A Canary in the Coal Mine: Juvenile Records and the Bipartisan Safer Communities Act

While the BSCA has been widely celebrated for providing at least a first step toward stemming the tide of gun violence in this country, over the past year youth rights advocates have been quietly raising an alarm about the hidden danger the law could pose to young people who have been impacted by the juvenile legal system. In the law’s effort to stem gun violence, particularly among older adolescents, there is concern that the BSCA may impose new harms on system-impacted youth by opening up their juvenile records. We have been here before.

Once considered a central feature of the juvenile legal system, confidentiality protections for juvenile records were whittled away in the wake of the crime wave of the 1980s and 1990s. Today, juvenile records continue to impact young people’s ability to access education, housing, employment, and other opportunities for social, civic, and economic advancement.

It has taken decades to recognize the harms imposed on young people by laws meant to curb violent crime. Now, in the wake of the COVID-19 pandemic and the murder of George Floyd, as violent crime spiked in cities around the country, and calls for legislators to get “tough on crime” have been renewed, it is imperative we learn from the past and ensure we don’t make the same mistakes. The BSCA is a canary in the coal mine. While we must pass laws to combat gun violence, we must also continue to ensure juvenile records remain confidential and are subject to expungement to give young people the fullest opportunity to benefit from the rehabilitative purpose of our juvenile legal system.

The Juvenile Legal System’s Commitment to Confidentiality

The Progressive reformers of the 19th century who established the first juvenile court in Cook County, Illinois in 1899 believed that juvenile misconduct differed from adult criminal conduct and that youth should be spared the criminal consequences of adult court, from sentencing through the stigma of being branded criminal. Riya Saha Shah, Lauren Fine & Jaime Gullen, Juvenile Records: A National Review of State Laws on Confidentiality, Sealing and Expungement 8 (Juv. Law Ctr. 2014). The new juvenile court system that rapidly spread across the country adopted a less punitive and more therapeutic approach grounded in the underlying principle of rehabilitation. Children were viewed as malleable and capable of reforming into productive law-abiding citizens with proper guidance. Under this system, the formal adversarial rules-based process of adult court was stripped away and the judge was granted broad powers and authority to fashion appropriate accountability measures in the parental role of parens patriae.

Under this model, confidentiality played a critical role. It was understood that keeping children’s records shielded from public scrutiny was essential to the goal of rehabilitation. Juvenile proceedings were generally closed to the public, and records of juvenile crime were not disseminated or disclosed any more than necessary to provide supervision and rehabilitation to the child. Without confidentiality, the stigma of criminality might derail a child’s readjustment into the community.

The complete judicial discretion of the parens patriae model, however, led to vastly different outcomes for children depending on the court and judge, with harsher treatment felt most acutely by Black, Brown, immigrant, and Indigenous youth. It wasn’t until the civil rights era of the 1960s that the Supreme Court finally recognized that children were entitled to many of the same rights in delinquency proceedings as adult criminal defendants, particularly the right to counsel, to cross examine witnesses, and to call experts. See In re Gault, 387 U.S. 1 (1967). Despite formalizing the process, the principle and goal of rehabilitation remained unchanged, as did the centrality of confidentiality over juvenile proceedings and records to meet that goal.

As the juvenile legal system moved toward a rights-based approach, criminal convictions in the adult system were becoming the basis of ever-harsher collateral consequences and legal discrimination for youth across the country as more young people were transferred and tried in the adult system. Shah, Fine & Guillen, supra at 9. Nevertheless, states understood that juvenile adjudications should be treated differently, and policymakers recognized that absent special protections, a juvenile record would undermine the rehabilitative purpose of the juvenile court system.

Record expungement laws were passed to enable children to “enter adulthood without the stigma of a criminal conviction” and to avoid “an eternal blot on [the] youth’s record because of an immature, impulsive act.” Id. Thus, the 1960s and 1970s saw “virtually nationwide enactment of expungement statutes” as legislators “attempted . . . to combat the harmful effects of a delinquency adjudication by providing for concealment of juvenile records, on the grounds that such concealment will aid the child’s reintegration into society.” Id.

Things began to change in the 1980s and 1990s. Increases in violent crime, including increases in youth-involved crime, led to a widely held myth about a new generation of child “super-predators,” children—mostly Black and Brown children—who were inherently dangerous and were immune to all attempts at rehabilitation. Carroll Boger & Lynnell Hancock, Superpredator: The Media Myth That Demonized a Generation of Black Youth, The Marshall Project (2020). This racist myth, which has long since been debunked, including by its own original author, nevertheless helped undermine the foundational principle of rehabilitation at the center of the juvenile legal system. During this time, the rehabilitation model shifted to a punishment model, as laws were passed to transfer more young people to the adult system and apply harsher and more extreme sentences. The juvenile legal system became another instrument of mass incarceration.

In the years that followed, confidentiality was seen as an impediment to public safety and laws to protect juvenile records were increasingly rolled back. With advances in internet technology and increased cooperation and record sharing by law enforcement in the wake of 9/11, juvenile records became more accessible and more widely shared.

Over the last two decades there have been efforts to return the juvenile legal system to a rehabilitative model. The Supreme Court—through its landmark juvenile sentencing decisions in Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); and Miller v. Alabama, 567 U.S. 460 (2012)—adopted extensive brain and behavioral science research that confirms what early reformers long believed: that children are different than adults, they are capable of and do change, and they should not receive the harshest of punishments. While these cases involve young people sentenced as adults, the Court’s extensive findings about the unique attributes of youth, and particularly their capacity to change, reaffirms the rehabilitative purpose of the juvenile legal system and the need to ensure juvenile records do not undermine that goal.

During the last two decades, the number of children incarcerated in the juvenile legal system has decreased dramatically. Surveys of state juvenile record laws, however, continue to show that most states are not taking the necessary steps to ensure that the records of young people’s system involvement will not follow them for the rest of their lives. Failed Policies, Forfeited Futures: Revisiting a Nationwide Scorecard on Juvenile Records, Juv. L. Ctr. (July 15, 2020). Without a renewed focus on ensuring the confidentiality of juvenile records, both by keeping them sealed while cases are active and automatically expunging the records after cases are closed, the era of mass incarceration will continue to punish young people long after their time in the juvenile legal system is over.

The Collateral Consequences of a Juvenile Record Can Last a Lifetime

System involvement is not a protected class under the Constitution. Discrimination based on a criminal and juvenile record is not only permissible, it is standard in nearly every area of life, from housing, education, and employment to military service, immigration status, and beyond. Riya Saha Shah & Jean Strout, Future Interrupted: The Collateral Damage Caused by Proliferation of Juvenile Records 1, 9–11 (Juv. Law Ctr. 2016). But juvenile system involvement is supposed to be different; it is supposed to be rehabilitative, and it is supposed to offer young people a path to forming a productive life. In reality, however, juvenile system involvement proves to be one of the greatest obstacles, rather than pathways, to a successful adulthood.

Background checks, which frequently reveal juvenile adjudications, are the primary mechanism for record-based discrimination. And they are everywhere. Upwards of 90 percent of private landlords and employers use background checks to screen applicants. Ariel Nelson, Broken Records Redux: How Errors of Criminal Background Check Companies Continue to Harm Consumers Seeking Jobs and Housing 3 (Nat’l Consumer Law Ctr. 2019). Similarly, more than 70% of colleges require disclosure of criminal history. Karen Bussey et al., “The Most Important Door That Will Ever Open”: Realizing the Mission of Higher Education Through Equitable Admissions Policies 57 (Inst. for Higher Educ. Pol’y 2021). If background checks are a gatekeeper to stable housing, jobs, and educational opportunities, young people with a juvenile record will face obstacles at every turn.

For example, public housing authorities (PHAs) can deny eligibility for affordable housing or rental subsidies on the basis of a juvenile adjudication, even years after they occur. Margaret Colgate Love et al., Collateral Consequences of Criminal Convictions: Law, Policy & Practice § 2:17 (updated Nov. 2021). And, under federal “one strike” laws, housing authorities may evict all members of a household when one member engages in illegal activity. Id. While the Department of Housing and Urban Development has retreated from their most aggressive applications of one-strike laws, issuing a series of policy statements in the mid-2010s urging PHA administrators to better balance enforcement against the need for second chances, the laws remain on the books and are subject to discretion at the point of administration. See Rebecca J. Walter, Jill Viglione & Marie Skubak Tillyer, One Strike to Second Chances: Using Criminal Backgrounds in Admission Decisions for Assisted Housing, 27 Hous. Pol’y Debate 734 (2017). A person counting on the private-rental market is unlikely to fare much better; approximately half of private landlords who use criminal background checks indicate that a criminal record would be grounds for denial. Id. at 740.

A juvenile adjudication can also present obstacles for education. A majority of states either allow or require the release of otherwise confidential juvenile record information to school personnel. Shah & Strout, supra at 4. While there are good reasons for a school to receive this information where it can be used to help educators respond to a student’s specific circumstances, even carefully drawn access to these records can open the door to potential stigmatization. A young person applying to college will again be subject to further scrutiny; while the Common Application eliminated the criminal history question in 2018, schools frequently include criminal background questions in their supplemental applications. A significant number of people self-select out of pursuing higher education at the prospect of having to disclose and explain a criminal record, which, given the racial disparities of the criminal legal system, can make records-based screening “a de facto mechanism to exclude poor people of color from access to a college application.” Ctr. for Cmty. Alt., Boxed Out: Criminal History Screening and College Application Attrition (2015).

The consequences of a juvenile adjudication are perhaps most acute in the employment context. Studies have shown that employers are more than 50% less likely to make a callback or job offer to applicants with a criminal record; that figure rises to 65% for applicants of color. Shah & Strout, supra at 6. Not only is this felt at the point of application, but also where young people look to upskill and chart a course for a long-term career, given a record can also be a bar to various occupational licenses.

While these are some of the most commonly experienced consequences, there can be even further fallout based on an individual’s circumstances. Certain adjudications can include losing a driver’s license (often a key link to education and employment opportunities), negative immigration consequences (including deportation and denial of citizenship), denial or loss of public benefits, and disqualification from military service. Id.

These collateral consequences work in concert to create a cycle of harm that can be difficult for a young person to escape, especially because most young people have limited rental, credit, and employment histories to counterbalance the negative stigma. Many employers or landlords aren’t properly informed about the information contained in a juvenile record, aren’t fully informed in how to interpret a record, and may not even recognize (or care) that some records result from arrests that were later dropped without prosecution.

There is also a lack of clear guidelines about what can be asked, and how young people should respond. Consider seemingly straightforward questions like “have you ever been arrested?” or “have you ever been convicted of a crime?” Does this include juvenile adjudications? What about where a record has been sealed or expunged, or a person completed a diversion program in lieu of adjudication. People with experience with or access to legal expertise may be able to parse these distinctions to answer knowledgeably and truthfully; young people often will not, and they risk further judgment where their answer, given in good faith, diverges from a reviewer’s reading of a background check report.

The notion that young people can change is affirmed by both developmental science and the law, and yet our juvenile record confidentiality policies fail to deliver on this principle.

The Bipartisan Safer Communities Act

While certainly not the miracle cure that will end gun violence in America, the BSCA nevertheless provides important and meaningful tools to help address the national epidemic. Among other things, the BSCA provides critical investment in mental health services, takes steps to crack down on interstate gun trafficking to limit the flow of illegal guns, expands the current prohibition against individuals convicted of domestic abuse buying or possessing guns, provides funding for states to expand existing “red flag” laws, and establishes an enhanced background check process for buyers under age 21. This last provision—the enhanced background checks for young people—raises concern.

To be clear, the concern is not whether young people will improperly or unfairly be denied access to firearms based on record disclosure. The problem is that the creation of more exceptions to confidentiality and expungement laws carries very real risks of juvenile records being discovered and used on background checks to deny housing, education, employment, and every other collateral consequence that follows from having a record.

The law requires that the FBI’s National Instant Background Check system (NICS) contact state and local authorities to determine whether an individual under the age of 21 who is seeking to purchase a gun has a disqualifying juvenile offense or mental health assessment. While this may seem like relevant information, the law opens the door for the potential sharing of juvenile record information and protected health information in broader and more harmful ways than intended. The way state authorities interpret and apply the BSCA is where the real problem lies, and while congressional guidance has been hinted at, so far none has been issued.

The vast majority of states rely on the NICS system, in whole or in part, as part of the background check process for individuals purchasing a firearm. In the past, juvenile records were not considered part of NICS. The BSCA changes that. A recent report by the National Center for State Courts (NCSC), Disclosure of Juvenile Records Under the Bipartisan Safer Communities Act: Considerations for Courts (2023), identifies the challenges the new law poses for states and state courts trying to comply with the new background check mandate, including identifying whether existing state confidentiality and expungement laws allow for the sharing of juvenile record information with federal law enforcement officials; which records or information could or should be shared; how that information will be maintained and by whom; and how that information will be disposed of or preserved once it is shared. While the BSCA was meant to work within the framework of existing juvenile record laws and respect existing protections, without congressional guidance states are largely on their own in answering these questions.

According to NCSC there are currently about 35 states whose current juvenile record laws do not allow for the sharing of juvenile record information with NICS. In a rush to comply with the BSCA, however, some of these state legislatures have already passed new laws creating exceptions to their confidentiality statutes so that juvenile record information can be shared with NICS. But even among states that permit the sharing of records with NICS and other law enforcement agencies, there is no consensus on what information should be shared. According to discussions with NCSC, not even the FBI can offer a clear answer to this question. Nor can they answer what will happen to those records when cases are closed and records are sealed or expunged. That is because NICS is set up to keep records forever.

The matter is further complicated by the fact that juvenile record information, already segregated from state criminal records, is not easily accessible in a statewide repository. Records are held by different departments and agencies depending on the state. In some states, the records are under the control of the clerk of courts, but in others they are controlled by state law enforcement, and they may not be shared outside of existing chains of authority.

Supporting and protecting young people impacted by the juvenile legal system is synonymous with public safety, and any effort to open up records to greater scrutiny is a step in the wrong direction. State actors should not be in a rush to comply with the BSCA until Congress issues sufficient and appropriate guidance that ensures the best interests of system-impacted youth will be preserved while allowing limited access where permitted, to limited information that is necessary to respond to the NICS background check inquiry. That guidance also must ensure NICS does not acquire any more record information than absolutely necessary to its purpose and that NICS has the capability and directive to expunge record information it receives in accordance with state laws.

Limiting gun violence is a critical mission, but it cannot be accomplished by burdening young people with ever-greater collateral consequences.