Criminal Justice Section
Criminal Justice Magazine
Criminal Justice Magazine
Volume 15, Issue 3
Robert E. Shepherd, Jr.
Collateral Consequences of Juvenile Proceedings: Part II
Editor’s Note: This is the second in a two-part series. Part I of collateral consequences in juvenile proceedings appeared in the Summer 2000 issue of Criminal Justice, Vol. 15, No. 2, page 59. go there
The last column addressed the increased short- and long-term significance of delinquency adjudications in family or juvenile courts and the collateral consequences for a youth that can flow from such a determination. The collateral consequences discussed in Part I include the following: the impact on future decisions on transfer to adult court, loss of the more benign juvenile status for future acts of misbehavior, prohibition against firearms possession, enhancement of future adult criminal sentences, exposure of the juvenile to mandatory HIV and DNA testing, loss of confidentiality for police fingerprint and photograph records, requirement of registration as a sex offender, and increased use of juvenile adjudications as an enhancer in federal and state sentencing guidelines. Most of the increased impact of these effects has occurred in the past decade or so. They have significantly changed the long- and even short-term implications of a juvenile conviction and should influence representational decisions for lawyers with young clients. Additional consequences, however, must be considered.
Current Chief Justice William Rehnquist noted in his opinion in Smith v. Daily Mail, 443 U.S. 97, 107 (1979), quoted in Part I, that one of the historically important characteristics of a juvenile court proceeding is its confidentiality, especially shielding the process from the public and media in order to reduce stigma on the juvenile. That has largely changed. The Supreme Court itself—in Smith; in Cox Broadcasting Corporation v. Cohn, 420 U.S. 469 (1975); and in Oklahoma Publishing Co v. District Court, 430 U.S. 308 (1977)—lifted the traditional veil of confidentiality. This was done by restricting the courts’ power to sanction the press for statutorily prohibited publication of identifying information about juvenile proceedings, or about victims of crime, where that information was somehow obtained in a legal fashion.
However, the legislatures of many states have gone even further, by altogether stripping away the confidentiality veil for many juveniles. The laws of 42 states now allow media access to the identity, and sometimes even to the physical images, of at least some youth involved in delinquency proceedings. (Howard N. Snyder & Melissa Sickmund, Juvenile Offenders and Victims: 1999 National Report 101 (1999).) The statutes vary; some increase access simply by making juvenile proceedings open to the public, others allow access only to certain offenses or offenders who are older or repeaters. These laws may sometimes require a court order, but media access is more broadly available now than it was a decade ago, although some media representatives may voluntarily limit publication or broadcasting of juveniles’ identities.
The United States continues to attract immigrants from many foreign lands, and lawyers in criminal practice must increasingly be conscious of the immigration status of parties and deportation consequences of criminal proceedings involving alien residents. So far, juvenile delinquency adjudications have not been deemed criminal "convictions" that have negative immigration consequences. ( Matter of Ramirez-Rivero, 18 I&N 135 (BIA 1981); Matter of C.M., 5 I&N 327 (BIA 1953).) But the conviction of a juvenile as an adult in a criminal court does meet the law’s requirement and may result in deportation. ( Matter of C.M., supra; Morasch v. INS, 363 F.2d 30 (9th Cir. 1966).) One major consequence of the transfer of a youth to trial in adult court is exposure to the likelihood of deportation, depending on the gravity of the offense charged or nature of the sentence imposed.
The military services take a somewhat different approach to the presence of a juvenile record in a potential recruit’s past. The U.S. Army has established four basic classifications for criminal offenses, and juvenile delinquency adjudications are considered criminal offenses for these purposes. ( Army Regulation 601–210, chapter 4, paragraphs 4–20 through 4–23.) The classifications are: minor traffic, such as failure to stop, speeding, etc.; minor nontraffic, including curfew violations, minor in possession of tobacco or alcohol, etc.; misdemeanors, which may include reckless driving, assault, etc.; and felonies, including drug offenses, car theft, etc.
The offenses in these classifications have different impacts on the enlistment process. An individual is absolutely disqualified from service in the army if he or she has been convicted of domestic violence against a spouse or family member, of two felonies, or of one felony and two misdemeanors. The individual must obtain a waiver before he or she can join the service if there are six or more traffic offenses with fines of more than $100; multiple driving-while-intoxicated convictions; three or more misdemeanors; or one felony conviction (including possession of marijuana). The other services (U.S. Air Force, Marines, and Navy) tend to use more of a case-by-case process in recruiting, but minor juvenile convictions can more readily result in a waiver than a criminal offense. News accounts indicate that as the military face more difficulties in recruiting, waivers are being more freely given. However, even if an individual can join the military without a waiver, or can obtain a waiver, there are certain specialties that may not be open to the person, such as those that require a "secret" security clearance like intelligence or communications specialties.
Using juvenile records to impeach
As a general rule, juvenile or family court delinquency adjudications currently may not be used for general impeachment purposes with a defendant or other witness, whether a juvenile or an adult. A juvenile adjudication is not normally deemed to be a conviction of a crime or a misdemeanor involving moral turpitude and, thus, does not impugn the truthfulness of the person. ( Cotton v. United States, 355 F.2d 480 (10th Cir. 1996); People v. Jackson, 28 Cal. 3d 264, 618 P.2d 149 (1980); Shropshire v. State, 258 Ind. 39, 279 N.E.2d 225 (1972); Lavinder v. Commonwealth, 12 Va. App. 1003, 407 S.E.2d 910 (1990).) However, the fact of a witness’s juvenile record may be admissible to show the existence of specific bias, such as where a youthful witness currently on probation for a delinquency charge is inclined to cooperate with the prosecution to avoid a greater violation. ( Davis v. Alaska, 415 U.S. 308 (1974).) A juvenile conviction may also be admitted in some jurisdictions for the specific purpose of impeaching a witness who has testified untruthfully about his good character or clean record. ( See, e.g., Scarver v. State, 130 Ga. App. 297, 202 S.E.2d 850 (1973); State v. Ralls, 213 Kan. 249, 515 P.2d 1205 (1973); State v. Buffa, 51 N.J. Super. 218, 143 A.2d 833 (1958); State v. Marinski, 139 Ohio St. 559, 41 N.E.2d 387 (1942).) This is one of the rare areas where states generally have not changed the traditional rule regarding the protection of juvenile records.
Employment and college admissions
Most traditional juvenile codes have provided over the years that an adjudication of delinquency is not a criminal conviction, permitting youth to respond in the negative to questions in college or employment applications asking whether the applicant has ever been convicted of a crime. However, such applications increasingly include specific references to juvenile adjudications, or as to whether the applicant has ever been arrested, and that creates greater problems for the individual seeking employment or admission to an institution of higher education. The wording of the question is obviously crucial, as is the interpretation of the question’s intent and the information sought by the employment or admissions office. Often, if a juvenile adjudication is not viewed by the state as a conviction of crime, if it need not be revealed upon inquiry, or if it has been expunged, it will not need to be reported on an application form for employment or for admission to college. However, a complete inquiry should be made discreetly on behalf of the youth as to the employer’s or admissions officer’s intent and interpretation of the quality of the inquiry before answering because a false answer may be more damaging to the applicant than an affirmative truthful response.
Expungement and sealing
Almost all jurisdictions have statutory provisions either requiring or allowing for the expungement or sealing of juvenile delinquency records, depending on the gravity of the offense or time passed since the adjudication (only Hawaii, Rhode Island, and Tennessee have no such procedures). Expungement usually requires that the court records be destroyed, as well as police or other records deriving from the arrest or conviction; sealing allows retention of the records but limits access to those records by many. However, this is another area where juvenile codes have changed in recent years. (Linda Szymanski, NCJJ Snapshot Sealing/Expungement/Destruction of Juvenile Court Records: When Is Sealing Not Sealing? (National Center for Juvenile Justice, 1999.) In some jurisdictions, expungement is no longer automatic and occurs only on application or motion to the court, after which the judge decides whether to order expungement. In other states, expungement is still automatic, but limited to only minor offenses, and only after the passage of a longer period of time than was once condoned by the courts. For example, Virginia amended its expungement statute in 1996 to preclude the automatic expungement, upon motion, of delinquent acts that would have been felonies if committed by an adult. Virginia now requires that such records be retained indefinitely by the court. (Virginia Code Ann. § 16.1–306.) About half the states now have similar provisions providing that certain records cannot be sealed or expunged. Lawyers need to be aware of the provisions for expungement or sealing in their states, so that they can advise clients of their rights in advance of trial; only 10 states require that the court give notice of expungement or sealing rights to juvenile defendants.
Generally speaking, a juvenile adjudication does not result in the loss of civil rights, such as the right to vote, the right to seek elected office, or other normal rights of citizenship. However, transfer or certification to adult court and trial and conviction there as an adult will generally have the same civil rights consequences for a youth as for an adult convicted of a crime. When a youth is convicted as an adult at the age of 13 or 14 and loses the right to vote, the length of that consequence is significantly greater than the same consequence for an adult. Counsel need to be aware of the procedures or provisions regarding restoration of civil rights for their youthful clients.
This two-part survey of the collateral consequences of juvenile adjudications and of adult trials for juveniles clearly indicates that there is a totally new world awaiting lawyers practicing in juvenile or family courts. A juvenile adjudication of guilt has far more drastic consequences than existed just 10 years ago, and both lawyers and their juvenile clients need to be aware of these effects—even if the disposition consists only of probation and includes no active period of incarceration. Some of these consequences may not be apparent for a number of years, but their possibility should be anticipated, fully considered, and planned for, wherever possible.
Robert E. Shepherd, Jr. , is a professor of law at the University of Richmond School of Law in Richmond, Virginia, and a contributing editor to Criminal Justice magazine. He is also a former chair of the Section’s Juvenile Justice Committee.