I bet you did some stupid shit when you were young. I know I did, and I'm hardly alone. Over 40% of males have been arrested by the age of 23. About 1 in 3 people regardless of race or gender is arrested before the age of 23. If teenage behavior was a Family Feud category, the top survey responses would be impulsive, reckless, and emotionally unstable. For some sick reason, the teenage brain seems to be programmed for poor decision making. The good news is that we're not stuck with those brains forever. As our brains develop, almost all of us rein in the risky and stupid behavior by our mid-20s (plus or minus several years depending on the person). We get jobs, we start families, and we eventually get our act together.
Unfortunately, foolish youthful decisions often haunt people for the rest of their lives. A 2009 Justice Department study found that a past criminal conviction of any sort reduced the likelihood of a job offer by 50 percent. This is obviously terrible for the individual people, but it's also bad for the larger economy. We're permanently blocking close to one in three people from reaching their economic potential. Why should a 30 year old continue to suffer for things he/she did when 19 and a completely different person? Is it really good policy to push young people who could become doctors, business people, scientists, etc. into jobs that don't ask about past arrests, but pay far less and are a poor match for their skills?
That's where the idea of "deferred findings" comes in. The idea behind deferred findings is to allow certain people to walk away with no conviction even when they're guilty. These kinds of sentences have been around for a long time. I'll give you an example of how one might work. An 18 year old high school senior gets drunk with some buddies and breaks some mailboxes. He gets charged with felony destruction of property. He has no prior record and is supposed to be going to JMU on a football scholarship next year. A felony conviction will destroy everything. The court doesn't want to ruin his future, but it also wants him to suffer consequences. The court orders him to complete 100 hours of community service, pay full restitution to replace the mailboxes, go on a jail tour, complete an alcohol program, and stay out of trouble for one year. If he follows the court's conditions, the charge is dismissed.
These kinds of sentences have been around for a long time, and they've played a vital role in the criminal justice system. Unfortunately, deferred findings have become extremely controversial. The most recent Virginia appellate case addressing deferred findings, White v. Commonwealth, held that deferred findings for guilty defendants are not permitted unless the General Assembly passes a law specifically allowing it. (Deferred finding laws exist for first offense drug possession, first offense domestic assault and battery, certain low level property offenses, and juvenile offenses).
Eliminating the option of deferred findings is a big mistake. Judges can and should be trusted to use their good judgment, hence the word "judge." Believe me, no judge is handing out deferred findings to violent dangerous felons. My suggestion (which nobody has solicited) is that the General Assembly pass a law that would allow deferred findings at the judge’s discretion for any crime that is not defined as a violent crime by 17.1-805. This power already exists in juvenile court (it's actually even broader in juvenile court; 16.1-278.8 allows deferred findings for any charge). I also think it would be a good idea to allow some small amount of jail time (perhaps up to 10 days) to be included as part of a deferred finding. Nothing sends a stronger message than time behind bars.
Another way to fix this problem is by changing Virginia's expungement law. The current law only allows expungement of criminal charges that have been dismissed or dropped. If you were convicted, you're out of luck no matter how old the charge. Why not add a provision that allows for the expungement of non-serious charges after a certain amount of time? Does the world need to know that a 30 year old was convicted of shoplifting when he was 18? My suggestion is allowing for the expungement of most non-violent criminal convictions after 5 years of no new convictions. Another way to address the problem is through laws that limit employers’ access to information about old convictions. In Massachusetts, a law limits employers’ access to information about convictions to 5 years for misdemeanors and 10 years for felonies.
At the end of the day, the goal should be to help young people succeed and reach their potential. What's the end game in pinning young people with criminal convictions that permanently block access to educational and employment opportunities? Don't get me wrong. I'm not talking about people charged with violent offenses. I'm not talking about people who have proven that they're dangerous. I'm talking about people who made stupid decisions who are otherwise decent people. These people deserve a chance to prove themselves. I doubt any of us would want to be judged by the decisions we made when we were 18.
If you are the parent of a young person charged with a crime, we can help you. Give us a call and we'll talk about your options.