Collateral Consequences of Juvenile Delinquency Proceedings

Introduction

C. Public Access to Juvenile Court Hearings

A. What is a Collateral Consequence?

Wis. Stat. § 938.34 describes the dispositions that may be imposed as a direct consequence of a delinquency adjudication. But there are other significant and long-lasting consequences of a delinquency proceeding that are not so clearly described in an easily accessible statute. These are the “collateral consequences” of delinquency proceedings: The civil penalties or regulatory restrictions that result from court involvement and have a significant and long-lasting effect on the youth’s life after the court-ordered disposition is complete and the case is closed.¹

Collateral consequences may include suspension or expulsion from school, barriers to employment, exclusion from the military, loss of hunting and fishing privileges, exclusion from public housing, an inability to obtain citizenship, and barriers to becoming a foster parent or adopting a child. The purpose of this guide is to inform juvenile court professionals about these diverse consequences. And, in the interests of practicality, this guide will also describe unanticipated or less well-known consequences, such as the cost of getting a driver license reinstated or financial costs to parents.

It also includes a primer on records kept by social service agencies, law enforcement, and the State Department of Justice, as well as the juvenile court. Understanding where juvenile delinquency records are kept and with whom they are shared is key to understanding collateral consequences. The guide also describes the process for removing fingerprint records and firearm restrictions, expunging juvenile court records, and removing DNA records.

However, this guide only provides the basics. Individual cases will require further investigation and research. For example, the guide describes the laws regarding school expulsion, but professionals will need to research the specific rules in the youth’s school district. If the question is sex offender registration, it may be necessary to investigate residency restrictions in the youth’s home town. If a youth does not have legal status, an immigration lawyer must be consulted for specific advice. This guide is not legal advice; it is the responsibility of each juvenile justice professional to check statutes, caselaw, local practices, and consult other attorneys and other resources, as they apply to each case. The guide is current as of April 2022, so professionals will need to check carefully for subsequent authority.

B. The Language of the Juvenile Court

The foundational principle of juvenile courts is that wayward children can and should be rehabilitated, not punished. Therefore “the policy of the juvenile law is to hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past.” In re Gault, 387 U.S. 1, 32 (1967) quoting In re Gault, 407 P. 2d 760, 767 (1965). To that end juvenile court language is purposefully unlike the language used in criminal court:

A child who is “adjudicated delinquent,” is not “convicted” of a crime. Wis. Stat. § 938.35(1).
A child subject to juvenile court jurisdiction is “taken into custody,” not arrested. Wis. Stat. § 938.19(3).
If the child is held in a locked setting, it is a “juvenile detention facility,” not a jail. Wis. Stat. §§ 938.02(10r), 938.208.
A child who is adjudicated delinquent may be sent to a “juvenile correctional facility,” not prison. Wis. Stat. § 938.02(10p).
A placement in corrections is not “incarceration,” but is instead accomplished through a “transfer of custody” to the Department of Corrections. Wis. Stat. §§ 938.34(4), 938.34(4m).
The court’s dispositional order is a “disposition,” not a sentence. Wis. Stat. § 938.355 .

NOTE: A child and parent should be advised that these language differences are important when they complete applications that ask about criminal history in the future. Many applications ask about “convictions,” but not “adjudications,” so the answer to a “prior convictions” question is “no.” Youth with only juvenile court histories can answer “no” to a question whether they have been arrested or have been in jail or prison. If the application asks for “adjudication,” or “detention” or “correctional institution,” however, the answer is “yes.”

Wis. Stat. § 938.35(1) reflects the rehabilitative purpose of the juvenile court, stating that an adjudication of delinquency “does not impose any civil disabilities ordinarily resulting from the conviction of a crime and does not operate to disqualify the juvenile in any civil service application or appointment.” Unfortunately, as the Supreme Court noted in Gault, this “claim of secrecy is more rhetoric than reality” Id.

C. Public Access to Juvenile Court Hearings

In keeping with juvenile court philosophy, the general rule is that juvenile court hearings are closed to the general public. Wis. Stat. § 938.299(1)(a). However, there are three exceptions to the rule. Juvenile court hearings are open to the public if: 1) Wis. Stat. § 938.299(1)(a): The child through counsel demands a public hearing, or 2) Wis. Stat. § 938.299(1)(ar): The petition alleges that the child committed a felony, and the child has been previously adjudicated delinquent, or 3) Wis. Stat. § 938.299(1)(ar): The petition alleges that the child violated a statute classified as a serious juvenile offense in Wis. Stat. § 938.34(4h)(a).²

If the hearing is open to the public, information learned at the hearing can be openly disclosed. Wis. Stat. § 938.299(1)(av). All other juvenile court hearings are closed, and people who attend may be held in contempt of court if they divulge identifying information about the child or the family involved, with some narrow exceptions. Wis. Stat. § 938.299(1)(b).

In addition to the parties, their attorneys and witnesses, the court can admit anyone the court finds has “a proper interest in the work of the court,” including other lawyers, researchers, and in some instances foster parents or legal custodians. Wis. Stat. § 938.299(1)(a),(1)(ag).

The court can admit news media representatives to closed hearings, but only for “the purpose of reporting the news without revealing the identity of the juvenile involved.” Wis. Stat. § 938.299(1)(a).

NOTE: This section refers only to Chapter 938 hearings in the juvenile court. If a child is

charged in adult criminal court, or if the case is waived to adult criminal court, the hearings are open to the public, as all adult criminal court procedures apply.

¹ Radice, Joy, The Juvenile Record Myth (January 1, 2018). Georgetown Law Journal, Vol. 106, No. 2, 2018, University of Tennessee Legal Studies Research Paper No. 348, Available at SSRN: 3132173

² The juvenile is 14 years of age or over and has been adjudicated delinquent for committing or conspiring to commit a violation of s.939.32 (1) (a), , 940.06, 940.21, 940.225 (1), 940.305, 940.31, 941.327 (2) (b) 4., 943.02, 943.10 (2), 943.23 (1g), 943.32 (2), 948.02 (1), 948.025 (1), or 948.30 (2) or attempting a violation of s.943.32 (2) or the juvenile is 10 years of age or over and has been adjudicated delinquent for attempting or committing a violation of s .940.01 or for committing a violation of s.940.02 or 940.05 .