“Invisible Stripes: The Problem of Youth Criminal Records”

June 8, 2019 CCRC Staff

This is the title of a paper by Professor Judith McMullen of Marquette University Law School. Professor McMullen points out that “the efforts of today’s young people to ‘go straight’ are hampered by nearly unlimited online access to records of even the briefest of encounters with law enforcement, even if those encounters did not result in conviction.” She argues that “we need to restrict access to and use of information about contacts that offenders under the age of 21 have had with the criminal justice system.”

CCRC’s forthcoming study of how jurisdictions manage non-conviction records underscores the points made in this article. It may come as a surprise to many that few jurisdictions automatically limit public access to and use of non-conviction records, and in fact many facilitate both through mass on-line posting of records – including arrests that never result in charges. Even states that authorize courts to seal or expunge non-conviction records frequently impose daunting barriers to this relief, including financial barriers. A decision of the Iowa Supreme Court last month, upholding a law conditioning expungement of dismissed charges on an indigent defendant’s payment of court-appointed attorney fees, vividly illustrates this access to justice problem that squarely frustrates efforts at reintegration. There are a number of studies underway of the adverse effect of court debt on reentry, but none that we know of linking court debt to the operation of “clean slate” laws.

Here is the article’s abstract:

It is common knowledge in American society that persons who have criminal records will have a more difficult path to obtaining legitimate employment. Similarly, conventional wisdom acknowledges the unfortunate fact that young people, on average, are more prone to engage in risky, impulsive, and other ill-advised behavior that might result in brushes with law enforcement authorities. This article addresses the difficult situation faced by people whose now disabling criminal records were attained while they were under the age of 21. Not only do such individuals face stigma and possible discrimination from potential employers, the efforts of today’s young people to “go straight” are hampered by nearly unlimited online access to records of even the briefest of encounters with law enforcement, even if those encounters did not result in conviction.

This article examines the broad scope and troubling effects of the intersection between policies attempting to “reform” youthful offenders, and policies giving any curious citizen access to records about a person’s youthful indiscretions, no matter how minor. The article concludes that current practices are inconsistent with what we know about the development of young people, are inconsistent with developing U.S. Supreme Court jurisdiction, and are undermining the social goal of rehabilitating youthful offenders, and suggests that we need to restrict access to and use of information about contacts that offenders under the age of 21 have had with the criminal justice system.

This is the fifth post in a series for CCRC’s non-conviction records project, a study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred dispositions, and acquittals.