Young & Arrestless

The case against expunging juvenile arrest records

T. Markus Funk from the February 1996 issue

(Page 2 of 2)

In fact, expungement statutes also make it virtually impossible to collect the kind of data that might lead to more effective crime prevention. In a 1992 article in the Journal of Urban and Contemporary Law, Carlton Snow, the former dean of Willamette University College of Law, argued that expungement statutes "impinge on a democratic society's ability to inform itself about all aspects of the criminal justice system....Regardless of whether juvenile records are merely `sealed' or actually destroyed, the data becomes less available for research purposes." The result: The general public is unable to evaluate the juvenile justice system accurately, and sociologists and criminologists are left less able to study important aspects of criminal behavior.

And, as the case of Daniel Doe illustrates, expungement often prevents the courts from adequately assessing the danger a younger criminal poses to society.

The functions that judges perform at sentencing--one of which is to determine the convict's rehabilitative potential, as evidenced by his response to prior convictions--are simply too important to allow incomplete information concerning the nature and seriousness of an individual's criminal past to interfere with the proper dispensation of punishment.

That's one of the major points in United States v. Davis, a 1995 case involving a convicted felon's due process challenge to the United States Sentencing Guidelines' directive to consider juvenile convictions in calculating a defendant's prior criminal history. Writing for the court, Judge William J. Bauer of the Seventh Circuit Court of Appeals powerfully stated: "[I]t is imperative that the defendant's sentence account for his criminal history from the date of birth up to and including the moment of sentencing. The consideration of the defendant's juvenile record is essential, because it is clear that the `magic age' of eighteen, seventeen, or sixteen, whatever it may be in a specific state, cannot wipe out all previous contacts with the law. The pubescent transgressions...help the sentencing judge to determine whether the defendant has simply taken one wrong turn from the straight and narrow or is a criminal recidivist."

Expungement similarly interferes with effective law enforcement, since police officers are impeded in their efforts to identify patterns of criminal conduct. There is voluminous case law stating that arrest records serve a valuable law-enforcement purpose, that the dissemination of criminal records promotes the public welfare, and that even "unresolved" arrest records provide significant information and aid in the resolution of criminal actions. When the police are investigating criminal activity, for instance, they routinely examine the prior criminal records of potential suspects to see if there is evidence of a modus operandi. Juvenile records are routinely withheld, making the police's job that much more difficult.

Expungement exacts costs beyond crime and punishment. It prevents employers from making fully informed hiring decisions, such as whether applicants are likely to pilfer. Compelling employers to hire individuals without full insight into their criminal propensities is a heavy penalty to force upon businesses. In Privacy, Secrecy and Reputation, Seventh Circuit Court of Appeals Judge Richard Posner says that arguments for expungement are "particularly weak in the context of employment, where competition exacts a heavy penalty from any firm that makes irrational employment decisions."

Perhaps more important, expungement forces employers into a very risky position from a workplace liability perspective. Under the common law, an employer has a duty to provide a safe work environment, and this duty has gradually been extended to hiring safe employees, since, in terms of legal analysis, a dangerous employee creates risks comparable to a defective machine. As Carlton Snow has pointed out, "Under the theory of vicarious liability, hiring applicants with expunged juvenile records is potentially
hazardous for employers and employees alike." Since an employer can be held liable for an employee's torts while on the job, says Snow, "complete knowledge about an applicant would allow an employer to take appropriate steps to decrease any liability resulting from an employee's subsequent conduct."

The explosion in juvenile crime and the growing intellectual disenchantment with expungement statutes are beginning to have an effect: A number of states are rethinking the policy of sealing or destroying juvenile records. This past spring, for instance, Connecticut passed a law that allows delinquency records to be disclosed to police, school officials, social service workers, and "anyone with a legitimate interest in the information." Republican Pennsylvania Gov. Tom Ridge is pushing to make "it harder to expunge
juvenile records" and legislation passed last February lets judges review juvenile records before setting bail. Similar initiatives are underway in Louisiana, Texas, and Kentucky, where Democratic Gov. Paul Patton has announced a plan to "lift the secrecy of juvenile court proceedings for convictions of serious felony crimes."

At bottom, expungement statutes are attempts to lessen the penalty that public opinion places upon former offenders. But the "stigma" of having been a juvenile delinquent should only be of concern insofar as it incorrectly characterizes an individual who has been able to reform his life since his brief brush with the law as a juvenile. If a former delinquent remains engaged in criminal activity, then it is clear that the juvenile justice system has failed in its goal of rehabilitation, and concern for the offender should be replaced with concern for protecting society from a predatory recidivist.

And even if one accepts the notion that those who have committed a juvenile indiscretion will outgrow their reckless behavior, it remains necessary to differentiate between those who in fact can be rehabilitated and those whose rehabilitative potential is negligible--i.e., career criminals.

But current expungement statutes rarely make such a distinction, choosing instead to delete a teenager's crimi-nal record upon reaching majority (or sooner), regardless of whether it consists of a one- time arrest for public urination or numerous convictions for assault, burglary, or rape. While expungement may be appropriate for the one- time child offender (who presumably has been rehabilitated), it is wholly inappropriate for a young chronic criminal who, based on numerous incidents of re- offending, shows no rehabilitative potential. As the number of offenses increases, the underlying delinquency becomes more troublesome, and it is likely that an anti- social pattern will continue throughout a criminal's adult years.

Given that adult criminality is often predicated upon juvenile delinquency, it follows that criminals have the most to gain, and that society the most to lose, from any expungement scheme that allows individuals to start with a "clean slate"--or, more appropriately, a cleaned slate--upon reaching majority. That expungement is being challenged both intellectually and politically indicates that the costs may have finally become too much to bear.

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