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>> 149 7 Juvenile Criminal Record Confidentiality James B. Jacobs While opening access to the juvenile record is a policy based on legitimate public safety concerns, it threatens to reverse nearly 100 years of juvenile justice policy that stresses rehabilitation, treatment and individual privacy. How to balance the use of juvenile justice records in today’s climate presents unique challenges to juvenile justice administrators, public policy makers, and others in the criminal justice arena involved in aspects of collecting, maintaining , using or disseminating juvenile justice record information. —Jan Chaiken, Director, US Bureau of Justice Statistics (1997) This chapter examines juvenile criminal records, an important but understudied topic in the history of American juvenile justice. Beginning with an analysis of the theory and uneven practice of keeping juvenile police and court records confidential from the early 1900s to the 1960s, the chapter then examines recent trends that have further eroded confidentiality and increased the collateral consequences for juveniles. The chapter next traces the role of the police and juvenile arrest records in this history before analyzing how the information technology revolution complicates matters. The conclusion focuses on the fundamental principles that should guide sensible policy making in this area. Franklin Zimring (2002) has pointed out that the founders of the juvenile court had two main goals: 1) to avoid burdening and harming youth with a criminal stigma, and 2) to rehabilitate wayward youth. To achieve the first goal, they proposed that juvenile court proceedings and records be kept confidential (Belair 1982). Anticipating what 150 > 151 the respondents over whom it exercised authority. This meant creating a copious file on each respondent. Court personnel prepared a “social file” that included information about the respondent’s contacts with social service agencies, behavior at school, parents’ description of the respondent ’s behavior at home, use of alcohol and drugs, sexual activity, and the probation officer’s perception of the respondent’s remorse. (Judges sometimes ordered a psychological report.) These reports typically included much rumor and hearsay. The more information that flowed to and through the court, the more serious the consequences (embarrassment and stigma) to the respondent if the information was inadvertently or purposefully disclosed to unauthorized parties. Juvenile court historian David S. Tanenhaus(2004) points out that in the first three decades of the twentieth century, efforts to keep juvenile court proceedings and records confidential met significant resistance in some jurisdictions. In Illinois, for example, opponents declared that “secret courts might operate to enslave poor children.” However, by the late 1920s, proponents of confidentiality had achieved substantial success . The majority of states passed laws limiting disclosure of information about adjudications and arrests, albeit permitting disclosure to law enforcement agencies, adult courts, and other government agencies. Some states required that the case file automatically be sealed when the respondent turned 21 years old so that the delinquent youth could embark upon adulthood without a criminal stigma. Some state statutes provided that an individual with a sealed or expunged juvenile adjudication could, when asked, deny ever having been found guilty of a crime or adjudicated delinquent. (This could be very confusing when, for example, law schools or bar committees ask applicants if they have ever been arrested or adjudicated, even as a juvenile and even if purged.) In 1950, Congress passed the Federal Youth Corrections Act in order to spare “rehabilitated youth offenders the common and pervasive social stigma and loss of economic opportunity that in this society accompany the ‘ex-con’ label.” The Act made federal offenders between 18 and 26 years old eligible to have their convictions “set aside” if the court released them early from probation. Despite the philosophical and statutory commitment to confidentiality , it is unclear how effectively juvenile courts maintained the confidentiality of respondents’ identities. It should not be assumed that 152 > 153 public, and emphasized the importance of protecting youth from being labeled criminal. Some juvenile court critics charged that secrecy of proceedings and records invited abuse of authority, arbitrariness, and discrimination . For example, Massachusetts Justice Gordon A. Martin Jr. wrote: “Elimination of juvenile delinquency’s historic cloak of confidentiality is essential to rebuilding trust and dissipating the fear that the closed juvenile system fosters”(Martin Jr. 1995). In the years that followed, several states responded to these criticisms by opening up juvenile court proceedings to the public (Bazelon 1999; Martin 2002–2003). Further Erosion of Confidentiality In the 1970s, the Supreme Court heard three cases that challenged the confidentiality of delinquency records. The proponents of confidentiality lost all three...

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