By Spencer Davenport, University of Michigan School of Law
Second place winner of the second annual law student writing competition.
Luke Heimlich seemed destined to play professional baseball. Two-time Pac-12 pitcher of the year for Oregon State and regarded as one of college baseball’s top players, Heimlich was not selected in the Major League Baseball draft for the second straight year in 2018. Despite his on the field success, Heimlich went undrafted because he pleaded guilty to child molestation in Washington in 2012 when he was 15.1
Heimlich’s history might not have ever been discovered had it not been for crossed wires between Oregon and Washington. Oregon law requires juveniles who were convicted of a sex crime in another state to register as a sex offender if the crime is a felony in Oregon.2 Oregon law requires Oregon residents to register as a sex offender within 10 days of their last birthday.3 As a Washington resident, Heimlich did not register. Police issued him a citation for failure to register, which was later dismissed due to insufficient evidence of Defendant’s knowledge of Oregon reporting requirements.4
Nevertheless, that citation put the case in Oregon court records for the first time where it was later discovered in the Oregon public records database by journalists writing a player profile on Heimlich. The story was published on June 8, 2017 and Heimlich’s hope for a fresh start vanished.5
While Heimlich’s story may be unique, Heimlich is just one of many juvenile offenders hoping to move past offenses committed in their childhoods. In 2013, courts with juvenile jurisdiction handled an estimated 1,058,500 delinquency cases.6 Three-quarters of the cases were for offenses related to property, drugs, or public order violations, not violent offenses.7
Although juvenile records are not as accessible as adult records, their impact is felt beyond the juvenile’s eighteenth birthday. No state completely shields juvenile delinquency records from public inquiry.8 There is always a degree of public accessibility and some states publish juvenile records online.9 The implications of this access are immense. A juvenile record makes it harder for a person to get a job10, secure housing11, serve in the military12, or receive college financial aid.13
The largest hurdle juveniles with records face are applications, such as the Common Application, that ask if a person has been arrested, charged, or adjudicated guilty of an "offense."14 In total, about 66% of colleges ask about juvenile records.15 Of those schools, about 20% have policies denying student admission based on the severity of the records, and more than a third consider misdemeanors negatively.16
Besides college applications, job applications frequently ask if a person has ever committed a crime. Only one state prohibits such questions from being asked.17 The ability for youths to answer those questions depends on the state and the laws they have. Some states allow juveniles to answer as though the incident never happened, whereas other states require the applicant to disclose it.18 Because states rarely offer guidance on how to answer those questions, juveniles often err on the side of over-disclosure.19
The damaging effects of juvenile records were expressly what the Supreme Court did not want to happen. In In re Gault, the Supreme Court opined that “[t]he policy of juvenile law is to hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past.”20 Thirty-eight years later, the court affirmed this statement as they found that children often have “an underdeveloped sense of responsibility” which “often result[s] in impetuous and ill-considered actions and decisions.”21 As a society, juvenile justice should be more concerned with rehabilitation than on redress because children’s brains are still developing.
Yet, the Court knew back when it issued Gault that is not how the system worked. The court said, “[t]his claim of secrecy, however, is more rhetoric than reality. Disclosure of court records is discretionary with the judge in most jurisdictions. Statutory restrictions almost invariably apply only to the court records, and even as to those the evidence is that many courts routinely furnish information to the FBI and the military, and on request to government agencies and even to private employers.”22 While some laws have been passed to address confidentiality concerns, they have not been effect in doing so.
Each state has its own way of addressing juvenile records. Issues of confidentiality during and after the trial, the sealing of records, and disclosure laws vary by state. The result is an amalgamation of statutes that leads to confusion for juveniles that can prevent their reintegration into society. Almost all states articulate the purpose of the juvenile justice system is to support the welfare of the child with the goal of rehabilitation. The Oregon juvenile justice system "is founded on the principles of . . . reformation within the context of public safety."23 Yet, Oregon’s laws do not accomplish their purpose of reformation because juvenile records are accessible for the public to see.
A record forms as soon as a youth is arrested. Widespread access to this information can stigmatize youths and interfere with opportunities later in their lives. In states that have robust expungement laws, their effectiveness is frustrated if the juvenile records were publicly accessible before expungement. Further complicating matters, the variation in confidentiality laws by state results in disparate results for juveniles charged with similar crimes. Some youths may have their offenses shielded from the public while others have their records available to anyone that looks up their name.
From the juvenile court system’s inception, public safety has led to the erosion of confidentiality protections.24 For serious charges and repeat offenders, juvenile courts often transfer jurisdiction to adult courts, where the juvenile’s record is open to the public.25 Moreover, the perceived need for public safety leads to exceptions in laws that allow for the dissemination of juvenile delinquency adjudications.26
In Oregon, the public is able to access juvenile record information, with virtually no confidentiality protection.27 Juvenile records are stored in the Juvenile Justice Information System administered by the Oregon Youth Authority, separate from adult arrest information.28 While sensitive documents like mental health reports are kept confidential, identifying information about the youth, including the youth's name, charges, and the guardians’ names are generally not confidential.29 Likewise, law enforcement records which contain arrest information, victim and witness statements, as well as any other police information are potentially available.30 Weak confidentiality in Oregon obstructs a juvenile’s ability to move past their offense history and fully reintegrate into society.
There are many approaches Oregon and other states could employ to improve their confidentiality laws and protect juvenile records. Seven states offer strong confidentiality protection, dramatically limiting who can access juvenile records.31 These states explicitly prohibit open, public access to law enforcement, probation, and court-related records relating to the juvenile’s case.
While there is some concern for public safety, exceptions could be allowed that would allow disclosure for the most serious, repeat offenders. Moreover, juvenile courts could allow a hearing for a third party (such as a school) to request information to protect the public health and safety. If the information is released to a third party, then there would be a non-disclosure agreement to prevent further dissemination. Some states already permit schools and victims to access juvenile records but are required to keep the information confidential.32 That way, schools can address possible safety concerns while allowing the juvenile to avoid the stigma if the information was available to the public.
Many youths often look to seal or expunge their records to mitigate the effects the records will have on their lives. Every state has a process that allows for sealing or expungement, or both.33 However, who is eligible for this process and which records are covered by statutes varies.
Some statutes exclude certain juveniles based on their age, the seriousness of offense, or the number of offenses. Many states do not seal records until either the juvenile is twenty-one or has been five years since the commission of the offense. This means that the record information may be disclosed before it is eventually sealed or expunged. Very few states automatically seal or expunge juvenile records, but rather place the burden on the juvenile to file a petition to request the sealing or expungement. This petitioning process generally gives the juvenile judge discretion to determine whether to order expungement or seal the records, which can create inconsistencies for juveniles with similar past offenses.
Oregon has hybrid statutes that combine both sealing and expungement mechanisms.34
This mechanism may be best option because it provides the benefits of sealing, removing more offenses from public accessibility earlier but keeping the information should the state need it later, and expungement of destroying the records once it is clear individuals have moves past their juvenile history.
In Oregon, the “record” that can be expunged includes a fingerprint or photograph file, report, exhibit or other material which contains information relating to a person’s contact with any law enforcement agency or juvenile court or juvenile department.35 The information is destroyed wherever the information is kept—electronically or hard-copy.
The court will issue an expunction if “at least five years have passed since the individual's most recent termination,” there are no proceedings seeking a criminal conviction in a juvenile court, the individual is not within the jurisdiction of any juvenile court for delinquency, and the juvenile department is not aware of any pending investigation for the individual’s conduct.36 For those with offenses such as felony sex crimes or criminal mistreatment constituting child abuse, their offenses cannot be set aside.37 That means that a youth may never be able to fully move past the offenses in their childhood.
While the Oregon court may commence the process of expungement, many times it is through petition or application.38 To initiate the process, Oregon charges an $80 set aside fee as well as a $265 filing fee.39 The expungement process is not as valuable if it is started past its eligibility. The juvenile court is required to make a reasonable effort to provide written notice to a child and parent of the procedures for expunction of a record, the right to counsel, the legal effect of an expunction order, and the procedures for seeking relief from the duty to report as a sex offender.40
Oregon laws are one of the best in the country for sealing and expungement. Oregon can still improve the process by passing statutes that allow for juveniles to apply for expungement earlier and provide automatic expungement processes.
In 2015, the ABA gave states a roadmap for improving the expungement process of juvenile records.41 The ABA suggested that juveniles adjudicated delinquent should be able to apply for expungement at any time after their case closes.42 A hearing would be held that would weigh the interests of the youth, the nature of the offense, efforts of the juvenile to rehabilitate, and the adverse consequences if the record is not expunged.43 The ABA envisions that petitioned expungement would be infrequently used because the ABA also suggested automatic expungement for most minor offenses two years after the close of the case.44 For more serious offenses, the automatic expungement period is five years. for most offenses and a five-year period for more serious offenses.
Understandably, these reforms will face resistance from states who are concerned about public safety and recidivism. North Dakota offers the best hybrid approach of protecting public safety while weighing the interests of individuals, by sealing the juvenile records automatically when the proceedings conclude and destroying them later depending on the offense.45 This prevents public access to the records immediately but also allows the state to retain the information in case of later offenses.
As mentioned, the ABA suggests automatic expungement. In many states, the expungement and sealing process is not automatic. Oregon is among thirteen other states that label the process as automatic because the court or administrative agency may commence the expungement process.46 Yet, the process still requires the action of another party. Nebraska provides automatic sealing once a child turns 17 and their disposition or case is successfully terminated. The court is then alerted and a motion to seal the record is automatically generated.47 Ideally, states would adopt processes so that sealing and expungement are automatic without the involvement of the youth.
Today, there are still twenty-four states that require youth to initiate the sealing or expungement process.48 In those states, the minimum courts could do is to pass legislation that requires the state to notify the juvenile of the actual process for sealing or expungement. Timely notification is important so juveniles can take advantage of the process. In most instances, the state notifies the juvenile at the adjudication hearing, sometimes years before they are eligible for sealing or expungement.49 Notice should be provided describing the difference between sealing and expungement as well as the necessary steps to be taken. Finally, some states require fee or court costs to initiate the process for sealing or expungement.50 This additional burden makes the process unavailable for those in lower socioeconomic communities. When youths are able to successfully move past their offenses and not reoffend, there should be a system in place that does not place the onus on them to have their records destroyed.
Despite the laws put in place protecting confidentiality, information about a juvenile’s criminal record is often revealed by the juvenile themselves. Questions inquiring about a juvenile’s delinquency record appear on college applications, job applications, and apartment leases. Common questions include ones that are general and offer no guidance about whether they are even asking about delinquency records: Have you ever been arrested? Have you ever been adjudicated guilty of an offense? Even for those that have had their records expunged, there is often not a definitive answer on whether a youth can deny that an arrest ever occurred.
In Oregon, both set-asides and expungement means that records are treated as though they “never existed.”51 Additionally, Oregon provides consequences for the intentional release of expunged/sealed information with a Class C misdemeanor.52 Though the statute limits non- disclosure, it does not direct juveniles about whether they can lawfully deny the existence of their record. These laws place juveniles in the position where they disclose offenses even though they might not have to.
Non-disclosure law is the most-underutilized aspect in helping to reintegrate juvenile youths into society. State legislatures should pass laws that allow individuals to deny the existence of juvenile adjudication if their records are expunged or sealed.
A better way to protect juveniles is for states to pass laws that make juvenile records off limits through confidentiality and non-disclosure statutes that prohibit private employers, universities, or public licensing agencies from asking about juvenile proceedings.53 Currently, only Illinois bans questions on applications that may elicit information about juvenile charges that were expunged.54 The result of this law means that individuals do not have to lie about their past nor does it force them to forego opportunities for fear of disclosure. While there is concern about public safety, if the juvenile offense is already expunged then the youth has already taken significant steps to move past the offense, mitigating public safety concerns.
Public pressure has changed some ways in which criminal records of youths are available. Following a push to drop the criminal questions, the Common Application in 2017 announced that they would continue to ask the questions but “would provide more context about the questions, including the ability of colleges to suppress answers to those questions.”55
After going undrafted, Luke Heimlich’s chance at a professional baseball career may be gone. There are rumblings that he a team might offer him a deal as a free agent or he could play internationally. If he does not find a spot playing baseball, he will still face obstacles to reintegrate because he will always be known as a child molester. Greater confidentiality laws would have prevented that information from being disclosed to the whole world.
While some in the public view the disclosure of Heimlich’s past as a good thing, the records of juvenile crime affect those even with the most modest of misdemeanors. Records of juvenile crime can have far-reaching consequences, affecting a youth’s ability to serve as a contributing member of society. State legislatures can protect their interests in reintegrating youths while protecting the public by changing disclosure laws, implementing a hybrid approach of sealing and expungement, and limiting disclosure to parties with a vested interest.
|Even though he admitted to the crime, Heimlich has maintained his innocence. See S.L. Price, Prospect and Pariah, SPORTS ILLUSTRATED (May 16, 2018), https://www.si.com/mlb/2018/05/16/luke-heimlich-oregon-state.|
|Juvenile Sex Offender Registration: Requirements, Penalties & Relief, YOUTH, RTS. & JUST., http://www.youth rightsjustice.org/media/2173/Relief%20from%20SOR.pdf (last visited June 25, 2018).|
|See OR. REV. STAT. § 163A.040 (2017).|
|See S.L. Price, Prospect and Pariah, SPORTS ILLUSTRATED (May 16, 2018), https://www.si.com/mlb/2018/05/16/ luke-heimlich-oregon-state.|
|Danny Moran & Brad Schmidt, Luke Heimlich sex crime surfaces as Oregon State baseball nears College World Series, OREGON LIVE (June 8, 2017, 4:30pm), https://www.oregonlive.com/beavers/index.ssf/2017/06/luke_ heimlich_sex_crime_surfac.html.|
|Sarah Hockenberry & Charles Puzzanchera, Juvenile Court Statistics 2013, NATIONAL CENTER FOR JUVENILE JUSTICE (2015), at 6, https://www.ojjdp.gov/ojstatbb/njcda/pdf/jcs2013.pdf.|
|Joy Radice, The Juvenile Record Myth, 106 GEO. L.J. 365, 371 (2018).|
|Kevin Lapp, Databasing Delinquency, 67 HASTINGS L.J. 195, 221 (2015).|
|See Riya Saha Shah & Jean Strout, Future Interrupted: The Collateral Damage Caused by Proliferation of Juvenile Records, JUVENILE LAW CENTER 1, 9 (2016).|
|See Natane Eaddy, Future Interrupted: How Juvenile Records Push Youth into Homelessness, JUVENILE LAW CENTER (Apr. 12, 2018), https://jlc.org/news/future-interrupted-how-juvenile-records-push-youth-homelessness.|
|See Shah, supra note 10, at 9.|
|See MARGARET COLGATE LOVE ET AL., COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTIONS: LAW, POLICY, & PRACTICE 2-3, 174 (2016).|
|More than 700 colleges and universities use the Common Application. See Jamaal Abdul-Alim, Juvenile Records Often Have Lifelong Consequences: Experts Say, JUVENILE JUSTICE INFORMATION EXCHANGE (June 29, 2015), https://jjie.org/2015/06/29/juvenile-records-often-have-lifelong-consequences-experts-say/.|
|See Shah, supra note 10, at 12.|
|See 705 ILL. COMP. STAT. 405/5-915 (2016).|
|See Idaho law which considers adjudication a conviction unless expunged and remains accessible to the public. IDAHO CODE ANN. § 20-525 (2017)|
|See Radice, supra note 8, at 415.|
|387 U.S. 1, 32 (1967).|
|Roper v. Simmons, 543 U.S. 551, 569 (2005).|
|387 U.S. at 24 (1967).|
|Inquiries into Lane County’s Juvenile Justice System Trigger Response, KMTR (July 12, 2015), http://nbc16.com/news/local/inquiries-into-lane-countys-juvenile-justice-system-trigger-response.|
|See Kristin Henning, Eroding Confidentiality in Delinquency Proceedings: Should Schools and Public Housing Authorities Be Notified?, 79 N.Y.U. L. REV. 520, 525-30 (2004).|
|See id. at 536.|
|See id. at 525-30.|
|See OR. REV. STAT. § 419A.255 (2018).|
|See Riya Saha Shah et al., Failed Policies, Forfeited Futures: A Nationwide Scorecard on Juvenile Records, Oregon, JUV. L. CTR. (2014), http://juvenilerecords.jlc.org/juvenilerecords/documents/publications/factsheet- OR.pdf.|
|Radice, supra note 8, at 402.|
|See Exceptions to Confidentiality of Juvenile Criminal Records, NOLO https://www.nolo.com/legal-encyclopedia/ exceptions-confidentiality-juvenile-criminal-records.html (last visited June 25, 2018).|
|Expungement is different from sealing in that expungement physically destroying a juvenile delinquency records, making them virtually inaccessible to anyone, from law enforcement to a private party whereas sealed records are typically still available to law enforcement agencies and judges.|
|See OR. REV. STAT. § 419A.262; OR. REV. STAT. § 419A.250; OR. REV. STAT. § 419A.260.|
|See OR. REV. STAT. § 419A.260(1)(d) (2018).|
|See OR. REV. STAT. § 419A.262(2)(a)-(e) (2018).|
|See id. (5); § 419A.260 (2018).|
|See OR. REV. STAT. § 419A.262, (4, 6, 8) (2018).|
|See OR. REV. STAT. § 137.225(2) (2018) (citing OR. REV. STAT. § 21.135).|
|See OR. REV. STAT. § 419A.260(2) (2018).|
|See MODEL ACT GOVERNING THE CONFIDENTIALITY AND EXPUNGEMENT OF JUVENILE DELINQUENCY RECORDS (AM. BAR. ASS'N 2015), http://www.americanbar.org/content/dam/abalimages/abanews/2015annualresolutions /103a.pdf.|
|See id. § 6(b)(1).|
|See id. § 6(a)(2).|
|See N.D. CENT. CODE § 27-20-51(1) (2016); N.D.R. JUV. P 19; N.D. SUP. CT. ADMIN. R. 19, Records Retention Schedule, https://www.ndcourts.gov/court/rules/Administrative/Arl9sch.htm.|
|See NEB. REV. STAT. § 43-2,108.04(5, 6) (2018).|
|See Riya Saha Shah et al., Failed Policies, Forfeited Futures: A Nationwide Scorecard on Juvenile Records, Oregon, JUV. L. CTR. (2014), http://juvenilerecords.jlc.org/juvenilerecords/documents/Publications/factsheet- OR.pdf.|
|See OR. REV. STAT. § 419A.260(2) (2018).|
|See RIYA SAHA SHAH ET AL., JUVENILE RECORDS: A NATIONAL REVIEW OF STATE LAWS ON CONFIDENTIALITY, SEALING AND EXPUNGEMENT 44 (2014), http://juvenilerecords.jlc.org/juvenilerecords/documents/publications/ national-review.pdf|
|See OR. REV. STAT. § 419A.262(22) (2018).|
|See id. at (27); see also In re Leisure, 113 P.3d 412, 421 (OR. 2005).|
|Beyond juvenile records, there is increased public pressure on these reforms with so-called “ban the box” legislation which prevents employers from inquiring about the criminal history of applicants. Ban-the-Box legislation has been passed in 150 cities and counties to limit the use of adult criminal records, primarily in public employment applications. See, e.g.,|
|See 705 ILL. COMP. STAT. 405/5-915 (2018).|
|Scott Jaschik, Still Asking about Crime and Discipline, INSIDE HIGHER ED (Mar. 10, 2017), https://www.inside highered.com/news/2017/03/10/common-application-announces-it-will-keep-questions-criminal-background-and.|