The need for juvenile record expungement in Massachusetts

Issue January/February 2016 By Cristina F. Freitas and Debbie F. Freitas

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.