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Juvenile Status Offenses-Incarceration or Intercession?

April 21st, 2014 · 1 Comment

In our last post, we examined the confidentiality of juvenile records and the various state procedures available to seal or expunge them.  As noted, the public does not have access to these records once sealed,  but law enforcement and court personnel do retain unfettered access.  If the juvenile record includes acts considered felonious if committed by an adult, that record will likely remain unsealed.   But what of acts deemed illegal only because of the offender’s status as a juvenile?  How are these “status offenses” defined legally?

Status offenses are acts that would not be considered illegal if committed by an adult.  Examples include truancy, running away, violating curfew, and the possession and use of alcohol or cigarettes   (or marijuana in states where individual purchase and consumption are legal).   Of course status offenses may be defiant or disobedient acts, but they are not necessarily criminal (with the possible exception of controlled substance violations).   Some states also include “incorrigible” or “ungovernable” behavior as conduct rising to the level of a status offense; in these jurisdictions the juvenile is considered beyond the control of the parent(s) or guardian(s).

So how does the legal system respond to status offenders?  Traditionally, these offenders were processed through the juvenile justice system, along with their criminally delinquent peers.  In the 1970s, there was growing recognition that status offenders should be diverted from juvenile court jurisdiction and consequent correctional confinement.  The federal 1974 Juvenile Justice and Delinquency Prevention Act (JJDP) advanced the notion of decriminalizing status offenses and reducing the incidence of status offender detention.  With passage of this Act, broad consensus emerged that these juveniles should not be treated as criminal offenders and that other governmental or community service agencies could offer superior placement and rehabilitation options.

Regardless, national reform of this magnitude moves slowly and incrementally.  In 1980, the JJDP was amended to allow limited confinement of juveniles (typically truants and runaways) who repeatedly disobeyed court orders.  Known as the “Valid Court Order” exception (VCO), a status offender could be placed in a detention or correctional facility and also be adjudicated as a delinquent if found in violation of a VCO.  While this exception seems contrary to the goal of the Juvenile Justice and Delinquency Protection Act-to prevent the detention of juveniles and the stigmatizing label of “delinquent” for noncriminal behavior-many judges felt they needed a mechanism to penalize chronic status offenders.  Consequently, thousands of these juveniles have been incarcerated under VCOs in multiple states.

As Judge Michael Nash noted in his op-ed piece on October 14, 2013 in Juvenile Justice Exchange, Ideas and Opinions:

“…The VCO is still in effect in most states, but there are significant efforts to eliminate it if and when Congress reauthorizes the JJDPA, which it has not done since 2002. There are good reasons for this, and there are positive developments in this area.

First, there is considerable research that has been done on adolescent brain development. We know that adolescents are different from adults. Adolescents are characterized by greater risk taking or sensation seeking and lesser ability to control impulses and resist pressure from peers and less likely to think ahead. We also know that as the brain develops and individuals mature into adulthood, these characteristics will decrease. Further, although holding youth accountable is important, it must be done in a way that does not harm them and endanger their normal development.

In accordance with the above, research shows that responses such as secure detention of status offenders is ineffective and potentially dangerous. Rather than punish them, youth, particularly status offenders, are better served by being diverted from the justice system. When you couple that with community programs that include engagement of youth and their families as well as programs designed to meet their specific needs, the chances of achieving positive outcomes for youth and their communities are greatly enhanced…”

In addition to the studies on adolescent brain development impacting behavior, there is abundant data concluding that at-risk youth are more likely to commit status offenses-those who are homeless, from a broken or dysfunctional home, or who suffer from mental, physical or educational disabilities.   Diverting these status offenders from the juvenile justice system to alternative agency, community, family, and treatment services will promote local social ties, and avoid the isolation of detention and exposure to serious offenders in juvenile confinement.   If alternative placement is necessary, state or local child welfare services may be able to place the juvenile with a relative, foster home, or residential home, and offer additional counseling, educational, or rehabilitative support.

To view information about how juvenile offenders are adjudicated or diverted in your area, find your state on CourtReference, then select the “Self Help and Legal Research” court resource category to locate links to your local juvenile justice system.

 

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Juvenile Records – Sealing or Expungement

March 27th, 2014 · No Comments

In our July 2008 post about juvenile court records, we noted that most juvenile court records are confidential. This is done to protect the juvenile, on the theory that juveniles are more prone to bad decisions than adults (i.e., they do “dumb things”), but that they can be rehabilitated. Law enforcement agencies and the court system can see juvenile records, but the general public cannot.

Background checks for the purposes of employment and housing – and sometimes for college admission, financial aid, etc. – are the general public’s main interest in court records. Since most juveniles are not yet in the labor or housing market, the general public doesn’t miss much by not being able to view these records. But what happens when the juvenile turns 18?

That answer varies from state to state, but in most states the juvenile’s record can remain confidential. In some states, juvenile records are automatically sealed when the juvenile reaches the age of 18, although in most states the juvenile must petition the court to have the record sealed. Sealing of records is called expungement or expunction in many jurisdictions, or “setting aside” in some.

Not all juvenile records can be sealed. Serious juvenile offenses, such as those which would be felonies if the juvenile were tried as an adult, cannot be sealed in most states. Many states do not allow sealing of records until the detention or term of probation has been completed, or if the person is convicted of another offense after turning 18.

Once a record is expunged or sealed, it doesn’t simply disappear. It continues to be accessible to law enforcement, the court system, and some licensing authorities – just as it did before the juvenile turned 18. But the general public still cannot see it, and a person with a sealed record can usually answer “no” to the question “Have you been convicted of a crime or a juvenile offense?” on an application for a job, a rental, college admission, etc.

The key word is usually. Because if sealing or expungement is not automatic when the juvenile turns 18, and if the juvenile fails to petition the court, the record does become public. It can then be acquired by commercial background check providers and can no longer be hidden – even if a petition for sealing or expungement is later granted. In states that do not automatically seal juvenile records at age 18, it is extremely important for the juvenile to file a timely petition to seal or expunge. As usual, the process varies from state to state; follow the links to examples from Michigan, Texas, and Ohio’s Cuyahoga County.

This post was suggested by recent news in my home state of Washington, which is poised to join the majority of other states. Washington does have a process for sealing juvenile court records, as can be see here, here, here, and here. But Washington sells its criminal court records to commercial background check providers, and those sales include juvenile records of those who have turned 18. Even worse, those sales of records can take place mere days after the juvenile turns 18, making it extremely difficult for the juvenile to have a petition granted in time to keep the record from being widely distributed on the internet.

That is about to change. House Bill 1651 was just passed by the state legislature, and is awaiting its expected signature by the Governor. The bill provides for automatic sealing of juvenile records – except for serious felonies, sex offenses, and drug offenses – when the juvenile turns 18, is released from detention, or completes probation (whichever comes later). If someone objects, or if the court is aware of a good reason not to seal, the court then holds a hearing to decide whether or not to seal the record. With this act, Washington changes from one of the most draconian states with regard to juvenile records, to one of the most forgiving. One of the major policy arguments for the change was that existing law puts Washington young people at a disadvantage to those from other states who could say “no” on an application and get a job that would be denied to someone from Washington with a similar juvenile offense.

How does your state handle the confidentiality of juvenile records? Check CourtReference; just select your state, then select the “Self Help and Legal Research” court resource category, and look for links that discuss the sealing or expungement of juvenile records.

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WHY STATE COURTS MATTER.

March 18th, 2014 · No Comments

From our early civics lessons we know that there are two court systems in the United States judiciary-federal and state.  On this CourtReference site, we focus exclusively on the courts from each of the 50 states and the District of Columbia.  State courts have broad jurisdiction to interpret the laws that govern our everyday lives: where we live, where we work, with whom we marry, procreate, and divorce (or any combination thereof!), and where we ultimately may be laid to rest.  From cradle to grave, we abide by the laws of our resident state, and are subject to the rulings from our state courts.

But we also recall from our civic education that we are subject to a “dual sovereignty” of federal and state governance.  Under the United States system, power is shared between both entities.  The US Constitution expressly grants certain powers to the federal government and reserves the remainder to the states.  As James Madison delineated the authority of the federal government to the state governments in the Federalist Papers (Number 45):

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

(Source: Library of Congress, THOMAS,  The Federalist Papers)

Too pedantic for practical purposes?  Regarding our dual court systems, federal courts resolve disputes involving the US Constitution and laws and regulations passed by Congress. Federal courts also have exclusive jurisdiction over:

1) cases in which the United States is a party;

2) cases between citizens of different states, if the amount in controversy exceeds $75,000;  and

3)  cases involving bankruptcy, copyright, interstate and international commerce, maritime, and patent law.

State courts retain jurisdiction over issues involving the state constitution and laws and regulations passed by the state legislature.  State courts also preside over state civil and contractual disputes, state criminal offenses, family law, personal and professional injury (workers’ compensation) claims, real property, probate, and traffic disputes.  There may be other causes of action not listed here, but generally speaking, state courts preside over matters that individual citizens commonly encounter.  On this CourtReference site, you can find your state, county, municipal or specialty court, with links providing valuable information about each court’s services, programs, resources, and contact information.  All for free!  So,  if you find yourself involved in any of the above actions, your recourse will be state court, but your preparation should start with CourtReference!

In conclusion, where we live profoundly impacts how we live.  Think about the compelling and controversial issues of the day. Do you support same-sex marriage? 17 states permit marriage for same-sex couples (at the time of this publication).   Do you prefer to live in  a “duty to retreat” state or a “stand your ground” state in terms of self-defense?  Currently, 31 states allow a “stand your ground” justification for the use of deadly force in self-defense.  Whether you prefer to reside in a “right to work” state or one that offers “death with dignity” options for end-of-life decisions, the choice of where you call “home” will define the course, quality, and values  of your daily life.

 

 

 

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