The Dangers of Hiding Criminal Pasts

25 Pages Posted: 29 Oct 1998 Last revised: 18 Apr 2021

See all articles by T. Markus Funk, PhD

T. Markus Funk, PhD

University of Colorado School of Law; University of Oxford

Date Written: May 1, 1998

Abstract

Rehabilitating juvenile offenders is a laudable goal of our juvenile justice system. But just as the praiseworthiness of this aspiration cannot be discounted, the need to identify and separate from the total pool of juvenile offenders the relatively small sub-segment that accounts for the bulk of the violent crime is also beyond doubt. Although much has recently been said in the popular media as well as in scholarly journals about the harm caused by increasingly violent and recidivistic young offenders, legislators have inexplicably been slow to recognize that juvenile delinquent pasts are highly prognostic of adult criminal futures. Unfortunately, many contemporary expungement laws continue to permit the wholesale destruction or sealing of records of repeated and violent criminal acts.

Few would argue that a one-time minor act of non-violent delinquency, when followed by a lengthy crime-free period, should forever remain on an individual's record. However, in light of the increased severity of contemporary juvenile crime, and the demonstrated continuity of serious law-breaking behavior throughout life, the time has come to reconsider whether we, as a society, should continue to cling to the statutory fiction that juveniles will simply "outgrow" their criminal behavior -- no matter how severe -- once they reach the arbitrary age of sixteen, seventeen, or eighteen. Jurisdictions that practice what I label "aggressive expungement," inter alia, interfere with the just and appropriate sentencing of youthful adult offenders by judges, impede law enforcement investigations, prevent employers and college admissions officers from being able to fully evaluate prospective employees and students, and efface the distinction between good and bad behavior. The argument that will be advanced is not that all acts of juvenile delinquency should forever remain on one's record, but rather that certain violent and recidivistic crime patterns have such prognostic power that expunging them is a serious mistake. The article will also propose a model expungement statute that addresses the current statutes' infirmities.

Suggested Citation

Funk, PhD, T. Markus, The Dangers of Hiding Criminal Pasts (May 1, 1998). Tennessee Law Review, Vol. 66, No. 1, 1998, Available at SSRN: https://ssrn.com/abstract=138209

T. Markus Funk, PhD (Contact Author)

University of Colorado School of Law ( email )

401 UCB
Boulder, CO 80309
United States

University of Oxford ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

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