It was unusual for Jihid Maye to hang out with this group of classmates outside of school, but when he did one day in 2018, a crime was committed.

Maye, who spoke to Law360 on the condition of not divulging the details of his case, says that while he wasn't directly involved, he was deemed "guilty by association," and hit with more than 20 charges, at least four of them felonies. He was 17.

After he served his sentence — a year and a half of house arrest — he started looking for a job in the spring of 2019. Maye estimates that he applied for more than 100 positions.

"I just wanted to work. I just wanted to make my own money," he said. "Most stores were hiring, but you gave them the application, you called back to the store, and they'd hit you with the same line: 'No, we're not hiring.'"

Maye was fairly qualified for his age — he'd worked for a sightseeing tour company and for UPS — so he felt his criminal record was what prevented him from getting job offers.

With the help of the Juvenile Law Center, a Philadelphia public interest firm, and the local public defender's office, Maye was able to get his record expunged, making it unavailable to the public. Now, when potential employers ran a criminal background check on him, nothing came up.

"It opened doors for me," he said. "After you do that background check and they call you back or email you back, that's how you know the expungement worked. And once you see that first email or call for a job ... for me, that put a smile on my face, because it's like: I came through all this."

Criminal justice reform advocates agree that living under the stigma of a juvenile record can make it harder for a young person to get a job, qualify for government housing, acquire professional licensure and generally succeed as an adult — an unfortunate setback for a group of people who are statistically unlikely to reoffend as they mature and their brains develop.

In recent years, state lawmakers have recognized this too, passing legislation to help young people clear their records, seal court dockets and close courtrooms, so they won't forever live under the shadow of a youthful mistake.

But while in California, juvenile arrest and court records involving nonviolent crimes are automatically sealed and even young people who don't complete probation and were accused of serious crimes can petition to have records expunged, in Idaho, young people must wait one to five years depending on the charge before they can file a petition to expunge, then must appear before a judge — and certain crimes, including drug possession near a school or a park, cannot be expunged.

Advocates call this state law patchwork "justice by geography."

"It's a huge equity issue," according to Alyson Clements, co-executive director of the National Juvenile Justice Network, a group that leads 60 state-based member organizations that advocate shrinking youth criminal justice systems. "Some kids can have their records sealed and move on with life and have access to different opportunities, whereas a child in another state might not be afforded that same opportunity. And so there's additional barriers for them."

Privacy may be crucial for minors to move on, but it requires a multipronged approach, advocates say. And from sealing court dockets and closing courtrooms during proceedings to expunging criminal records and arrest records and mugshots, no state gets a perfect score from the Juvenile Law Center, which tracks laws protecting the privacy of juvenile defendants.

"There are states that have strong expungement laws, but don't necessarily provide a lot of protection over records while young people's cases are still open. There are states that have strong records laws but have open courtrooms, so that people could go in and see the young person's actual court proceedings and the docket may be available," JLC staff attorney Andrew Keats told Law360. "There's no state that necessarily has a model set of statutes across the board that provide ideal protection."

What constitutes ideal protection also varies depending on whom you ask.

Youth advocates say expungement ought to be available for all and automatic, not a process that requires filing paperwork, paying fees and appealing to the discretion of a judge.

But that's a hard sell for tough-on-crime politicians who invoke public safety concerns and for First Amendment advocates who worry completely closing courtrooms and destroying records will harm public access to the courts.

Not Little Adults

In recent years, the U.S. Supreme Court has relied on brain and social science in a string of cases finding that teenage defendants convicted of even the most serious crimes should see more leniency than adults.

The first of those was Roper v. Simmons, which found in a 5-4 decision in 2005 that executing a 17-year-old convicted of murder would violate the Eighth Amendment's bar on cruel and unusual punishment.

Writing for the majority, Chief Justice John Roberts invoked "what any parent knows" and what "scientific and sociological studies ... tend to confirm": That young people lack the maturity, sense of responsibility and impulse control to be held to the same standards as adults.

That began a line of cases in which the high court considered the science of the still-developing adolescent brain, cemented the notion that "children are not little adults," according to Jay Blitzman, who served for two decades as a Massachusetts Juvenile Court judge and now is a Harvard law professor and a faculty member at the Center for Law, Brain & Behavior.



"The neuroscience developmental research supports a more enlightened approach. That credo which seems to indicate that as a group, children should be treated in a constitutionally different way than adults, its application has been limited to murder cases," he said. "That doctrine has not been applied as robustly as we would have hoped."

The Center for Law, Brain & Behavior recently released a white paper on the science of brain development meant to be a guide for judges, lawyers and lawmakers. It notes that those aged 18 to 21, who are generally tried as adults, respond to emotionally charged situations more like teenagers do. That's because the brain continues to mature throughout the early 20s, a phenomenon that has "profound implications for decision-making, self-control and emotional processing," the paper says.

Because young people's brains are still maturing, they will likely outgrow the behavior that might have gotten them into legal trouble in the first place, according to National Juvenile Justice Network's senior policy counsel Melissa Goemann. She said that's why the high court has found that young people shouldn't be punished as severely, because they have "the capacity to grow and develop and grow out of this type of activity just through the process of aging."

"If you apply that then to the area of expungement, it would make sense that a young person that grows out of adolescence then should be able to have their record expunged when they're at a time when they'll have better judgment and not be as prone to risk-taking," she said.

Statistics on reoffending bear that out. One Office of Juvenile Justice and Delinquency Prevention study found that 91.5% of previously arrested youth reported "decreased or limited illegal activity during the first three years following their court involvement."

An Inflection Point

When the juvenile justice system was created at the end of the 19th century, it was meant to rehabilitate young people who made mistakes early in life and protect them from the label of criminality, according to Keats. That changed with a cultural and technological shift several decades ago.

"We used to look at the juvenile system from a restorative perspective and originally treated records accordingly. When you left the juvenile system, your juvenile record stayed behind," he said. "Things started to change with the crime wave we saw in the '80s and '90s, leading to our era of mass incarceration. We also started looking at young people as very dangerous. We got into superpredator mythology. And then, with the war on terror, we had agencies sharing records across state and federal agencies. And we also have a digital revolution where once things are available online, they're preserved forever."

Now, it seems the pendulum is swinging back in the other direction, ushering in a new focus on privacy.

The American Bar Association passed a resolution in 2015, calling on local governments to pass laws allowing for the automatic expungement of juvenile records two years after the cases ended.

But recent years have ushered in a renewed focus on privacy. Maine, Indiana, Texas, Delaware, Oregon, Nevada, Oklahoma, California, Michigan, Washington, Colorado, Wyoming and North Carolina have all passed new legislation making expungement easier

"We're at an inflection point, I think, where states are now trying to go back to providing more protection and more confidentiality for young people, and recognizing the harsh impacts that these juvenile records can have on them," Goemann said. "That really cuts across blue and red states. I think it is an issue that has resonance across the board."

But in a 2020 review of the national landscape, the Juvenile Law Center found that states could still do more.

"The ideal set of laws would be that expungement happens automatically," Keats said, "because if it requires a young person to petition, are they going to know when that is available to them? Are they going to have to pay a fee to file that petition?"

Requiring a child to navigate that bureaucracy can create its own barrier to expungement, Clements said.

"You might have to mark your calendar for three years out, make sure you get the right paperwork. Make sure that paperwork is the correct paperwork, fill it all out, make sure you have an address when you might not have housing," she said. "I do think that the number of eligible youth to have their records expunged in states where it's not an automatic expungement is very low."

At least 15 states automatically seal or expunge some juvenile records, according to the National Conference of State Legislatures. But their application varies. In Alaska, that only applies to court dockets and not arrest records. In Florida, auto-expungement only occurs when the offender is in their mid-20s. Illinois' auto-expungement only applies to low-level offenses.

No Easy Answers

Such legislation is not without opponents. A bipartisan bill that would have allowed young Floridians to get their law enforcement records expunged after completing a diversion program made it through that state's Legislature last year, but was ultimately vetoed by Gov. Ron DeSantis, who, in a letter to the secretary of state, expressed "concerns that the unfettered ability to expunge serious felonies, including sexual battery, from a juvenile's record may have negative impacts on public safety."

Public safety is a concern for prosecutors as well, but Nelson Bunn, executive director of the National District Attorneys Association, told Law360 "there are also good reasons to expunge juvenile records." He cited recent studies that found most juvenile offenders, even those accused of violent offenses, will not go on to a lifetime of crime, and said that the limited job and housing options can serve as a kind of life sentence.

But he said while barring the general public from access to juvenile records is one thing, excluding law enforcement and prosecutors raises public safety concerns. Police need this information "to keep themselves safe and to investigate new charges," he said, and prior arrests provide prosecutors with what's known as 404(b) evidence.

"This evidence is used when a juvenile commits a second crime in such a similar manner to the first, that the first crime is relevant and can be brought into evidence to show a motive or lack of mistake, for example," he said. "If prior juvenile crimes are expunged and the prosecution can also no longer find them, 404(b) evidence cannot be found either. 404(b) evidence is often what makes the difference between a finding of guilty and not guilty in child sexual abuse cases."

Expungement and other measures also raise concerns about public access. And both youth advocates and First Amendment experts agree that it's difficult to balance the privacy rights of young people hoping to rebuild their lives against the public's right to access.

That access is necessary for government transparency and accountability, according to Jen Nelson, senior staff attorney at the Reporters Committee for Freedom of the Press. For her, the question is always whether there is a way to anonymize records in a way that protects young defendants while still granting access to the public.

"The example I use often is you can have instances where there are accusations of systemic failures in policing or in the courts," Nelson said. "Say, for example, accusations of police bias in arrest records. If you are expunging records on a mass scale, you're solving the problem for the individual who has this hanging over their head, but you're erasing evidence that journalists and scholars and the public more generally can use in order to identify these sorts of systemic problems and help address that root issue."

Recent case law has backed that right to access. RCFP recently represented the Hartford Courant in its challenge of a 2019 Connecticut state law that mandated sealing all judicial records and closing all court proceedings in cases that had been transferred from juvenile court to a regular criminal judge.

A state court sided with the Courant, granting its bid for an injunction. And last year, the Second Circuit affirmed, apparently unpersuaded by the state's argument that the new law was narrowly tailored and didn't flout First Amendment rights. U.S. Circuit Judge Denny Chin wrote that there is a well-established First Amendment right to access criminal trials, so long as it doesn't harm fair trial rights or disclose sensitive information.

"The court did rule in our favor, and did acknowledge the importance of protecting the privacy of vulnerable juveniles, but nonetheless, you know, acknowledged that the public's right of access to criminal records and criminal proceedings is incredibly strong," Nelson said.

Nelson is sympathetic to young people who are trying to start over, but she thinks there are ways to protect both First Amendment and privacy rights. She advocates redaction of records rather than sealing an entire document, and closing courtrooms for limited portions of proceedings rather than a blanket public ban.

But she said some advocates' solution of making it illegal for reporters to publish juveniles' names would run afoul of prior restraint, which she said is considered "the most odious of First Amendment violations" by the Supreme Court.

"That's what makes this issue so tricky. Even where you have state legislators who are trying to address these concerns, you run into these big First Amendment problems," Nelson said. "I'm sympathetic, of course, to the juvenile who does not want an indiscretion they need as a young teen following them for the rest of their lives. But balancing that would be the values that we have with having public access to court proceedings and how important that is for our system of accountability. It's just it. There's a lot of tension there and there are no easy answers."

For Maye, who personally experienced the benefits of having his record expunged, it's much simpler.

"I think records should be private," he said. "That's someone's past, that's not their life anymore. We call it the past for a reason. Bringing up someone's background check is degrading them from what they've been building."

--Editing by Katherine Rautenberg.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.