
76
00:04:17.790 --> 00:04:19.653
when it passed the statute.
77
00:04:20.970 --> 00:04:24.360
Moreover, in terms of if you look at
78
00:04:24.360 --> 00:04:28.770
the exact wording of the language in Section 60A,
79
00:04:28.770 --> 00:04:31.020
it doesn't lend itself when you read it for the first time
80
00:04:31.020 --> 00:04:34.290
to even have you think about that it might apply
81
00:04:34.290 --> 00:04:38.430
to criminal record sealing when it was enacted in 1938.
82
00:04:38.430 --> 00:04:39.780
This was before the advent
83
00:04:39.780 --> 00:04:43.863
of computers and other technology.
84
00:04:46.440 --> 00:04:50.820
The function of 60A was to prohibit the public
85
00:04:50.820 --> 00:04:55.020
from publicly inspecting any court records
86
00:04:55.020 --> 00:04:57.840
that had to do with juvenile offenses.
87
00:04:57.840 --> 00:05:02.840
So, when the legislature amended the statute in 1996,
88
00:05:03.030 --> 00:05:06.330
what it did was it continued the same function
89
00:05:06.330 --> 00:05:10.623
of prohibiting access to those,
90
00:05:12.420 --> 00:05:13.650
to delinquency records,
91
00:05:13.650 --> 00:05:15.960
but it carved out a special exception
92
00:05:15.960 --> 00:05:18.390
for youthful offender records,
93
00:05:18.390 --> 00:05:21.400
but it didn't do anything in terms of
94
00:05:25.795 --> 00:05:28.923
changing when or how these juvenile records,
95
00:05:30.840 --> 00:05:34.740
in terms of youthful offenders, would be sealed.
96
00:05:34.740 --> 00:05:38.910
And it's notable that at the time that the legislature
97
00:05:38.910 --> 00:05:40.900
amended Section 60A
98
00:05:43.313 --> 00:05:45.480
we had a criminal record sealing statute for adults.
99
00:05:45.480 --> 00:05:48.180
We had a juvenile record sealing for adults.
100
00:05:48.180 --> 00:05:50.640
So more naturally, if the legislature
101
00:05:50.640 --> 00:05:52.920
had wanted youthful offenders
102
00:05:52.920 --> 00:05:56.103
to be more severely punished in terms of record sealing,
103
00:05:58.469 --> 00:06:01.923
there would be plain language and an amendment
104
00:06:02.820 --> 00:06:04.950
to the juvenile sealing statute
105
00:06:04.950 --> 00:06:07.019
saying you exclude youthful offender-
106
00:06:07.019 --> 00:06:09.269
It works the other way, too, though, right?
107
00:06:10.380 --> 00:06:12.210
Well, I think in this case-
You know,
108
00:06:12.210 --> 00:06:14.640
had the legislature, that argument, right?
109
00:06:14.640 --> 00:06:17.790
Had the legislature wanted to protect YOs,
110
00:06:17.790 --> 00:06:19.080
that they would've mentioned them in the-
111
00:06:19.080 --> 00:06:20.550
Right, well, I think you have to,
112
00:06:20.550 --> 00:06:22.080
I think as-
That's why
113
00:06:22.080 --> 00:06:23.130
this case is so hard.
114
00:06:24.000 --> 00:06:26.800
And what we're looking at as well is
115
00:06:27.750 --> 00:06:30.270
when you look at the YO scheme,
116
00:06:30.270 --> 00:06:34.980
some of it is juvenile protection and some of it is adult,
117
00:06:34.980 --> 00:06:38.460
and we have to kind of navigate to see is it more
118
00:06:38.460 --> 00:06:40.830
like an adult prosecution
119
00:06:40.830 --> 00:06:42.660
or is there more like a delinquency proceeding?
120
00:06:42.660 --> 00:06:43.493
And I done know.
121
00:06:43.493 --> 00:06:45.420
I think obviously-
I mean, I think you both
122
00:06:45.420 --> 00:06:48.113
make good arguments, and that's why it's a tough case.
123
00:06:48.113 --> 00:06:49.890
Well, I think with youthful offenders,
124
00:06:49.890 --> 00:06:51.390
they are still children.
125
00:06:51.390 --> 00:06:55.800
And if the legislature had wanted youthful offenders
126
00:06:55.800 --> 00:06:59.310
to be punished in the identical way as adults,
127
00:06:59.310 --> 00:07:03.630
it would have simply put them under the jurisdiction
128
00:07:03.630 --> 00:07:05.610
of the adult criminal court,
129
00:07:05.610 --> 00:07:09.150
rather than keeping them within the-
130
00:07:09.150 --> 00:07:10.110
But they get jury trials.
131
00:07:10.110 --> 00:07:11.610
They get public access,
132
00:07:11.610 --> 00:07:15.030
there's lots of things, and they can go to state prison.
133
00:07:15.030 --> 00:07:17.280
Well, that's true.
134
00:07:17.280 --> 00:07:19.230
But it's also notable that the legislature
135
00:07:19.230 --> 00:07:21.570
was very specific about it.
136
00:07:21.570 --> 00:07:25.800
All Section 60A did was open the court files
137
00:07:25.800 --> 00:07:27.210
to public inspection.
138
00:07:27.210 --> 00:07:29.670
There was another provision that also was enacted,
139
00:07:29.670 --> 00:07:32.220
opened up the courtroom proceedings.
140
00:07:32.220 --> 00:07:35.190
But that's a far cry from having anything to do
141
00:07:35.190 --> 00:07:36.330
with criminal record sealing.
142
00:07:36.330 --> 00:07:39.900
And the, the function of 60A is different
143
00:07:39.900 --> 00:07:42.540
because what it does is it deals with
144
00:07:42.540 --> 00:07:44.940
public inspection of the records.
145
00:07:44.940 --> 00:07:46.860
And when you get to criminal record sealing,
146
00:07:46.860 --> 00:07:49.890
that's a separate stage of the proceeding.
147
00:07:49.890 --> 00:07:53.820
And as this court noted in Commonwealth versus Pong,
148
00:07:53.820 --> 00:07:55.590
you know, once you get to the stage of sealing,
149
00:07:55.590 --> 00:07:58.650
the public has already had access to the trial,
150
00:07:58.650 --> 00:08:03.300
media had had access to the proceedings,
151
00:08:03.300 --> 00:08:05.910
and we're at a different juncture.
152
00:08:05.910 --> 00:08:07.170
And even even cases with
153
00:08:07.170 --> 00:08:10.050
a lot of publicity at the time,
154
00:08:10.050 --> 00:08:15.050
the public interest fades very, very quickly.
155
00:08:15.630 --> 00:08:19.263
So, in this instance, you know,
156
00:08:20.160 --> 00:08:22.053
as the U.S Supreme Court said,
157
00:08:23.857 --> 00:08:26.340
"Children are not miniature adults."
158
00:08:26.340 --> 00:08:31.327
So I think the use of Section 60A,
159
00:08:34.017 --> 00:08:38.400
in terms of having it apply to record sealing,
160
00:08:38.400 --> 00:08:41.670
really undermines the goals of the juvenile justice system,
161
00:08:41.670 --> 00:08:44.250
and the goal of the juvenile justice system
162
00:08:44.250 --> 00:08:48.090
is to rehabilitate children and provide
163
00:08:48.090 --> 00:08:50.160
those opportunities.
But there's also a goal
164
00:08:50.160 --> 00:08:54.090
of whether something is sealed or not.
165
00:08:54.090 --> 00:08:58.590
And again, Section, this is a hard case,
166
00:08:58.590 --> 00:08:59.910
and you may be right.
167
00:08:59.910 --> 00:09:03.690
And Section 63 may be dispositive in your favor.
168
00:09:03.690 --> 00:09:05.640
It may well be dispositive in your favor,
169
00:09:05.640 --> 00:09:08.460
but 60 thematically
170
00:09:08.460 --> 00:09:12.300
recognizes youthful offender cases are different.
171
00:09:12.300 --> 00:09:17.300
And somebody who has an adjudication as a youthful offender,
172
00:09:18.180 --> 00:09:22.920
that might be, because of the seriousness of the crime,
173
00:09:22.920 --> 00:09:27.920
might be something that an employee oughta know,
174
00:09:28.650 --> 00:09:30.000
that a municipality oughta know
175
00:09:30.000 --> 00:09:31.350
before somebody's a coach,
176
00:09:31.350 --> 00:09:35.520
that may be circumstances for that serious a crime
177
00:09:35.520 --> 00:09:38.400
that make it different.
178
00:09:38.400 --> 00:09:41.460
Well, I think that the fact that the proceedings
179
00:09:41.460 --> 00:09:46.170
were open doesn't convey the any clear intent
180
00:09:46.170 --> 00:09:48.780
to affect criminal record sealing.
181
00:09:48.780 --> 00:09:52.383
And the mandate of Section 53,
182
00:09:53.280 --> 00:09:56.820
which applies to interpretation of Section 60A
183
00:09:56.820 --> 00:10:00.183
says that, "As far as practicable,
184
00:10:01.657 --> 00:10:05.347
"children are not to be treated as criminals,
185
00:10:05.347 --> 00:10:09.877
"but are to be treated as children in need of aid
186
00:10:09.877 --> 00:10:11.850
"and guidance and encouragement."
187
00:10:11.850 --> 00:10:16.513
So obviously, you know, using Section 60A
188
00:10:19.140 --> 00:10:21.420
to bar the sealing of criminal records
189
00:10:21.420 --> 00:10:24.240
permanently for children or delaying their sealing
190
00:10:24.240 --> 00:10:27.990
isn't something that advances the interest of children
191
00:10:27.990 --> 00:10:32.310
or in any way advances the notion of rehabilitation.
192
00:10:32.310 --> 00:10:35.550
And Section 53 in particular has a second sentence
193
00:10:35.550 --> 00:10:40.290
that says specifically that juvenile proceedings
194
00:10:40.290 --> 00:10:42.240
are not criminal proceedings.
195
00:10:42.240 --> 00:10:44.520
Just as this court has said on many occasions
196
00:10:44.520 --> 00:10:47.783
in the Conner case or in Commonwealth versus Dones,
197
00:10:49.890 --> 00:10:54.510
you know, children are not labeled as criminals,
198
00:10:54.510 --> 00:10:57.840
and the proceedings, even for youthful offenders,
199
00:10:57.840 --> 00:11:00.180
are not criminal proceedings.
200
00:11:00.180 --> 00:11:05.180
So, in terms of Section 60A it talks about
201
00:11:05.880 --> 00:11:07.080
a criminal court case,
202
00:11:07.080 --> 00:11:10.950
but how can you have a record that's equivalent
203
00:11:10.950 --> 00:11:13.290
to an adult criminal record
204
00:11:13.290 --> 00:11:14.990
when the proceeding isn't criminal
205
00:11:16.732 --> 00:11:19.173
to have a criminal proceeding?
206
00:11:21.510 --> 00:11:22.440
A criminal proceeding obviously
207
00:11:22.440 --> 00:11:25.440
would entail a criminal record.
208
00:11:25.440 --> 00:11:28.080
But here these are not criminal proceedings.
209
00:11:28.080 --> 00:11:30.450
So there's no criminal record,
210
00:11:30.450 --> 00:11:34.195
and there's no criminal case because it's a juvenile case.
211
00:11:34.195 --> 00:11:38.460
And the legislature specifically has chosen
212
00:11:38.460 --> 00:11:41.430
to leave youthful offenders, you know,
213
00:11:41.430 --> 00:11:42.960
in the juvenile court.
214
00:11:42.960 --> 00:11:44.100
Under the old system,
215
00:11:44.100 --> 00:11:48.510
when children were transferred to the Superior Court,
216
00:11:48.510 --> 00:11:50.130
obviously, you know,
217
00:11:50.130 --> 00:11:53.010
their records then were treated the same way
218
00:11:53.010 --> 00:11:55.740
under Section 100A,
219
00:11:55.740 --> 00:11:59.550
but in this instance, you know,
220
00:11:59.550 --> 00:12:01.200
we don't have any indication
221
00:12:01.200 --> 00:12:05.100
that the legislature ever meant to do that.
222
00:12:05.100 --> 00:12:07.200
So the Office of the Commissioner of Probation
223
00:12:07.200 --> 00:12:09.210
basically fails to demonstrate
224
00:12:09.210 --> 00:12:11.860
the requisite legislative intent
225
00:12:13.500 --> 00:12:17.520
that the adult sealing statute would apply
226
00:12:17.520 --> 00:12:19.200
to juveniles in this situation,
227
00:12:19.200 --> 00:12:23.700
so any ambiguity is read in favor of the juvenile
228
00:12:23.700 --> 00:12:28.700
in terms of application of Section 53.
229
00:12:28.890 --> 00:12:33.390
And, in terms of the broader picture
230
00:12:33.390 --> 00:12:38.390
in terms of criminal record sealing, as amici point out,
231
00:12:38.580 --> 00:12:43.530
in particular, the children who tend to be involved
232
00:12:43.530 --> 00:12:45.030
in juvenile court proceedings
233
00:12:45.030 --> 00:12:47.640
and youthful offender proceedings in particular
234
00:12:47.640 --> 00:12:52.380
tend to be Black and Latino and Hispanic,
235
00:12:52.380 --> 00:12:54.390
so clearly there are racial disparities.
236
00:12:54.390 --> 00:12:55.920
So if you go down this road
237
00:12:55.920 --> 00:13:00.920
and you start treating youthful offender records
238
00:13:02.370 --> 00:13:04.470
as adult records that are never sealable,
239
00:13:04.470 --> 00:13:08.190
what you're doing is exasperating the racial disparities
240
00:13:08.190 --> 00:13:12.450
that exist within the juvenile justice system
241
00:13:12.450 --> 00:13:16.530
and in the criminal justice system at large.
242
00:13:16.530 --> 00:13:20.460
And then the other factor that this court has to consider
243
00:13:20.460 --> 00:13:22.800
is its own opinion in Diatchenko,
244
00:13:22.800 --> 00:13:24.780
this court, as well as the U.S Supreme Court,
245
00:13:24.780 --> 00:13:27.300
have recognized that children
246
00:13:27.300 --> 00:13:31.890
are less culpable for their offenses than adults,
247
00:13:31.890 --> 00:13:36.890
because of all of the science and the advancements made
248
00:13:37.020 --> 00:13:40.290
in terms of understanding brain development
249
00:13:40.290 --> 00:13:43.323
and child development in general.
250
00:13:44.490 --> 00:13:47.160
And then finally, I would also add that
251
00:13:47.160 --> 00:13:51.330
one also has to consider sort of the Pandora's box
252
00:13:51.330 --> 00:13:53.430
or the tsunami of collateral consequences
253
00:13:53.430 --> 00:13:56.220
that could result from a decision of this court
254
00:13:56.220 --> 00:13:59.340
that said that for sealing purposes,
255
00:13:59.340 --> 00:14:02.220
a youthful offender record is tantamount
256
00:14:02.220 --> 00:14:05.730
to either an adult conviction or an adult record.
257
00:14:05.730 --> 00:14:08.700
Because if you look at what happens with the interplay
258
00:14:08.700 --> 00:14:11.763
with Chapter 151B,
259
00:14:14.010 --> 00:14:18.450
paragraph 9 in Section 4 specifically prohibits
260
00:14:18.450 --> 00:14:21.210
questions about cases
261
00:14:21.210 --> 00:14:23.040
unless there was a criminal conviction.
262
00:14:23.040 --> 00:14:24.300
So if we go down this road
263
00:14:24.300 --> 00:14:28.150
and we open up youthful offender records
264
00:14:29.760 --> 00:14:32.220
to a classification where they're equivalent
265
00:14:32.220 --> 00:14:34.252
to an adult criminal case,
266
00:14:34.252 --> 00:14:37.680
then that means a lot of those protections would be lost.
267
00:14:37.680 --> 00:14:40.530
The same with the immigration area of law.
268
00:14:40.530 --> 00:14:43.110
There are no opinions yet on whether
269
00:14:43.110 --> 00:14:48.030
a youthful offender adjudication is an adult case
270
00:14:48.030 --> 00:14:51.600
or it's equivalent to a conviction.
271
00:14:51.600 --> 00:14:56.600
So it could open up a loss of rights for children at large
272
00:14:58.770 --> 00:15:01.530
that go well beyond the particulars in this case.
273
00:15:01.530 --> 00:15:06.530
And the last thing I would add, it's also of importance
274
00:15:06.630 --> 00:15:10.500
that the Commissioner of Probation's own legal counsel
275
00:15:10.500 --> 00:15:13.440
years ago issued a publication
276
00:15:13.440 --> 00:15:17.333
indicating that the Section 100B applied
277
00:15:20.400 --> 00:15:24.510
both to youthful offenders and to delinquency cases,
278
00:15:24.510 --> 00:15:27.420
and they both had a three-year waiting period.
279
00:15:27.420 --> 00:15:29.400
So clearly there's ambiguity
280
00:15:29.400 --> 00:15:31.710
in terms of the statute when even the legal counsel
281
00:15:31.710 --> 00:15:32.970
for the Commissioner of Probation
282
00:15:32.970 --> 00:15:34.800
doesn't know how to interpret it.
283
00:15:34.800 --> 00:15:38.370
And then, it's unclear how long
284
00:15:38.370 --> 00:15:40.380
that the Commissioner of Probation
285
00:15:40.380 --> 00:15:41.820
has engaged in this practice,
286
00:15:41.820 --> 00:15:44.073
even though they say it's longstanding,
287
00:15:45.780 --> 00:15:49.440
that doesn't appear to be the case in terms of practitioners
288
00:15:49.440 --> 00:15:52.860
who are out there who do record sealing.
289
00:15:52.860 --> 00:15:55.570
So in this instance, I would urge the court
290
00:15:56.670 --> 00:16:01.380
to find that Section 100B applies
291
00:16:01.380 --> 00:16:02.940
to the petitioner in this case
292
00:16:02.940 --> 00:16:07.473
and to issue a ruling that clarifies Section 100B,
293
00:16:09.030 --> 00:16:12.540
applies to all youthful offender cases.
294
00:16:12.540 --> 00:16:14.313
Okay, thank you very much.
295
00:16:16.950 --> 00:16:17.973
Attorney Pomponio.
296
00:16:30.000 --> 00:16:30.930
Good morning.
297
00:16:30.930 --> 00:16:32.940
May it please the court, Nina Pomponio,
298
00:16:32.940 --> 00:16:35.070
on behalf of the Office of Commissioner Probation
299
00:16:35.070 --> 00:16:37.920
within the Massachusetts probation Service.
300
00:16:37.920 --> 00:16:41.340
When the Office of the Commissioner of Probation, or OCP,
301
00:16:41.340 --> 00:16:44.670
sought to operationalize the intent of the legislature
302
00:16:44.670 --> 00:16:47.220
with the two administrative sealing statutes,
303
00:16:47.220 --> 00:16:50.010
one for criminal court appearances
304
00:16:50.010 --> 00:16:53.550
and the other for delinquency court appearances,
305
00:16:53.550 --> 00:16:55.410
it looked to Chapter 119-
306
00:16:55.410 --> 00:16:57.660
You're in a rock in a hard place, we get it right.
307
00:16:57.660 --> 00:16:58.833
Yes.
So,
308
00:17:01.230 --> 00:17:04.500
what about the fact that these are remedial statutes
309
00:17:04.500 --> 00:17:09.500
and that we should err towards the sealing part of it,
310
00:17:11.130 --> 00:17:12.990
because of that aspect of it,
311
00:17:12.990 --> 00:17:15.480
and that would be the tipping point
312
00:17:15.480 --> 00:17:19.020
because of the nature of the statute we have here?
313
00:17:19.020 --> 00:17:20.520
Well, I'd like to say from the outset
314
00:17:20.520 --> 00:17:21.930
that the Office of Commissioner Probation
315
00:17:21.930 --> 00:17:23.340
does welcome this court's guidance
316
00:17:23.340 --> 00:17:25.290
on how to interpret these statutes.
317
00:17:25.290 --> 00:17:28.260
However, when we looked to these statutes,
318
00:17:28.260 --> 00:17:32.460
we saw a very direct instruction in 119 60A.
319
00:17:32.460 --> 00:17:35.880
It stated that the records of youthful offender proceedings
320
00:17:35.880 --> 00:17:38.610
shall be treated like the records
321
00:17:38.610 --> 00:17:42.240
of adult criminal court records.
322
00:17:42.240 --> 00:17:44.700
So this seemed like a very direct indication,
323
00:17:44.700 --> 00:17:47.430
especially given the timing of this amendment.
324
00:17:47.430 --> 00:17:49.680
So when the legislature
325
00:17:49.680 --> 00:17:51.660
carved out the exception for youthful offenders,
326
00:17:51.660 --> 00:17:55.680
carved out that exception for our most serious crimes,
327
00:17:55.680 --> 00:18:00.157
it then amended 119 60A to add the Section that
328
00:18:00.157 --> 00:18:02.317
"The youthful offender proceedings
329
00:18:02.317 --> 00:18:04.537
"shall be open to the public inspection
330
00:18:04.537 --> 00:18:06.817
"in the same manner and to the same extent
331
00:18:06.817 --> 00:18:08.580
"as adult criminal court records."
332
00:18:08.580 --> 00:18:11.970
So 60A took something that was ambiguous to you,
333
00:18:11.970 --> 00:18:14.880
crystallized it to make it an adult.
334
00:18:14.880 --> 00:18:16.590
It gave us the best indication
335
00:18:16.590 --> 00:18:18.450
of the legislature's intent, in our opinion,
336
00:18:18.450 --> 00:18:20.310
because at the time of this amendment,
337
00:18:20.310 --> 00:18:22.590
the two sealing statutes existed.
338
00:18:22.590 --> 00:18:25.320
I don't know if there's any legislative intent to glean,
339
00:18:25.320 --> 00:18:26.846
because it's silent.
340
00:18:26.846 --> 00:18:27.802
You're-
I don't think
341
00:18:27.802 --> 00:18:29.270
there's any ambiguity.
342
00:18:29.270 --> 00:18:30.870
I just think it's just not addressed.
343
00:18:30.870 --> 00:18:32.310
You're absolutely correct, Your Honor.
344
00:18:32.310 --> 00:18:34.620
Of course we had to operationalize it, correct?
345
00:18:34.620 --> 00:18:36.540
You know, we were receiving petitions
346
00:18:36.540 --> 00:18:38.400
to seal youthful offender records.
347
00:18:38.400 --> 00:18:40.560
So this seemed like the best indication
348
00:18:40.560 --> 00:18:42.840
where the two sealing statutes existed,
349
00:18:42.840 --> 00:18:45.810
criminal court appearances, delinquency court appearances,
350
00:18:45.810 --> 00:18:48.427
and then we have 119 60A amended to say,
351
00:18:48.427 --> 00:18:52.200
"Treated like criminal court records."
352
00:18:52.200 --> 00:18:55.500
That, to us, seemed like the best indication
353
00:18:55.500 --> 00:18:58.920
we should treat the sealing like criminal court records.
354
00:18:58.920 --> 00:19:02.250
I agree with you, this is difficult and everything,
355
00:19:02.250 --> 00:19:07.250
but don't you have to fold into the analysis Section 53?
356
00:19:08.400 --> 00:19:09.752
Absolutely, Your Honor.
357
00:19:09.752 --> 00:19:11.450
We do not take the position
358
00:19:11.450 --> 00:19:13.710
that youthful offender proceedings
359
00:19:13.710 --> 00:19:16.110
are criminal proceedings for all purposes
360
00:19:16.110 --> 00:19:17.340
and in all manners.
361
00:19:17.340 --> 00:19:20.070
What we are saying is that we are treating the records
362
00:19:20.070 --> 00:19:22.470
of these proceedings similarly to
363
00:19:22.470 --> 00:19:26.640
how we treat the records of criminal court proceedings.
364
00:19:26.640 --> 00:19:30.450
We do this because, again, of 119 60A.
365
00:19:30.450 --> 00:19:33.030
We could not, of course, take the position
366
00:19:33.030 --> 00:19:34.833
that they are criminal proceedings.
367
00:19:37.110 --> 00:19:38.790
As this court has pointed out already
368
00:19:38.790 --> 00:19:40.380
with my sister's argument,
369
00:19:40.380 --> 00:19:44.310
100A speaks to dispositions, not convictions.
370
00:19:44.310 --> 00:19:46.410
It never says the word adult.
371
00:19:46.410 --> 00:19:49.020
So we really are looking at a criminal court appearance
372
00:19:49.020 --> 00:19:51.001
versus a delinquency court appearance,
373
00:19:51.001 --> 00:19:52.230
as this court has pointed out,
374
00:19:52.230 --> 00:19:53.880
a youthful offender is neither.
375
00:19:53.880 --> 00:19:58.880
So where is the best indication of where we might put these?
376
00:19:58.890 --> 00:20:03.090
And given that 119 60A was amended with the knowledge
377
00:20:03.090 --> 00:20:04.770
of these two options,
378
00:20:04.770 --> 00:20:07.380
it seemed like the best place to put them.
379
00:20:07.380 --> 00:20:10.830
Are you arguing that that's how we should look at it?
380
00:20:10.830 --> 00:20:13.470
Again, we welcome the interpretation of this court.
381
00:20:13.470 --> 00:20:16.350
I think we are here today to articulate
382
00:20:16.350 --> 00:20:19.203
why our position was rational at the time,
383
00:20:20.782 --> 00:20:23.310
where we were stuck between a rock and hard place
384
00:20:23.310 --> 00:20:25.170
as this argument started.
385
00:20:25.170 --> 00:20:28.410
We tried to take a rational interpretation.
386
00:20:28.410 --> 00:20:30.810
So again, we welcome the opinion of the court,
387
00:20:30.810 --> 00:20:33.660
but we're here to merely defend
388
00:20:33.660 --> 00:20:36.360
that this wasn't an arbitrary distinction.
389
00:20:36.360 --> 00:20:39.480
It wasn't, as my sister seems to indicate,
390
00:20:39.480 --> 00:20:43.293
a intent to harbor children with records forever.
391
00:20:44.220 --> 00:20:46.710
You know, I don't agree with all of the characterizations
392
00:20:46.710 --> 00:20:48.090
my sister makes of these records.
393
00:20:48.090 --> 00:20:50.310
I think it muddies the waters quite a bit.
394
00:20:50.310 --> 00:20:52.560
As we know, as we explained in our brief,
395
00:20:52.560 --> 00:20:55.950
the record system is incredibly complex in Massachusetts.
396
00:20:55.950 --> 00:20:58.710
And anytime we're talking about access to a record,
397
00:20:58.710 --> 00:21:00.510
it's gonna matter who is asking,
398
00:21:00.510 --> 00:21:02.970
when they're asking, and what record,
399
00:21:02.970 --> 00:21:05.220
which I'm happy to discuss more of this,
400
00:21:05.220 --> 00:21:07.650
if this court would like me to.
401
00:21:07.650 --> 00:21:09.690
We also don't disagree that there's a number
402
00:21:09.690 --> 00:21:11.340
of strong policy arguments
403
00:21:11.340 --> 00:21:13.800
in favor of placing youthful offender records
404
00:21:13.800 --> 00:21:17.763
within the 100B system for delinquency court appearances.
405
00:21:19.329 --> 00:21:21.810
Again, OCP sought to effectuate
406
00:21:21.810 --> 00:21:23.880
the intent of the legislature at best it could
407
00:21:23.880 --> 00:21:26.160
when there was no clear instruction.
408
00:21:26.160 --> 00:21:28.560
And our purpose, the probation's purpose,
409
00:21:28.560 --> 00:21:30.570
is not to insert our own policy judgments
410
00:21:30.570 --> 00:21:32.010
on top of that of the legislatures
411
00:21:32.010 --> 00:21:32.843
or this court.
412
00:21:32.843 --> 00:21:34.380
I think that the numbers that counsel gave,
413
00:21:34.380 --> 00:21:36.990
and I don't know if, I think it was in her brief,
414
00:21:36.990 --> 00:21:39.000
said there are like 14 cases,
415
00:21:39.000 --> 00:21:43.050
there's not a lot of these cases, that occur, the YOs?
416
00:21:43.050 --> 00:21:45.570
I do not have a statistic on how many occur.
417
00:21:45.570 --> 00:21:47.970
I don't believe we actually break them down in that way.
418
00:21:47.970 --> 00:21:49.230
When I think-
I guess the next question
419
00:21:49.230 --> 00:21:52.590
I ask is how often does this come up for you folks?
420
00:21:52.590 --> 00:21:54.270
We don't break down our sealings in that way.
421
00:21:54.270 --> 00:21:56.490
I can tell you how many things we've sealed under 100B
422
00:21:56.490 --> 00:21:58.020
and how many things we've sealed under 100A,
423
00:21:58.020 --> 00:21:59.893
but I don't think I could tell you.
424
00:21:59.893 --> 00:22:01.050
I don't think we've broken them down
425
00:22:01.050 --> 00:22:02.700
further than that over the years.
426
00:22:04.560 --> 00:22:07.323
We do seal approximately 55,000 charges a year.
427
00:22:08.790 --> 00:22:12.120
Because if we ask the legislature to act on this,
428
00:22:12.120 --> 00:22:14.530
which I think you could probably anticipate
429
00:22:14.530 --> 00:22:17.487
is going to happen one way or the other,
430
00:22:17.487 --> 00:22:19.590
I'm just wondering how many cases are affected.
431
00:22:19.590 --> 00:22:20.700
But you don't have that information.
432
00:22:20.700 --> 00:22:22.492
I don't have that specific number.
433
00:22:22.492 --> 00:22:23.880
What might be helpful to know is,
434
00:22:23.880 --> 00:22:25.950
is that there are youthful offender records
435
00:22:25.950 --> 00:22:27.960
kind of fall in a middle ground of protections,
436
00:22:27.960 --> 00:22:31.380
between delinquency records and adult criminal records.
437
00:22:31.380 --> 00:22:33.400
So, with youthful offender records
438
00:22:35.400 --> 00:22:37.950
their court files are public under 119 60A,
439
00:22:37.950 --> 00:22:40.980
the court proceedings are public under 119 60A.
440
00:22:40.980 --> 00:22:43.290
However, they do not appear on the CORI,
441
00:22:43.290 --> 00:22:45.810
the Criminal Offender Record Information,
442
00:22:45.810 --> 00:22:47.340
which is maintained by DCJIS,
443
00:22:47.340 --> 00:22:48.660
and they do not appear on that CORI
444
00:22:48.660 --> 00:22:50.310
based upon a 2018 amendment,
445
00:22:50.310 --> 00:22:52.230
the Criminal Justice Reform Act.
446
00:22:52.230 --> 00:22:54.060
And that's whether or not they're sealed,
447
00:22:54.060 --> 00:22:55.680
they're not gonna appear on that CORI.
448
00:22:55.680 --> 00:22:56.880
And the CORI is the thing
449
00:22:56.880 --> 00:22:59.415
that a person would get when there's a background check.
450
00:22:59.415 --> 00:23:02.820
Just we have another YO case I think on Wednesday
451
00:23:02.820 --> 00:23:05.220
that talks about the numbers, so that's what I was-
452
00:23:05.220 --> 00:23:06.120
Oh, you were looking at that?
453
00:23:06.120 --> 00:23:08.717
I didn't recall any numbers from any of our filings.
454
00:23:08.717 --> 00:23:10.140
Yeah, that's what I confirmed.
455
00:23:10.140 --> 00:23:12.840
I'm curious where they got those numbers.
456
00:23:12.840 --> 00:23:13.860
The CARI, on the other hand,
457
00:23:13.860 --> 00:23:15.600
the Criminal Activity Record Information,
458
00:23:15.600 --> 00:23:17.550
which is maintained by Probation,
459
00:23:17.550 --> 00:23:20.670
the youthful offender record will stay on there
460
00:23:20.670 --> 00:23:22.650
whether or not it's sealed as well.
461
00:23:22.650 --> 00:23:27.650
So really what we're talking about is the court file,
462
00:23:27.690 --> 00:23:30.600
because, again, the CARI includes sealed records,
463
00:23:30.600 --> 00:23:31.680
'cause it's for the use only
464
00:23:31.680 --> 00:23:33.330
for the courts and law enforcement.
465
00:23:33.330 --> 00:23:37.260
The CORI never contains youthful offender records
466
00:23:37.260 --> 00:23:39.990
based upon that 2018 change to the statute.
467
00:23:39.990 --> 00:23:43.020
So really what we're talking about is the court file
468
00:23:43.020 --> 00:23:45.210
and whether it remains public
469
00:23:45.210 --> 00:23:48.150
or is subject to that sealing time periods,
470
00:23:48.150 --> 00:23:48.983
as needed-
That's why you're
471
00:23:48.983 --> 00:23:51.780
saying 60A has the most application?
472
00:23:51.780 --> 00:23:53.070
It's another reason why.
473
00:23:53.070 --> 00:23:55.320
I mean, of course, that change was made in 2018,
474
00:23:55.320 --> 00:23:57.540
but it's another reason why.
475
00:23:57.540 --> 00:23:58.830
Let me see if I can understand
476
00:23:58.830 --> 00:24:01.233
why it might not apply, 60A.
477
00:24:02.820 --> 00:24:04.410
It doesn't say anything about sealing.
478
00:24:04.410 --> 00:24:05.790
And when it talks about the records
479
00:24:05.790 --> 00:24:08.230
of youthful offender proceedings conducted
480
00:24:09.450 --> 00:24:11.250
pursuant to an indictment should be open
481
00:24:11.250 --> 00:24:14.340
to the public inspection, same manner as criminal.
482
00:24:14.340 --> 00:24:18.870
Well, the criminal record open to the public,
483
00:24:18.870 --> 00:24:20.493
but if it's sealed it isn't.
484
00:24:21.930 --> 00:24:25.680
But it's sealed under 276 100A
485
00:24:25.680 --> 00:24:27.150
for criminal court appearances.
486
00:24:27.150 --> 00:24:29.070
So what we're saying is youthful offender proceedings
487
00:24:29.070 --> 00:24:33.660
would then, therefore, be sealed under 100A
488
00:24:33.660 --> 00:24:35.310
for criminal court appearances.
489
00:24:35.310 --> 00:24:37.620
So it's not that it's never sealed.
490
00:24:37.620 --> 00:24:41.370
I think my sister might have stated never sealed,
491
00:24:41.370 --> 00:24:45.090
but what she's referring to is this particular offender
492
00:24:45.090 --> 00:24:49.080
has a number of charges for intimidation of a witness.
493
00:24:49.080 --> 00:24:50.880
And under 276 100A,
494
00:24:50.880 --> 00:24:52.500
the criminal court appearance statute,
495
00:24:52.500 --> 00:24:54.450
there are specific offense restrictions
496
00:24:54.450 --> 00:24:55.860
that are never sealable.
497
00:24:55.860 --> 00:24:58.770
One of them, in fact, is intimidation of a witness.
498
00:24:58.770 --> 00:25:02.910
Those same offense restrictions do not appear under 100A.
499
00:25:02.910 --> 00:25:05.370
So that's why, to this particular petitioner,
500
00:25:05.370 --> 00:25:06.900
this matters quite a bit,
501
00:25:06.900 --> 00:25:10.050
because that sealing would only apply
502
00:25:10.050 --> 00:25:11.610
if his youthful offender proceeding
503
00:25:11.610 --> 00:25:14.370
was treated as a delinquency court appearance.
504
00:25:14.370 --> 00:25:16.740
But again, you know, I put into context
505
00:25:16.740 --> 00:25:18.240
that we are talking about the court file,
506
00:25:18.240 --> 00:25:21.213
because it wouldn't appear on that CORI, regardless.
507
00:25:27.900 --> 00:25:29.460
Another thing that my sister brought up
508
00:25:29.460 --> 00:25:31.950
that I thought was important to indicate
509
00:25:31.950 --> 00:25:34.410
is that the appeals court in JJ
510
00:25:34.410 --> 00:25:37.950
had previously determined that because 100C,
511
00:25:37.950 --> 00:25:39.990
the discretionary sealing statute,
512
00:25:39.990 --> 00:25:43.440
for non-convictions uses the word conviction,
513
00:25:43.440 --> 00:25:45.570
that juvenile proceedings did not,
514
00:25:45.570 --> 00:25:47.010
juvenile delinquency proceedings
515
00:25:47.010 --> 00:25:48.720
did not fall under that statute.
516
00:25:48.720 --> 00:25:51.480
Meaning that juveniles always have to wait the three years
517
00:25:51.480 --> 00:25:53.640
under 100B to get sealing,
518
00:25:53.640 --> 00:25:57.660
whether or not the case is adjudicated delinquent or not.
519
00:25:57.660 --> 00:26:02.660
Here, with this court's recent clarification in JF,
520
00:26:02.730 --> 00:26:07.730
paragraph 1 of 100C entitles criminal court conviction,
521
00:26:08.340 --> 00:26:10.230
criminal court non-convictions,
522
00:26:10.230 --> 00:26:12.750
not guilties, no probable cause, and No Bill,
523
00:26:12.750 --> 00:26:14.823
to immediate automatic sealing.
524
00:26:15.870 --> 00:26:18.570
So that is, again, another protection
525
00:26:18.570 --> 00:26:21.090
that would be available to youthful offender proceedings
526
00:26:21.090 --> 00:26:22.680
should it fall under 100A.
527
00:26:22.680 --> 00:26:25.680
Should it fall on 100B I think, again, it's less clear.
528
00:26:25.680 --> 00:26:29.100
I may be back before you determining whether or not
529
00:26:29.100 --> 00:26:33.630
it would have to wait that time period under 100B.
530
00:26:33.630 --> 00:26:36.690
So because, as we started this conversation
531
00:26:36.690 --> 00:26:39.191
with the fact that it is not mentioned anywhere,
532
00:26:39.191 --> 00:26:42.240
we really don't know how to treat them
533
00:26:42.240 --> 00:26:43.320
and where to put them.
534
00:26:43.320 --> 00:26:46.530
So we have to look at that best analogy,
535
00:26:46.530 --> 00:26:48.810
which is that the clerk's records
536
00:26:48.810 --> 00:26:51.033
are treated like adult criminal records.
537
00:26:56.700 --> 00:26:58.647
If there's no further questions from the court,
538
00:26:58.647 --> 00:27:01.380
I'd just like to remind the court that MPS recognizes
539
00:27:01.380 --> 00:27:03.870
that the sealing of records serves our mission
540
00:27:03.870 --> 00:27:05.700
to support individuals and families
541
00:27:05.700 --> 00:27:08.010
in achieving long-term positive change.
542
00:27:08.010 --> 00:27:09.840
As such, again, we welcome this court's guidance
543
00:27:09.840 --> 00:27:11.740
on the interpretation of the statutes.