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Juvenile Justice Reform Initiatives in the States

Juvenile Proceedings and Records

Until recently, State laws and judicial norms were established with the understanding that the preservation of the privacy of juveniles adjudicated in the juvenile court is a critical component of the youth's rehabilitation. Today, however, in the face of increasing public concerns over juvenile crime and violence, government agencies, school officials, the public, and victims are seeking more information about juvenile offenders. An increasing number of States are responding to this need by allowing public access to and victim participation in juvenile proceedings, broadening access to juvenile records, fingerprinting and photographing delinquent youth, and altering expungement laws for juvenile records.

The establishment of protective measures for guarding the privacy of youth offenders can be traced back to the separation of juvenile courts from criminal court systems. When the first juvenile court was created in Chicago, IL, in 1899, it was designed to "spare juveniles from harsh proceedings of adult court, punitive and unseemly conditions of adult jails and penitentiaries, and the stigma of being branded 'criminal,'" according to an article by Tamryn J. Etten and Robert F. Petrone in the Juvenile and Family Court Journal.180 This new system of juvenile justice administration was designed to be less punitive and more therapeutic than the adult system and included the idea of keeping juvenile proceedings and records private.

As States began to establish separate juvenile court systems, much of the original enabling legislation did not include specific provisions for protecting the confidentiality of juvenile court proceedings or records. However, confidentiality was practiced by most early juvenile courts, where it was deemed unfair to label a juvenile as a criminal because such a characterization would inhibit a youth's rehabilitation.181

However, with juvenile crime becoming more prevalent and increasingly violent, State policymakers have felt pressure to enact laws that emphasize juvenile accountability for the commission of violent offenses. According to a recent report by NCJJ, the juvenile court's focus on the rehabilitation and protection of minors from public exposure was not problematic when the indiscretions committed by these youth were of a less serious nature. However, as juvenile crime has become more violent, community protection and the public's right to know has begun to displace confidentiality and privacy issues as an underpinning in the juvenile court system.182

The movement toward expanding the rights of victims in both the criminal and juvenile justice systems and establishing some form of "restorative justice" has spurred States to expand the role of victims in the adjudication of their offenders. Currently, 29 States have victim bill of rights amendments to their State constitutions. Voters in eight States -- Connecticut, Indiana, Nevada, North Carolina, Oklahoma, Oregon, South Carolina, and Virginia -- adopted their provisions during the November 1996 elections.183

State initiatives have also specifically addressed bills of rights for victims of juvenile crime. According to NCJJ, Alabama and Arizona each established a victim bill of rights in 1995 to apply expressly to victims of juvenile crime. In that same year, Idaho and Utah included victims of juvenile crime in existing victim bill of rights amendments.184

Even with significant legislative activity resulting in more access to juvenile proceedings and records, it is important to note that substantial legal barriers exist that restrict the sharing of information on juvenile offenders between and among agencies in the absence of some type of enabling legislation. Most agencies that maintain records on juveniles must comply with a variety of Federal and State statutes, local ordinances, resolutions, regulations, court orders, and legal opinions in formulating policies for the collection and dissemination of records information, according to Etten and Petrone. Despite the complexity of these various confidentiality mandates, courts on both the Federal and State levels have held that there is no constitutional confidentiality right for an alleged or adjudicated delinquent. Rather, in challenges brought in the past 25 years, the courts have disregarded the confidentiality provision when it impedes the constitutional rights of another.185

Juvenile Proceedings

Recent State legislative activity indicates that expanding victim participation in the juvenile justice system is an important policy issue across the country, as 16 States have enacted legislation broadening victims' roles in juvenile proceedings in the past 2 years.186 Action on this front includes opening the courtroom to victims during juvenile hearings and informing victims of adjudicatory proceedings. For example, legislation enacted in South Dakota in 1996 allows a judge to open the courtroom to victims if the offense committed by a juvenile would be a crime of violence if committed by an adult. The law also requires the State's attorney to notify the victim of the time and place of hearings involving the alleged delinquent offender.187 A recent initiative in Nevada requires the judge to consider the interests of the victim when deciding to close juvenile proceedings for youth charged with committing certain violent crimes.188 A similar measure in Indiana additionally mandates that a judge consider the nature of the allegation, and the age and maturity of youth victims, when deciding whether to close a proceeding.189

Some States have gone beyond notification provisions to allow victims to become active participants in juvenile proceedings. For example, a provision in Arizona's bill of rights for victims of juvenile crime allows victims to be present and heard at any predisposition or disposition proceeding. Victims also are allowed to present to probation officials an impact statement outlining the effect that the juvenile's crime has had on the victim and the victim's immediate family.190

Expanding juvenile court access to the public is yet another approach States are using to make youth accountable for the crimes they commit. Currently, at least 21 States require or permit the court to open juvenile proceedings if the youth involved are charged with serious or violent offenses or if the juveniles are repeat offenders.191 The State of Georgia enacted a provision of this sort in 1995 when the State legislature voted to open juvenile courtrooms to the public for the first time. The new law allows the general public admission to adjudicatory hearings for youth accused of committing acts that would be felonies if committed by adults or youth who have previously been adjudicated delinquent. The provision also requires written notice to school officials of such adjudicatory proceedings.192

Inherent in this shift of thinking is the idea that juveniles should be held accountable when their criminal behavior has an impact on the community as a whole. According to the American Prosecutors Research Institute (APRI), "The public has the right to know the identities of serious, violent, and habitual offenders who commit crimes in their communities . . . the opening of juvenile court proceedings in these cases will ensure greater accountability for the juvenile offender and the process [as] a whole."193

Although the public historically has been denied access to juvenile courts, longstanding support has existed for media access on the condition that the names and identities of the juvenile offenders remain confidential. According to a statement published by the Children's Bureau in 1954, judges who use their discretion to decide who will be admitted to the courtroom should include members of the press. "If the juvenile courts are to function efficiently, their philosophy and practice ought to be known."194

More recent support for media access to the juvenile court is outlined in a 1992 report on the role of the juvenile court judge in juvenile justice administration. Commissioned by the National Council of Juvenile and Family Court Judges (NCJFCJ), the report encourages judges to admit the media to juvenile proceedings to elicit community support for the services provided by the juvenile court. "Because of the confidentiality laws which restrict the flow of information about most juvenile court cases, it is critical that the juvenile court judge ensure that information about the juvenile court system is made available to the public," according to the NCJFCJ report. "Only in this way will the public receive a balanced view of the work of the juvenile court and not rely solely on the spectacular headlines which appear at regular intervals."195

Although States have enacted laws to allow media access to juvenile proceedings, the U.S. Supreme Court has held that the courts should retain discretion in this determination, based upon characteristics of an individual case. The U.S. Supreme Court recently refused to hear an appeal in United States v. Three Juveniles,196 in which the U.S. Court of Appeals for the First Circuit upheld a U.S. district court judge's restriction of media access to proceedings in which three juveniles were being tried for committing a hate crime. The refusal to hear the case let the First Circuit's decision stand, allowing judges to retain jurisdiction to determine if and when protecting the privacy of a minor during delinquency proceedings will serve the broader public interest of furthering the juvenile's rehabilitation.

United States v. Three Juveniles arose when the government charged three youth with civil rights violations after they allegedly conspired to impinge upon the civil rights of Jews and African-Americans living in the Brockton and Randolph, MA, areas. The three, initially prosecuted in 1994 under a Federal hate crime statute, purportedly had been members of a white supremacy skinhead group called the New Dawn Hammerskins.

Before the juveniles were arraigned, The Boston Globe intervened in an attempt to gain access to the proceedings and court documents filed in the case. Although the district court allowed the newspaper limited access to some documents, the court denied its request for admittance to the proceedings. The court reasoned that the Federal Juvenile Delinquency Code197 required the closure of a Federal juvenile delinquency proceeding if a juvenile is amenable to rehabilitation and has no prior criminal or juvenile delinquency record and if the case has not been transferred to adult criminal court.

The Globe appealed the decision, arguing that the public right of access to the proceedings was guaranteed by the First Amendment of the U.S. Constitution. The Globe also contended that the court's reason for closing the proceedings was not sufficiently articulated.

The First Circuit determined there was not a need to address The Globe's first amendment argument because the case could be resolved by considering the law's statutory intent and provisions. Although the court noted that an essential element of the Federal code is the "[p]rotection of the juvenile from the stigma of a criminal record by preserving the confidentiality of proceedings,"198 it concluded that several provisions of the law, when read as a whole, show that Congress did not intend to require that all proceedings be fully closed. While various provisions of the law do not require closure, they do authorize courts to protect a juvenile's confidentiality either by closing proceedings or through some other means, according to the court.

The court rejected The Globe's argument that the logic behind the trial court's decision to close the court proceedings was not sufficiently articulated. The appellate court noted that the district court had stated that the "overarching objective" of the juvenile court was to protect juveniles from a negative social stigma in order to facilitate rehabilitation and that the youth in this case would likely be responsive to that rehabilitative effort.

Juvenile Records

Juvenile records typically reflect both the legal and social history of a youth, based on the juvenile's contact with various State and local agencies and service providers. Social history records often include information about a youth's family and academic records and any history of abuse or neglect or problems with drug and alcohol use. Legal records, on the other hand, contain information relating to court proceedings involving the juvenile and information introduced and used as evidence. These records include petitions, complaints, motions, court findings, and court orders. Legal and social history records are kept private by various Federal and State laws, which traditionally have inhibited the exchange of such information between and among agencies charged with administering policies that affect children, according to APRI.199

Recent State action has recognized that many agencies that serve children may be better equipped to do so if provided with comprehensive access to a youth's records. According to a recent article from the Juvenile and Family Court Journal, agencies charged with the implementation of juvenile justice and children and family services often have common objectives, and these objectives yield a need for common information.200 Policy initiatives that support this idea include expanding access to juvenile records to youth corrections personnel, to courts, and to other State agencies and school officials in some cases.

Some States, in response to a growing number of crimes committed by repeat youth offenders, have created a collaborative, systematic approach to information sharing. One example is the Serious Habitual Offender Comprehensive Action Program (SHOCAP). Originally developed by OJJDP, SHOCAP facilitates agency collaboration and information sharing to provide the most relevant sanction, treatment, or intervention for serious habitual offenders. Since the first SHOCAP programs were established in the late 1980's, several States, including California, Florida, Illinois, Oklahoma, and Virginia, have enacted SHOCAP legislation to expand access to relevant data and information collected on juvenile offenders by State and local agencies.

SHOCAP in Brief

Several longitudinal studies conducted by OJJDP have found that most violent and serious juvenile crime is committed by a minority of offenders. For example, the ongoing OJJDP Program of Research on the Causes and Correlates of Delinquency study in three communities (Denver, CO; Rochester, NY; and Pittsburgh, PA) has found that about one-sixth of all juvenile offenders in the study communities are accounting for more than three-fourths of all violent offenses.201

Efforts in the past decade to deal with these serious, violent, and chronic offenders led OJJDP to develop the SHOCAP model as a tool for communities to identify their most dangerous and violent juvenile offenders while focusing community resources on immediate intervention or detention when they reoffend.202

Traditionally, agencies charged with the administration of juvenile justice have been reluctant to share information on individual cases with other agencies, which reflects the juvenile justice system's focus on rehabilitation in contrast with the adult system's punishment and incapacitation model. Although many States have eased the legal barriers to exchanging information on juveniles, many internal and informal barriers exist, as agencies often refuse to trust other agencies.

One of the goals of SHOCAP is to encourage agencies to share information with those with "a need to know," such as prosecutors, probation, corrections, social service and law enforcement agencies, and education institutions. By sharing information, these agencies can coordinate reform efforts and develop more thorough, structured strategies for dealing with the habitual offenders.203

Another byproduct of local SHOCAP agreements is the establishment of more organized and useful records. By having standards for recording information, those shared documents are more likely to be readily useful to a variety of agencies and less likely to contain gaps in information.

Both serious habitual offenders and juveniles identified as on pathways to becoming serious habitual offenders (pre-SHO's) can be recognized and provided with appropriate services when they are identified as such in a standardized, meaningful way for all agencies working to help youth. An OJJDP Fact Sheet on SHOCAP notes that, "The program prevents youth from falling through the cracks by ensuring that their case information is available immediately for juvenile justice decisionmakers." This also helps in targeting intervention initiatives for youth at risk of becoming serious habitual offenders.204

Other States have altered juvenile recordkeeping procedures by providing school officials with access to juvenile records so that they can handle the misbehavior of individual youth and preserve the safety of faculty and students in the best way. An initiative in California encourages information sharing among law enforcement, juvenile courts, and schools to determine the most appropriate sanction or rehabilitation option for youth offenders. The law amended another section of the California code to ensure that dissemination of this information is limited and used only to appropriately serve students, educators, and employees charged with the administration of juvenile justice in the State.205 A new law in Wisconsin allows school officials to disclose information about an adjudicated youth to anyone determined by the local school board to have a safety interest in obtaining that information.206

Other recent initiatives provide agencies charged with the administration of juvenile justice and youth programs with access to juvenile records. A 1995 Illinois amendment allows child protection investigators of the State's Department of Children and Family Services to inspect and copy police records of minors.207 Since 1995, Connecticut has provided court officials, the adult probation office, the parole board, and the bail commission with limited access to juvenile records.208

Increased access to juvenile records by the public and victims is yet another tactic that States are using to facilitate accountability for juvenile offenders. A New Hampshire law, enacted in 1995, opens records of juveniles adjudicated delinquent for violent crimes, while an initiative in Wyoming allows the court or prosecuting attorney to release the name, offense record, or disposition of a minor in any delinquency proceeding filed in juvenile court to the victim or members of a victim's immediate family.209

Other Administrative Responses

States have also facilitated access to juvenile records by changing the administrative processes governing juvenile records -- loosening rules on their collection, centralizing their maintenance, and limiting their disposal. Policy initiatives of this sort include holding juvenile records in a central repository, fingerprinting and photographing juveniles, making changes to expungement and sealing laws, and expanding access to juvenile records.

Holding juvenile records in a central location or repository makes relevant information about juvenile offenders more easily available to law enforcement and criminal and juvenile justice officials across the State. Central repositories may include adult records only, adult records separate from juvenile offenders, or adult and juvenile records combined.210

In 1994, 27 States permitted the inclusion of juvenile arrest and/or court disposition records in central record repositories. Four of these States -- Hawaii, Mississippi, Oklahoma, and Virginia -- authorized a separate juvenile record center. In some States, criminal history records for juveniles tried as adults may be stored in the central repository, with fingerprints serving as the basis for the records.211

Fingerprinting juvenile arrestees also has become more common in recent years. According to an NIJ Research in Brief, fingerprinting is a useful tool for State agencies charged with recordkeeping to ensure that records accurately identify a specific juvenile. Recent amendments and changes make fingerprinting provisions more available to law enforcement by lowering the age threshold or adding to the types of offenses for which the practice is acceptable. The authorization to fingerprint, however, does not usually apply to all arrested juveniles. For example, New York allows youth to be fingerprinted as young as age 11. More common age thresholds, according to the NIJ document, begin at 14 in other States.212 As of 1995, 48 States authorized law enforcement agencies to fingerprint arrested juveniles.213

The types of crimes for which fingerprinting of juveniles is allowed vary by State but most often include serious offenses and felonies. Iowa, Oregon, and Washington, however, have permitted the fingerprinting of juveniles arrested for some misdemeanors.214 A 1995 amendment in Pennsylvania broadened the existing fingerprinting law to allow the fingerprinting of youth who have allegedly committed misdemeanors. Previously, the Pennsylvania law limited fingerprinting of juveniles to youth who allegedly had committed felonies and firearms offenses.215

Several States have added laws that require photographs of an alleged delinquent juvenile to be taken with their fingerprints at the time of arrest. Since 1995, Ohio has allowed fingerprinting of juveniles ages 14 or over who have been accused of committing crimes that would be felonies if perpetrated by adults.216 A similar measure in North Dakota allows law enforcement officials to photograph juveniles arrested for various crimes, including murder, sexual assault, theft, or the unlawful possession or use of a handgun. Prosecutors also may request that the photograph of the alleged delinquent be taken and stored in the juvenile record if the youth commits a misdemeanor at the direction of a criminal street gang.217

Sharing access to juvenile records with adult criminal courts has promoted information accessibility, with the hope of encouraging the appropriate sanction for youth offenders. According to the NIJ document, every State gives a prosecutor or court access to juvenile records of adult defendants at some point in the judicial process. States achieve this end in different ways: by providing for prosecutor access explicitly in State code; by prescribing the inclusion of juvenile records in reports filed by the court; or by authorizing or requiring the court to consider a defendant's juvenile record when setting a sentence.218

Many of the changes to juvenile recordkeeping procedures have been coupled with changes to the sealing and expungement of juvenile records. Expungement laws allow for the erasure or destruction of juvenile records once a juvenile reaches the age of majority, whereas sealing records removes them from review or examination except by court order or by designated officials. Currently, all States have some laws on the books ordering the expungement or sealing of records for certain juvenile offenders, based upon their age or the gravity of their crimes.219 To expand access to juvenile records, States have moved to restrict the expungement or sealing of juvenile records or forbid entirely those restrictions on information about youth adjudicated delinquent. A recent example comes from North Carolina, where in 1994 a law was passed that forbids the expungement of the court records for youth adjudicated delinquent for certain violent felonies or for repeat offenders.220

180. Tamryn J. Etten & Robert F. Petrone, Sharing Data and Information in Juvenile Justice: Legal, Ethical, and Practical Considerations, Juv. & Fam. Ct. 65­89 (1994).

181. Id.

182. Torbet et al., supra note 154, at 53.

183. Memorandum from Jim Turpin, American Correctional Association, to Interested Parties (Nov. 13, 1996) (on file with author).

184. Torbet et al., supra note 154, at 72­75.

185. Etten & Petrone, supra note 180, at 48.

186. Id. at 72­75.

187. S.D. Codified Laws §§ 26­7A­36, ­36.1 (Michie Supp. 1996).

188. Nev. Rev. Stat. § 62.193 (Supp. 1996).

189. Ind. Code Ann. § 31­6­7­10 (West Supp. 1996).

190. Ariz. Rev. Stat. Ann. § 8­290.01 (West Supp. 1996).

191. Torbet Et Al., supra note 154, at 55.

192. Ga. Code Ann. § 15­11­28 (Supp. 1996).

193. American Prosecutors Research Institute, Prosecutors' Policy Recommendations on Serious, Violent, and Habitual Youthful Offenders 22 (1996) [hereinafter APRI].

194. Richard D. Hendrickson, Media Access to Juvenile Court: An Update, Juv. & Fam. Ct. J. 27, 34 (1993) (citations omitted).

195. Id.

196. United States v. Three Juveniles, 61 F.3d 86 (1st Cir. 1995).

197. Codified at 18 U.S.C. § 5031 et seq.

198. Three Juveniles, 61 F.3d at 90.

199. APRI, supra note 193, at 23.

200. Etten & Petrone, supra note 180, at 67.

201. Office of Juvenile Justice and Delinquency Prevention, U.S. Dep't of Justice, Fact Sheet No. 35 Serious Habitual Offender Comprehensive Action Program (August 1996) [hereinafter Fact Sheet No. 35].

202. Id.

203. APRI, supra note 193, at 23.

204. Fact Sheet No. 35, supra note 201.

205. Cal. Welf. & Inst. Code §§ 827, 828.1 (West Supp. 1996).

206. Wis. Stat. Ann. § 118.127(3) (West Supp. 1996).

207. 705 Comp. Stat. Ann. § 405/1­7 (West Supp. 1996).

208. Conn. Gen. Stat. § 54­76l (West Supp. 1996).

209. Lyons, supra note 111, at 12.

210. Torbet et al., supra note 154, at 60.

211. Id. at 61.

212. Neal Miller, National Institute of Justice, U.S. Dep't of Justice, State Laws on Prosecutors' and Judges' Use of Juvenile Records 2 (Nov. 1995) [hereinafter Miller, State Laws].

213. Torbet et al., supra note 154, at 61. According to a recent report by NCSL, Hawaii enacted juvenile fingerprinting legislation in 1995. This change brings the total number of States with juvenile fingerprinting provisions to 48, up from the 47 States listed in the NCJJ report.

214. Miller, State Laws, supra note 212, at 3.

215. 42 Pa. Cons. Stat. Ann. § 6341 (West 1995).

216. Ohio Rev. Code Ann. § 2151.313 (Banks-Baldwin Supp. 1995).

217. N.D. Cent. Code § 27­20­56 (Supp. 1995).

218. Miller, State Laws, supra note 212.

219. Id. at 15­16.

220. N.C. Gen. Stat. § 7A­676 (1995).

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