“DO YOU BELIEVE in second chances?”
That is the most commonly asked question I receive when I speak to students as part of judicial-school outreach. My answer is always the same: “Yes.” I believe anyone who works with adolescents or has ever been a parent would provide the same response.
The concept of second chances is implicated in the debate concerning when or if it is appropriate to expunge a juvenile or criminal court record. The subject was addressed in a Juvenile Law Center study, Failed Policies, Forfeited Futures: A Nationwide Scorecard on Juvenile Records, which analyzes how states protect individuals’ records during and after their involvement with the juvenile justice system.
According to Massachusetts-based Citizens for Juvenile Justice, the report is the first comprehensive evaluation of state policies governing the confidentiality and expungement of juvenile records. Massachusetts and 13 other states earned only two stars out of a possible five. The national average was three. The report concludes that maintaining juvenile court records can compromise successful re-entry and community engagement years after adjudication – ultimately reducing public safety. For youth in Massachusetts, poor protection of juvenile records can create barriers to getting a job, pursuing a higher education, securing an apartment, or even joining the military.
In Massachusetts, absent extraordinary circumstances, once a youth or adult is arraigned, their record can never be erased. Current practice allows for “sealing” of court records, which simply limits public access. Expungement, the physical destruction of a court record, is precluded. This applies even in cases of dismissal, misidentification, acquittal, or factual determinations of innocence. Law enforcement and designated public and private entities have access to court records. Given issues of transparency and public safety, this practice is appropriate in certain circumstances, but there is also a need to consider when maintenance of a record is not necessary in order to enable a child or young adult to get past the past.
Our Supreme Judicial Court recognized the gravity of the problem in the 2013 Humberto H. case where the high court discussed the significance of a court record. “Protecting a child from the stigma of being perceived to be a criminal and from the collateral consequences of a delinquency charge is important even where the complaint is supported by the evidence…It is even more important when the charge is not supported by probable cause.”
As Failed Policies notes, no adult is the same person he was as a teenager, yet “many youth who enter the justice system are haunted by the poor decisions they made as teenagers.” The report indicates that 95 percent of youth are in the juvenile justice system for committing non-violent offenses, “and because adolescence is a transient and volatile stage of life, the vast majority of young people naturally mature into adulthood without any additional contact with the law.”
Brain imaging scans and research about the maturational arc of adolescence were pivotal in recent US Supreme Court decisions abolishing the death sentence and mandatory juvenile life without parole for youth. We now have corroboration for what we intuitively knew at the dawn of the 20th century when our first juvenile courts were created: Adolescents are not little adults. They are culpable for their conduct, but in a line of cases the Supreme Court has held that their immaturity and development should be factors in sanctioning and decision making. Adolescents should be accountable for their conduct, but in order to best protect public safety and reduce recidivism, accountability should be balanced and proportional.
The collateral consequences of fact finding in our courts, including school exclusion and expulsion, are profound and often permanent. The short-term benefits of maintaining records for law enforcement and the public right to know must be balanced with social and fiscal costs years later. The stigmatization of a court record creates a continuous form of penalization — which is especially true for youth of color, who are dramatically overrepresented in both our juvenile and adult criminal justice systems.
These issues are poignantly addressed in Michelle Alexander’s The New Jim Crow, which notes that it does not even matter if a person actually serves time. The record itself “is the badge of inferiority…that relegates people for their entire lives to second class status…Myriad laws, rules and regulations operate to discriminate against ex-offenders and effectively prevent their reintegration into the mainstream society and economy,” leading to re-arrests and a cycle of probation and parole violations.
We now recognize the importance of being smart on crime. Research findings demonstrate that youth who don’t graduate high school are eight times more likely to be arrested than their counterparts. As a result, we’ve developed upstream collaborative interventions, including court diversion programs. Rethinking our views regarding expungement should be part of this changing landscape. If you believe in second chances, perhaps you should believe in the principle of expungement. It is in our collective interest to act together to give our youth the best chance at success.
Jay Blitzman is the first justice of the Middlesex Division of the Massachusetts Juvenile Court.
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