Eternal punishment serves no purpose This article appeared in the July 1999 issue of the
© 1999 Massachusetts Bar Association
Peter T.Elikann, who practices in Cambridge, is co-chairman of the Massachusetts Bar Association Criminal Justice Section Council.
There's an increasing intolerance toward letting citizens bury their sometimes long ago youthful bad acts. It was long a tradition that offenses committed as a juvenile would not come back to haunt you for the rest of your life. In order to encourage a fresh start upon reaching adulthood, juvenile records could be expunged or sealed so that they could never be used against you. This way, if you were punished for a teenage prank or childhood act of shoplifting or fighting, the punishment would not continue forever.
It went along with a theory of fairness and redemption— that if you mess up and get punished for it, you learn a lesson, then you move on to a wiser and better life. Eternal punishment is neither just nor does it serve any purpose. If anything, as the theory went, keeping juvenile recordsopen will help create more crime. Kids who once got in trouble will beprevented from getting certain jobs in the future or be blocked from gettinginto college. Keeping their childhood criminal records alive could make themunemployable, bitter and angry — a great prescription for encouragingcriminal behavior.
One of my clients had, years earlier as a teen-ager, adrinking problem. At that time, he had stolen some things from aneighbor's house. He was caught and admitted his guilt. Eventually, in atruly exemplary fashion, he turned his life around. He got help for hisdrinking, worked his way through college, married a woman who became acorporate executive and he became a homeowner. In his late 20s he wished toembark on a career in a financial investment corporation.
We checked into it, speaking to a number of high levelcorporate officers in various stock brokerage houses and financial servicescompanies. We were told that if his juvenile record of theft was discovered, hecould forget about ever being hired by a reputable large financial corporation.As it was explained, while the crime was relatively small and long ago, thereare so many applicants that if a hiring executive compares them all and islooking for something to distinguish one over the other, why would he or shebother to hire the one with the checkered past? Also, the fact that these arecompanies which handle large amounts of other people's money, would,obviously, make them less than enthusiastic about hiring an admitted and convictedthief. This, despite the fact that it was a childhood act of so long ago.
What was the faulty message here — that if as achild you do something wrong, you should have to pay for it forever and beprevented from being able to work toward a future of contribution to society?The question has much greater implications than ruining an individual'slife. Forget about the personal happiness of that unemployable person for themoment. The larger issue is, if we prevent people from entering society as goodtaxpayers and make them embittered, discouraged and angry, will it cost we goodcitizens so much more in terms of money and public safety? These people willpay less taxes if any, and cost us more in terms of their alcoholism, drug useand cost of imprisoning them. It will endanger us all.
Fortunately for my client, I managed to get his teen-agerecord sealed, which, as we Massachusetts practitioners know, is still not aperfect solution. Yet, in his case, his record has not come back to haunt him.But, increasingly, that will not be happening. States are more and moreenacting laws that make juvenile offender records available. Between 1992 and1995 alone, 40 states modified their juvenile court records confidentialityprocedures to make them more open. The records are not just available toprosecutors and adult courts; they are available to schools, state agencies,victims and law enforcement groups. Federal legislation has been proposedblocking funds to states that don't open up their juvenile records evenif the young person was never convicted of the accusation. By 1995, 40 statesauthorized fingerprinting of juveniles. There is a serious push to eliminatingthe separate record keeping of juvenile records and adult records and justcombining them with no distinction.
The argument against destroying or sealing juvenilerecords is effectively summed up by T. Markus Funk in an article published inReason magazine:
Supporterssay expungement is an enlightened practice which merely forgives youthfultransgressions. But expungement is actually an astonishingly counterproductivepolicy that benefits only young criminals. The practice prevents society fromacting on the simple fact that those who have committed crimes in the past arelikely to commit crimes in the future and hence should be treated differentlyfrom true first time offenders. By making it virtually impossible to collectmeaningful data on juvenile delinquents, expungement also makes it difficult toevaluate crime prevention and rehabilitation programs."
Funk goes on to argue that even beyond the world ofcriminal justice, wiping out juvenile records is not good. He states, "Employers, for instance, can't know whether potential employees are proneto stealing or other criminal behaviors."
On the contrary, the majority of juvenile offenders nevercommit a crime as an adult.
David Kopel in his 1995 book, Guns: Who Should Have Them,
argues that only juvenile records of felonious violence should follow the childforever:
"Unfortunately,many criminals who, in their early twenties, are facing their third or fourthviolent felony conviction are treated as first time offenders because theirprevious felonies were committed while they were juveniles. Changing the repeatoffender laws so that violent armed felonies committed by juveniles would becounted toward habitual criminal status for adult offenders is a sensibleapproach toward concentrating criminal justice resources on the thugs who haveshown a repeated willingness to commit violent crimes.
"Inaddition, juvenile records involving violent felonies should be disclosed toschool administrators when the juvenile enrolls at a school. The privacyinterests of the juvenile criminal are outweighed by the rights of teachers andother school personnel to know whom they are dealing with."
But, a 1998 poll commissioned by the Justice PolicyInstitute and Youth Law Center found that the public, by an overwhelming 70percent, believes that juvenile arrest records should not be made available tocolleges to which they apply for admission later on.
Even with juvenile records being expunged and sealed, itis difficult in these times of greater media access to keep anything private. Acase in point is that of Gina Grant of Columbia, S.C. who, in 1990 at age 14,used a candlestick to kill her alcoholic abusive mother. She spent six monthsin a juvenile detention facility and then was released to relatives. With asealed record, it was believed that no one would find out about her case.Within the next few years, her development and growth was striking. She becamean honor student, exceptional athlete and became involved in a number ofprojects to help the community. She was accepted to Harvard on early admission.This very success proved to be her undoing. A 1995 newspaper article aboutyouths who had made enormous contributions despite great adversity (butdidn't mention the murder of her mother) lead someone to expose her. Boththe newspaper and Harvard were notified. Harvard rescinded her admission,giving as its reason that she had not mentioned the murder in her applicationas they believed she was required. The national media swarmed over the story.Again, the two sides of the issue are encouraging those who once did somethingwrong to bury the past, better their lives and therefore give a benefit tosociety; or notifying people that there might be someone potentially dangerousin their midst and not let them be treated as a first offender if they get introuble again.
The fact of that matter is that statistics show the majorityof juveniles who get into trouble with the law don't get in trouble asadults. Should most of them be punished in perpetuity and be blocked forever inmaking valuable contributions to society? On the other hand, there are strongarguments made stating that, yes, unfortunately, the privacy interests of somany who have turned their lives around must be sacrificed in order to protectus from killers or violent offenders in our midst of whom we can never becomeaware because of confidential juvenile records. Some suggest a compromise ofeliminating the right to juvenile criminal record confidentiality only in casesof extremely violent crimes such as rapes and murders. The current trend acrossthe country is that the old tradition of juveniles entering adult life with ablank slate is increasingly a thing of the past.