Juvenile Records and Expungement

1. Juvenile Records and Expungement Training for Pennsylvania Defense Attorneys March 2008

2. Expungement materials • Juvenile Records Expungement: A Guide for Defense Attorneys in Pennsylvania available at www.jlc.org for free download or for purchase from JLC for $7.50 including shipping. • Philadelphia expungement forms – available from Defender Association of Philadelphia

3. A Glossary of Terms • JuvenileCourtRecord – maintained by AOPC • LawEnforcementRecord – maintained by PSP • JuvenileProbationRecords – maintained by Probation • Expunge – to completely destroy as if never existed • Seal – closed to general public, but still accessible • Adjudication – the judge’s decision in juvenile court after hearing the evidence in a case (similar to a finding of guilt or innocence) • Disposition – judge’s determination on what type of treatment, rehabilitation, or supervision an adjudicated child will need (similar to adult sentencing)

4. Why keep records? • Community protection • Track criminal behavior patterns • Provide for appropriate levels of supervision and treatment

5. Why expunge records? • Utility of records diminishes over time • Collateral consequences • Financial aid • Employment • Joining military • Acknowledges important adolescent research and gives kids a fresh start • Youth’s record may contain • Misinformation • Hearsay • Stigmatizing information

6. Role of a Defense Attorney • At every stage, inform the child of the consequences of a juvenile adjudication • Before adjudication – explore diversion options • Before disposition – explore consent decree • Notify clients when they are eligible to petition the court for expungement • Private attorneys are held to the same standards as public defenders appointed to youth in the juvenile justice system

7. Juvenile Court Records

8. What is in a juvenile court record? • Information about the juvenile’s charges • Delinquency history • School history • Mental health history • Family information • Social history

9. Who sees a juvenile record? • Court personnel • Judge • District Attorney • Defense Counsel • Residential program or penal institution • Law enforcement officials in other jurisdictions • Criminal court – for presentence report • Parole board

10. Who sees a juvenile record? • School • When a juvenile is adjudicated delinquent, the school where s/he is enrolled gets a limited amount of information • Juvenile’s name and address • Description of the delinquent charges • Disposition of the case • If the adjudication was for a felony then the following is disclosed • Prior delinquent history • Supervision plans • “other relevant information” if deemed necessary to protect public safety or enable appropriate treatment, supervision, or rehabilitation

11. What can the public see? • Juvenile age 14 or older • Court records of offenses that would be considered felonies if committed by an adult • Juvenile age 12 or 13 • Court records of murder, voluntary manslaughter, aggravated assault, arson, involuntary deviate sexual intercourse, kidnapping, rape, robbery, robbery of a motor vehicle, or attempt or conspiracy to commit one of these offenses

12. What can the public see? • Juvenile’s name • Age • Address • Offense charged • Disposition • The entire juvenile court file should never be made publicly available

13. Law Enforcement Records

14. What is in a law enforcement record? • Juvenile’s name • Age • Address • Arrest history • Specific offenses and counts the juvenile was charged with • Disposition of the case • Fingerprints • DNA sample information • photographs

15. Who sees a law enforcement record? • Court personnel • Juvenile court judge • DA • Defense counsel • Residential program where the child is committed • Law enforcement officers in other jurisdictions • Criminal court • Penal institution • Parole board

16. What can the public see? • Juvenile age 14 or older • Law enforcement records of offenses that would be considered felonies if committed by an adult • Juvenile age 12 or 13 • Law enforcement records of murder, voluntary manslaughter, aggravated assault, arson, involuntary deviate sexual intercourse, kidnapping, rape, robbery, robbery of a motor vehicle, or attempt or conspiracy to commit one of these offenses

17. Fingerprints • Fingerprints must be taken of any juvenile alleged to have committed either a misdemeanor or felony (before adjudication) • Can be disseminated to PSP, other jurisdiction law enforcement agencies, and FBI for investigation purposes • Kept in PSP Central Repository following adjudication • If case is dismissed, or child not adjudicated delinquent, court must order the fingerprints to be destroyed immediately

18. DNA records • Any juvenile adjudicated for a felony offense must have a DNA sample drawn • DNA samples stored at PSP Bureau of Forensic Services and DNA Laboratory • Can only be expunged if adjudication is reversed, case dismissed, or DAN sample mistakenly included in database • Expungement order must specifically order DNA samples to be expunged

19. Collateral Consequences

20. Consequences of a juvenile adjudication • Later court proceedings • Employment • Financial Aid • Joining Military Services • Driver’s License • Public Benefits • Child Welfare System • Purchase of Firearm

21. Later Court Proceedings • Presentence investigation • Reports following adjudication (during disposition) • Hearings for subsequent juvenile charges • Civil proceedings where character or reputation at issue • Criminal proceedings where evidence would have been admitted if offense committed by adult • Calculating Prior Record Score* * Prior Record Score – see Proposed Rules

22. Employment • Law enforcement records are accessible pursuant to the Crimes Code • Felony and misdemeanor convictions may be considered only to the extent to which they relate to the applicant’s suitability for employment in the specific position s/he has applied • Court records are not accessible to employers unless there is a legitimate interest in the proceedings and the employer has obtained a court order • Remember – an adjudication is not the same as conviction!

23. Military • Court records accessible to military with court order • Law enforcement records always accessible to military • Must satisfy moral criteria to enroll in military (records of arrest, charges, juvenile court adjudications, traffic violations, probation periods, dismissed or pending charges or convictions, including those which have been expunged or sealed.” • If the individual has an adverse disposition, may request a moral waiver, but certain offenses make individuals ineligible to even request a moral waiver

24. Other possible consequences • Financial Aid • Certain drug offenses make individuals ineligible for federal aid • Driver’s License • Revoked or suspended if juvenile was adjudicated delinquent for an offense where vehicle was “essentially involved,” for certain drug offenses, or offenses committed on school property • Public Benefits • Adjudications for some drug offenses make individuals ineligible for TANF • Child Welfare System • Certain adjudications prohibit individuals from becoming foster or adoptive parents, from working with children in their jobs, or from prompt return of their own children from foster care • Possession or Purchase of a firearm • Prior Record Score calculation important in determining whether person can purchase or have license to possess firearm

25. Expungement

26. Eligibility for expungement • Charges dismissed – automatic • Consent decree – automatic • 5 years passed – file petition and expungement granted within 30 days unless good cause shown • Over age 18 – file petition, DA must consent, and court can order expungement

27. Charges Dismissed • Complaint filed and not substantiated • Charges dismissed • Statute provides for expungement by petition, but could happen automatically • What about informal adjustments?

28. Consent Decree • 6 months have elapsed since discharge from supervision under a consent decree • No other pending proceedings in juvenile or criminal court • Pending good cause shown for denying, will be granted within 30 days • Statute allows for expungement by petition but could happen automatically

29. 5 years passed • 5 years passed since discharge from commitment, placement, probation, or any other disposition or referral • No pending or past adjudications or convictions during 5-year period • Must petition the court • Petition gives DA notice • Pending good cause shown for denial, will be granted within 30 days

30. Juvenile over age 18 • Juvenile reached age 18, but five years have not yet passed since discharge from placement/probation • Must petition court for expungement • DA must consent to expungement • Court will grant upon consideration of • Type of offense in record • Individual’s age, history of employment, criminal activity, and drug and alcohol use • Adverse consequences individual may suffer if record is not expunged • Whether retention of record is required for public safety

31. Expungement hearings • If the DA does not consent to the expungement, the juvenile is entitled a hearing by the Rules of Juvenile Court Procedure • Does the hearing make a difference? Can the judge overrule the DA and grant the expungement?

32. Expungement Motions • In most counties, expungement occurs only by petition. • Statute allows for expungement by motion of court, individual, or individual’s parent/guardian • Rules set forth requirements for motion to expunge

33. Requirements for Motion to Expunge • Juvenile’s name and date of birth or SS number • Case docket number • Charges seeking to expunge • Law enforcement agency that initiated allegations • Reference number of police report/ written allegations • Date of arrest • Disposition of written allegation or petition • Reasons and statutory authority for expungement • Agencies on which to serve expungement order

34. Agencies to include • Be sure the list is as complete as possible so the record is fully expunged • Include: • Administrative Office of Pennsylvania Courts • County District Attorney • County Children and Youth Services • County Juvenile Probation • Clerk of Courts • County Police Department • Pennsylvania State Police Central Repository

35. Cost of Expungement • Each county has its own costs associated with filing a motion to expunge • Can file In forma Pauperis motion to request fee waiver

36. Philadelphia Expungement Process • Handouts • Sample Philadelphia Expungement Petition • Sample Philadelphia Expungement Order • Sample PSP Affidavit

37. Questions??? Laval Miller-Wilson, Esq. lwilson@jlc.org (215) 625-0551