Breier v. E.C.

SHIRLEY S. ABRAHAMSON, J.

(concurring). Given the potentially discriminatory effect of arrest records, I would hope that the legislature would empower circuit courts to seal juvenile records when the circuit court has dismissed the charges upon the state's motion and the juvenile makes a showing of good cause. A sealing of the record, that is, an expungement, is appropriate when the dangers of unwarranted adverse consequences to the individual outweigh the public interest in maintaining the record. The legislature has provided for expungement of misdemeanor records of persons under the age of 21 for good cause, sec. 973.015, Stats. 1983-84, and has provided that fingerprint arrest records of persons cleared of a charge be returned on request. Section 165.84(1), Stats. 1983-84. Similar protections may be appropriate in some juvenile cases in which the circuit court dismisses the charges on the state's motion.

Although sec. 48.396(1), Stats., 1983-84, provides for some confidentiality of juvenile records, its protection is inadequate. As this court noted in Winburn v. State, 32 Wis. 2d 152, 162, 145 N.W.2d 178 (1966), juvenile records are not confidential as a matter of practice:

"It is common knowledge also that juvenile records do not, in fact, have a confidential status. Peace officers' records may be communicated to school authorities and to other law-enforcement agencies. The federal bureau of investigation has no difficulty in ascertaining whether an individual has a juvenile record. A juvenile record may be a substantial handicap to one who seeks employment with the United States government. The confidentiality of records, even if kept inviolate, is no real safeguard to the ex-delinquent for, if asked whether he was *394ever so adjudged, he will be morally obliged to admit it whether or not that status was adjudicated by due process and fair play."

The majority explains that in some instances juvenile arrest records provide police with valuable information and enable them to determine whether an ar-restee is wanted on any other charges, is a fugitive, or poses a threat to safety. In addition, such information may help police to investigate and solve similar crimes. Although juvenile arrest records may be of value under some circumstances, they are not of value in all cases. The circuit court should have the power to make this determination on a case-by-case basis.