Record Clearance
States can ensure that record clearance processes for juvenile adjudications are universal, automatic, and free of charge.
Problem
When records are not confidential at their inception, record clearance mechanisms, such as sealing and expungement, can mitigate the negative impact of a juvenile record on employment and educational opportunities. These mechanisms limit access to official versions of the person’s juvenile record. However, access to effective record clearance can be stymied by unreasonable waiting periods and offense-based eligibility restrictions. Administrative burdens, including court filing and documentation requirements, in-person hearings, and prohibitive fees, can be additional stumbling blocks.
Recommendations
1. Automatic record clearance
Make record clearance automatic and cost-free for most juveniles and youth after the termination of juvenile court jurisdiction or shortly thereafter.7 Some states may find that offense-based exceptions are appropriate for serious offenses that raise significant public safety concerns. Where offense-based exceptions apply, they should be limited to narrowly defined offense categories. (See, e.g., the Iowa example in the following recommendation, which limits confidentiality only for specifically defined “forcible felony” offenses.) It is important that states that limit automatic clearance provide additional pathways for sealing or expungement so that relief remains available on an individualized basis for people who do not pose significant public safety concerns (see the following recommendation, “Alternate pathways”).
Sample legislative language
All law enforcement, court, and related records pertaining to any matter before [the juvenile court] shall be expunged upon the court’s own motion and order, either at the termination of the court’s jurisdiction over the child or upon the child reaching 18 years of age, whichever is later.
State policy example
Texas: Tex. Fam. Code § 58.253 (automatic sealing)
(b) A person who was referred to a juvenile probation department for delinquent conduct is entitled to have all records related to the person’s juvenile matters, including records relating to any matters involving conduct indicating a need for supervision, sealed without applying to the juvenile court if the person:
(1) is at least 19 years of age;
(2) has not been adjudicated as having engaged in delinquent conduct or, if adjudicated for delinquent conduct, was not adjudicated for delinquent conduct violating a penal law of the grade of felony;
(3) does not have any pending delinquent conduct matters;
(4) has not been transferred by a juvenile court to a criminal court for prosecution under Section 54.02;
(5) has not as an adult been convicted of a felony or a misdemeanor punishable by confinement in jail; and
(6) does not have any pending charges as an adult for a felony or a misdemeanor punishable by confinement in jail.
2. Alternate pathways
For records that do not qualify for automatic clearance or confidential status, allow the subject of the record to have their record cleared at the discretion of the court. Discretionary clearance should be presumptive and available with minimal procedural hurdles or costs. States wishing to minimize barriers to access can eliminate petition requirements by requiring the court, at the time of adjudication, to set a date for the hearing of a motion for discretionary clearance.
Sample legislative language
a) Notwithstanding any other provision of law, if a person would be ineligible for expungement pursuant to [automatic expungement provision], the juvenile court shall, at the time of adjudication, set a date for a hearing on the matter of expungement of juvenile law enforcement, court, and related records. The hearing shall be held at the termination of the court’s jurisdiction over the child, or upon the child reaching 18 years of age, whichever is later. The court shall order the records expunged unless it finds that there is a significant public interest in maintaining public access to the records that outweighs the interests of the child. The court may order records sealed without a hearing unless the state files a motion in opposition to sealing.
b) Notwithstanding any other provision of law, a person ineligible for expungement pursuant to [automatic expungement provision] may, at any time after the termination of the court’s jurisdiction over the child, or upon the child reaching 18 years of age, whichever is later, petition the court for expungement of juvenile records subject to the same standards described in subsection (a).
c) In any proceeding under this section, the state shall bear the burden of showing that there is a significant public interest in maintaining public access to the records that outweighs the interests of the individual.
d) No fees shall be assessed with respect to any matter before the court involving the expungement of juvenile records.
State policy example
Texas: Tex. Fam. Code § 58.256 (petition-based alternative to automatic clearance)
(a) Notwithstanding Sections 58.253 [automatic sealing authority] and 58.255, a person may file an application for the sealing of records related to the person in the juvenile court served by the juvenile probation department to which the person was referred. The court may not charge a fee for filing the application, regardless of the form of the application.
….
(c) Except as provided by Subsection (d), the juvenile court may order the sealing of records related to all matters for which the person was referred to the juvenile probation department if the person:
(1) is at least 17 years of age, or is younger than 17 years of age and at least one year has elapsed after the date of final discharge in each matter for which the person was referred to the juvenile probation department;
(2) does not have any delinquent conduct matters pending with any juvenile probation department or juvenile court;
(3) was not transferred by a juvenile court to a criminal court for prosecution under Section 54.02;
(4) has not as an adult been convicted of a felony; and
(5) does not have any pending charges as an adult for a felony or a misdemeanor punishable by confinement in jail.
(d) A court may not order the sealing of the records of a person who:
(1) received a determinate sentence for engaging in:
(A) delinquent conduct that violated a penal law listed under Section 53.045; or
(B) habitual felony conduct as described by Section 51.031;
(2) is currently required to register as a sex offender under Chapter 62, Code of Criminal Procedure; or
(3) was committed to the Texas Juvenile Justice Department or to a post-adjudication secure correctional facility under Section 54.04011, unless the person has been discharged from the agency to which the person was committed.
(e) On receipt of an application under this section, the court may:
(1) order the sealing of the person’s records immediately, without a hearing; or
(2) hold a hearing under Section 58.257 at the court’s discretion to determine whether to order the sealing of the person’s records.