Justice, Mercy, and Youthful Indiscretion

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  I come from a larger than average extended family – which includes more than twenty cousins. We all grew up either in poverty or close to it. More than half of those cousins have criminal records. Some learned from their mistakes, but some did not. All of them, however, did their time. Many of them have problems finding meaningful employment because of the mistakes they committed when they were young – before they ever reached adulthood.

      When I taught my high school students criminal law through the Street Law program (overseen by Professor Marrus – the Director of the Center for Children, Law, and Policy), I showed them the above Ted Talk. I emphasized to them that while law and order is important, justice along with mercy is essential. Most of the kids were receptive to the idea, especially because either they or their parents had a criminal record, and that record adversely affected their lives. Some of my students had to work to supplement the family income.

      When I enrolled in the Juvenile Record Sealing Clinic at the University of Houston Law Center, I had the privilege of advocating for two clients. Both committed offenses when they were young – one was fourteen at the time of the offense. Both are now in their twenties. Both learned their lessons, did their time, learned from their mistakes, and are now good, contributing members of society. Both were told that if they completed their community supervision, their records would “go away.” Unfortunately, that wasn’t true. Both had trouble finding meaningful employment because their record still stuck with them – even though they committed no serious infractions since their probation. When I went to court, the District Attorney’s office opposed one of my cases, which meant that I had to give an oral argument in front of the judge rebutting the assistant district attorney. Thankfully, with the help of my professors, both records were sealed.

      It still boggles my mind on why the District Attorney’s office opposed my cases. I understand the need to punish individuals guilty of crimes, and I understand retribution to an extent. However, what’s more important is the rehabilitation of juveniles who commit offenses. In the land of the free, we have 2.3 million people in confinement, making the United States the most incarcerated nation on the planet. We need creative solutions to decrease recidivism, decrease the jail population, and increase the number of productive members of society. Criminal records may affect financial aid for college, child custody, citizenship, employment, rights to own a firearm, and subsequent criminal cases. Youthful indiscretion should not define a person for the rest of their life.

      The cost of sealing a juvenile record, at least in the Houston area, can cost around $800 because of the time involved.  There is no possible way that the clients I worked with could have afforded that price. The Juvenile Record Sealing Clinic, which is operated by the Juvenile and Capital Advocacy Project, seals records free of charge for clients. I’m thankful that both of my clients were fortunate enough to be selected for the program. At the end of the process, and after hours of paperwork, I couldn’t help but wonder why the advice they previously received wasn’t true: why don’t their records just go away? 

      I propose that we make that false statement mentioned earlier – that “the records would just go away” – become reality by codifying the following into law:

Every juvenile offender whose offense does not result in serious bodily harm or death shall be placed on deferred adjudication for no more than two years. The court shall issue an order of nondisclosure within 36 hours of the completion of the deferred adjudication. The offender’s record shall be expunged no more than 7 years after the deferred adjudication is completed.

Now, let me explain what that means.

Deferred Adjudication” is a special form of judge-ordered community supervision (commonly known as “probation”) that permits a defendant to accept responsibility for a crime without an actual conviction being placed on the record. An “Order of Nondisclosure” is a court order prohibiting public entities such as courts and police departments from disclosing certain criminal records. It also legally frees an individual who is granted an order of nondisclosure from disclosing information about their criminal history (subject to the order of nondisclosure) in response to questions on job applications. The criminal record may be disclosed to other criminal justice agencies for criminal justice or regulatory licensing purposes, as well as several non-criminal justice agencies and entities (e.g. Texas Medical Board, Texas Board of Law Examiners, Texas Education Agency). “Expunctions” completely erase the offense from the criminal record. 

Source: Texas Office of Court Administration

      By mandating deferred adjudication, juvenile offenders will be able to stay out of confinement so long as they successfully complete their community supervision. The deferred adjudication may have certain conditions attached by the judge, like anger management. Hopefully, if judges are creative enough, they can address problems, prescribe solutions that will help the offender, and prevent a downward spiral toward recidivism. The order of nondisclosure prevents employers from discriminating against the offender, which will increase the offender’s likelihood of finding meaningful employment. The offense, however, will still be available to police agencies and district attorney’s offices in case the juvenile reoffends. This will allow agencies, law enforcement, and courts to see recidivism and respond accordingly. If the offender successfully completes deferred adjudication and does not reoffend, and the offender demonstrates that they learned from their mistake and won’t repeat it, their mistakes of their youth will permanently be taken off their record.

      Our justice system has created a country that has the second highest incarceration rate per capita and the largest prison population in the world. Juveniles who are incarcerated for a crime are 67% more likely to receive an additional jail sentence by age 25. A juvenile who receives a jail sentence is 39% less likely to graduate high school. Our justice system needs reformed. Old, outdated policies are only hurting us as a society. We must reform the justice system to decrease the jail population and increase the number of productive members of society. We cannot let the mistakes of youth damn an individual for the rest of their lives. Rehabilitation – with both justice and mercy – must be the focal point of juvenile criminal proceedings for that to happen.

      I believe that every person is better than their worst day. For many juvenile offenders, their worst day was committing the offense that they were charged with. I believe that mercy is a required component of justice, and our criminal justice system must reflect that. In closing, I would like to present a quote from Just Mercy by Bryan Stevenson, 

“I’ve come to believe that the true measure of our commitment to justice, the character of our society, our commitment to the rule of law, fairness, and equality cannot be measured by how we treat the rich, the powerful, the privileged, and the respected among us. The true measure of our character is how we treat the poor, the disfavored, the accused, the incarcerated, and the condemned.

We are all implicated when we allow other people to be mistreated. An absence of compassion can corrupt the decency of a community, a state, a nation. Fear and anger can make us vindictive and abusive, unjust and unfair, until we all suffer from the absence of mercy and we condemn ourselves as much as we victimize others. The closer we get to mass incarceration and extreme levels of punishment, the more I believe it’s necessary to recognize that we all need mercy, we all need justice, and – perhaps – we all need some measure of unmerited grace.”

      If you would like to learn more about the Juvenile Record Sealing clinic, the process involved, or the Juvenile and Capital Advocacy Project, here is a radio interview with Professor Katya Dow and students Tressa Surratt and Lizzie Lawrie.

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