Bureau of Justice Statistics

U.S. Department of Justice

Office of Justice Programs

Privacy and Juvenile Justice

Records: A Mid-Decade

Status Report 

Criminal Justice Information Policy
U.S. Department of Justice

Office of Justice Programs

Bureau of Justice Statistics

Privacy and Juvenile Justice

Records: A Mid-Decade 

Status Report

A Criminal Justice Information Policy 

Report

May 1997, NCJ-161255
ii

U.S. Department of Justice

Office of Justice Programs

Bureau of Justice Statistics

Jan M. Chaiken, Ph.D.

Director

Acknowledgments. This report was prepared by SEARCH, The National Consortium for Justice

Information and Statistics, Maj. James V. Martin, Chairman, and Gary R. Cooper, Executive

Director. The project director was Sheila J. Barton, Deputy Director. The report was written by

Robert R. Belair, SEARCH General Counsel. Support was provided by Twyla R. Cunningham,

Manager, Corporate Communications, and Jane L. Bassett, Publishing Assistant. The project was

conducted under the direction of Carol G. Kaplan, Chief, National Criminal History Improvement

Programs, Bureau of Justice Statistics.

Report of work performed under BJS Cooperative Agreement 92-BJ-CX-K012, awarded to

SEARCH, The National Consortium for Justice Information and Statistics, 7311 Greenhaven

Drive, Suite 145, Sacramento, California 95831. Contents of this document do not necessarily

reflect the views or policies of the Bureau of Justice Statistics or the U.S. Department of Justice.

Copyright © SEARCH, The National Consortium for Justice Information and Statistics, 1997.

The U.S. Department of Justice authorizes any person to reproduce, publish, translate or

otherwise use all or any part of the copyrighted material in this publication with the exception of

those items indicating they are copyrighted or reprinted by any source other than SEARCH

Group, Inc.
iii

Foreword

The Bureau of Justice Statistics is pleased to

publish Privacy and Juvenile Justice

Records: A Mid-Decade Status Report. This

report is a comprehensive and broad

overview of the status of juvenile justice

records and information systems as of 1995,

as well as an analysis of related information

and privacy issues.

This is the fourth major report in 15 years on

juvenile justice records and recordkeeping

systems published by BJS, and reflects the

intense public interest focused on the

juvenile justice system at this time. The

juvenile justice system is undergoing major

review and changes: almost every State has

taken official steps designed to bring the

treatment of juveniles closer to the criminal

justice treatment accorded adults.

Legislative, administrative and legal

changes have combined to reverse the

underlying goals of the juvenile system as it

has existed since its inception nearly 100

years ago.

These changes not only raise many

questions, they also create challenges with

respect to the law, policy and information

systems. We hope that this report will be of

value to policymakers and practitioners who

are addressing the critical issues relating to

juvenile justice records and information

systems in this time of transition.

Jan M. Chaiken, Ph.D.

Director

Bureau of Justice Statistics
v

Contents

Executive summary ..................................................................................................................................... vii

Introduction ................................................................................................................................................... 1

Part I. The nature and severity of juvenile crime .......................................................................................... 4

Part II. Juvenile justice system history and development ............................................................................. 6

Part III. The relationship between adult and juvenile courts ........................................................................ 8

Judicial waiver ................................................................................................................................. 9

Prosecutorial waiver ....................................................................................................................... 10

Automatic transfer based upon age ................................................................................................ 10

Waiver and transfer case law ......................................................................................................... 12

Impact of waiver and transfer upon juvenile records..................................................................... 13

Part IV. Juvenile records: Disclosure and confidentiality........................................................................... 14

Access to juvenile law enforcement and court records by the adult system .................................. 14

Sealing and purging ....................................................................................................................... 15

Illustrative State laws ..................................................................................................................... 16

1995 legislative activity ................................................................................................................. 19

State activity...................................................................................................................... 19

Federal activity.................................................................................................................. 19

Disclosure to the public and the media .......................................................................................... 20

Legislative activity ............................................................................................................ 20

Judicial activity ................................................................................................................. 21

Part V. The juvenile record information system at mid-decade.................................................................. 23

Juvenile law enforcement records .................................................................................................. 23

Juvenile court records .................................................................................................................... 24

One record, one system? ................................................................................................................ 26

Conclusion................................................................................................................................................... 28

Juvenile justice trends .................................................................................................................... 28

More juveniles are subject to transfer to adult court ......................................................... 28

Juvenile justice record information is increasingly available outside

 the juvenile system ........................................................................................................ 28

Integration of juvenile and adult records is increasing ..................................................... 29

Status at mid-decade ...................................................................................................................... 29

Appendix: Juvenile justice timeline ............................................................................................................ 31
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Executive Summary • Page vii

Executive summary

This report — Privacy and

Juvenile Justice Records: A MidDecade Status Report — is

intended to provide a

comprehensive and broad

overview of the status of juvenile

justice records and information

systems as of the mid-1990s and

an analysis of related information

and privacy issues.

The report is especially timely. By

the middle of the 1990s, profound

developments have combined to

produce an alchemy that is

fundamentally changing juvenile

justice records and information

systems, as well as privacy policy

for juvenile records. These

developments are as follows:

• Juvenile crime, unlike its adult

counterpart, rose rapidly in the

early 1990s, with a resulting

high level of public alarm over

violent juvenile predators,

juvenile gangs and juvenile

drug use.

• The public’s faith in the

potential to rehabilitate juvenile

offenders has eroded to the

point where the public — at

least as reflected in recent State

legislative activity —

enthusiastically supports

strategies which treat juveniles,

particularly older and violent

juveniles, as adults, rather than

segregating juveniles in more

treatment-oriented

environments.

• Increasingly, juvenile justice

record information is being

made available, by law and in

practice, outside of the juvenile

justice system and for

nonjuvenile and noncriminal

justice purposes, such as

employment and licensing

background determinations.

• Juvenile records — in far more

states today than in the past —

are captured in adult record

systems, where they are

automated and fingerprintsupported.

• The traditional juvenile justice

recordkeeping regime —

manual records maintained on a

name-only, decentralized, local

and system-specific basis, with

little communication between

juvenile courts and law

enforcement and even less

communication between

juvenile courts and noncriminal

justice decisionmakers — is

giving way to a new order

wherein juvenile records are

available in the same manner as

adult criminal justice records.

• The quality of juvenile justice

records and the effectiveness of

juvenile justice record systems

appears to lag substantially

behind the quality of adult

criminal justice records and

record systems. Therefore,

there is a pressing need for

empirical assessments of the

status of juvenile justice

records and record systems and

for improvements as indicated

by such assessments.
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 1

Introduction

In 1982, a national report

examining law and policy for

juvenile justice records concluded

that the public’s faith in the

potential for rehabilitating juvenile

offenders had eroded, thus laying

the groundwork for retooling the

decades-old policy of strict

juvenile record confidentiality. 1 In

the wake of a significant rise in

serious juvenile crime and

recidivism, the 1982 report

suggested that the juvenile record

agenda for the 1980s should

address the following issues:

• Whether the notion of juvenile

rehabilitation has vitality and,

if so, whether confidentiality

promotes rehabilitation.

• Defining the age of a juvenile

— does it make sense to think

of juveniles as 13, 14 and 15

rather than 16, 17 and 18?

• Developing policies and

practices for the creation,

maintenance and disclosure of

juvenile justice record

information by police and other

law enforcement agencies

which, as of 1982, lagged far

behind juvenile courts in

developing these policies.

 1

U.S. Department of Justice,

Bureau of Justice Statistics, Privacy

and Juvenile Justice Records,

Criminal Justice Information Policy

series, by Robert R. Belair, SEARCH

Group, Inc. (Washington, D.C.:

Government Printing Office, 1982)

[hereafter Privacy and Juvenile Justice

Records Report].

• Developing policies for access

to and challenge and correction

of juvenile justice records by

juvenile record subjects.

• Establishing interfaces and

connections between juvenile

and adult record systems.

• Developing policies for the

disclosure of juvenile justice

record information outside of

the juvenile and criminal

justice systems.

• Reevaluating sealing and

purging policies and correlating

those policies with emerging

confidentiality and disclosure

policies.

Almost 15 years later, much of

that agenda has been addressed on

the State level. The age of

juveniles subject to juvenile court

jurisdiction, for example, has

steadily retreated so that today, a

growing number of States treat

older juveniles as adults,

particularly in cases of serious or

repeat offenders. In addition,

juveniles and their families, and

increasingly, victims of juvenile

crimes have ready access to

appropriate and specific juvenile

records. Further, the adult and the

juvenile record systems are

working together better today than

ever before, with growing

amounts of juvenile record

information maintained by,

although not necessarily integrated

into, adult criminal history

systems. Finally, many States are

developing standards for access to

juvenile record information by

noncriminal justice agencies. This

process is by no means complete,

but, by the mid-1990s, is in full

play.

On the other hand, two of the

seven items on the 1982 agenda

have seen little progress. Sealing

and purging policies remain on the

books in every State but these

policies are frequently out of sync

with juvenile record

confidentiality and disclosure

policies. Of perhaps greater

concern, but certainly no surprise,

the Nation continues to struggle

with the concept and practicality

of juvenile rehabilitation and its

relationship to juvenile record

confidentiality.

In 1988, baseline data from the

first-ever survey of the content

and quality of juvenile records

found that juvenile records

maintained by law enforcement

agencies were in need of

improvement, often lacking

fingerprint support and

dispositions.2

 In 1988, only onequarter of the Nation’s law

enforcement agencies were

fingerprinting juveniles.

Therefore, without fingerprint

support, most State central

repositories of adult criminal

history records were unable to

accept juvenile record

information. Finally, and not

surprisingly, the 1988 report found

that juvenile justice practitioners

 2

U.S. Department of Justice,

Bureau of Justice Statistics, Juvenile

Records and Recordkeeping Systems,

Criminal Justice Information Policy

series, by Sheila J. Barton and Paul L.

Woodard, SEARCH Group, Inc.

(Washington, D.C.: Government

Printing Office, November 1988)

[hereafter Juvenile Records and

Recordkeeping Systems Report]. This

survey reached 500 law enforcement

agencies throughout the Nation; all 50

State central repositories of adult

criminal history records; and 45 of the

Nation’s largest juvenile court

systems.
Page 2 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

face “growing pressure to lift

traditional protections governing

juvenile records.”3

In 1989, a national conference,

“Juvenile and Adult Records: One

System, One Record?,” focused on

what was then, as now, a key

question — how much

confidentiality should be

preserved with respect to juvenile

records. 4 The conference

proceedings noted that the

arguments in support of

confidentiality retained vitality —

juveniles do not have the criminal

capability, or mens rea, to be

responsible for their actions; a

juvenile justice record carries with

it a stigma that will mark and mar

a juvenile for life; and most

juveniles are, in fact,

“rehabilitated.” The vast majority

of juveniles desist from crime,

with only a small minority

engaging in chronic and serious

recidivistic behavior.

 3

Ibid., p. v. See also, SEARCH

Group, Inc., “Survey of the States:

Report of Juvenile Fingerprinting

Requirements” (unpublished report,

January 1990) pp. 1-4. This 1990

survey found that, while almost all

States print juveniles when they are

tried as adults and 79 percent of the

States permit fingerprinting of

juveniles tried for offenses which

would be felonies if committed by

adults, only 34 percent of the States

permitted fingerprinting of juveniles

when tried for an offense that would

be a misdemeanor if committed by an

adult. 4

See, Marvin E. Wolfgang, “The

Nature and Severity of Juvenile Crime

and Recidivism,” in Juvenile and

Adult Records: One System, One

Record?, Proceedings of a

BJS/SEARCH Conference, U.S.

Department of Justice, Bureau of

Justice Statistics, by SEARCH Group,

Inc. (Washington, D.C.: Government

Printing Office, January 1990) p. 12

[hereafter Juvenile and Adult Records

Proceedings].

The proceedings also recapped

arguments for opening juvenile

records, including the frequency

and severity of juvenile crime in

the late 1980s and the serious

threat posed by juvenile

recidivists. The report further

noted that by the end of the 1980s,

the question that loomed large in

1982 — to what extent could

juvenile records be used in adult

criminal proceedings — was

largely settled in favor of open and

complete use. After all, where a

juvenile offender is in an adult

criminal court, there is at least the

strong possibility that this juvenile

has, in fact, not been rehabilitated.

Therefore, the juvenile has a less

compelling privacy interest and

the public has a correspondingly

stronger interest in evaluating and

using the offender’s juvenile

record.

The conference proceedings,

however, documented a sharp

debate over the standards for

disclosure of juvenile records

outside of the adult criminal

justice system. The debate was

summed up in this way:

The real question is going to be

whether we can figure out some

basis for convincing

policymakers that there are

certain juveniles who are a

good risk for society and

therefore, their juvenile records

should be kept strictly

confidential so as to improve

their chances for rehabilitation.

On the other hand, there are

those juveniles who will

continue their criminal career ...

as an adult, and we are going to

find that their records will be

widely available over the next

10 years, not only within, but

also outside of, the adult

criminal justice system. 5

In the early 1990s, juvenile crime,

unlike its adult counterpart,

continued to rise. While juvenile

desistance is frequent and

important, so, too, is recidivism.

Part I of this report briefly recaps

juvenile crime statistics. The

frequency and severity of juvenile

crime, more than any other factor,

has continued to erode the near

century-old belief that juveniles

are incapable of a criminal

mindset and that, accordingly,

juveniles make ideal candidates

for rehabilitation. In Part II, this

report highlights the development

of the rehabilitative ideal or

treatment model and the related

establishment of the juvenile court

system.

Erosion of the belief in the

rehabilitative ideal has similarly

eroded allegiance to the concept

that juveniles should be segregated

from hardened adult criminals and

adjudicated in the treatmentoriented environment offered by

juvenile courts. In Part III, this

report looks at the predictable

result. More and more juveniles

are tried in adult courts. This

phenomenon has two profound

information implications. First,

juvenile records must be improved

in order to permit judges to

identify “hardened” juvenile

offenders who are candidates for

processing in the adult courts.

Second, the record generated by

this adult adjudication, a record

that once would have been

generated by a juvenile court and

treated as a juvenile record, is now

treated as an adult record.

 5

Robert R. Belair, “The Future

Availability of the Juvenile Record,”

in Juvenile and Adult Records

Proceedings, p. 74, supra note 4.
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 3

Part IV of this report reviews the

law and policy issues relevant to

the dissemination of juvenile

records. Not surprisingly, given

the developments discussed in the

first several sections of this report,

juvenile record information is

being made increasingly available

outside of the juvenile justice

system. Adult courts and law

enforcement, and sometimes

noncriminal justice governmental

agencies, such as the national

security community, enjoy

unprecedented access. Private

employers, educational

institutions, insurers and others,

oftentimes for the first time, are

also enjoying access to juvenile

justice records.

Part V of this report looks at the

current state of juvenile justice

recordkeeping. This part

concludes that juvenile records,

even when generated by juvenile

courts, are being increasingly

captured in adult criminal history

repositories. This means that

juvenile records are increasingly

fingerprint-supported, juvenile

records are increasingly automated

and, now more than ever, juvenile

records are available through a

national search.

Without much debate, the

traditional juvenile record regime

— manual records maintained on

a decentralized, local basis and

cloistered from eyes outside of the

juvenile justice system — is

giving way to an automated,

centralized system providing

records to criminal justice and

even to noncriminal justice users.

There are those who regret the

impact that these changes are

likely to have on a juvenile’s

chances for rehabilitation and a

second start. In an era, however,

where both the substance and,

particularly, the perception of

frequent, remorseless, violent

juvenile crime is so high, this

result — right or wrong, good or

bad — seems inevitable.

The development and evolution of

policies governing juvenile justice

and the exchange of juvenile

records reflect the interface

between prevailing attitudes

toward offender rehabilitation,

trends in crimes committed by

persons other than adults, and

technological advances which

facilitate record access and also

permit the selective release of

information for specific uses.

This document addresses these

changing policies governing

juvenile justice records.
Page 4 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

Part I. The nature and severity of juvenile crime

In hard numbers, juvenile crime

significantly increased between

1984 and 1993. During that

period, arrests of people under age

18 for murder and non-negligent

manslaughter increased by 167.9

percent. Arrests for aggravated

assault increased by 98.1 percent.

Arrests for forcible rape increased

by 9 percent. Arrests for other

assaults increased by 112 percent.

And arrests for weapons

possession rose by 125.6 percent. 6

Juvenile arrests for certain

property crimes are also on the

rise. Between 1984 and 1993,

arrests for stolen property

increased by 42.6 percent. In fact,

although those between the ages

of 13 and 18 comprised only 8

percent of the population in 1989,

they were arrested for 31 percent

of the thefts (larceny), 34 percent

of the burglaries and 41 percent of

the motor vehicle thefts that year.

At best, if arrest rates remain

stable at 1993 levels, juvenile

arrests will rise 22 percent

between now and the year 2010,

an increase attributable to

population growth as children of

 6

U.S. Department of Justice,

Bureau of Justice Statistics,

Sourcebook of Criminal Justice

Statistics: 1994 (Washington, D.C.:

Government Printing Office, 1994) p.

383 [hereafter Sourcebook]. And see,

U.S. Department of Justice, Office of

Juvenile Justice and Delinquency

Prevention, Juvenile Offenders and

Victims: A National Report, by

Howard N. Snyder and Melissa

Sickmund, National Center for

Juvenile Justice (Washington, D.C.:

Government Printing Office, August

1995) [hereafter Juvenile Offenders

and Victims Report]. This report uses

the term “arrest” to encompass a

variety of juvenile detentions, charges

and prosecutions.

the “baby boom” generation reach

adulthood. At worst, if the past

decade’s growth trend in juvenile

arrests continues at the same level,

arrest rates will more than double

by 2010.7

 Recidivism rates among juvenile

offenders have not increased, but a

relatively small percentage of

juvenile offenders are chronic and

frequent recidivists, accounting for

the vast majority of juvenile

offenses. Most studies indicate

that only about one-third of

juvenile offenders ever commit a

second offense. Moreover, a very

small percentage of juvenile

offenders, varying from as low as

5 percent to as high as perhaps 25

percent, are so-called “chronic

offenders,” responsible for the

majority of juvenile crime and

racking up multiple arrests and

adjudications. 8 Several recent

studies, for example, conclude that

chronic, hard-core juvenile

recidivists account for over 65

percent of robberies by juveniles,

over 65 percent of rapes, over 60

percent of aggravated assaults,

over 70 percent of motor vehicle

thefts, and over 60 percent of

homicides. 9 The disproportionality

of juvenile offenses committed by

chronic juvenile offenders leads

some juvenile justice researchers

to decry the erosion of

confidentiality standards for

information relating to the large

 7

Juvenile Offenders and Victims

Report, p.111, supra note 6. 8

See, Ibid., pp. 49-50. And see, P.

Tracy, M. Wolfgang and R. Figlio,

Delinquency Careers in Two Birth

Cohorts (New York: Plenum Press,

1990) pp. 38-40. 9

Juvenile Offenders and Victims

Report, pp. 50-51, supra note 6.

majority of nonchronic juvenile

offenders.

The increase in juvenile crime is

taking place at a time when crime

overall is going down after

decades of steady increase. The

FBI’s “Uniform Crime Reports”

for 1995 reported a 3 percent

decrease in serious crime from

1994, with murder down 7

percent, forcible rape down 5

percent and robbery down 6

percent. 10 Many factors may be

responsible for the adult crime

trend: the implementation of

community policing concepts; a

greater willingness among

neighborhood residents to reclaim

their streets; stiffer mandatory

minimum sentences; “three

strikes” provisions; or an

abundance of new prison space.

Whatever the reason, the adult

trend, so far, is not having a

noticeable impact on youths

between the ages of 10 and 17.

Why? The deteriorating social and

economic conditions of American

cities is a possible factor. In 1992,

14.6 million juveniles lived in

families with incomes below the

poverty level, 42 percent more

than in 1976. Poverty rates for

black and Hispanic teenagers were

far higher than those for their

Caucasian counterparts. 11 In 1960,

one child in 20 was born to an

unmarried mother. By 1990, it was

one in four. During this period, the

 10U.S. Department of Justice,

Federal Bureau of Investigation,

Crime in the United States, 1995,

Uniform Crime Reports,

(Washington, D.C.: Government

Printing Office, October 1996) pp. 11,

14, 24, 27. 11Juvenile Offenders and Victims

Report, p.7, supra note 6.
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 5

proportion of children living in

two-parent families declined from

85 percent to 73 percent.12

A recent study of young felons age

12 to 18 in Ohio’s juvenile prison

system further illustrates that most

young people who are chronic

offenders are also the victims of

starkly substandard social and

economic conditions. The Ohio

study found, for example, that:

• 90 percent of Ohio juvenile

incarcerates have substance

abuse problems with marijuana,

crack, heroin or alcohol;

• 5 percent are homeless;

• Approximately 30 percent have

mental disorders;

• 75 percent of the girls and 50

percent of the boys have been

sexually assaulted;

• Almost 25 percent of these

young offenders have their own

children;

• More than 6 out of 10 offenders

lived with single mothers; and

• More than 8 out of 10 youthful

offenders incarcerated in Ohio

come from households with

incomes below $10,000 per

year. 13

As an Ohio prison official

concluded, “These kids are the

throwaways of society.” 14

There may be, of course, other

explanations beyond poverty and

neglect. The easy availability of

powerful handguns and

semiautomatic weapons may have

turned youthful dispute resolution

into a matter of deadly

confrontation. Arguments and

jealousies that once were

straightened out with words and

fists could now end in gunfire.

 12Ibid., p. 10.

13Thomas, “Next Stop: Prison,”

Washington Post, 18 March 1996, p.

A1 [hereafter Washington Post]. 14Ibid.

Since 1983, gun homicides

committed by juveniles have

nearly tripled.15 Drug use among

high school seniors, while

nowhere near the record levels of

the 1970s, is on the rise after a

decline in the late 1980s and early

1990s.16 Drug arrest rates for black

juveniles paralleled those of

whites from the mid-1970s to the

mid-1980s. The advent of crack

cocaine, however, changed all

that: black drug arrests now are

five times higher than equivalent

rates for whites.17

In addition to these traditional

kinds of sociological explanations,

more elusive causes have been

suggested for the recent surge in

juvenile violence. Jose E. Castillo,

chief juvenile probation officer in

Bexar County, Texas, put it this

way: “In the past, kids would kill

for a reason — someone made

them angry. Now, there is just a

lot of indiscriminate violence.

They don’t care who they hurt,

and weapons have become more

sophisticated and powerful.” 18

Violence in popular music,

television, movies and video

games may also contribute to what

many see as an alarming sense of

dehumanization.

 15Juvenile Offenders and Victims

Report, p. 58, supra note 6. 16Ibid., p. 59.

17Ibid., p. 120.

18“Kids Who Kill,” San Antonio

Express-News, 20 November 1995, p.

1 [hereafter San Antonio ExpressNews].
Page 6 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

Part II. Juvenile justice system history and development

The proper mix of social and law

enforcement programs necessary

to address juvenile crime remains

hotly contested in Washington and

in State capitols. But whatever the

ultimate outcome, the effect of this

debate on the maintenance of

juvenile records already is

considerable. A system initially

designed to be a confidential

social service record repository is

under pressure to become a

modern, interactive criminal

history database. This is far from

what the Illinois State legislature

had in mind in 1899 when it

established the Nation’s first

independent juvenile court system,

in which “children were not to be

treated as criminals nor dealt with

by the process used for

criminals.”19

The juvenile court was one of the

many products of the “Progressive

Movement” of the late 1800s. To

the Progressives, crime was the

result of external forces, not of the

exercise of an individual’s free

will. Their goal was to reform the

offender, not punish the offense.

This concept of the “Rehabilitative

Ideal” was the kernel of the

Progressive justice reforms,

including the formation of the

juvenile court. 20

The Progressives saw children as

“corruptible innocents” who

needed “special attention,

solicitude and instruction.”21 As

this view gained currency, it

seemed logical to establish a

 19Privacy and Juvenile Justice

Records Report, p.11, supra note 1. 20Barry C. Feld, Criminalizing

Juvenile Justice: Rules of Procedure

for the Juvenile Court, 69 MINN. L.

REV. 141, 142-48 (1984).

21Ibid., p. 144.

separate court system to apply the

Rehabilitative Ideal to juveniles.

This concept owed much of its

existence to the Victorian ideal of

childhood as a special period in

life that requires extra protection

from the harsh realities of the

adult world. In some measure,

however, the concept is also a

reaction to the world of the early

19th century in which there was

considerably less tolerance for the

misdirection of youth. Stoking the

wrath of reformist organizations

such as the Society for the

Prevention of Juvenile

Delinquency were cases like State

v. Guild, a New Jersey court

opinion published in 1828. It tells

of a 12-year-old boy named James

Guild, on trial for killing a woman

named Catherine Beakes. He was

found guilty and subsequently

executed by hanging.22

The Illinois juvenile court of 1899

embraced the British doctrine of

parens patriae (the State as

parent). States became overseers

of children whose natural parents

had failed to carry out their

supervisory responsibilities. The

juvenile court was there not to

punish the child, but to serve a

benevolent role.23 The U.S.

Supreme Court in 1967

summarized it this way: “The

early conception of the Juvenile

Court proceeding was one in

which a fatherly judge touches the

heart and conscience of the erring

youth by talking over his

problems, by paternal advice and

admonition and in which in

extreme situations, benevolent and

 22Ibid., p. 142.

23Juvenile Offenders and Victims

Report, p.70, supra note 6.

wise institutions of the State

provided guidance and help, to

save him from a downward

career.”24

By 1910, a total of 32 States had

followed Illinois’ lead in

establishing either juvenile courts

or juvenile probation services. By

1925, there were only two States

that had not gone this route. 25 The

reform-minded legal thinkers and

courts of this era were guided by

two bedrock principles. First,

juveniles lack the mens rea

(criminal intent) necessary under

law to establish criminal

culpability and, no matter how

dastardly the crime they may have

committed, juveniles can be

treated, rehabilitated and

reformed. The second principle

flowed logically from the first:

Impressionable, malleable

children, not yet hardened to the

criminal way of life, were not

truly responsible for their actions

in the same way adults would be

had they committed the crimes at

issue. Youthful wrongs, therefore,

should not condemn a child to the

same lengthy, numbing process of

punishment that an adult in similar

circumstances would face. 26

 24In re Gault, 387 U.S. 1, 25-26

(1967). 25Janet E. Ainsworth, Re-imaging

Childhood and Reconstructing the

Legal Order: The Case for Abolishing

the Juvenile Court, 69 N.C. L. REV.

1083, 1096-97 (1991). By 1945, every

State had a juvenile court. Edmund F.

McGarrell, Juvenile Correctional

Reform, Two Decades of Policy and

Procedural Change (Albany: State

University of New York Press, 1988)

p. 6.26Joseph J. Senna and Larry J.

Siegel, Juvenile Law — Cases and

Comments (St. Paul, Minn.: West

Publishing Co., 1976) pp. 2-3.
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 7

Juvenile judges were not to be tied

down to some rigid formula of

fitting punishment to crime. In a

less formal way, the benevolent

court could fashion a solution to a

juvenile’s individual

circumstances, combining legal

and extra-legal methods of

addressing the problems at hand.

Since this was not an adversarial

system, the constitutional

guarantee of due process was

thought to be out of place.

Treatment plans could consist of

differing mixes of probation and

“training schools.” But first and

foremost, dispositions were

always to be tailored to “the best

interests of the child.” A child

eventually would either be

reformed or lapse into the adult

criminal justice system, where the

clock essentially would be reset to

zero.

The juvenile justice recordkeeping

system at this stage closely

paralleled the predominant

philosophy of shielding the child.

Confidentiality became paramount

precisely because nonculpable

juveniles could not and should not

be branded for life with crimes for

which they were not truly guilty.

Also, children had little chance of

rehabilitation if their names and

misdeeds were exposed to public

ridicule. A law review

commentary in 1909 stressed that

the importance of confidentiality

was, “To get away from the notion

that the child is to be dealt with as

a criminal; to save it from the

brand of criminality, the brand that

sticks to it for life; to take it in

hand and instead of first

stigmatizing and then reforming it,

to protect it from the stigma —

this is the work which is now

being accomplished (by the

juvenile court).” 27

 27Mack, The Juvenile Court, 23

Harv. L. REV. 104, 109 (1909).

An entire set of euphemisms grew

up around the notion of protecting

children, not prosecuting them.

Police never arrest juveniles; they

are “taken into custody.”

Authorities “refer” juveniles to

juvenile court, never book or

arraign them.

The treatment model as a concept

of juvenile justice prevailed more

or less through the 1950s. By then,

a number of factors were

combining to change the picture.

News accounts of juvenile gangs

and Hollywood’s spotlighting of

“J.D.s” in films like “Rebel

Without a Cause” and

“Blackboard Jungle” left many

people wondering whether all

juveniles could be rehabilitated.

“Gang-style ferocity — once the

evil domain of hardened adult

criminals — now enters chiefly in

cliques of teen-age brigands. Their

individual and gang exploits rival

the savagery of veteran

desperadoes of bygone days,” said

no less an authority than FBI

Director J. Edgar Hoover in

1957. 28 More importantly, the

frequency and severity of juvenile

crime eroded confidence in the

belief that juveniles lacked the

criminal culpability necessary to

be judged “guilty” of crimes. At

the same time, persistent and

severe recidivism associated with

the most serious juvenile offenders

undermined faith in the belief that

juveniles are promising candidates

for rehabilitation.

In 1966, the U.S. Supreme Court

effectively abandoned the idea that

juvenile courts were friendly and

informal sources of counseling for

wayward juveniles. In Kent v.

United States, the Nation’s highest

 28FBI Law Enforcement Bulletin,

February 1957, 26, quoted in Privacy

and Juvenile Justice Records Report,

supra, note 1, p. 17 [hereafter FBI

Law Enforcement Bulletin].

court said juveniles are entitled to

much the same adversarial-type

system of due process that is

standard in adult criminal courts.

This benchmark case involved a

16-year-old accused of forcible

entry, robbery and rape. The

juvenile judge issued a waiver to

adult court without ruling on a

jurisdictional motion by the 16-

year-old’s lawyer. The Supreme

Court said that, “While there can

be no doubt of the original

laudable purpose of juvenile

courts, studies and critiques in

recent years raise serious

questions as to whether actual

performance measures well

enough against theoretical purpose

to make tolerable the immunity of

the process from the reach of the

constitutional guaranties

applicable to adults.” 29

One year later, in 1967, the Court,

in In re Gault, took the Kent

rationale a step further. The Court

tossed out the doctrine of parens

patriae, ruling its history murky

and its constitutional underpinning

doubtful. The Court said that

juveniles are entitled to the four

basic elements of due process: the

right to notice, the right to

counsel, the right to question

witnesses and the right to

protection against selfincrimination. In re Gault also

challenged the importance of

juvenile record confidentiality.

“[T]he summary procedures of

Juvenile Courts are sometimes

defended by a statement that it is

the law’s policy ‘to hide youthful

errors from the full gaze of the

public and bury them in the

graveyard of the forgotten past.’

This claim of secrecy, however, is

more rhetoric than reality.” 30

 29Kent v. United States, 383 U.S.

541, 555 (1966). 30In re Gault, 387 U.S. 1, 24

(1967).
Page 8 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

Part III. The relationship between adult and juvenile courts

By the 1980s and 1990s, concern

about juvenile crime, including the

most violent strain of juvenile

crime — gang violence — led

away from reform of the juvenile

justice process and toward the

removal of whole classes of

juvenile crimes from the juvenile

justice system.

Massachusetts’ experience is

representative. On Halloween

night 1990, five youths under age

17 raped, stabbed and beat a girl to

death in Boston. The shocking

news reports that followed

prompted the State legislature to

enact amendments to the juvenile

code that made it easier to transfer

juveniles accused of murder to

adult court. For the first time,

juveniles accused of murder would

enter the legal arena with a

rebuttable presumption that they

were dangerous and unlikely

candidates for rehabilitation. With

this presumption in place, transfer

to the adult system was easier, but

the presumption was regularly

overcome. 31

The following year, an 11-yearold and a 15-year-old were gunned

down on the steps of an apartment

building in the Roxbury section of

Boston. The juvenile accused of

actually pulling the trigger evaded

transfer to adult court, even under

the beefed-up 1990 amendments.

This prompted a new wave of

legislation making transfers even

easier. The law that ultimately

emerged required transfer hearings

in eight categories of crimes

(including first- and second-

 31See, G. Martin, The Delinquent

and the Juvenile Court: Is There Still

a Place for Rehabilitation?, 25 CONN.

L. REV. 57, 61-63 (1992).

degree murder, armed burglary

and forcible rape of a child) and

expedited the timeline for

determining probable cause and

likelihood of rehabilitation.

Moreover, it imposed a mandatory

minimum sentence of 15 years for

juveniles guilty of murder who

manage to avoid transfer and stay

within the juvenile court system.

This provision guaranteed that any

juvenile found guilty of murder

would spend time in an adult

prison, at least once the juvenile

reached age 21.32

Today, every State provides for

the transfer of juveniles to adult

courts. 33 Transfer is accomplished

through three mechanisms: (1) a

discretionary decision by the

juvenile court judge (“judicial

waiver”); (2) a discretionary

decision by the prosecutor

(“prosecutorial discretion”); and

(3) automatic, statutory exclusion

of certain categories of juveniles

and crimes from the juvenile

courts and assignment to adult

criminal courts (“statutory

exclusion”). Although the trend to

process juveniles in adult courts is

 32Task Force on Juvenile Justice,

Reginald C. Lindsay, Chairman, The

Massachusetts Juvenile Justice System

of the 1990s: Re-thinking a National

Model, 21 NEW ENGLAND JOURNAL

ON CRIMINAL AND CIVIL

CONFINEMENT 339, 353-54 (1995). 33 The 1994 BJS National Survey

of Prosecutors found that of the

prosecutors’ offices handling juvenile

cases, 63% had transferred at least one

juvenile case to criminal court in

1994. U.S. Department of Justice,

Bureau of Justice Statistics, Juveniles

Prosecuted in State Criminal Courts:

Selected Findings, by Carol J.

DeFrances and Kevin J. Strom, NCJ

164265 (Washington, D.C.:

Government Printing Office, March

1997).

growing and receives substantial

media attention, it is important to

emphasize that the vast majority

of youths processed in court are

still processed in juvenile court.34

The 1992 reauthorization of the

Juvenile Justice and Delinquency

Prevention Act by the U.S.

Congress mandated that the

General Accounting Office (GAO)

study issues arising from the

transfer of juveniles from juvenile

court to criminal court.35 The

GAO report concludes that, “[I]n

recent years many States have

changed their laws to expand the

criteria under which juveniles may

be sent to criminal court.”36

Specifically, the GAO found that

since 1978, 44 States and the

 34In 1992, 2,800 or more juvenile

courts handled a load of 1,471,200

delinquency cases, up 26 percent from

1988. U.S. Department of Justice,

Office of Juvenile Justice and

Delinquency Prevention, Offenders in

Juvenile Court, 1992, OJJDP Update

on Statistics series, by Jeffrey A.

Butts, National Center for Juvenile

Justice (Washington, D.C.:

Government Printing Office, October

1994). Police departments arrested

nearly 2.3 million juveniles in 1992,

half below the age of 16. Juvenile

Offenders and Victims Report, p. 100,

supra note 6. Upon arrest, law

enforcement makes a decision as to

whether to push juveniles further into

the system or shunt them into

alternative programs. Of those not

bound over to adult court, police

referred about 60 percent to juvenile

courts and handled the remainder

internally. Ibid., p. 76-77. 35PUB. L. 102-586. The Juvenile

Justice Delinquency and Prevention

Act Amendments of 1992. 36U.S. General Accounting Office,

“Juvenile Justice: Juveniles Processed

in Criminal Court and Case

Dispositions,” GAO Report

(Washington, D.C.: Government

Printing Office, August 1995) pp. 2-3

[hereafter GAO Report].
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 9

District of Columbia have

amended their statutes that address

the circumstances under which

juveniles may be tried in criminal

court. The GAO found that in 24

States, these changes have

increased the population of

juveniles subject to transfer to

adult courts (primarily by

decreasing the age at which

juveniles may be transferred or by

increasing the number and types

of offenses subject to transfer); in

three States these changes have

decreased the population of

juveniles subject to transfer; and

in 17 States changes in the law

have neither increased nor

decreased the population subject

to transfer.37

The National Conference of State

Legislatures (NCSL) conducted a

review of 1995 legislative activity

with regard to juvenile justice

issues.38 An analysis of the NCSL

results makes clear that the States

are continuing to move quickly to

expand adult court jurisdiction

over juvenile offenders.

The most frequent legislative

change in 1995 expanded the

circumstances under which

juveniles are transferred

automatically to adult court

jurisdiction. That year, 11 States

— Delaware, Idaho, Indiana,

Iowa, Missouri, Nevada, New

Hampshire, North Dakota,

Oklahoma, Rhode Island and Utah

— amended their juvenile justice

laws to require, in certain

circumstances, transfer of

juveniles to adult courts. In all

likelihood, these changes reflected

legislative frustration at the

 37Ibid.

38National Conference of State

Legislatures, Children, Youth and

Family Issues: 1995 State Legislative

Summary (Denver, Colo.: National

Conference of State Legislatures,

1995) [hereafter NCSL Report].

persistent and severe level of

juvenile crime and a related

unwillingness to leave

jurisdictional decisions to the

discretion of prosecutors or

juvenile and family court judges.

Idaho, for example, amended its

law to require that juveniles

charged with arson or aggravated

arson be tried as adults.39 Indiana

took a global approach and now

requires adult jurisdiction over any

juvenile age 16 or older charged

with criminal conduct.40 Iowa

acted to exclude juvenile court

jurisdiction over juveniles age 16

or older who commit drug-related,

firearms or weapons offenses, as

well as certain gang activities and

“forcible felonies.” 41

Nevada now requires that a

juvenile age 16 or older who

commits a weapons offense, and

who has been previously

adjudicated delinquent for an

offense that would be a felony if

committed by an adult, be

transferred to adult court. 42

Oregon changed its law to

mandate that a child age 15 or

older charged with aggravated

murder be prosecuted as an

adult.43

In 1995, four States — Colorado,

Idaho, Louisiana and Minnesota

— changed their juvenile justice

law to expand the circumstances

under which prosecutors can opt

 391995 Idaho Sess. Laws, chap. 48;

and see, NCSL Report, p. 117, supra

note 38. 401995 Ind. Acts, chap. 269-1995;

and see, NCSL Report, p. 117, supra

note 38. 411995 Iowa Acts, chap. 191, §§ 8,

12, 54; and see, NCSL Report, p.118,

supra note 38. 421995 Nev. Stat., chap. 444, § 1,5;

and see, NCSL Report, p.118, supra

note 38. 431995 Or. Laws, chap. 422, §§ 47-

49, 58; and see, NCSL Report, p.119,

supra note 38.

to charge juveniles as adults.44

Seven States acted to expand the

circumstances under which

juvenile court judges could waive

jurisdiction and transfer a juvenile

case to adult courts: California,

Connecticut, Idaho, Louisiana,

Tennessee, Texas and West

Virginia. 45 In all of those States,

the legislature either lowered the

age at which a juvenile could be

waived to adult court (in some

States, such as Connecticut, to as

low as age 14), or expanded the

list of crimes subject to adult court

jurisdiction (such as Louisiana,

which added “aggravated

burglary” to the list of

“waiverable” offenses), or did

both. Texas, for example, lowered

the age to 14 for waiver of

juveniles accused of committing a

capital felony, an aggravated

controlled substance felony or a

first-degree felony. 46

Judicial waiver

Judicial waiver is the traditional

and still the most common form of

transfer to adult courts. Every

State, except Nebraska and New

York, permits judicial waiver.47

Over the last few years, the use of

judicial waiver has substantially

increased. In 1988, out of 569,596

delinquency cases brought before

juvenile judges nationwide, 7,005

were waived to criminal court — a

rate of 1.2 percent. By 1992,

juvenile judges were considering

743,673 cases and waiving 11,748

of those — a rate of 1.6 percent.

Not only did the total volume of

cases increase in the critical

timeframe of the past 8 years, but

 44NCSL Report, pp. 116-18, supra

note 38. 45Ibid., p. 116-19.

46Ibid.

47Juvenile Offenders and Victims

Report, p. 85, supra note 6.
Page 10 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

the percentage of those cases

going directly to adult court

increased as well. 48

Although judicial waiver has been

recognized since the 1920s, the

Supreme Court’s 1966 decision in

Kent v. United States formed the

basis for many States’ policies for

waiving juveniles. In Kent, the

Supreme Court stated that juvenile

court judges must consider the

seriousness of the offense;

protection of the community;

aggressiveness or premeditation of

the offense; prosecutive merit of

the complaint; past record of the

juvenile; and likelihood of the

rehabilitation of the juvenile when

making a waiver decision. 49 In

citing the juvenile’s past record as

a waiver criterion, the Supreme

Court made it that much more

important that juvenile records be

accurate and complete.

Many States have incorporated the

Kent factors into their codes.

Juvenile judges in Florida, for

instance, can waive a case

involving a juvenile age 14 or

older if the case meets these kinds

of criteria. In Maryland, the age

floor is 15 for any offense, with no

minimum for crimes punishable

by death or life imprisonment.50

While all of the Kent factors are

relevant in most States, and while

the juvenile’s prior history is

increasingly important, the age of

the juvenile remains the single

most important criterion. For

example, 42 States do not permit

the waiver of a juvenile to an adult

court if the juvenile is age 13 or

younger, regardless of the

presence of any other Kent

 48GAO Report, p. 10, supra note

36. 49Kent v. United States, 383 U.S.

541, 566-67 (emphasis added). 50GAO Report, p.13, supra note

36.

factors. 51 Many States also

combine age and severity of the

crime as the principal criteria for

authorizing juvenile waiver.52

Prosecutorial waiver

In many States, prosecutors can

also effectively transfer juveniles

by opting to file charges in adult

court. In these States, the juvenile

and criminal courts share

concurrent jurisdiction.

Prosecutorial transfer, like judicial

waiver, is customarily influenced

(and made possible) by the

juvenile’s age and the severity of

the crime. 53 Prosecutorial

discretion also mirrors judicial

waiver in taking the juvenile’s

prior record into account. Indeed,

recent research finds that

prosecutors are using juvenile

histories not only for charging

determinations but also in many

other aspects of criminal

proceedings.

In a 1992 survey of prosecutors

conducted by the Bureau of

Justice Statistics (BJS), for

instance, 77 percent of

respondents reported using

juvenile records in felony actions.

Prosecutors also reported using

juvenile records when filing

charges, at bail determinations, at

pretrial negotiations, during trial

and at sentencing. Most of the

time, prosecutors obtain juvenile

histories from local authorities (81

percent), but prosecutors also use

 51U.S. Department of Justice,

National Institute of Justice, State

Laws on Prosecutors’ and Judges’

Use of Juvenile Records, Research in

Brief series, by Neal Miller, Institute

for Law and Justice (Washington,

D.C.: Government Printing Office,

November 1995) p. 4 [hereafter

Miller]. 52Ibid.

53Juvenile Offenders and Victims

Report, p. 87, supra note 6.

State repositories (68 percent).

Only 39 percent of the prosecutors

responding to the survey,

however, reported obtaining

juvenile records from the FBI.54

Automatic transfer

based upon age

Although some transfer laws go

back to the 1920s and 1940s, State

legislatures were particularly

active beginning in the 1970s in

excluding whole categories of

serious crimes from juvenile

justice jurisdiction. In addition,

most States lowered the minimum

age for serious offenses. The GAO

report concludes that, “Our review

of State laws that exclude certain

juveniles from juvenile court

jurisdiction showed that the laws

primarily focused on serious,

violent offenses and/or juveniles

with prior court records.” 55 The

results have been dramatic. In

Illinois, for instance, the

legislature in 1982 moved to

exclude juveniles age 15 or older

charged with murder, armed

robbery or rape. This meant

juveniles in that category would

automatically go into the adult

system, with no discretion on the

part of either judge or prosecutor.

From 1975 to 1982, judges in

Cook County juvenile court

waived a modest 47 cases to adult

criminal court. In the first 2 years

following the new law, however,

criminal prosecutions of juveniles

more than tripled to a rate of 170 a

year, 151 of which were directly

attributable to exclusion.56

Many State statutes establish a

maximum age limit for juvenile

court jurisdiction in delinquency

 54Ibid., p. 125.

55GAO Report, p. 10, supra note

36. 56Ibid., p. 88-89.
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 11

matters that amounts to automatic

statutory transfer to adult courts

for those juveniles who exceed the

age limit. For example, in three

States — Connecticut, New York

and North Carolina — 15 is the

upper age of juvenile court

jurisdiction.57 Sixteen is the upper

age in eight States: Georgia,

Illinois, Louisiana, Massachusetts,

Michigan, Missouri, South

Carolina and Texas.58 Seventeen is

the upper age in 39 States and the

District of Columbia: Alabama,

Alaska, Arizona, Arkansas,

California, Colorado, Delaware,

Florida, Hawaii, Idaho, Indiana,

Iowa, Kansas, Kentucky, Maine,

Maryland, Minnesota, Mississippi,

Montana, Nebraska, Nevada, New

Hampshire, New Jersey, New

Mexico, North Dakota, Ohio,

Oklahoma, Oregon, Pennsylvania,

Rhode Island, South Dakota,

Tennessee, Utah, Vermont,

Virginia, Washington, West

Virginia, Wisconsin and

Wyoming.59

In some States, the upper age limit

is extended for certain classes of

juveniles, such as those who have

been neglected or abused

(Connecticut, Georgia, Illinois,

Louisiana, Minnesota, Missouri,

New York, North Carolina, South

Carolina and Vermont).60

Many States also specify the

youngest age at which a juvenile

 57National Center for Juvenile

Justice, “Upper Age of Juvenile

Jurisdiction Statutes Analysis,” 1990

Update, by Linda A. Szymanski

(Pittsburgh, Pa.: National Center for

Juvenile Justice, June 1991) p. 5

[hereafter 1990 Update]. 58Ibid.; and see, Juvenile Offenders

and Victims Report, p. 73, supra note

6. 591990 Update, pp. 5, 6, supra note

57; and see Juvenile Offenders and

Victims Report, p. 73 and pp. 88-89,

supra note 6. 601990 Update, pp. 6, 7, supra note

57.

may be transferred to adult court.

In Vermont, the minimum age is

10; in Montana, 12; and in

Georgia, Illinois and Mississippi,

13. 61 While 10, 12 or 13 seems, at

first blush, to be a remarkably

young age for transferring a

juvenile to an adult court,

practitioners know that 12- and

13-year-olds are often involved in

serious felonies. They also know

that these 12- and 13-year-olds

are, in many respects, still

children. An official at the

Circleville Youth Center in Ohio,

where boys convicted of serious

crimes are incarcerated, touched

on both of these phenomena: “We

have kids 12 and 13 years old. Just

the other day we had a 12-year-old

who had shot a man. He was so

little. I had to order special shoes

for him — size 3.” 62

In 16 States, the minimum age is

14: Alabama, Arkansas, Colorado,

Connecticut, Idaho, Iowa, Kansas,

Massachusetts, Minnesota,

Missouri, North Carolina, North

Dakota, Pennsylvania, Tennessee,

Utah and Wisconsin. 63 It is age 15

in eight States: Louisiana,

Michigan, New Mexico, Ohio,

Oregon, Texas, Virginia and

Washington. 64 And it is age 16 in

California, Hawaii and Nevada. 65

In many States, offenses and ages

are linked. In Montana, for

example, the minimum age for

transfer is 16 for negligent

 61National Center for Juvenile

Justice, Waiver/Transfer/Certification

of Juveniles to Criminal Court: Age

Restrictions — Crime Restrictions, by

Linda A. Szymanski (Pittsburgh, Pa.:

National Center for Juvenile Justice,

March 1991) p. 9 [hereafter Juvenile

Waiver Report]. And see, National

Center for Juvenile Justice, 1992

Update, May 1993. 62Washington Post, supra note 13. 63Juvenile Waiver Report, p. 9,

supra note 61. 64Ibid.

65Ibid.

homicide, but decreases to 12 for

deliberate homicide. 66 New Jersey

amended its juvenile code in 1982

to permit youths as young as 14 to

be tried as adults for murder,

kidnapping, sexual assault and

other violent crimes.67

On the other hand, many States do

not specify a minimum age for

transfer. In 16 States and the

District of Columbia, a juvenile

can be waived at any age: Alaska,

Arizona, Delaware, Florida,

Indiana, Kentucky, Maine,

Maryland, New Hampshire, New

Jersey, Oklahoma, Rhode Island,

South Carolina, South Dakota,

West Virginia and Wyoming.68

The Texas legislature recently

enacted a stiffer juvenile code,

scheduled to take effect in 1996,

which lowers from 15 to 14 the

minimum age of juveniles

transferable to adult court for

murder, serious drug offenses and

other crimes. It also expands the

list of mandatory sentences for

repeat offenders and those

convicted of murder, firearms

violations and other offenses. “It

used to be that the whole purpose

(of juvenile law) was to remove

the taint of criminality, but that

was when kids were committing

only 2 percent of overall crime,”

said State Rep. Leticia Van de

Putte of San Antonio, who served

on the committee drafting the

legislation. “Now it’s about 30

percent. So obviously, it’s time to

change gears.” 69

In early 1996, the Virginia

Legislature completed work on

new legislation that will

automatically transfer juveniles 14

 66Ibid., p. 13.

67Privacy and Juvenile Justice

Records Report, p. 23, supra note 1. 68Juvenile Waiver Report, p. 9,

supra note 61. 69San Antonio Express-News,

supra note 18.
Page 12 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

and older to adult court for serious

violent offenses. The new law will

also give prosecutors discretion to

try juveniles as adults when

charged with less serious

offenses. 70

Waiver and transfer

case law

Recent court cases reflect the

increased use of juvenile record

information in connection with

waiver to adult court. In

Pennsylvania v. Rush, for

example, the defendant appealed

his conviction in adult court of

aggravated assault, criminal

conspiracy, reckless

endangerment, possession of an

instrument of crime and a

violation of the Uniform Firearms

Act. One of his grounds for appeal

was that he had been improperly

certified for trial as an adult. 71

Pennsylvania’s Juvenile Act

provides that “[O]ne who is

fourteen years or older, who

commits a delinquent act that

would be a felony if committed by

an adult, may be tried as an adult,

if the court finds that he or she is

not amenable to treatment in the

juvenile system.”72 The burden of

proof to show that the statutory

prerequisite has been met falls on

the Commonwealth.73 Rush

asserted that the Commonwealth

did not meet its burden of proof at

the certification hearing because it

presented no live testimony and

relied only on notes of testimony

from the preliminary hearing, his

“J-file” and his school records. (A

“J-file” consists of arrest records,

 70“Sides Agree on Juvenile Bill,”

Washington Times, 1 February 1996,

p. C6. 71Pennsylvania v. Rush, 562 A.2d

285, 286 (Pa. 1989). 72Ibid., p. 286.

73Ibid., p. 287.

probation reports, psychiatric

reports and any other court records

pertaining to the juvenile. 74 ) The

Superior Court held that the

Commonwealth had indeed met its

burden of proof that Rush was

unamenable to rehabilitation. The

Pennsylvania Supreme Court

affirmed. 75

In Massachusetts v. Traylor,

76 the

Appeals Court of Massachusetts,

Suffolk County, affirmed the

District Court, West Roxbury

Division decision to transfer

Traylor (charged with

manslaughter and assault by

means of a dangerous weapon) to

adult court, even though experts

testified in the District Court trial

that Traylor was in fact amenable

to rehabilitation. The Appeals

Court cited a litany of prior crimes

committed by Traylor: at age 12,

assault, criminal trespass, burglary

and larceny; at age 14, burglary

and larceny; and at age 16, two

incidences of assault and battery,

and motor vehicle theft, armed

robbery and carrying a dangerous

weapon.

In 1990, the Supreme Court of

Vermont held that a trial court was

justified in taking a juvenile’s

record into account in denying the

transfer of the juvenile from

criminal court, where marijuana

charges had been filed, to juvenile

court.77 The record revealed

“habitual truancy, six

adjudications of delinquency

within two years of the most

recent arrest, continual curfew

violations, and his failure to attend

alcohol counseling sessions.”78

Citing State v. Jacobs, the court

 74Ibid., pp. 287-88 and note 2.

75Ibid., p. 288.

76563 N.E.2d 243, 244-45 (Mass.

App. Ct. 1990). 77In re R.D., 574 Ad.2d 160, 162

(Vt. 1990). 78Ibid.

stated, “[D]efendant’s juvenile

record was properly before the

court and clearly supported trial

court’s findings that transfer to

juvenile court was not feasible for

dealing with defendant.” 79

Federal case law also reflects the

increased use of juvenile records

in making waiver decisions. In

United States v. H.S., Jr., the U.S.

District Court, District of

Columbia, found that the transfer

to adult court of a 17-year-old boy

charged with cocaine possession

would be “in the interest of

justice” because the juvenile’s

prior history made it clear that he

could not be rehabilitated before

his 21st birthday.80 The court cited

the juvenile’s prior conviction of

possession with the intent to

distribute cocaine and also a

pending charge for carrying a

pistol without a license. It also

noted a lengthy record of 11

arrests, including arrests for

“possession with intent to

distribute cocaine, distribution of

cocaine, assault with intent to kill,

carrying a pistol without a license,

and unauthorized use of a

vehicle.” 81

In United States v. Porter, the U.S.

Court of Appeals, Eighth Circuit,

found that the District Court for

the Eastern District of Missouri

did not err in transferring a

juvenile to adult court, stating,

“Although he has had only one

delinquency adjudication ... he has

a history of assaultive behavior,

and property damage and stealing

offenses in foster homes and

residential treatment centers.” 82

 79Ibid., (citing State v. Jacobs, 472

A.2d 1247, 1250 (1984)). 80United States v. H.S., Jr., 717 F.

Supp. 911, 915-17 (1989). 81Ibid., p. 915.

82United States v. Porter, 831 F.2d

760, 767 (8th Cir. 1980). See also,

United States v. A.W.J., 804 F.2d 492,

493 (8th Cir. 1986).
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 13

Impact of waiver and

transfer upon juvenile

records

Not everyone in the juvenile

justice field agrees that waiver or

transfer to the adult system is

beneficial. Critics of the “get

tough” approach argue that more

punishment neither prevents

recidivism nor makes the streets

safer. “In its present overcrowded

and crisis-ridden condition, it is

doubtful that the adult system can

offer the juvenile offender much

more than confinement at best and

homosexual rape and other

brutality at worst,” said the

National Council on Crime and

Delinquency. 83

For better or worse, this sea of

change in juvenile justice is

expected to have a dramatic

impact on the nature and scope of

juvenile justice recordkeeping.

The effect may well be to improve

the quality of juvenile records and

systems and to make once

sacrosanct juvenile records more

widely available. The more

serious the crime, the older the

juvenile, the more mobile the

youths who commit them, the

greater the chance that one

jurisdiction’s police, courts and

social service agencies will have

to rely on records of counterparts

in other jurisdictions.

Transfer and waiver from juvenile

to adult court impacts upon

confidentiality in two ways. First,

in order to make many waiver

decisions, judges and prosecutors

need access to complete and

reliable juvenile records. Thus,

waiver decisions create pressures

to improve juvenile records. A

1992 BJS survey of prosecutors

found that half criticized the

 83Privacy and Juvenile Justice

Records Report, p. 24, supra note 1.

completeness of juvenile records. 84

As the juvenile record system is

upgraded in order to meet these

needs, juvenile record systems

become attractive to other types of

potential users, including

government agencies and

employers. Second, once a

juvenile is transferred to adult

court, the record of that

proceeding loses any protection as

a juvenile record and is treated as

an adult record.

Many welcome these information

system consequences. Relaxation

of confidentiality provisions is

“long overdue,” argued New York

University law professor Martin

Guggenheim. Similarly,

Massachusetts First Justice

Gordon A. Martin Jr. has said,

“[E]limination of juvenile

delinquency’s historic cloak of

confidentiality is essential to

rebuilding trust and dissipating the

fear that the closed juvenile

system fosters.” 85

Others are not so sure. James J.

Delaney, a juvenile and family

court judge from Brighton,

Colorado, acknowledged that

while a juvenile who steals a car

and wrecks it may not have the

same privacy right as a

nonoffender, “[W]e must address

the issue of juvenile records and

confidentiality with reason. There

must be a balancing of rights and

obligations, on the part of both the

juvenile and society.” 86

 84Juvenile Offenders and Victims

Report, p. 125, supra note 6. 85Gordon A. Martin Jr., Open the

Doors: A Judicial Call to End

Confidentiality in Delinquency

Proceedings, 21 NEW ENGLAND JOURNAL ON CRIMINAL AND CIVIL CONFINEMENT 393, 394-95 (1995), pp.

394-5 [hereafter Martin]. 86Guggenheim and Delaney,

quoted in Privacy and Juvenile Justice

Records Report, pp. 17-18, supra note

1.
Page 14 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

Part IV. Juvenile records: Disclosure and confidentiality

“Publicizing the names as well as

crimes for public scrutiny, releases

of past records to appropriate law

enforcement officials, and

fingerprinting for future

identification are all necessary

procedures in the war on flagrant

violators, regardless of age. Local

police and citizens have a right to

know the identities of the potential

threats to public order within their

communities.” 87 These words of J.

Edgar Hoover from 1957 are

prophetic when measured against

the modern-day trend to propel

juveniles accused of crimes into

the adult criminal justice system

and make records more widely

available for multiple uses.

Clearly, those who believe that

juvenile records are sacrosanct

find themselves bearing a heavier

burden in an effort to justify their

position. The opposite — easier

access — is in the ascendant

position as public alarm over

violent juvenile crime continues to

grow.

Access to juvenile law

enforcement and court

records by the adult

system

Statutes are less likely to regulate

access to juvenile law enforcement

records than to juvenile court

records.

Every jurisdiction provides for at

least some degree of access to

juvenile court records. Criminal

court access to juvenile records is

easily the most common type of

access. Indeed, adult court access

to juvenile records of adult

 87FBI Law Enforcement Bulletin,

supra note 28.

defendants is permitted in every

State. In 48 States, this authority is

explicitly set forth in statute law. 88

A 1995 National Center for

Juvenile Justice survey found that

the following organizations and

agencies are customarily given

access to juvenile court records,

whether on a de jure or a de facto

basis:

• Institutions or agencies with

juvenile custody (37 States);

• Prosecutors (33 States);

• Juvenile court judges and

professional court staff (34

States);

• Law enforcement (26 States);

• Probation officers (26 States);

and

• Criminal court staff (24 States).

In addition, 29 States allow

inspection of records by the

juvenile; 30 States grant access to

the juvenile’s parents or guardian;

36 States allow the juvenile’s

attorney to look at records; and 24

States grant access to victims of

juveniles. Four States direct that

people deemed to be in danger

from a juvenile may have access

to the juvenile’s record or, at a

minimum, allow inspection of the

juvenile’s record. Twenty States

now permit school officials at

least limited access to information

concerning the juvenile’s name

and address, as well as disposition

of charges. 89

 88Miller, p. 3, supra note 51. 89Juvenile Offenders and Victims

Report, p. 83, supra note 6; and see,

NCSL Report, pp. 123-125, supra

note 38.

Adult courts are most apt to use

juvenile records in sentencing

determinations. Twenty-seven

States have adopted statutes that

prescribe the inclusion of a

juvenile record in a presentence

report or, at a minimum, authorize

the adult court to consider the

defendant’s juvenile record. 90 In

14 States, a juvenile record is

considered among the factors in

the State sentencing guidelines. As

a practical matter, this means that

the juvenile record is “counted” in

calculating the offender’s criminal

history score. 91

Roughly one-half of the States

expressly authorize prosecutors to

obtain access to juvenile records

for charging determinations. 92

Some States also allow access by

social welfare agencies, probation

and parole agencies, the military,

school authorities, the institution

to which the juvenile is confined,

the victim of the juvenile’s act,

researchers, criminal justice

agencies to which the juvenile has

applied for employment, and

“others as the court may determine

who have a legitimate interest in

the proceedings.” Some

jurisdictions permit access when

specifically authorized by the

court. Others specify the parties to

whom the record may be released

and, additionally, require a court

order. 93

 90Miller, p. 3, supra note 51. 91Ibid.

92Ibid.

93Juvenile Records and

Recordkeeping Systems Report, pp.

22-23, supra note 2.
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 15

The Criminal Justice Information

Systems Regulations (Department

of Justice Regulations), published

originally in 1976 by the Law

Enforcement Assistance

Administration (LEAA), also have

an impact on the disclosure of

juvenile records held by law

enforcement agencies. Any State

or local law enforcement agency

which has received funds from

LEAA for the collection, storage

or dissemination of criminal

history information is prohibited

from releasing juvenile records to

noncriminal justice agencies

unless this release is authorized by

a State or Federal statute, court

order, rule or decision, or unless

the release is to agencies

providing a service to the criminal

justice agency or to researchers. 94

In addition, it is increasingly

recognized that juvenile records

are a key factor in background

checks for critical security

clearance and hiring and

suitability determinations for law

enforcement, the military, day care

centers, schools and other

sensitive occupations and licenses.

North Dakota, for instance,

authorizes release of juvenile

records to the State Department of

Human Services when it is for

purposes of conducting a

background investigation of any

prospective employee of a group

home or facility under the

department’s domain.95

Federal law makes juvenile court

records confidential, subject to

seven important exceptions. 96 Six

of these exceptions apply to all

juvenile delinquency proceedings

occurring in Federal courts, and

require courts to release juvenile

 9428 C.F.R. § 20.21(d).

95N.D. CENT. CODE § 27-20-54

(1991); also, N.D. CENT. CODE § 27-

20-51 et seq. (Supp. 1995). 9618 U.S.C. § 5038(a).

court records in the following

circumstances:

• In response to inquiries

received from another court of

law;

• In response to inquiries

received from an agency

preparing a presentence report

for another court;

• In response to inquiries from

law enforcement agencies

where the request is related to

the investigation of a crime or a

position within that agency;

• In response to inquiries, in

writing, from the director of a

treatment agency or the director

of a facility to which the

juvenile has been committed by

a court;

• In response to inquiries from an

agency considering the person

for a position immediately and

directly affecting the national

security; and

• In response to inquiries from

any victim of such juvenile

delinquency or, if the victim is

deceased, from the immediate

family of such victim, relating

to the final disposition of such

juvenile.

The seventh exception applies to

chronic and serious juvenile

offenders over the age of 13, as

recently amended by the Crime

Control Act of 1994, and requires

that information relating to guilty

adjudications be transmitted to the

FBI. Once there, the FBI treats

this information in the same

manner as the FBI treats adult

conviction information.97

 9718 U.S.C. § 5038(f) as amended

by PUB. L. 103-322, 108 STAT. 2032,

September 13, 1994.

Some juvenile codes, such as the

one in Georgia, also include a

“national security” exception.98

Utah provides military recruiters

with juvenile record information,

provided they obtain a signed

release from the juvenile.

Otherwise, the inquiry is denied. 99

Illinois permits inspection of

juvenile records by “authorized

military personnel.” As is the case

in the Federal law, Illinois also

permits access to law enforcement

agencies doing employment

background checks on

applicants.100

Sealing and purging

Although sealing and purging

policies appear to be inconsistent

with the trend toward increasing

the availability of juvenile records,

sealing and purging retains

substantial support. In most States,

sealing and purging laws remain

on the books, frequently with little

change over the last decade. The

reason, no doubt, is that in most

States, sealing and purging is

available only for those juvenile

offenders who have demonstrated

some rehabilitation by establishing

a clean record period. Even today,

those juveniles who, after

committing one or two offenses,

establish a clean record period

represent the great majority of the

juvenile offender population.

Studies of the Philadelphia,

Arizona and Utah court systems

find that well under 50 percent of

youths who have contacts with the

police prior to their 18th birthday

have a multiple contact and, even

for youths who are referred to

 98GA. CODE ANN., §§ 15-11-20

through 15-11-65 (Michie Supp.

1995). 99UTAH CODE ANN. § 78-3a-44

(Supp. 1995). 100Ill. Legis. Serv. P.A. 89-377, §

10 (West).
Page 16 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

juvenile court, the Utah study

found that only 41 percent return

to juvenile court.101

All but two States govern by

statute the sealing and

expungement of juvenile records.

Sealing and expungement laws,

like other laws governing juvenile

justice records, are more likely to

apply to juvenile court records

than to law enforcement records.

In 21 States, the law calls for the

sealing of juvenile court records.

In 24 States, the law calls for

record expungement. In 40 States,

sealing and expungement is

discretionary with the court; in 8

States, it is mandatory.102 During

the 1995 legislative sessions, three

States amended their sealing and

expungement law: Connecticut

made expungement more difficult

by extending the time period that

must elapse from a juvenile

conviction before the record is

eligible for purging,103 and Idaho

and Wyoming spelled out new

criteria that must be met when a

juvenile petitions a court for

expungement.104

Where records may be sealed,

certain conditions must usually be

met, including a clean record

period, no subsequent convictions

or adjudications, no pending

proceedings, attainment of a

defined age, expiration of juvenile

court jurisdiction, satisfactory

outcome of the proceeding for

which the record was created, and

the type of offense. Expungement

guidelines are similar to sealing

 101Juvenile Offenders and Victims

Report, p. 49, supra note 6. 102Miller, p. 5, supra note 51. 1031995 Conn. Acts, P.A. 225; and

see, NCSL Report, p. 123, supra note

38. 1041995 Idaho Sess. Laws, chap.

277, § 9; 1995 Wyo. Sess. Laws, chap.

145; and see, NCSL Report, pp. 123,

125, supra note 38.

guidelines, but because of the

finality of expungement, court

orders are almost always required.

In most States, access to sealed

records is strictly regulated. Only

a few States do not address the

issue. In over 20 jurisdictions,

consent of the court is required. In

several States, the record may be

unsealed if the juvenile is

convicted of another crime or

adjudicated delinquent. In three

States, reopening of the record in

these circumstances is

automatic. 105 The courts have

made clear that there is not a

constitutional right to seal or

expunge juvenile records and that

a court may unseal records.

The Supreme Court of Nevada, for

example, held that the disclosure

in a news story of a former

juvenile offender’s hit-and-run

conviction, which resulted in the

death of a police officer, did not

result in an actionable tort because

publication was a legitimate

concern to the public. Even though

the incident occurred 20 years

before the story was published and

the records were sealed, the court

found that this disclosure was

“closely related to the subject

matter of the news story” and

stated, “The killing of police

officers is a subject of grave

public interest and, unfortunately,

was an item of current public

concern because of the recent

murder of a police officer.” 106

Under New York’s Family Court

Act, 107 a termination of a

delinquency proceeding results in

the automatic sealing of the record

unless the presentment agency can

demonstrate that the interests of

 105Miller, p. 5, supra note 51. 106Montesano v. Donrey Media

Group, 668 P.2d 1081, 1088 (Nev.

1983). 107§ 375.1(2)(f).

justice require otherwise. In the

case of In the Matter of Paul R., a

juvenile violated parole by not

residing with his father, as

instructed, and by being arrested

twice in another county while

waiting for a dispositional hearing

for unlawful possession of

weapons. The hearing was to take

place on December 13, 1988. He

did not appear until July 11, 1991,

when he voluntarily returned

himself on warrant. Because he

was then 19 years old, working

full-time and serving a term of

probation, the presentment agency

waived the hearing and dismissed

the delinquency proceeding.

However, the Family Court of

King’s County, New York,

declined to seal the juvenile’s

records because, “Sealing these

records would reward and

encourage such disrespect for the

court. The interests of justice will

be served by allowing the record

to remain unsealed.”108

Illustrative State laws

As noted, State laws regarding

disclosure and confidentiality

customarily address who can and

cannot have access, and they

contain exceptions and limitations

as well. In addition, most of the

laws spell out timetables for

sealing and expunging juvenile

records if a juvenile offender

reaches adulthood without

subsequent brushes with the law.

Some examples:

Alabama. Inspection of law

enforcement juvenile records is

permitted by juvenile courts,

officers of the State human

resources and youth services

departments, and “any other

 108In the Matter of Paul R., 573

N.Y.S.2d 858, 860 (N.Y. Fam. Ct.

1991).
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 17

person, agency or institution that

the juvenile court determines after

a hearing, to have a legitimate

interest in the case or in the work

of the law enforcement agency.”

Juveniles themselves must move

to seal records. Courts will seal

records if 2 years have passed

without any criminal conviction or

other adjudication of delinquency.

Any inquiry about the existence of

such records may rightfully draw

the answer “no record exists.” The

sealing order is nullified if there is

a subsequent conviction or

delinquency adjudication. A

juvenile meeting these conditions

may move to expunge records at

age 23. Physical and identifying

information may be entered into

local, State and national criminal

justice information systems.109

Arkansas. Delinquency records of

crimes for which the juvenile

could have been tried as an adult

are to be made available to

prosecutors for sentencing if the

juvenile subsequently is tried as an

adult, or to determine if the

juvenile should be tried as an

adult. Records of serious crimes

are to be kept 10 years after the

last adjudication as a juvenile or

finding of guilt as an adult. Other

juvenile records may be expunged

at any time or when the juvenile

reaches age 21. Prosecutors or

juvenile courts may disclose

information to the victim or

victim’s next of kin and the

juvenile’s school

superintendent.110

 109ALA. CODE §§ 12-15-100

through 12-15-103 (1995). 110ARK. CODE ANN. §§ 9-27-309;

9-27-352 (Michie Adv. Code Service

March 1995). Also, ARK. CODE § 9-

27-352 (Michie 1993).

California. Juveniles may petition

for sealing of all records after age

18 or 5 years after the juvenile

was last required to go to a

probation officer. Prosecutors and

probation officers are to be

notified and given an opportunity

to testify at a hearing on the

petition. Records are to be

destroyed 5 years after sealing,

unless the court determines “good

cause” exists to maintain them.

Copies of juvenile records are to

be filed at the school the juvenile

is attending in order to better

understand the juvenile and

protect school employees. In 1995,

the California Legislature

expanded the list of who has

access to include prosecutors,

police, judges, probation officers,

child protective agencies, the

juveniles themselves and their

parents and lawyers. The intent,

the legislature said, is to, “promote

more effective communication

among juvenile courts, law

enforcement agencies and schools

to ensure the rehabilitation of

juvenile criminal offenders.”111

Florida. Delinquency records are

kept until the offender reaches age

24, or 26 if the juvenile is a

“serious or habitual delinquent

child,” or until 3 years after the

child’s death (whichever is first).

Records may then be destroyed,

unless the juvenile committed a

serious felony-type crime. Those

records are sealed. Records may

be inspected by the juvenile, the

juvenile’s parents or guardian or

lawyer, law enforcement, the State

 111CAL. WELF. & INST. CODE § 389

(West Supp. 1995). Also, CAL. WELF.

& INST. CODE § 389 (West 1984) and

§ 781 (West Supp. 1995); 1995 Cal.

Legis. Serv. ch. 71, § 1 (West); CAL.

WELF. & INST. CODE § 827.5 et seq.

(West Supp. 1995); CAL. WELF. &

INST. CODE § 825 et seq. (West 1984);

CAL. PENAL CODE § 851.8 (West

Supp. 1995); and C AL. PENAL CODE,

§§ 851.7-8 (West 1985).

Department of Juvenile Justice

and its designees, the Parole

Commission and the Department

of Corrections. Law enforcement

may release the name, address and

photograph of a juvenile arrested

for a crime that would be a felony

if committed by an adult, or three

or more adult-level

misdemeanors.112

Georgia. Court records are open

to juvenile courts, lawyers for

parties to the proceedings,

institutions or agencies with

custody of the juvenile, law

enforcement officers “when

necessary for the discharge of

their official duties,” officials

preparing presentence reports,

penal institutions and parole

boards. Court records may be

reviewed by school officials with

permission of a juvenile judge.

Records are sealed 2 years after

the juvenile’s final discharge,

provided the juvenile’s subsequent

record is clean. Records may be

destroyed 10 years after discharge,

but must be maintained

permanently if parental rights to a

child have been terminated. 113

Nevada. Records are available

only through court order to

“persons having a legitimate

interest” in a particular juvenile

case. Nevada courts have

interpreted this section liberally,

saying it is up to the judge to

balance the needs of the juvenile

and the requesting party. Release

without a court order is limited to

records of traffic violations, which

are transferred to the State motor

 1121995 Fla. Sess. Law Serv. ch.

95-147, § 1344 (West) and ch. 95-418,

§ 117 (West). Also, FLA. STAT. ANN.

§ 39.045 (West Supp. 1995). 113GA. CODE ANN. §§ 15-11-20

through 15-11-65 (Michie Supp.

1995). Also, GA. RULES OF CT. ANN.,

Uniform Rules for the Juvenile Courts

of Georgia, § 3 (1996 and Supp.

1996).
Page 18 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

vehicles bureau, and records

required by probation officers for

the preparation of presentence

reports. Juveniles may petition the

court for the sealing of all records

(except those that are trafficrelated) 3 years after the last

juvenile court referral or

expiration of the court’s

jurisdiction. Prosecutors and

probation officers have an

opportunity to contest the sealing.

All records are sealed

automatically when the juvenile

reaches age 24. All sealed records

are to be treated as though they

never existed, but courts under

certain circumstances still may

review them.114

New Hampshire. Records are to

be “withheld from public

inspection,” but open to

institutions where the juvenile is

in custody, juvenile service

officers, parents, guardians, the

juvenile’s lawyer and “others

entrusted with the corrective

treatment of the minor.”

Additional access may be granted

with written consent of the

juvenile. Once a juvenile reaches

19, all police and court records

will be sealed and placed in an

“inactive” file. Courts may grant

victims access to information on a

juvenile’s name, age, address and

custody status, as well as pertinent

information on court proceedings

and final disposition. Victims also

are to be informed of changes in

the juvenile’s status in relation to

the courts or juvenile detention

facilities. Victims are to receive

notices of termination of court

jurisdiction and “any information

concerning the minor’s intended

residence.” 115

 114NEV. REV. STAT. ANN. § 62-360

(Michie Supp. 1993). Also, NEV. REV.

STAT. ANN. §§ 62-370 and 62-380

(Michie 1986). 115N.H. REV. STAT. ANN. § 169-

B:35 et seq. (1994); also, N.H. REV.

North Dakota. Juvenile court

records are closed to all but

juvenile judges and court staff,

parties to the proceeding or their

lawyers, agencies supervising the

juvenile, professionals preparing

presentencing reports, staff of the

crime victims compensation

program and police in certain

circumstances. A juvenile judge

may grant access to all persons

who show in writing “a legitimate

interest in a proceeding or in the

work of the juvenile court, but

only to the extent necessary to

respond to the legitimate interest.”

High school principals also can

obtain access with a judge’s

permission. Names of juveniles

may be disclosed upon a second or

third adjudication of delinquency,

depending on the seriousness of

the crimes. The same rules of

access generally govern police

juvenile records, except other law

enforcement agencies are

permitted wider latitude than in

the case of court records.116

Oklahoma. Juvenile police and

court records are generally closed,

except for the following: in traffic

cases; in cases in which a juvenile

has a previous record and is then

adjudicated delinquent after July

1, 1995; or in cases in which a

juvenile is adjudicated delinquent

for a crime that would be a felony

if committed by an adult. In

addition, records are open to

inspection without court order to

judges, court staff, State review

boards, prosecutors, police, State

legal and social service agencies,

the juvenile and the juvenile’s

parents, guardians or lawyer,

Federally recognized Indian tribes,

the governor, any official in the

U.S. Department of Health and

 STAT. ANN. §§ 62.370 and 62.380

(Michie 1986). 116N.D. CENT. CODE § 27-20-54

(1991); also, N.D. CENT. CODE § 27-

20-51 et seq. (Supp. 1995).

Human Services, and the chairman

of any State legislative committee

issuing subpoenas for the records.

Records are to be sealed 1 year

after closure of a case or discharge

by juvenile authorities, provided

the juvenile has maintained a

clean record in the interim. Any

record not unsealed after 10 years

is to be obliterated. 117

Utah. Court records may be

inspected by social service

agencies with custody, parents,

guardians, lawyers or officials

doing background checks for

concealed weapons permits.

Juveniles themselves, persons

having a “legitimate interest in the

proceedings,” and researchers may

be granted access by court order.

In cases of juveniles over age 16

charged with crimes that would be

felonies if committed by adults,

the court will release petitions,

adjudication or disposition orders,

and summaries of delinquency

records. Juveniles may petition the

court for expungement 1 year after

release from detention or 1 year

after termination of the juvenile

court’s jurisdiction. Records are to

be expunged if the juvenile has not

been convicted of a crime in the

meantime and no felony or

misdemeanor charge is pending. If

a judge grants the petition,

photographs and other records are

to be destroyed, but fingerprints

must be preserved.118

 117OKLA. STAT. ANN., § 7307.1.1 et

seq. (West Supp. 1996). 118UTAH CODE ANN. § 78-3a-44

(Supp. 1995); also, UTAH CODE ANN.

§§ 78-3a-55 and 78-3a-56 (Supp.

1995); also, UTAH COURT RULES

ANN., Judicial Council Rules of

Judicial Administration, Rules 7-203,

7-308 (1995 & Supp. 1995).
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 19

1995 legislative activity

— State activity

The 1995 legislative sessions were

marked by successful efforts in

many States to expand access to

juvenile court records by school

authorities; by victims; by various

State agencies; and, in one State,

Missouri, by the adult courts. In

1995, legislatures in Connecticut,

Georgia, Idaho, Maryland,

Missouri, Texas, Virginia and

Washington gave schools express

access to juvenile records.

Georgia, for example, requires

written notice to school

superintendents when a juvenile is

subject to an adjudicative hearing

for a crime that would be a felony

if involving an adult or where the

juvenile has previously been

adjudicated delinquent.119

Maryland amended its law to

require notification of school

superintendents of certain kinds of

juvenile court records and juvenile

law enforcement records regarding

enrollees. 120 Virginia’s new law

requires that school

superintendents be notified when

delinquency petitions for certain

kinds of serious offenses are filed

in juvenile court.121 In all of these

States except Washington,

redisclosure of juvenile records by

school officials is expressly

prohibited and punishable. In

Washington, the statute provides

immunity for school employees

who subsequently release juvenile

record information. 122

 1191995 Ga. Laws, Act 328; and

see, NCSL Report, p. 123, supra note

38. 1201995 Md. Laws, chap. 112; and

see, NCSL Report, p. 124, supra note

38. 1211995 Va. Acts, chap. 429; and

see, NCSL Report, p. 125, supra note

38. 1221995 Wash. Laws, chap. 324;

and see, NCSL Report, p. 125, supra

note 38.

Four States — Connecticut, North

Dakota, Utah and Virginia —

amended their laws in 1995 to

expand agency access to juvenile

records. North Dakota, for

example, now grants access to

juvenile court records to the State

Department of Human Services

(DHS) staff and to law

enforcement officers in order to

discharge their duties under the

National Child Protection Act.123

North Dakota also amended its

law to allow the DHS to review

juvenile court records for

background investigations of

employees in licensed facilities or

homes providing services to young

children.124 Utah amended its law

to give authorities access to an

applicant’s juvenile records when

the applicant seeks a concealed

weapons license. 125 Virginia

amended its law to permit

probation and pretrial service

officers to review the records of a

juvenile offender without first

obtaining a court order. 126

Finally, in 1995, Missouri

amended its criminal procedure

law to allow prior juvenile

adjudications to be used to

impeach the credibility of a

witness or defendant in a criminal

case. 127

 1231995 N.D. Sess. Laws, chap.

303; and see, NCSL Report, p. 124,

supra note 38. 1241995 N.D. Sess. Laws, chap.

304; and see, NCSL Report, p. 124,

supra note 38. 1251995 Utah Laws, chap. 286; and

see, NCSL Report, p. 125, supra note

38. 1261995 Va. Acts, chap. 430; and

see, NCSL Report, p.125, supra note

38. 1271995 Mo. Laws, H.B. 174, 325

and 326 amending § 491.078; and see,

NCSL Report, p. 124, supra note 38.

— Federal activity

Federal law on the release of

juvenile records is expected to

become more pro-disclosure and

less pro-confidentiality. On

September 15, 1995, Sen. John

Ashcroft (R-Missouri) introduced

S. 1245, the “Violent and HardCore Juvenile Offender Reform

Act of 1995.” The Bill mandates

that the Federal government and

the States (on pain of losing block

grant funds) create and maintain

juvenile records, regardless of age,

for all those tried for serious

crimes, including murder, rape,

armed robbery and drug

trafficking, and requires that the

records be available to law

enforcement, courts and schools.

Fingerprints and photos must be

forwarded to the FBI. Records of

all felonies committed by youths

age 14 or older would be subject

to similar procedures. The records

of juveniles judged delinquent in

two felony cases would be made

available to the public.128

In the House, Rep. Charles

Schumer (D-New York), long

thought to be a proponent of

juvenile record confidentiality,

introduced similar legislation in

December 1995. Schumer’s bill

would reduce Federal juvenile

justice grant funds to States which

fail to amend their laws to increase

juvenile record availability.129

Specifically, the bill would require

States to ensure that if a juvenile

court proceeding finds a juvenile

guilty of a crime that would be

“criminal” if committed by an

adult, a record is kept of the crime

 128S. 1245, 104th Congress, 1st

Session. Text of Ashcroft speech in

Congressional Record, 15 September

1995, S13656. See also, S. 1036

introduced by Senators Cohen (R-ME)

and Kohl (D-WI), which provides

special attention to gang-related and

violent juvenile crime. 129H.R. 2817, “Juvenile Records

Act of 1995.”
Page 20 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

similar to an adult record; retained

for the same period as the adult

record; and made available to law

enforcement and school officials

in the same way that an adult

record would be available.

Moreover, the juvenile must be

fingerprinted and photographed,

and the court must transmit the

record to the FBI.

The Ashcroft and Schumer bills

are illustrative of the emerging

bipartisan consensus that juvenile

records should be treated just like

adult records and should be

available in the same manner as

adult records.

Disclosure to the public

and the media

Juvenile law in many States

increasingly permits juvenile

record access by the media and the

public, or at least parts of the

public.130

To be sure, some of the court

opinions and State laws regarding

media and the juvenile justice

system touch on the question of

access to actual juvenile court

proceedings, not law enforcement

records. The U.S. Supreme Court

has affirmed the right of courts, in

general, and juvenile courts, in

particular, to close proceedings to

the press and public. But the Court

 130At least 17 States — including

Florida, Georgia, Illinois and Indiana,

for instance — explicitly permit

juvenile record access by researchers.

The hurdles imposed on researchers

often are considerable, but rarely

insurmountable. Indiana, for instance,

requires the person conducting the

research to convince a juvenile judge

that safeguards are adequate to protect

the identities of those whose records

are being reviewed. Georgia stipulates

that judges may impose whatever

conditions they deem proper on

researchers.

also has said that juvenile courts

cannot keep news organizations

from publishing or broadcasting

juvenile names and other

information once they obtain this

information. 131

— Legislative activity

Well over 30 States now allow

public release of a juvenile

offender’s name and sometimes

photographs, in some

circumstances. Those

circumstances customarily involve

violent or serious crimes or repeat

offenders.132 Mississippi actually

requires publication of the names

of repeat juvenile offenders and

their parents. Florida releases the

name and photograph of juveniles

charged with a felony or convicted

of three equivalent misdemeanors.

Petitions and orders in Tennessee

are open on juveniles age 14 and

older accused of murder, rape,

aggravated robbery or

kidnapping.133 Two States provide

not just for public access, but

expressly for media access. In

Illinois, media access requires a

court order, and in Wisconsin the

media enjoy access to juvenile

records but cannot disclose the

juvenile’s name.134 Maine permits

public access to juvenile

proceedings when youths are

charged with felonies. 135

Minnesota requires juvenile courts

to “open the hearings to the public

in delinquency or extended

jurisdiction juvenile proceedings”

involving felonies allegedly

 131Oklahoma Publishing Co. v.

District Court, 480 U.S. 308 (1977);

Smith v. Daily Mail Publishing Co.,

443 U.S. 97 (1979). 132Juvenile Offenders and Victims

Report, p. 83, supra note 6. 133Martin, pp. 404-405, supra note

85. 134Juvenile Offenders and Victims

Report, p. 93, supra note 6. 135ME. REV. STAT. ANN. tit. 15 §

3307 (West 1980).

committed by youths age 16 or

older at the time of the offense.136

In 1995 alone, legislatures in 10

States amended their juvenile

record law to permit public access

in certain circumstances:

Delaware, Georgia, Idaho, Iowa,

Louisiana, Missouri, North

Dakota, Utah, Virginia and West

Virginia. 137 In Delaware, for

example, a new law authorizes the

release of a child’s juvenile

record, as well as his name and

address and the parents’ names, in

the case of certain serious offenses

by recidivists.138 Georgia’s new

law provides for public access to a

juvenile hearing involving a

felony or where the juvenile has

previously been adjudicated

delinquent. 139

Idaho has perhaps gone further

than any other State and, effective

October 1, 1995, makes all

juvenile court records open to

public inspection unless there is a

court order forbidding it. In some

cases, social records are also

available. 140 Iowa now permits the

release of the name of a juvenile

alleged to have committed a

delinquent act which would be an

aggravated misdemeanor or felony

if committed by an adult. 141

Similarly, the new Louisiana law

permits the disclosure of juvenile

court records once a juvenile has

 136MINN. STAT. ANN. §

260.155(1)(c) (West Supp. 1995). 137NCSL Report, pp. 122-125,

supra note 38. 13870 Del. Laws, chap. 23; and see,

NCSL Report, p. 123, supra note 38. 1391995 Ga. Laws, Act. 328; and

see, NCSL Report, p. 123, supra note

38. 1401995 Idaho Sess. Laws, chap.

44, § 26; and see, NCSL Report, p.

123, supra note 38; and see further,

IDAHO CODE §§ 20-525 and 20-525A

(Michie Supp. 1995). 1411995 Iowa Acts, chap. 191; and

see, NCSL Report, p. 123, supra note

38.
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 21

been adjudicated delinquent for a

violent crime. In addition, the new

law requires that juvenile

proceedings involving an

adjudication for a violent crime be

open to the public.142 Utah’s new

statute allows public access to

juvenile court records when a

juvenile is age 16 or older and has

committed an offense that would

be an adult felony.143 Virginia’s

new law extends public disclosure

to children as young as age 14

when charged with a delinquent

act that, if committed by an adult,

would be considered an “act of

violence.” 144

In 1994-1995, Illinois amended its

juvenile record law not once, but

twice. Together, the new law

requires the release of a juvenile’s

name and address for certain very

serious felony convictions,

provided that the juvenile is at

least age 13 at the time of the

offense. Specifically, the new

Illinois law requires juvenile

courts to release the names and

addresses of juveniles if they are

adjudicated delinquent for:

• The furtherance of a felon

while a member of, or on

behalf of, a “criminal street

gang”;

• A felony act involving the use

of a firearm;

• Certain felonies or certain

repeat offenses involving

drugs; and

• Certain very serious felony

offenses.

 1421995 La. Acts, Act 1313; and

see, NCSL Report, p. 124, supra note

38. 1431995 Utah Laws, chap. 273; and

see, NCSL Report, p. 125, supra note

38. 1441995 Va. Acts, chap. 558 and

804; and see, NCSL Report, p. 125,

supra note 38.

— Judicial activity

Recent court opinions indicate that

many courts are increasingly

willing to give juvenile record

statutes a reading which promotes

public access to juvenile records.

In 1993, in a case involving a

Federal Freedom of Information

Act request for records of the

Morro Castle ship disaster of

1984, the U.S. Court of Appeals

for the Third Circuit ruled that

State juvenile records are not

covered by the confidentiality

provisions of the Federal law,145

and thus cannot be withheld under

Federal Freedom of Information

Act exemptions. 146

In two recent cases, one from the

Third Circuit and one from the

First Circuit, Federal appellate

panels ruled that the Federal law

making juvenile proceedings in

Federal courts confidential147 does

not impose a blanket ban on public

access to juvenile court

proceedings and records. Rather,

the courts said, Federal law gives

judges authority to regulate access

on a case-by-case basis.148

Other recent State court opinions

also illustrate that judges are

willing to be flexible in deciding

when a public requester is

deserving of access. When

Massachusetts, for instance,

toughened its juvenile code to

permit media access to

proceedings for juveniles accused

of murder (even when they were

younger than 14), the Supreme

Judicial Court of Massachusetts

found the change to be

constitutional. “A juvenile does

not have a fundamental due

 14518 U.S.C. § 5038. 146McDonnell v. U.S., 4 F.3d 1227

(3d Cir. 1993). 14718 U.S.C. § 5038. 148U.S. v. A.D., 28 F.3d 1353 (3d

Cir. 1994); U.S. v. Three Juveniles, 61

F.3d 86 (1st Cir. 1995).

process right to have the public

excluded from his transfer

hearing,” the court ruled.149 In

1988, for example, the Supreme

Court of Alabama ruled that an

insurance company had a

“legitimate interest” in inspecting

juvenile records of two youths

accused of deliberately setting a

fire.150 The Supreme Court of

Nevada in 1989 applied similar

logic in a case involving a juvenile

who hosted a wild drinking party

while his parents were on

vacation. A friend of the juvenile

accidentally killed himself with a

gun kept in the house and the dead

youth’s estate sued the juvenile’s

parents for civil damages. The

parents attempted to block

disclosure of their son’s juvenile

record, but the court ruled that

under Nevada law, the deceased’s

survivors had a “legitimate

interest” in the records.151

Of course, juvenile records can

still be sealed and expunged, but

with greater media attention and

access to juvenile justice matters,

chances are greater than in the past

that a sensational case may come

back to haunt the accused. The

Gina Grant story is a case in point.

In 1990 in Columbia, South

Carolina, Gina Grant, at age 14,

used a candlestick holder to kill

her abusive, alcoholic mother. For

First Amendment reasons, the

family court judge elected not to

bar the media from the

proceedings. Grant served 6

months in juvenile detention and

was released to live with relatives,

remaining out of public view until

her 18th birthday. Her records

were ordered sealed.

 149News Group Boston, Inc. v.

Commonwealth, 568 N.E.2d 600, 603

(Mass. 1991). 150Ex parte State Farm Fire & Cas.

Co. 529 So.2d 975 (Ala. 1988).

151Hickey v. Eighth Judicial

District Court, 782 P.2d 1336 (Nev.

1989).
Page 22 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

Grant went on with her life,

confident there was no way the

existence of the record could be

divulged to prospective

employers, colleges or

universities. She developed into an

honors student, was captain of the

tennis team and was accepted for

early admission to Harvard. Grant

answered in the negative a

question about past dismissals,

suspensions or probation at

school. But Grant allowed herself

to be featured in an admiring

Boston Globe portrait about

troubled youth growing up strong

and resilient. The reporter did not

know Grant had murdered her

mother. Inevitably, news clips

from her trial were sent to the

Boston Globe and Harvard, and

the resulting storm was featured

on ABC’s “Nightline” and the

New York Times editorial page.

Harvard rescinded her admission.

As columnist Ellen Goodman put

it, “Grant was never more than a

Nexis search away from

revelation.” 152

 152Goodman, “A Promising

Student, An Unclean Slate,” Boston

Globe , 16 April 1995, p. A7.
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 23

Part V. The juvenile record information system at mid-decade

Juvenile law

enforcement records

Almost invariably, a juvenile

arrest results in the creation of a

record within the police

department making the arrest.

Historically, police had wide

discretion in determining what

kinds of records they created and

maintained. The creation of a

record customarily depended on

variables, including the severity of

the crime, the juvenile’s record,

the juvenile’s attitude upon arrest,

and the police officer’s

background and attitude. A survey

of the New York Police

Department found that the

difference between the creation of

a record and no record often

depended on the interplay between

juvenile and police officer at the

time of arrest. 153

By 1988, most law enforcement

agencies in most States had

adopted the practice of assigning a

unique, statewide “tracking”

number to a juvenile at the time

that a juvenile record is created. 154

Increasingly, agencies also

photograph and fingerprint

juveniles. In most States, juvenile

photographing and fingerprinting

is governed by State law with

specific rules setting age

limitations, as well as rules for

forwarding of fingerprint records

to State repositories, and for

sealing and destruction.

Traditionally, photographs and

fingerprints were taken only for

more serious crimes likely to go

before a juvenile judge. Today,

 153Privacy and Juvenile Justice

Records Report, p. 30, supra note 1. 154Juvenile Records and

Recordkeeping Systems Report, p. 17,

supra note 2.

laws in 40 States expressly

authorize police to take

fingerprints when arresting a

juvenile. 155 Only two States,

Missouri and North Dakota, forbid

the fingerprinting of juveniles.156

In 22 States, statutes authorize

fingerprints in only those cases

where the arrest would have been

for a felony if committed by an

adult. In five States, fingerprinting

is authorized whether the offense

would have been a felony or a

misdemeanor. The statutes in 13

States do not link fingerprinting

authority to the type of crime.157

In 1995, several States amended

their laws to change and, with one

exception, expand the

circumstances under which

juveniles can be fingerprinted.

Connecticut, for example, now

authorizes law enforcement

agencies to make a description,

photograph and fingerprint of a

child of any age once the child is

charged with a felony.158 Idaho has

amended its law to require the

fingerprinting and photographing

of juvenile offenders taken into

detention. 159 Missouri now

requires law enforcement officials

to fingerprint juveniles arrested for

felonies.160 North Dakota also

revised its law regarding

fingerprinting and photographing

of juveniles to expand the

 155Miller, p.2, supra note 51. 156Ibid., pp. 3, 7. 157Ibid., p. 3. 1581995 Conn. Acts, P.A. 225; and

see, NCSL Report, p. 123, supra note

38. 1591995 Idaho Sess. Laws, chap.

49; and see, NCSL Report, p. 123,

supra note 38. 1601995 Mo. Laws, H.B. 174, 325

and 326 amending §§ 43.503, and

211.151; and see, NCSL Report, p.

124, supra note 38.

permissible circumstances. 161

Georgia, too, amended its law to

permit fingerprinting and

photographing of juveniles

charged with the adult equivalent

of a burglary or any other offense

where the adult court has

exclusive or concurrent

jurisdiction.162

Juvenile law enforcement records,

which historically have been

maintained on a disbursed and

local basis, are becoming

centralized on a statewide basis —

much as adult records became

centralized during the 1960s and

1970s. As of 1988, only 13 out of

the 50 State repositories

maintained juvenile record

information. 163 At present, statutes

in 27 States expressly authorize a

State central repository to collect

and maintain juvenile criminal

history data (juvenile arrest and

any disposition arising from a

juvenile or adult court).164 In four

of those States, the statute

authorizes the establishment of a

distinct State central juvenile

history repository. In the other 23

States, however, the authorization

for statewide, centralized

maintenance of a juvenile record

is directed to the adult State

central repository. In several other

States, the statute is silent or

references the maintenance of

juvenile records in a State central

repository. Five more States

 1611995 N.D. Laws, chap. 124, §§

9, 12, 16, 17, 18; and see NCSL

Report, p. 124, supra note 38. 1621995 Ga. Laws, Act 328; and

see, NCSL Report, p. 123, supra note

38. 163Juvenile Records and

Recordkeeping Systems Report, p. 17,

supra note 2. 164Miller, p. 3, supra note 51.
Page 24 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

authorize the central repository to

maintain only the fingerprint

record of juveniles who have been

arrested. In 1994, Georgia and

Iowa repealed statutes forbidding

the State central repository from

collecting and maintaining

juvenile record information. Also

in 1995, Florida repealed its law

prohibiting the creation, on a

statewide basis, of comprehensive

juvenile history records. 165 As of

1995, only five States still have

statutory provisions which

prohibit a State central repository

from maintaining a juvenile

record.

In 1995, four States took

legislative action addressing the

centralization of juvenile justice

records:

• Alaska established a DNA

registry to contain DNA

samples drawn from juveniles

age 16 or older and adjudicated

delinquent for an offense that

would be a felony if committed

by an adult;166

• Iowa’s legislature took action

to include juvenile adjudication

information for aggravated

misdemeanors or felonies in the

adult rap sheet maintained by

the State central criminal

history repository; 167

• Minnesota’s legislature called

for the preparation of a report

regarding the creation of a

separate information and

tracking system for juvenile

justice information; 168 and

• Texas amended its law to

require the Department of

 165Ibid. 1661995 Alaska Sess. Laws, chap.

10; and see, NCSL Report, p. 122,

supra note 38. 1671995 Iowa Acts, chap. 191

amending § 14-17, 46; and see, NCSL

Report, p. 123, supra note 38. 1681995 Minn. Laws, chap. 259,

Art. 1, § 57; and see, NCSL Report, p.

124, supra note 38.

Public Safety to establish and

maintain a statewide juvenile

justice information system. 169

Federal events parallel State

developments. As noted earlier,

the Federal juvenile records

confidentiality law requires that

when a juvenile is found guilty of

an act that would be a felony

crime of violence if committed by

an adult, the juvenile must be

photographed and fingerprinted.170

The same statute also provides

that if the juvenile has twice been

adjudicated for a felony or if the

juvenile is 13 or older and has

been convicted of a felony crime

of violence with a firearm, then

the Federal court must transmit to

the FBI the juvenile court record

along with the fingerprints. 171

In a related development, on July

15, 1992, the FBI published a final

rule reversing decades of prior

policy and authorizing the FBI to

receive juvenile records from the

States regarding serious offenses

and to maintain those records in

the FBI’s national criminal history

system. Furthermore, the FBI

announced that the rules for

disseminating juvenile criminal

history data, once in the FBI

database, would be the same as

applies to the dissemination of

adult criminal history information.

States may choose whether to

submit juvenile record information

to the FBI. To date, very few

States provide very little juvenile

record information to the Bureau.

The reason for the States’ lack of

enthusiasm, however, may have

more to do with the cost and

 1691995 Tex. Gen. Laws, chap.

262; and see, NCSL Report, p. 125,

supra note 38. 17018 U.S.C. § 5038. 17118 U.S.C. § 5038(d) and 5038(f)

as amended by P UB. L. 103-322,

September 13, 1994.

administrative difficulty of

submitting juvenile records and

less to do with privacy concerns.

The extent of automation of

juvenile criminal history and

fingerprint records varies greatly

from jurisdiction to jurisdiction. A

1988 survey found that

approximately 41 percent of

agencies had automated their

juvenile records. 172 Today, that

figure is higher, but no recent

survey information is available. In

addition, many agencies are

incorporating juvenile prints in

adult systems. For example, the

City of San Francisco automates

the fingerprints of all juveniles

arrested for felony-equivalent

offenses or second-degree

misdemeanors in its Automated

Fingerprint Identification System.

Juvenile court records

The local prosecutor’s office or

juvenile probation department act

as “intake” officers for the

juvenile court. About half the

cases that pass through their hands

are resolved informally with no

court intervention whatsoever.

Often juveniles and their families

come to some kind of agreement

about restitution, school

attendance, curfew or drug

counseling. Monitoring

compliance becomes the

responsibility of the juvenile

probation officer. Success in

following the conditions usually

leads to dismissal. Failure may

lead to formal prosecution. 173

Virtually every State has laws

requiring that upon referral to a

juvenile court, records be created

 172Juvenile Records and

Recordkeeping Systems Report, p. 19,

supra note 2. 173Juvenile Offenders and Victims

Report, p. 77, supra note 6.
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 25

and maintained. Most juvenile

courts assign each offender a

unique number. This number,

however, does not always

correlate to the offender’s law

enforcement agency number. Most

States separate juvenile records at

this stage into two categories:

legal and social.

Legal records include the type of

documents one would expect to be

recorded in an adult court

proceeding. There is a petition,

usually stating the juvenile’s age

and address, the names of the

juvenile’s parents and guardians,

and a narrative of the offense. In

addition, there are the usual

summonses, notices, lawyers’

motions and court findings,

judgments and orders. 174

Social records include information

collected about the juvenile’s

family background, any medical

or mental health tests or

examinations administered, and

any other information gathered by

social workers. These records

range over much broader territory

than court records; thus, they are

generally accorded a higher degree

of confidentiality. Typically, a

court order is required for anyone

seeking access to these other than

the juvenile, the juvenile’s

lawyers, or court and rehabilitative

personnel.175

Typically it is the State-run youth

and family services agency that

binds the disparate local juvenile

justice systems together. In

Florida, for instance, the

Department of Health and

Rehabilitative Services (DHRS)

includes an assistant secretarylevel office for programs, one of

which is Children, Youth and

 174Privacy and Juvenile Justice

Records Report, pp. 36-37, supra note

1. 175Ibid.

Families. The office is involved in

virtually all aspects of any legal

proceeding as the juvenile’s case

moves through the system,

including detention, probation and

parole, and alternative programs.

Of course, statewide law

enforcement agencies, including

the Florida Department of Law

Enforcement (FDLE), the State

Court Administrator’s Office and

the Florida Department of

Corrections, are involved as well.

The FDLE receives fingerprint

and photo cards on juveniles

determined by the court to have

committed crimes that would be

felonies if carried out by an adult.

The file also contains the

juvenile’s name, address, date of

birth, sex and race — far from the

entire record. However, field units

of the State DHRS maintain a

Client Information System that

keeps a “copy of record” of each

social service contact generated as

juveniles move through the

evaluative and rehabilitative side

of the system. Among the records

kept are social workers’

assessments, psychological

evaluations, school and medical

notes, and narratives. At the end of

the line, the file is put in storage at

the local unit that last dealt with

the juvenile.

With a large mobile population

that includes migrant farmworking

families, Florida, in 1982, set up

the Dependency and Delinquency

Referral Subsystem, which is online 24 hours a day. Each instance

of child abuse, juvenile

delinquency and status offense is

entered into the system, searchable

by name, alias and social security

number. Delinquency intake

officers feed information into the

database and more data are

entered as the juvenile goes

through the system. Thus, in one

automated file, a juvenile’s entire

history within the system is

accessible.176

Utah maintains a statewide

Juvenile Justice Information

System, which puts court dockets,

summonses, hearing notices, rap

sheets and intake cover sheets at

the fingertips of any law

enforcement or court officer. It is

regularly updated and corrected as

youths move through the system.

It is organized around an

identifying number that stays with

the juvenile regardless of the path

taken through the police, court and

social service network. Since

1983, police have had access to

the statewide hookup to check

court records, warrants, pick-up

orders and, since 1988, complete

rap sheets. The only limitations

are that record checks should be

conducted in connection with an

arrest or as part of an official

investigation and the printing of

hard copies is prohibited.177

 176Susan K. Chase, “Florida’s

Client Information System,” in

Juvenile and Adult Records

Proceedings, pp. 62-64, supra note 4. 177Michael R. Phillips, “A State

Index of Juvenile Records,” in

Juvenile and Adult Records

Proceedings, pp. 67-69, supra note 4.
Page 26 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

In Maricopa County, Arizona, the

Juvenile Court Center has an

integrated data and word

processing system which serves

the county attorney, public

defender and court clerk. These

records are shared in turn with law

enforcement personnel and the

adult probation department.

Requests for information from law

enforcement officers alone

number over 100 per day.178

Most jurisdictions, however, still

maintain juvenile records in a

disparate fashion, and there is little

consistency from one State to the

next. As of 1988, only about 25

percent of the States had fully

automated juvenile court records

and only another 25 percent had

partially automated juvenile court

records. 179 Howard Snyder of the

National Center for Juvenile

Justice, the research division of

the National Council of Juvenile

and Family Court Judges, has

promoted the concept of a juvenile

record database similar to one in

existence for statistical juvenile

court records, the National

Juvenile Court Data Archive. This

archive collects original data from

jurisdictions nationwide and

converts it to a uniform structure

via specialized software. Snyder

argues the information would be

comprehensive, accurate and

timely because jurisdictions would

submit it as they use it and thus

have a “personal stake in its

accuracy,” and also because it

does not require a significant

amount of extra work. 180

 178Ernesto Garcia, “An Integrated

County Court System,” in Juvenile

and Adult Records Proceedings, p. 65,

supra note 4. 179Juvenile Records and

Recordkeeping Systems Report, p. 19,

supra note 2. 180Howard N. Snyder, “Thoughts

on the Development of and Access to

an Automated Juvenile History

System,” in Juvenile and Adult

“This approach accepts the reality

of Federal, State and local funding

patterns and turf conflicts. In

addition, the design recognizes the

reality that law enforcement and

court personnel will not maintain

an external reporting system with

the same sense of ownership and

the same care for accuracy that

they have for their own primary

recordkeeping,” Snyder said.181

Clearly, however, development of

recordkeeping systems must

proceed further before this kind of

database becomes feasible. A

1988 survey of more than 500

police departments and juvenile

judges showed a widespread

dissatisfaction with the quality of

juvenile records. Less than half the

law enforcement agencies

responding said they had a way of

finding the court disposition of

juvenile cases in their own

jurisdictions. Juvenile disposition

reporting to State repositories is

low — well under 50 percent as a

national average. Other survey

respondents said that even though

getting the information was no

problem, manpower shortages

made the task of inputting the

information a near

impossibility. 182

One record, one

system?

With more interplay between the

juvenile and adult justice systems

than ever before, pressure grows

to interconnect the two

recordkeeping systems — either

by integrating juvenile record

 Records Proceedings, pp. 53-56, supra

note 4 [hereafter Snyder]. 181Ibid. 182Sheila J. Barton, “Juvenile

Records and Recordkeeping Systems:

Summary of a National Survey,” in

Juvenile and Adult Records

Proceedings, pp. 25-29, supra note 4.

information into adult criminal

histories or by maintaining, or at

least linking, adult criminal

histories with juvenile histories.

Nevertheless, numerous States —

Georgia, North Dakota, New

Hampshire and Oklahoma, for

instance — still stipulate in their

juvenile codes that the records

remain separate. 183 On the other

hand, Utah’s juvenile law gives

police direct terminal access to

computerized juvenile rap sheets

through their statewide criminal

record hookups. While adult and

juvenile files technically may be

separate, a de facto blending is

only a few keystrokes away as far

as the Utah police officer is

concerned. 184

Debate over connectivity between

juvenile and adult records is

strong on both sides of the issue.

“The juvenile justice system is

currently being pressured to

change, to voluntarily lessen the

differences between itself and the

adult system, and in doing so

abandon the principles on which it

was established,” said Howard

Snyder of the National Center for

Juvenile Justice. “The juvenile

justice system should open its

records to the criminal justice

system and the public only if it is

in the best interest of the child,

and I have serious doubts that it

ever would be.” Nevertheless,

from a technical standpoint,

Snyder said, “[J]uvenile and adult

legal records can be linked

together ... the technical problems

are easily addressed ... the new

 183See GA. CODE ANN. § 15-11-

59(a) (Supp. 1996); N.D. CENT. CODE

§ 27-20-52 (Supp. 1995); N.H. REV.

STAT. ANN. § 169-B:35 (1994 &

Supp. 1995); OKLA. STAT. ANN. tit.

10, § 7005-1.2 (as amended by 1996

Okla. Sess. Law ch. 297, § 22). 184UTAH CODE ANN. § 78-3a-44

(Supp. 1995).
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 27

technologies make the merger

more feasible.”185

The late Romae T. Powell, as a

juvenile court judge in Fulton

County, Georgia, asserted that,

“The goals of the juvenile justice

system, while holding the child

accountable for the delinquent

acts, are different from the goals

of the adult system. The juvenile

justice systems’ goals are to use

their records to rehabilitate ... .

One record, one system then, in

my opinion, will destroy this

mandate.” 186

Judge Powell offered six reasons

for opposing interconnection or

integration: (1) one record would

foster the notion that, like their

adult counterparts, juveniles are

not particularly rehabilitatable; (2)

one record would unfairly single

out minority and poor white

youth; (3) serious juvenile

offenders already are in the adult

system, so a merger would

incorporate records of less

dangerous youth more likely to be

rehabilitated; (4) irrelevant

information about family members

would be incorporated into

criminal records, compromising

privacy; (5) the juvenile justice

system has not been proven to be

totally ineffective; and (6) the

adult criminal system is inherently

more stigmatizing than the

juvenile one. 187

 185Snyder, p. 56, supra note 180. 186Romae T. Powell, “The Impact

of a Merged Record on the Mission of

the Court,” in Juvenile and Adult

Records Proceedings, p. 37, supra

note 4. 187Ibid.

In the public’s mind, however,

there is a powerful counterargument in statistical growth of

violent juvenile crime and fear

over being the next helpless victim

in the headlines. “To the crime

victim, and society as a whole, it

matters not whether the offender is

16 or 17, or has just turned 18,”

said Reggie B. Walton, formerly

presiding judge of the criminal

division of the District of

Columbia Superior Court. “What

is important is that a crime has

been committed, an injury has

been sustained and protection

against further acts by the

perpetrator are taken if and when

the offender is apprehended ...

greater utilization of juvenile

records is warranted, so long as

measures have been taken to guard

against abuses.”188

Uncertainty in the States as to the

relationship between the juvenile

and adult systems, particularly the

information systems, is illustrated

in the number of task forces and

commissions which State

legislatures in 1995 have directed

to study these issues. California,

for example, has a statewide task

force looking at juvenile crime

and juvenile justice system

responses, including information

issues.189 Iowa has established a

task force to develop a plan for

shared jurisdiction between the

juvenile and adult systems.190 The

Minnesota Legislature has adopted

legislation requiring a plan to

track juvenile recidivism and to

 188Reggie B. Walton, “Utilization

of Juvenile Records in Adult Criminal

Proceedings — A Judge’s

Perspective,” in Juvenile and Adult

Records Proceedings, p. 43, supra

note 4. 1891995 Cal. Stat., chap. 454; and

see, NCSL Report, p. 100, supra note

38. 1901995 Iowa Acts, chap. 191, §

57; and see, NCSL Report, p. 101,

supra note 38.

prepare a report to the legislature

on the privacy of juvenile records

and the related development of a

juvenile justice information and

tracking system. 191 Montana has

created a juvenile justice study

commission and will require a

legislative report with

recommendations. 192 Also in 1995,

Oregon created the Oregon Youth

Authority and required the

Authority to establish a plan for a

juvenile recidivism reporting

system.193

 1911995 Minn. Laws, chap. 226,

Art. 3, § 55-57, 61; and see, NCSL

Report, p. 102, supra note 38. 1921995 Mont. Laws, chap. 436;

and see, NCSL Report, p. 102, supra

note 38. 1931995 Or. Laws, chap. 422, § 1b,

75 and 128; and see, NCSL Report, p.

102, supra note 38.
Page 28 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

Conclusion

There can be little doubt that the

juvenile justice system and,

therefore, policies for handling

juvenile justice information are in

transition. In 1995 alone, the

National Conference of State

Legislatures’ Annual Survey of

Legislative Activity Affecting

Children and Youth identified 290

new legislative provisions in 49

States addressing and amending

the juvenile justice process. As

noted earlier in this report, several

States have established

commissions and task forces to

review juvenile crime and the

juvenile justice system and to

propose legislative

recommendations. Other State

legislatures, such as Virginia’s,

have already implemented

substantial overhauls of the

juvenile justice system.

Juvenile justice trends

There are three trends involving

juvenile justice records that are

particularly striking.

— More juveniles are

subject to transfer to

adult court

First, over the last few years there

has been, without question, a

substantial increase in the juvenile

offender population which is

subject to transfer to an adult

court. Once in an adult court, of

course, the record of that

proceeding is maintained and

disseminated in the same way as

any other adult record. The effect

of this, naturally, is to

substantially increase, as

compared to a juvenile justice

record, the circumstances under

which and the extent to which the

record can be shared outside of the

juvenile justice and criminal

justice systems.

It is important, however, to put

this trend in perspective. In the

period 1988 through 1992 (the last

period for which there is national

data), juvenile court judges

waived 1.6 percent of formal

delinquency filings to adult court.

This is up from 1.2 percent in

1988. 194 Furthermore, national

data indicate that the number of

juvenile cases filed directly in

criminal courts range from less

than 1 percent to approximately 13

percent. 195 What this means,

obviously, is that while the

number of juveniles being tried as

adults is increasing on a

percentage basis, this number still

represents a very small percentage

of the total juvenile offender

population. Of course, it is also

important to bear in mind the

changing definition of a juvenile.

As States lower the jurisdictional

age limit for juvenile court (which,

as noted earlier, in some States is

now 16 and in several States is

17), the population amenable to

juvenile court jurisdiction declines

substantially.

— Juvenile justice

record information is

increasingly available

outside the juvenile

system

The second clearly discernible

trend is that juvenile justice record

information is becoming

increasingly available outside of

 194GAO Report, p. 2, supra note

36. 195Ibid.

the juvenile justice system. In

contrast to the situation in the

early 1980s when SEARCH

conducted extensive research for

its 1982 publication, Privacy and

Juvenile Justice Records, the

situation as of the end of 1995 is

that juvenile justice record

information is almost fully

available to adult courts for

sentencing and to adult courts for

most other purposes. In roughly

one-half the States, prosecutors

have a statutory right of access to

juvenile record information and a

BJS survey indicates that most

prosecutors, in most States, have

little difficulty in obtaining access.

The result is that the “two-track”

system of justice — in which an

active and serious juvenile

offender would, upon reaching the

age of majority, start over as a

first-time offender — is in full

decline.

In addition, juvenile record

information is increasingly

available to law enforcement

agencies and is becoming

available to State and Federal

noncriminal justice agencies for

national security and military

recruiting purposes and for

background check purposes in

connection with sensitive

positions. Increasingly, too,

juvenile record information — at

least some portion — is available

to the public, particularly in the

case of older and repeat juvenile

offenders adjudicated for violent

crimes.

Of course, here too, it is easy to

overstate the extent to which

juvenile record information is

available. Law enforcement

juvenile records, in particular, as

opposed to juvenile court records,
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Page 29

remain largely unavailable outside

of the criminal and juvenile justice

systems. And even juvenile court

information is unavailable to the

general public in most States

except in certain limited

circumstances.

Nevertheless, the trend appears to

be moving in the direction of

making juvenile records more

open and this trend appears to be a

response to serious and frequent

juvenile crime and juvenile

recidivism. The movement toward

openness has three important

information implications,

involving privacy, sealing and

expungement laws, and data

quality:

(1) To the extent that juvenile

records are open and

available, juveniles will

enjoy less privacy and will

have to bear the

consequences of the stigma

carried by a criminal record.

(2) As the National Institute of

Justice report points out, the

juvenile sealing and

expungement laws remain

relatively unchanged. This

means that in many States,

juvenile information

disclosure and sealing and

purging laws require

examination. Adult courts

which are entitled and,

indeed, required to take

juvenile records into account

in sentencing determinations

may not be able to obtain

juvenile records because

they have been purged. It

also means that the sealing

and purging laws may be

less effective because

juvenile record information

already disclosed outside of

the system is unaffected by

expungement orders. In

many States, of course, the

dissonance between

disclosure laws and sealing

and purging laws may be

acceptable or even desirable,

in that nonchronic and

“rehabilitated” juvenile

offenders are beneficiaries

of sealing and purging

provisions.

(3) It can be expected that as

juvenile records become

more available outside of

the juvenile justice system,

pressure will mount to

improve the accuracy and

completeness of these

records. Indeed, a BJS

survey already documents

that prosecutors are unhappy

with the completeness and

reliability of juvenile

records. If juvenile records

are going to be used by adult

courts for sentencing and

other purposes, and used by

noncriminal justice

organizations for key

decisions affecting access to

security clearances, licenses

and employment, it follows

that there will be significant

pressure to ensure that

juvenile records are accurate

and complete.

— Integration of juvenile

and adult records is

increasing

The third trend now emerging is

the integration or interconnectivity

of juvenile and adult records.

Integration is taking two forms.

First, to the extent that juveniles

are tried as adults, the records of

this adult proceeding are treated as

adult records and fully integrated

into the adult criminal history.

Second, States and, particularly,

the Federal government

increasingly take the position that

juvenile record information should

be captured on adult criminal

histories.

Even where juvenile record

information is not integrated into

adult records, juvenile record

information is increasingly likely

to be housed at the State

repository for adult criminal

histories. As noted, 24 States now

authorize their adult criminal

history repository to maintain

juvenile records. The trend to

fingerprint juveniles, which has

now reached over 40 States,

facilitates the involvement of adult

repositories which, in virtually

every State, require that all records

maintained in the repository be

fingerprint-supported.

Improvements in software and

computing also facilitate the

integration and interconnectivity

of adult and juvenile record

systems. Even when both sets of

records are maintained together, it

is a relatively simple and

inexpensive matter, given today’s

software and computer

capabilities, to tag the juvenile

information and apply

dissemination and other standards

to this information which differ

from adult standards.

Status at mid-decade

It is still too soon to say what type

of statewide and, ultimately,

national juvenile record system

will emerge. This system could be

accomplished by integrating

juvenile records fully into adult

criminal history record

information; or by maintaining

juvenile justice record information

in State juvenile justice

repositories; or, as a middle

ground, by maintaining juvenile

records as separate records, but

housed in the same system and

operated by the same agency

which maintains adult records. At

mid-decade, it appears that this

latter, middle ground is most
Page 30 Privacy and Juvenile Justice Records: A Mid-Decade Status Report

likely to emerge as the template

for statewide systems.

Thus, at mid-decade, many of the

questions posed in the 1982

national report are being

answered. Juvenile record

information will be fingerprintsupported. Juvenile record

information will be automated and

available on a statewide basis.

Juvenile record information will

be fully available to the adult

criminal justice system and

partially available for noncriminal

justice decisions. Older juveniles

with a serious and frequent record

of offenses will be tried as adults

and their records similarly treated

as an adult record.

Perhaps only one fundamental

question remains unanswered.

Even with the erosion of support

for the treatment model, there is

still a very real question as to

whether juvenile record

information, for at least some

juveniles, should continue to be

treated differently than adult

criminal history record

information. Certainly, at middecade most juvenile record

information in most States remains

subject to different laws and

policies than adult criminal history

information. The question, then, is

not whether there will be

integration and interconnectivity

or whether there will be increased

openness of juvenile records. The

question is how far these trends

will go. Most observers believe

that well into the next century,

juvenile records will continue to

receive treatment that is separate

and apart from and, ultimately,

more protective than adult

criminal history record

information.
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Appendix • Page 31

Appendix

Juvenile justice timeline
Page 32 • Appendix Privacy and Juvenile Justice Records: A Mid-Decade Status Report
Privacy and Juvenile Justice Records: A Mid-Decade Status Report Appendix • Page 33

Juvenile justice timeline

Colonial period through

early 19th century

Juveniles are tried in adult courts as adults. There is little recordkeeping, but to the extent

that court records exist, they are open to the public. Many jurisdictions maintain public

“shaming” policies. Delaware, for example, forces convicted thieves to wear a “T”

around their neck for 6 months.

1828 12-year-old James Guild is hanged for killing a woman. Progressives agitate for a

separate criminal justice system for children.

1899 Illinois establishes the first juvenile court system.

1905 Illinois enacts legislation prohibiting juvenile records from being introduced in adult

courts or otherwise made public.

1925 All but two States have followed Illinois in establishing either a juvenile court system or a

juvenile probation program.

1920s The National Probation and Parole Association and the Federal Children’s Bureau

campaign for States to close their juvenile courts and to seal juvenile court records in

order to foster rehabilitation.

1950s High water mark for the percentage of juveniles who are tried in juvenile courts and for

the application of strict confidentiality rules for juvenile records. Very little in the way of

juvenile recordkeeping is undertaken by law enforcement agencies.

1957 J. Edgar Hoover calls for reversing juvenile confidentiality policies and advocates

publicizing the names and activities of juvenile felons.

1966-67 U.S. Supreme Court decides Kent and In re Gault, holding that due process protections

apply to a juvenile court proceeding.

1980s Numerous commentators and State legislators question the utility of juvenile record

confidentiality. SEARCH and the Bureau of Justice Statistics (BJS) publish the first

comprehensive examination of juvenile record policy and practice.

1992 The FBI announces that it will accept juvenile records reported by State central

repositories and will treat these records as adult records.

1992 A BJS survey of prosecutors finds that 50 percent fault the accuracy and completeness of

juvenile record information available to them.

1993 The U.S. Conference of Mayors calls for eliminating confidentiality protections for

violent juvenile offenders.

1994 Illinois enacts one of the first “public release” laws requiring courts to release names and

addresses of juveniles convicted for serious felony offenses.

1994 Federal omnibus crime law requires selective release of juvenile record information.
Page 34 • Appendix Privacy and Juvenile Justice Records: A Mid-Decade Status Report

1995 The GAO Report finds that since 1978, 44 States and the District of Columbia have

amended their laws to facilitate the transfer of juveniles to adult courts.

1995 Legislatures in over a dozen States open juvenile records to schools, victims, State

agencies and others.

1995 Legislatures in 10 States amend their juvenile record law to permit public access, in

certain circumstances, to juvenile records.

1995 U. S. Sen. John Ashcroft (R-Missouri) introduces a bill to require States to treat violent

and hard-core juvenile offenders as adults and to make juvenile record information

available on the same basis as adult information.