Young & arrestless.

The case against expunging juvenile arrest records

Daniel Doe (a pseudonym) is a violent man who, like most violent men, was also a violent teen. At age 12, police arrested him for vandalizing a neighbor's house - he had destroyed the furniture, spray-painted the walls, and drowned a caged pet bird in the bathtub. Two years later, he was burglarizing an apartment when the elderly occupant returned home and confronted him. In the scuffle that ensued, the old man broke his hip. When the man died from pneumonia several days later, Daniel was charged with and convicted of involuntary manslaughter.

Daniel's first "adult" arrest came at age 19, when he broke into an occupied home and severely beat the 45-year-old woman who lived there. By the time he was sentenced for that attack, however, his juvenile record, pursuant to Ohio law, had been "expunged" - destroyed. For the second time, Daniel was a first-time offender. Hence, a Cleveland judge, ignorant of Daniel's violent, extensive, felonious past, sentenced him to probation. Two months later, Daniel burglarized yet another house, this time beating the 81-year-old man who lived there to death.

Had the judge known of Daniel's violent criminal past and his demonstrated lack of any rehabilitative potential, there's little doubt that Daniel would have gone to the penitentiary before he had the opportunity to kill the old man.

But the judge didn't know because the law said that he shouldn't know.

Most states have statutory provisions that allow - or even mandate - the expungement of juvenile records once the juvenile turns a certain age. Sometimes the records are actually destroyed; sometimes they are merely "sealed." The practical effect of such legislation is to allow a minor who has committed criminal or, in the lingo of the juvenile courts, delinquent acts to permanently erase his or her record, usually at age 17 or 18. The stated goal of this policy is to allow the juvenile offender to enter adulthood with a proverbial clean slate, thereby shielding him (or, less likely, her) from the negative effects of having a criminal record.

Supporters say expungement is an enlightened practice that merely forgives youthful transgressions. But expungement is actually an astonishingly counterproductive policy that benefits only young criminals. The practice prevents society from acting on the simple fact that those who have committed crimes in the past are likely to commit crimes in the future and hence should be treated differently from true first-time offenders.

By making it virtually impossible to collect meaningful data about juvenile delinquents, expungement also makes it difficult to evaluate crime-prevention and rehabilitation programs. Outside of the criminal justice sphere, the policy has other deleterious effects. Employers, for instance, can't know whether potential employees are prone to stealing or other criminal behaviors. Given these various costs, it's not surprising that a number of states are seriously re-evaluating the sealing of juvenile records.

Expungement laws hearken back to a simpler past. The practice "was designed to deal with delinquents who stole hubcaps, not those who mug old ladies," notes sociologist Rita Kramer in At a Tender Age: Violent Youth and Juvenile Justice (1988). Gargantuan increases in violent juvenile crime underscore the point. Today's juvenile offenders are generally distinguishable from their adult criminal counterparts only by their age - an arbitrary factor indeed. Juveniles are the fastest growing segment among violent offenders. Between 1983 and 1992, according to FBI estimates, violent crime committed by juveniles increased 57 percent. Murders and non-negligent manslaughter rates jumped 128 percent, aggravated assault 95 percent, and rape 25 percent. And cohort studies discussed in Neil A. Weiner and Marvin E. Wolfgang's Violent Crime, Violent Criminals (1989) show that juveniles account for up to 35 percent of all male police contacts.

The philosophy underlying expungement legislation can be traced to what is known as the Chicago School of Criminology, which, during the 1920s and '30s, championed environmental explanations of criminality. The Chicago School (the term refers to a broad-based intellectual movement that started at the University of Chicago) rejected traditional criminological theories that focused on issues of individual morality and volition and concentrated instead on factors external to the individual. This new model viewed America as a "criminogenic" society in which ghettos and slums taught the people who lived there how to become criminal by giving them deviant cultural values.

This environmental model reached its high-water mark in the early 1960s with Robert K. Merton's "Strain Theory," which posited that America's supposed obsession with ambition and economic success led to crime and deviance. Strain theory viewed delinquency as arising from the frustration felt by individuals who were unable to achieve culturally defined goals because they were denied the institutionalized means of doing so.

In the 1960s - the decade during which most expungement statutes currently in force were written - expungement advocates espoused what is known as the "labeling" or "social reaction" model. The labeling perspective is based on the premise that the very act of labeling those who are apprehended as "different" creates deviants who are different only because they have been "tagged" with the deviant label.

As criminologist Frank Tannenbaum, a prominent labeling-perspective theorist, argued in his 1983 book Crime and the Community, "The process of making the criminal...is a process of tagging, defining, identifying, segregating, describing, emphasizing, making conscious and self-conscious; it becomes a way of stimulating, suggesting, emphasizing, and evoking the very traits that are complained of." Hence, the only way to rehabilitate juvenile delinquents is to send them into adulthood with this label detached.

Aside from any philosophical and common-sense disagreements one may have with the labeling theorists, the major question regarding expungement is whether juvenile delinquents are "normal" kids who simply make youthful mistakes that are unlikely to be repeated in adulthood.

The answer is no. Delinquents are substantially different from non-delinquents. Research suggests that delinquents are more defiant, ambivalent about authority, emotionally unstable, extroverted, fearful of failure, resentful, hostile, suspicious, and defensive than non-delinquents. In their book From Boy to Man, From Delinquency to Crime (1987), University of Pennsylvania criminologist Marvin E. Wolfgang and his co-authors found that there is an extremely strong correlation between juvenile delinquency and adult crime, and that juvenile delinquency is the "best predictor of adult criminality." John Monahan, in his 1981 book Predicting Violent Behavior, has found that individuals with juvenile records are four times more likely to become adult offenders.

Similarly, a study tracing the criminal careers of 1,000 juvenile boys discussed in Sheldon and Eleanor Glueck's Of Delinquency and Crime (1974) found that 73.2 percent of those who could be located had been officially cataloged as repeat offenders within 10 years of their first appearance in juvenile court. An extensive FBI study discussed by Florida State University criminologist Gary Kleck, in Point Blank (1991), estimates that 74.7 percent of all murderers had arrests for violent felonies or burglaries, and murderers averaged four prior major felony arrests over a criminal career of at least six years. Those figures do not even begin to approximate the actual criminal histories of those individuals, since being arrested is itself a highly atypical consequence of violating the law. It is also worth noting that those figures would be even higher if juvenile expungement statutes did not artificially deflate them.

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 criminal 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.

T. Markus Funk ([e-mail]) is a clerk for a United States District Court judge in St. Louis.