Legislature must seize the opportunity for ‘expungement’ reform

BRYAN STEVENSON, the renowned attorney and civil rights activist, says that “each one of us is more than the worst thing we have done.” This is especially true for adolescents. No adult is the same person he or she was as a teenager. Yet years later many youths who enter the juvenile system are haunted by impulsive teenage decisions.

It is commonly believed that when you become 18 juvenile records vanish and you start adulthood with a clean slate. In most states, including Massachusetts, this is mythology. The right to expunge records in was part of 2018 juvenile and criminal justice reform but its scope was very limited. The debate on racial justice and police reform has created an opportunity to revisit expungement.

Last week, the Senate passed an important bill on racial equity and police reform that included expanded expungement opportunities. Those were not included in the House version released Sunday night, but there is still opportunity this week via amendment for the House to join the effort to get expungement right. Expanding expungement is an important part of reducing systemic racial and ethnic disparities. The urgency of the issue is underline by the legislative push to get a final bill to the governor’s desk by next week.

The 2018 act was an important first step in allowing expungement of juvenile and criminal records for first offenses committed prior to age 21, but two years later the act has had little impact. The law limited expungement to only one charge, did not differentiate between dismissed cases from those resulting in convictions, precluded many cases from consideration and had a complicated application process.

There was a list of over 150 offenses that were automatically disqualified. According to the Expungement Movement, a coalition which has now been joined by more than 90 youth serving organizations, in the last two years, fewer than 19 percent of expungement applications have been approved. Pending legislation would change this landscape by allowing for expungement for cases that are dismissed, consideration of more than one charge, and allowing for expungement for all cases that do not result in a felony conviction.

When compared with Montana’s model of automatic expungement at 18, with some exceptions, these proposals are actually rather modest.

Young adults have the highest recidivism rates of any group, but as they grow older they naturally desist from criminal behavior. Acknowledging the reality of recidivism will better protect long-term public safety and is an example of smart on crime public policy. Expungement is an important tool in allowing individuals to reintegrate into society without the burden of a criminal record which has no predictive value of future offending because either the records are old or because there was no adjudication or conviction.

As a juvenile court judge, I heard a case involving an adolescent whose case was continued without a finding and then dismissed. It was the only case on his record. Although the ultimate resolution was a dismissal of his charge, the mere fact that he had a record precluded him from being able to join the National Guard.

Opponents of expungement argue that sealing records, designed to limit access to certain records to courts and law enforcement agencies, is an adequate remedy, but as this young man’s story indicates, many public entities, including the military, child-serving organizations, public colleges and others can access juvenile records.

Expungement is also an important tool in combatting systemic structural racism given higher arrest rates of people who are black and brown. As the Expungement Movement notes, black youth are three times more likely to be arrested than white peers and black residents are six times more likely to go to jail in this state. While criminal records are meant to be used to protect public safety, they often adversely affect people of color.

The collateral consequences of a record are often more profound than the fact of an adjudication.  These consequences can include expulsion from school, eviction of families from public housing for certain offenses committed by a juvenile, limiting access to higher education, employment opportunities, and jobs in law enforcement or entering the military.

The stigmatization of a court record creates a continuous form of penalization, which is poignantly addressed in Michelle Alexander’s The New Jim Crow. It doesn’t even matter if a person serves time. The record itself, she writes, “is the badge of inferiority…that relegates people for their entire lives to second class status… and effectively prevents their reintegration into the mainstream of society and economy,” leading to re-arrests, and a cycle of probation and parole violations that fuel mass incarceration.

Expanding eligibility for expungement to redress the consequences of the over-policing and criminalization of communities of color makes sense. Applicants would be entitled to individualized judicial determinations and victims of their offenses would have the opportunity to appear.

This model is balanced and provides for more meaningful second chances. The battle has been joined and the time to act is now.

Jay Blitzman is a retired Juvenile Court judge.