Over two million children under the age of eighteen are arrested in the United States every year. Regardless of whether they are ever formally charged or found guilty of an offense, every one of these two million children will face repercussions. These repercussions can be severe and can last a lifetime.
Most people are aware that an arrest can result in criminal charges, convictions, jail time, fines, or probation. But few consider the noncriminal sanctions, or collateral consequences, that stem from an arrest or conviction until they are turned down for a job or denied access to college because of their record. This is especially true of children because of the widely held misconception that juvenile records are protected from public view. Unfortunately, this is not the case. Although most states do have rules that shield juvenile records, these rules are riddled with exceptions, which vary from state to state and even from county to county. Privacy laws do not apply at all when children are tried in the adult system.
Juvenile records or convictions routinely result in the loss of public housing, financial aid, job opportunities, professional licenses, and driving privileges for children. They can bar admission to college or to the military. They can trigger deportation. In cases involving sex offenses, they may result in lifetime public registration. Yet, most children are not informed of any of these consequences when they are arrested or consider them when they agree to take a plea.
Often, the only way to avoid these collateral consequences is to affirmatively apply to expunge or seal records, but expungement rules can be technical and difficult to follow, and many are not even aware that they exist.
To provide one example, in 2010, the law firm of DLA Piper represented, pro bono, a Chicago public high school student with a bright future. The student was a senior, set to graduate on time; was applying to college; and was enrolled in a class through her high school to become a Certified Nursing Assistant (CNA). The class had a qualifying exam that in part required applicants to disclose past “arrests or juvenile adjudications.” When she was fourteen, she had been at the mall with a few friends and was arrested when, on a dare, she shoplifted a low-value item from a department store. The store did not pursue charges and the State of Illinois declined prosecution. Yet, the student faced a serious consequence two years later—when she applied to take her qualifying exam, she answered the question about past arrests truthfully. Because state law would not allow her to become a CNA with an arrest on her record, the school told her she could not sit for the exam, that she would fail the class and not graduate from high school. Despite recent reports in Illinois showing a nursing shortage of over 21,000 nurses, the system not only denied a willing applicant because of a minor incident that occurred when she was fourteen—it also denied her a high school diploma.
Her only option was to expunge her arrest record. She tried to do so pro se, but the state objected, arguing that, under its interpretation of Illinois law, a person had to wait until his or her eighteenth birthday before petitioning to expunge an arrest. She was seventeen and a half. At this point, DLA Piper took her case and argued that under the relevant statute, seventeen-year-olds were, in fact, allowed to expunge their records. The court agreed, permitting her to sit for the nursing exam, which she passed.
This is just one example of how a single juvenile error resulting in an arrest or conviction can have a lasting impact. Although DLA Piper regularly takes on expungement matters, most youth do not have access to pro bono lawyers from law firms. In fact, juvenile defense attorneys are rarely trained on expungement because their focus is on their clients’ criminal charges. Youth who are arrested but never prosecuted do not qualify for a public defender in any case.
Addressing the Problem: beforeyouplea.com
There is no easy fix to the problems surrounding collateral consequences. Working together, however, a diverse group of individuals interested in juvenile justice issues—including lawyers from DLA Piper; Kathryn Richtman, the chief juvenile prosecutor in Ramsey County, Minnesota; Lisa Thurau of Strategies for Youth; the ABA; and the Justice Policy Institute—recently came together to shed some light on the issue. They assembled a network of lawyers, law librarians, students, and experts from around the country to develop a Web site that would inform youth, their families, and their attorneys about collateral consequences.
The Web site, www.beforeyouplea.com, was made public in October 2011. The site offers accurate and up-to-date information about each state’s policies regarding juvenile collateral consequences. It catalogues the privacy laws in each state, as well as the exceptions to those laws and the special consequences that attach when a child is prosecuted in adult court. It also offers guidance on state expungement laws. The Web site operates as a “wiki” site, allowing individuals to make updates, which are checked for accuracy, as laws are changed.
Legislators also can use the site to see how their state ranks nationally according to a scoring system developed by the Justice Policy Institute. Each state’s score is calculated based on the confidentiality of juvenile records; whether children can be suspended or expelled from school as a result of juvenile adjudications; the impact a juvenile record has on employment, public benefits, higher education, and sex offender registration; as well as the ease of expungement. See, e.g., http://beforeyouplea.com/ny/score.
Hopefully one day, lawmakers will pass legislation that will significantly reduce the collateral consequences of an arrest or conviction for youth in this country. This hope is reflective of the long-held philosophy, upon which our juvenile justice system was founded, that children should be able to make youthful mistakes and still have a second chance to succeed in life. Until that day, the reality is that collateral consequences can be severe and that they can last a lifetime. For that reason, lawyers, judges, prosecutors, and advocates should be keenly aware of those consequences in working with any child that has touched the juvenile justice system. Beforeyouplea.com is a terrific resource for them all.
Table: Justice Policy Institute’s State Scores* Rating States
Above average (63–100) Wyoming
Average (31–55) Florida, Rhode Island, Hawaii, New Jersey, Missouri, Ohio, North Dakota, Texas, Kentucky, District of Columbia, Montana, New Hampshire, Vermont, Illinois, California, Pennsylvania, Mississippi, Arkansas, West Virginia, Virginia, South Dakota, Alaska, Alabama, Maryland, Connecticut, New Mexico, Maine, Oklahoma, North Carolina, Colorado, Nevada, Minnesota, Massachusetts, Tennessee, New York, Louisiana
Below average (0–29) Washington, Oregon, Nebraska, Michigan, South Carolina, Arizona, Iowa, Georgia, Utah, Kansas, Wisconsin, Indiana, Idaho, Delaware
*Scores are based on a scale of 1 to 100. Wyoming had the highest score of only 63. Delaware had the lowest score of 15.
Source: Justice Policy Institute, Never-Ending Punishment: Collateral Consequences of Juvenile Justice System Involvement, App. A.
Christopher Gowen is an adjunct professor of law at American University Washington College of Law. He was the project director for two large grants, including one funded by the National Institute of Justice studying the collateral consequences of criminal convictions and a second focused on collateral consequences of juvenile adjudications. Anne Geraghty Helms is pro bono counsel at DLA Piper LLP (U.S.) and is responsible for the firm’s pro bono program in eight of its domestic offices. She concentrates her practice on juvenile and criminal justice issues.