Child protection is one of the commonwealth's greatest ambitions
and the hallmark of a civilized society. Nonetheless, current
Massachusetts law fails to protect some of this state's most
vulnerable youth: those who have already interacted with the
juvenile and criminal justice systems. These court interactions
follow young people for the rest of their lives in the form of
court and criminal records that create a barrier to securing
independent housing, pursuing higher education or more lucrative
career opportunities.
For the more than 15,000 Massachusetts youth who interact with
the juvenile and criminal justice system yearly, the current post
adjudicative legal landscape governing juvenile records
inadequately protects these young people. Under Commonwealth v.
Gavin G., 437 Mass. 470 (2002), the juvenile court lacks the
authority to expunge juvenile records maintained by the clerk
magistrate and probation department. As a result, the only relief
from the stigma of juvenile records is the inherent privacy of
closed juvenile court proceedings, reporting restrictions governed
by G.L. c. 276 §100A, and the sealing process governed by G.L. c.
276 §100B.
The sealing process, however, is both delayed and insufficient
in the relief it provides to juveniles. Juvenile records in
Massachusetts are only eligible to be sealed three years from the
date of last disposition. Even after the three-year waiting period,
sealing is insufficient relief as certain employers, college
admission officers and landlords may all still access limited
information about the case. These institutions are often the
gatekeepers in determining whether young people may leave their
past behind them in favor of more productive, meaningful and
successful lives. This limited access to information invites
speculation about the nature of the sealed record that is
comparably detrimental to the juvenile as the unsealed record
itself.
As juveniles begin their adult lives, the existence of a
juvenile record becomes overly burdensome. National studies have
shown that 95 percent of youth in the juvenile justice system have
committed only nonviolent offenses. Thus, the risk of eliminating
even limited access to these records is trivial in terms of actual
community safety versus the stigma that attaches to these
juveniles. Secondly, neurodevelopmental science shows that
adolescent brains are not fully developed or capable of mature and
non-impulsive thought processes until these young adults have
reached their mid-twenties. The current legislative scheme
governing juvenile records fails to acknowledge this well accepted
difference between adults and juveniles. In addition to failing to
recognize the lesser culpability of juveniles, it also fails to
acknowledge the tremendous capacity for rehabilitation of juvenile
behaviors and attitudes.
Senate bill S. 900, sponsored by Sen. Karen Spilka and its
companion House bill H.1433, sponsored by Rep. Kay Kahn, attempts
to correct this injustice. The bill seeks to insert section 100E
into Chapter 276 of the General Laws. Under this proposed
legislation, a person may petition the court to expunge a felony
offense in the juvenile or criminal court from probation and court
records if the offense was committed prior to the juvenile or young
adult's 21st birthday, provided that their sentence or court
disposition has terminated and no new adjudication or conviction
has occurred prior to the completion of that sentence.
For misdemeanor offenses, those records would be expunged
automatically upon the termination of the individual's sentence,
commitment or probation. Courts would be required to inform all
eligible juveniles and young adults of these protections at the
time of disposition. As a result of expungement, any inquires made
to the commissioner of probation regarding the expunged records
would be reported as "no record," rather than the limited reporting
regarding the case currently done under the sealing statutory
scheme. A joint hearing on these bills was held on Sept. 16, 2015,
and the legislation is currently referred to the Joint Committee on
the Judiciary.
As practitioners, it is our duty to ensure our clients are
protected long after they've left the courtroom. We must educate
our community about the importance of measures that reduce the long
lasting impacts of interacting with the juvenile justice system.
Protection of these vulnerable youth and young adults requires more
than a favorable court disposition or sealing court records after
three years. Meaningful protection of this population means a
second chance at a clean slate and only expungement of juvenile
records can accomplish this outcome.