The Price We Pay for Cleaning the Slate

If there is anything approaching a truism in criminal law, it is that violent men most likely were violent teens. This fact alone should at least temper the contemporary optimism concerning decreases in adult crime rates. Consider, for example, that the most recent U.S. Justice Department statistics estimate that the juvenile arrest rate for murder has jumped 128% between 1983 and 1992, and that the juvenile arrest rate for offenses such as forcible rape and robbery has increased by 57% during the same time period. As today’s teens reach majority, then, there inevitably will be a corresponding dramatic increase in overall victimization levels.

While some states try to grapple with this troubling reality, most still cling to “expungement” statutes that allow or even mandate the destruction or sealing of juvenile criminal records--often including even rape and murder convictions. In so doing, these jurisdictions prevent the appropriate sentencing of young adult offenders, impede effective law enforcement and hurt private business.

An obvious implication from the unprecedented increases in juvenile crime is that we, as a society, have a stronger interest in determining which recidivistic and violent teens will become tomorrow’s violent and predatory adult offenders and that we therefore must treat them differently from their peers who have merely committed one-time acts of juvenile indiscretion. And while few would argue that a nonviolent juvenile mistake should forever haunt a reformed adult, expungement statutes often destroy the extensive and violent criminal histories of chronic juvenile offenders for the sole reason that they reach age 18, when the level of their involvement in criminal activity is still very much on the rise.

In addition, many states give judges unbridled discretion as to when and what to expunge. Typically, a judge is instructed simply to determine what is in the “best interest of the child.” But it is society--not the 17-year-old “child”--that may be victimized in the future. Therefore, we all have an interest in keeping tabs on an individual who has evidenced a willingness to break the law and to disrespect other people’s rights to property or safety. What is more, the extremely broad and unguided discretion accorded many state courts raises the troubling possibility of some juveniles having their records expunged on the basis of their race or socioeconomic class rather than on the basis of their rehabilitative potential as evidenced by extensive crime-free periods. Because juveniles in these jurisdictions must “petition” the court for expungement, those with the financial wherewithal and legal sophistication to know that this option is available and how to exercise it will have an advantage.

Most state expungement schemes were drafted in the 1960s, when it was widely believed that violent juveniles would outgrow their delinquent tendencies. While this surely does happen in individual instances, most research shows that such a metamorphosis from chronic predator to law-abiding citizen is more an aberration than the norm. In the 1987 book “From Boy to Man, From Delinquency to Crime,” University of Pennsylvania criminologist Marvin E. Wolfgang and his coauthors found a strong correlation between juvenile delinquency and adult crime and concluded that juvenile delinquency is the “best predictor of adult criminality.” A 1994 report on juvenile crime prepared for Gov. Mario M. Cuomo found the recidivism rate among New York juvenile offenders to be approaching 90%. Similarly, a 1991 study by researchers John C. Steiger and Cary Dizon tracked 926 males released from the Washington state division of juvenile rehabilitation in 1982; of these, 68% were reconvicted within two years and 53% committed at least one violent offense within that time. In short, juvenile delinquents often turn into adult criminals, and adult criminals almost never were crime-free as juveniles. But expungement can make it impossible for employers to identify job applicants with histories of theft or violence. It also can impede law enforcement efforts to identify repeat offenders by their patterns of criminal conduct.

Expungement merits reexamination. The monumental increases in juvenile crime, both in numbers and severity, already have caused states such as Pennsylvania to limit the circumstances under which it is permitted by, for example, prohibiting the expungement of a minor’s record unless he or she has been crime-free for at least five years. While it is appealing to view expungement statutes as benign attempts to reduce the penalty that public opinion places on former offenders by allowing them to enter adulthood with a clean (or cleaned) slate, we must understand that such societal beneficence comes at a price.