Criminal Justice Magazine
Vol. 15, Issue 2
Robert E. Shepherd, Jr.
Collateral Consequences of Juvenile Proceedings: Part I
Editor's Note: This is the first in a two-part series. The next column will address media exposure, immigration, military service, use of juvenile adjudications for impeachment, employment and college admission, and expungement. go there
For most of the 100-year history of the juvenile or family court, one of its significant hallmarks was the fact that a juvenile adjudication was not deemed to be the conviction of a crime and did not carry the stigma or consequences of a criminal conviction forward into the rest of the youth's life. In addition, access to juvenile proceedings and records was limited for many of the same reasons. Indeed, in Smith v. Daily Mail, 443 U.S. 97 (1979), now-Chief Justice William Rehnquist expressed his concern about piercing this traditional veil of confidentiality:
It is a hallmark of our juvenile justice system in the United States that virtually from its inception at the end of the last century its proceedings have been conducted outside of the public's full gaze and the youths brought before our juvenile courts have been shielded from publicity. This insistence on confidentiality is born of a tender concern for the welfare of the child, to hide his youthful errors and "bury them in the graveyard of the forgotten past." The prohibition of publication of a juvenile's name is designed to protect the young person from the stigma of his misconduct and is rooted in the principle that a court concerned with juvenile affairs serves as a rehabilitative and protective agency of the state.
(443 U.S. at 107)
Despite this acknowledgment of the historic commitments implicit in the juvenile court philosophy, developments in the past decade have significantly altered the severity of the consequences of a juvenile adjudication. As a result, lawyers practicing in juvenile or family court need to be far more conscious of the consequences of their clients' adjudications in those courts.
Transfer or certification to criminal court
A growing number of states consider prior juvenile adjudications when making transfer or certification decisions. About half of the states specify that the presence of prior convictions may lead to the exclusion of a youth from the jurisdiction of the juvenile court, or provide that a prosecutor may file the case directly in the criminal court if there are prior convictions in the juvenile court. (Patrick Griffin, Patricia Torbet, and Linda Szymanski, Trying Juveniles as Adults in Criminal Court: An Analysis of State Transfer Provisions 14 (1998).) Many states previously included the youth's prior record as one of a number of factors to be considered in the exercise of the juvenile judge's discretion whether to transfer the juvenile for adult handling, but the more recent trend has been to treat prior offending as a driving criterion, rather than simply as one of many.
Loss of future juvenile status
In addition to the immediate implications of transfer or certification of a juvenile to a criminal court for trial as an adult, a long-term consequence of such a decision may be, in a majority of the states, that the youth will in the future be dealt with as an adult regardless of the juvenile's age at the time. That was not always the case, but today more jurisdictions follow the philosophy of "once an adult, always an adult." ( Id. at 10-11) In some of these states the transfer to adult court need not have resulted in a conviction in that court previously for there to be the loss of future juvenile status, but the mere fact of adult handling will suffice.
In many jurisdictions conviction of certain offenses will result in enhancement of the sentence if the defendant has previously been convicted of the same offense, or at least a similar offense. These enhancements may apply for offenses as minor as shoplifting and petty larceny, or for much more serious matters such as drug distribution, firearms possession, sex offenses, or family violence. Whether charged as a juvenile, or later in life as an adult, a threshold question may be whether a prior adjudication as a juvenile counts as a prior "conviction" for sentencing enhancement purposes. Thus, if a youth is tried as a juvenile for a sex or drug offense and is found guilty, will a later conviction as an adult be treated as a second or third offense subject to the greater sentence, or even in the enhancement of the offense from a misdemeanor to a felony? This determination is governed by the law of the particular jurisdiction. Does the statute itself provide that adjudication or conviction as a juvenile is included in the definition of a "prior conviction," or, if not, does that jurisdiction treat juvenile adjudications as "convictions of crime"? These may be crucial questions to answer at the threshold of the prosecution, at the time of sentencing, or even when a plea bargain is offered way back in juvenile court.
Firearms and weapons possession
Many jurisdictions limit the ability of felons or other persons convicted of crimes to possess firearms or other weapons, and such possession may itself be treated as a separate offense-possession of a firearm by a convicted felon. Increasingly, adjudication as a juvenile for delinquency, especially for an offense that would be a felony if committed by an adult, disqualifies the youth from firearms possession when he or she becomes an adult. Sometimes there are particular circumstances that cause this to be true, such as that the juvenile was 14 or 15 years old or some other specified age or older when the juvenile offense was committed, and these factors should be addressed by the attorney for the person when the charges are brought.
HIV and DNA testing
Persons convicted of certain offenses, especially sex offenses, are frequently required to be tested for HIV infection if they are charged or convicted of the enumerated offenses. The questions then become whether these statutes apply to juveniles charged or "convicted" of the particular offenses, or whether such a provision already exists in the jurisdiction's juvenile code so as to require such testing there. DNA testing has become more common, like fingerprinting, for inclusion in DNA banks at the federal or state level. In many states, juveniles are now subjected to DNA testing like adults and the DNA records can be preserved in a data bank. The lawyer should determine whether it is the charge, or conviction, or the level of handling, that triggers the taking of the sample, and if the test results are being segregated from adult reports, or whether they are subject to expungement like other records.
Photographs and fingerprints
As of the end of 1997, almost all the states permitted juveniles to be fingerprinted upon arrest, at least for felonies, or if the youth had attained a particular age when the arrest occurred. Almost as many jurisdictions now permit photographing of the same juveniles, at least for investigative purposes. (Howard N. Snyder and Melissa Sickmund, Juvenile Offenders and Victims: 1999 National Report 101 (1999).) What has changed somewhat is the extent to which these fingerprints or photographs must be transmitted to some central repository and retained. It is now much more common to require such transmittal and retention, and a growing number of jurisdictions no longer require that juvenile records be segregated from adult records in these repositories.
Sex offender registration
Sex offender registries, such as those mandated with "Megan's Law," have become much more common around the country, although currently few of these statutes explicitly include juveniles who have been adjudicated or convicted for sex offenses in the juvenile or family court setting. However, such an expansion may not be too remote as legislators expand the sanctions applied to both adults and juveniles, and as the incidence of sex offending by juveniles grows. What might be very unfortunate is if childish experimentation or youthful "peeping tom" activities begin to be treated as serious sex offenses triggering registration or neighbor notification laws. Once again, prior minor offenses may quickly escalate into far more serious offenses as multiple offending comes into play.
Federal and state sentencing guidelines
Juvenile adjudications have long been considered under the Federal Sentencing Guidelines in determining the guideline range. United States Sentencing Guideline § 4A.1.1 requires the computation of a convicted defendant's "Criminal History Category." This category establishes one axis of the sentencing guideline matrix. The higher the "Criminal History Category," the higher the guideline sentence will be. Section 4A.1.2 of the guidelines sets forth the number of points to be included in calculating the category; and it does so by assigning points based upon sentences previously served. Sentencing Guideline § 4A.1.2(d)(2) requires that two points be added for each juvenile sentence to confinement of at least 60 days and that one point be added for other juvenile sentences within five years of the current offense. Thus, juvenile adjudications that result in confinement directly impact the severity of federal adult sentences. This may include simply a commitment to a juvenile hall. ( United States v. Williams, 891 F.2d 212 (9th Cir. 1989).) A state's treatment of its own juvenile adjudications does not affect the federal court's application of the guidelines, because the determination of what is a "conviction" is a state determination. Thus, the fact that a state may not treat a juvenile adjudication as a "conviction of crime" does not govern the federal court's determination. ( United States v. Kirby, 893 F.2d 867 (6th Cir. 1990).) Even an adjudication as a "wayward" youth might not be considered a status offense determination that does not count, if it was based on "criminal" conduct. ( United States v. Unger, 915 F.2d 759 (1st Cir. 1990).) A growing number of states that have adopted similar guidelines also treat prior juvenile adjudications as influential to the computation of the guideline level for adult sentencing purposes.
Lawyers representing juveniles in juvenile or family courts now have to be far more conscious of the collateral consequences of a juvenile adjudication or of the transfer of a youth to the criminal court for handling as an adult. The existence of an expanded number of transfer or certification systems, such as blended sentencing, may make adult handling sometimes seem more benign, but the long-term consequences may be far from neutral. Likewise, juvenile handling has far more punitive consequences now than in the earlier rehabilitation-oriented juvenile court. Juvenile court adjudications are now much more like criminal convictions, and those "convictions" may lead to a multitude of serious results. The lawyer representing a youth has to know about these consequences in advising the young person about accepting a plea bargain, or simply in assessing the seriousness of a charge. Youth are far more influenced by short-term effects than long-term consequences and the lawyer has to be well informed in order to properly advise the juvenile.
Robert E. Shepherd, Jr. , is a professor of law at the University of Richmond Law School in Richmond, Virginia, and a contributing editor to Criminal Justice magazine. He is also a former chair of the Section's Juvenile Justice Committee.