Collateral Consequences: What Happened to “Children are Our Future?”

by: Dina Lexine Sarver

Kids will be kids. This well-known idiom reflects society’s view that we do not judge a youth and an adult in the same manner. In the context of criminal acts, even the Supreme Court of the United States acknowledges that juveniles must be treated differently than adults.[1] However, because most states fail to adequately protect the confidentiality of juvenile criminal records, a juvenile offense may result in the same collateral consequences as adult offenses.[2] This lack of protection permits society, in contradiction to the Court, to equate a juvenile offender to an adult offender. Juvenile records are not limited to serious offenses. They include all offenses; even what many would consider trivial conduct. For example, in New Mexico, a thirteen-year-old boy was arrested for “fake” burping in class.[3] His charge: disruption of a school function.[4] Decision makers[5] often fail to realize that these exhibitions of youthful behavior may result in life-long criminal records.[6] Once a juvenile is arrested, an arrest record is created and in some states may never be erased.[7]

Because states permit public access to juvenile records, rehabilitated juveniles deal with the same collateral consequences that adults deal with.[8] For instance, these individuals are frequently denied housing.[9] Employers may also refuse to hire them based on their youthful indiscretions.[10] State agencies may deny an adult sibling with a juvenile record guardianship over a younger sibling in foster care.[11] Further, juvenile records impede on an individuals’ ability to further their education.[12] College applications may require the disclosure of juvenile records[13] and deny admission. Some programs deny admission in fear that the rehabilitated individual would be unable to obtain future licensure.[14] Even if admitted, an individual may be denied financial aid if the juvenile record includes a drug offense.[15] These life-altering consequences are just a few of the obstacles an adult with a juvenile record must overcome.

The common assumption that juvenile records disappear when one turns eighteen is far from the truth. In fact, in many states a juvenile’s arrest record may only be sealed or expunged after a certain period, if ever.[16] For example, Florida Statute § 943.053 permits public access to juvenile records.[17] The Florida Department of Law Enforcement’s (FDLE) website will provide a juvenile’s record to any member of the public for a twenty-four dollar fee.[18] Depending on the offense, the record is accessible until one’s twenty-first or -sixth birthday.[19] During this waiting period, the young adult is vulnerable to the negative effects of a public juvenile record at the critical stage of applying for employment and/or college admission.

Even after being sealed or expunged, juvenile records are still available to certain agencies.[20] The FBI stores fingerprints for 99 years[21] and level II background checks usually require fingerprinting. Once a set of fingerprints is submitted, the FBI will then report a matching individual’s juvenile and adult arrest records to the requesting authorized agency.[22] These include agencies that employ nurses, entry-level childcare workers, and insurance agents.[23]  This ensures that one may never have a clean slate.

These consequences are not warranted because childhood indiscretions do not define who that person will be as an adult. One organization, We Are All Criminals (“WAAC”), uses research to fight the stigmatization of criminal records and trumps the notion that such records keep track of the bad apples.[24] WAAC conducts interviews of randomly selected professionals, including physicians, attorneys, professors, and even members of law enforcement, asking them about a crime they committed but were not arrested for.[25] Responses included serious felonies such as fraud, burglary, possession of a controlled substance, and even possession of a firearm on an airplane.[26] As WAAC confirms, the stigma that one who commits a criminal act, much less a juvenile, cannot become a productive, successful member of society is inaccurate and unjust..

Thus, juvenile records serve the limited purpose of keeping track of the juvenile’s progress during system-involvement and ensuring rehabilitative measures are followed. This purpose ends once a juvenile is successfully discharged from the juvenile justice system. Children are our future, but as a country, we are diminishing their potential and ultimately our nation’s potential when we enact laws that prevent rehabilitated juveniles from becoming the best versions of themselves.

[1]Roper v. Simmons, 543 U.S. 551 (2005). (discusses throughout case that juveniles: (1) cannot be classified as the worst offenders; (2) are more susceptible to external pressures than adults; (3) have less fixed characters; and (4) are less mature than adults).

[2] Riya Saha Shah, Esq. & Lauren A. Fine, Esq., Failed Policies, Forfeited Futures: A Nationwide Scorecard on Juvenile Records, (2014), http://juvenilerecords.jlc.org/juvenilerecords/documents/publications/scorecard.pdf

[3] Valerie Strauss, Judge Gorsuch’s dissent in the case of a 13-year-old arrested for making fake burps in class, Wash. Post. (Feb. 1, 2017), https://www.washingtonpost.com/news/answer-sheet/wp/2017/02/01/judge-gorsuchs-dissent-in-case-of-13-year-old-arrested-for-making-fake-burps-in-physical-education-class/?utm_term=.47d05b43885b

[4] Id.

[5] Collateral Consequences of Conviction Act Summary, Uniform Law Commission (2017), http://www.uniformlaws.org/ActSummary.aspx?title=Collateral%20Consequences%20of%20Conviction%20Act

[6] See Zachary Auspitz, Modern American Education: The Uninterrupted Path to Incarceration, U. of Miami Race and Soc. Just. L. Rev.  (Sept. 16, 2016), https://race-and-social-justice-review.law.miami.edu/modern-american-education-uninterrupted-path-incarceration/ (Noting that this does not take into account other practices that also contribute to higher arrest rates of juveniles. For example, the school-to-prison pipeline).

[7] Riya Saha Shah, Esq. & Lauren A. Fine, Esq., Juvenile Records: A National Review of State Laws on Confidentiality, Sealing and Expungement, (2014) file:///Users/Dina/Downloads/national-review%20(1).pdf

[8] Jamaal Abdul-Alim, Juvenile Records Often Have Lifelong Consequences: Experts Say, (June 29, 2015), http://jjie.org/2015/06/29/juvenile-records-often-have-lifelong-consequences-experts-say/

[9] Kim Ambrose & Alison Millikan, Beyond Juvenile Court: Long-Term Impacts of a Juvenile Record, 21 available at http://www.defensenet.org/resources/publications-1/beyond-juvenile-court/Beyond%20Juvenile%20Court.pdf (last updated in 2013).

[10] See supra note 8.

[11] Id.

[12] Id.

[13] Id. (“The Common Application, an online college application form used by hundreds of universities and colleges, asks specific questions about juvenile adjudications. Financial aid and public housing may not be offered, particularly if a person was found delinquent for a drug offense.”).

[14] Arkansas State Board of Nursing (ASBN), Criminal Background Frequently Asked Questions, 1, 4 available at http://www.arsbn.org/Websites/arsbn/images/CriminalBackgroundCheckFrequentlyAskedQuestions.pdf (last visited Sept. 21, 2017).

[15] See supra note 8.

[16] See supra note 7 at 33.

[17] FLA. STAT. § 943.053(3)(a) (2017).

[18] § 943.053(2)(e) (prior to 2016, fee was only $18).

[19] FLA. STAT. § 943.0515 (2017).

[20] FLA. STAT. § 943.059(4) (2017).

[21] F.B.I., Privacy Impact Assessment for the Fingerprint Identification Records System (FIRS) Integrated Automated Fingerprint Identification System (IAFIS) Outsourcing for Noncriminal Justice Purposes – Channeling, (2008), https://www.fbi.gov/services/records-management/foipa/privacy-impact-assessments/firs-iafis

[22] This would be dependent on the applicable state law and disclosure rules. For example, FLA. STAT. § 943.059(4) (2017) lists ten instances in which an individual must disclose a juvenile arrest record regardless of whether it is sealed or expunged.

[23] Id.

[24] We Are All Criminals, https://www.weareallcriminals.org/about/ (2017).

[25] Id.

[26] Id.

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