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Kenneth R. Rosen: The Case for Expungement

Police records can haunt a lifetime, but they don’t have to.

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Image taken by from the King County, WA Flickr page.

By Kenneth R. Rosen

There was a fight. An arrest and conviction followed, resulting in 24 hours of community service. But more than half a decade later, Victor Trinidad—who pleaded guilty to the misdemeanor assault and battery (classified as domestic violence) charged as a teenager—can’t recall what sparked the argument.

But it’s still ruining his life.

The outburst was juvenile, Trinidad said. He remembers doing the community service, and then staying out of trouble.

Most of all, Victor, now 20, remembers how that conviction has kept him from employment and higher education and, unless the state does something to change its existing laws, could do more damage throughout his adulthood.

Had the State of Massachusetts enacted a law that would allow for expungement (the sealing of non-heinous crimes committed by juveniles and young adults), Trinidad would have the means to support not only himself, but his four-year-old daughter.

Now lawmakers in the Bay State are thinking about changing that.

According to a study conducted last year, Massachusetts scored below the national average when it came to protecting juvenile records from public access, and preventing expungement from statewide and federal databases.

“Juvenile courts were founded on the belief that children should be treated differently than adults, because most will outgrow their youthful behavior and their offenses are largely nonviolent,” said Riya Saha Shah, an attorney with Juvenile Law Center, the authors of the study, in a prepared statement before the Massachusetts Judiciary Committee this fall. “One of the core principles of the juvenile justice system is rehabilitation—helping troubled youth get back on track so they can become productive, responsible members of the community.”

The study concluded that the issue was pervasive nationwide, calling the report the first-ever comprehensive “evaluation of state policies that govern the confidentiality and expungement of juvenile court and law enforcement records. No state earned the maximum five-star rating, with the national average coming in at three stars out of the possible five stars.”

“Juveniles should be the easiest [to expunge] because arguably they don’t have adult minds and they shouldn’t be totally accountable for their actions for the rest of their lives.”

WipeRecord, a division of an Austin-based law firm, specializes in criminal record sealing and expungement in seven states. Its mission is to “gain traction towards the path of thought leadership in [expungement and sealing reform], as it is… very important to the future of our nation and we are very passionate about it as well.”

According to Jeff Libersat, an attorney at WipeRecord, the “biggest problem is it’s out of mind for a lot of [convicts]. They don’t really know how it’s affecting them directly until they get a job rejection and in some states they don’t have to tell you. Texas is one of [those states].”

Texas is not as generous as other states when it comes to forgiveness, and the term “expungement” is often used too broadly. A vacated sentence a not-guilty verdict would allow someone to expunge a record. However, an acquittal or pre-trial diversion, such as a plea deal, would not necessarily be destroyed or expunged completely, making the criminal record available to government bodies and other private industries such as charter schools.

“Juveniles should be the easiest [to expunge],” he said, “because arguably they don’t have adult minds and they shouldn’t be totally accountable for their actions and have to deal with [a sullied record] for the rest of their lives.”

The national climate on expungement and criminal record reform is something of a conundrum because no state does it the same. Except in the instance of violet convictions or sexual assaults, wherein all states refuse to offer sealing or expungement, there are varying degrees of latitude toward the clearing of someone’s record.

Anywhere from 70 to 100 million people in the nation have a criminal record, which is nearly a quarter if not more of all adults, barring them from simple civilian privileges—voting, employment, housing, licenses, parental rights—even after they’ve served their time and paid their fines.

Libersat looks to Minnesota and Oregon as two progressive states that are working toward reform that could benefit not only juvenile offenders, but also adults.

“Minnesota has a Second Chance Act,” he said. “They offer multiple versions of expungement, including first offender crimes that you’re trying to get expunged.”

First offender laws, which exist in a handful of states throughout the country, including Georgia, offer first-time offenders the opportunity to defer a guilty plea in exchange for a lighter sentence or punishment, such as years of probation. If the offender does not commit another crime, the record is sealed at the end of the probation period and no guilt plea exists for anyone, including potential employers, to find.

In May, a conviction of a woman who’d been sentenced to five years probation was expunged by a federal judge in Brooklyn after having served her time more than a decade prior. The official, Federal District Court Judge John Gleeson, said that the record maintained a “dramatic adverse impact” on her life for a minor crime.

“We run the risk of criminalizing adolescent behavior. It’s important to be smart on crime, not tough on crime.”

On the federal level, there is no law for such sealing or destruction of records. The New York Times Editorial Board recently concluded that, “it appears to be the first time that a federal judge has expunged a conviction for this reason. It should not be the last.”

In July, Oregon amended their expungement and sealing laws to lower charges levied against Class B and Class A drug felonies. Instead of felonies, they could be reduced to misdemeanors, perhaps an indication of wide-spread change across the country as marijuana legalization continues its watershed movement.

Jay Blitzman, the First Justice of the Middlesex Division of the Massachusetts Juvenile Court, was the judge Trinidad stood before five years ago. Now Blitzman actively supports expungement and an approach to juvenile justice that’s more conducive to supporting adolescent offenders rather than damning them to the margins of society.

“We run the risk of criminalizing adolescent behavior,” Blitzman told me recently, underscoring that zero-tolerance policies in schools—such as the one Trinidad went to—now extend beyond drugs and guns to encompass all types of behaviors. “It’s important to be smart on crime, not tough on crime.”

Blitzman teaches juvenile law at the Northeastern University School of Law and is a team leader at Harvard’s Trial Advocacy Workshop, among other positions of tutelage. He says that laws need to adopt to what is currently known about the juvenile mind and behavior, which develops significantly into adulthood beyond the age of 18.

When officers intervene at schools, the moment a student is arrested, they begin a paper trail that could destroy a minor’s chances at successful reentry. Nationwide, some 80 percent of juveniles who are incarcerated become repeat offenders. Rehabilitating the young is easy when young brains mature, but their cases, according to Blitzman and Trinidad, shouldn’t be treated the same way adult cases are.

Juvenile court is more damning than the charges brought before it—often what is considered juvenile culpability is eradicated by aging, growth, and simple maturity. Young people grow out of these things. Expungement and sealing laws offer these people the opportunities to start over, even after rocky childhoods.

“My beliefs lie in the notion that we all deserve second chances, specifically adolescents,” Blitzman said.

“From almost every perspective,” the editorial continued, “expunging nonviolent-offense records for juveniles makes sense. State legislators should act to make it happen.”

Back in Massachusetts, multiple bills continue cropping up in the state legislature that are not gaining traction. They never pass even with the continued testimonies of Blitzman, Trinidad and the United Teen Equality Center (UTEC), a Lowell, Massachusetts-based group known for redirecting wayward kids as part of six organizations under Teens Leading The Way, a statewide youth-led policy-making coalition.

“Teens Leading The Way thinks Massachusetts could be doing a lot more to protect criminal records created when people are young,” Geoff Foster, the UTEC-Lowell director of Organizing and Policymaking, wrote in an email. “Criminal records, even if sealed, are barriers to young people’s futures whether it be access to financial aid, employment at certain jobs, housing or enlisting in the military.”

These were the problems faced by Trinidad, who was rejected when he tried enlisting to the National Guard, and later when he applied for tuition assistance for a semester at Middlesex Community College.

This year, the Boston Globe ran an editorial lauding the move toward automatic expungement for juveniles under the age of 21, and for the expungement of records in violent cases to be decided by a judge on a case-by-case basis. The piece ended on a somber note, sourcing the sympathies of those whose children may not ever see life from behind a wall of metal bars, even for the smallest of infractions.

“Of note,” the editorial concluded, “the financial benefits of reducing recidivism would be significant for taxpayers. A 2013 MassINC report found that decreasing the number of reoffenders by 5 percent would save the state about $150 million annually.”

“From almost every perspective,” the editorial continued, “expunging nonviolent-offense records for juveniles makes sense. State legislators should act to make it happen.”

There is little if anything to gain from not sealing the records of those underage, those who can still be taught, those who aren’t yet lost within the system.

Kenneth R. Rosen works and writes for The New York Times.

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