Page 15 - Delaware Lawyer - Summer 2019

At a June 30 ceremony,
Governor John Carney signed into law the Adult Expungement Reform Act, which will radically change the landscape
for Delawareans with criminal records.
14, 2014 to prohibit employers from in- quiring about a criminal record during the initial application process. Delaware’s then-Governor Jack Markell stated: “We cannot accept the human tragedy that occurs when those who we incarcerate — who have the intention and ability to rejoin mainstream society — return to a destructive lifestyle because we erect barriers that deny them fair opportuni- ties.”3 Although well-intentioned, this legislation only applies to public agen- cies and, even then, allows inquiries into criminal history after completion of the first interview.4
Juvenile arrests and adjudications can be as damaging as adult records. There is a persistent myth that juvenile records are sealed and unavailable to the public after a child turns 18. In Delaware, that is not true. Anytime a criminal back-
Many Delawareans are unaware they have a criminal record until they apply for a job or housing and are turned down.
ground check is run, juvenile arrests and delinquencies are part of the record. To remove a delinquency adjudication from their record, applicants must have the resources, time and sophistication to navigate a complex bureaucratic and legal process. Despite the optimistic statement of Delaware law that “no child shall be deemed a criminal by virtue of an allega- tion or adjudication of delinquency,”5 the reality is that juvenile records in Delaware are treated the same as adults in many cases.6 And while an adjudication of de- linquency might not be a per se bar for employment, education and other oppor- tunities, the stigma is largely the same. An arrest, a juvenile adjudication or an adult conviction all carry collateral con- sequences that last well beyond the reso- lution of the case or the completion of a sentence and can prevent an individual from remaining or becoming a produc- tive member of society. This affects not only the individual, but also their family and children, and our community as a whole. Criminal background checks are ubiquitous in our modern society. The Center for American Progress reports that nine in 10 employers use a criminal background check, along with four in five private landlords and three of every five colleges.7 Delaware’s public housing au- thorities also refuse tenants with criminal convictions and sometimes mere arrests — a policy that often leads to family sepa- ration and financial strain.
As a society, we expect individuals to learn from their mistakes and move on,
but the persistence of public criminal re- cords has the opposite effect. Delaware has slowly come to this realization, as evi- denced by recent legislative reform.
Juvenile Expungements
In 2014, Juvenile Law Center, a non- profit group based in Philadelphia that has received national acclaim for its advocacy on behalf of youth in the social welfare and justice systems,8 issued a nationwide score card on juvenile records. Delaware fared poorly in all areas studied. Delaware ranked 46th overall when evaluating the confidentiality of juvenile records and the availability of sealing or expungement.9 Since that time, the General Assembly has significantly expanded the availability of juvenile expungement, as members real- ized that the consequences of a record — even a juvenile one — could be significant and permanent.10
Even with these improvements, the process to obtain a juvenile expungement is complex.
Prior to applying for any expunge- ment, a person must obtain a certified criminal record from the State Bureau of Identification (SBI).11 Any petition filed without a certified record will be sum- marily rejected.12 These records may be obtained only at three locations within the state.13 An individual must produce valid identification and pay a fee of $52 to procure the record. Juveniles must be accompanied by a parent or guardian.14 This requirement is a significant barrier to many individuals who would otherwise seek an expungement, as they often lack the needed financial means, knowledge and transportation.
All petitions to expunge a juvenile re- cord must be filed in the Family Court in which the most recent case was terminat- ed.15 Expungements may be mandatory16 or discretionary17 depending on the dis- position and nature of the charges.18 De- termining which category is applicable is often a complex task, even for experienced attorneys — and is nearly impossible for a pro se litigant. Certain serious violent felo- nies may never be expunged and neither can Title 21 offenses.19
Despite these complexities, obtaining
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