Juvenile Records Laws Must Be Reformed to Prevent Ongoing Racism

The juvenile justice system was created 120 years ago to reform and rehabilitate “wayward” youth to ensure they had the opportunity to achieve productive futures. To this end, it was widely accepted that juvenile system involvement should remain confidential and that all records should be sealed or eradicated to ensure youth a clean slate upon reaching adulthood. Juvenile records laws were enacted to protect the privacy of system-involved youth.

Today, however, the privacy protections afforded by juvenile records laws have hollowed out by loopholes and limitations that make confidentiality the exception more than the rule for many juvenile offenders. The broad accessibility permitted by juvenile records laws combined with technological innovation in data storage and mining make juvenile record information more available than ever. This means, more often than not, that the record of offenses children commit can be accessed by law enforcement, employers, landlords, schools and the public.

The consequences of the loss of juvenile system anonymity are far-reaching for youth and include an inability to secure housing, maintain stable employment and pursue post-secondary opportunities. The impact of these collateral consequences is supported by the data: In college admissions, 62.5% of system-involved youth were discouraged from completing college applications because of a records disclosure requirement, while 20% of applicants who disclosed records information were automatically denied admission.

Andrew Keats

Of the over 90% of employers who run background checks on applicants, over 40% reported that they would “definitely” or “probably” not hire an applicant with a record for a job not requiring a college degree, while 50% were less likely to call back or extend a job offer. Furthermore, 11% of these employers reported that even an applicant with a minor criminal infraction would not be hired. The existence of a juvenile record may also foreclose a young person and/or their entire family from securing public housing.

Black youth suffer the collateral consequences of juvenile record disclosure most severely. It is widely known that Black youth are subject to disproportionate system involvement. It is less widely recognized, however, that the records of this disproportionate system involvement enable a disproportionate level of racial discrimination long after their actual system involvement is over. 

While Black youth represent only 15% of the U.S. population between the ages of 10-17, they represent 26% of all juvenile arrests and 30% of all delinquency referrals. Black youth represent 45% of all preadjudication decisions and 46% of cases transferred to adult criminal court. These records are all searchable by and available to the individuals with power to provide youth opportunities. 

Open records extend discrimination

So why is a system intended to rehabilitate kids being used to mark them for a lifetime of discrimination? 

The answer lies in the changing nature of America’s own unique brand of institutionalized racism over the last century. As a result of sweeping civil rights victories in the 1960s, America increasingly relied on the criminalization of Black people, and especially Black children, to justify continued oppression and inequality. 

From the war on drugs to the myth of the child superpredator, racist stereotypes of Black people and particularly Black youth, together with discriminatory policies (like “Broken Windows” and stop-and-frisk) afforded white America the opportunity to transform skin color into a record of system involvement that could legally justify continued discrimination. 

Harsh punishments enacted in the 1990s amplified the stakes of early system involvement — mandatory sentencing schemes, youth transfer and new “three strikes” laws ushered in our modern era of mass incarceration. Under this system of white supremacy, juvenile records laws that afford broad access transform juvenile missteps into life sentences that serve to immobilize and disenfranchise Black communities.

In 2014, Juvenile Law Center published the first-ever comprehensive evaluation of each state’s juvenile records laws. The results of that study demonstrated that, as measured against best practices, over 50% of states fail to adequately protect juveniles from the consequences of juvenile records. Now, six years later, a new juvenile record scorecard report shows continued and widespread deficiencies in the protections necessary to keep juvenile records secure. 

Recognizing that broad access to juvenile records advances inequality and systemic racism and holds kids back from achieving their full potential, it is imperative that every state review its records laws and take all steps necessary to protect our youths’ right to privacy by mandating automatic sealing and expungement of juvenile records.

Andrew Keats is a staff attorney at the Juvenile Law Center, where his work currently focuses on addressing economic justice and equity and second chances for youth in the juvenile justice system and youth tried as adults in the criminal justice system. Before that he spent a decade as a litigator with a leading global law firm in Los Angeles and New York, where he litigated a broad range of complex commercial disputes plus securities, class action, bankruptcy and real estate matters.