HOTLINE QUESTION OF THE MONTH
Do the laws that make juvenile records confidential create any restrictions on a newspaper’s publication of a minor’s name?
Most of you have heard something about NC’s “Raise the Age” law (a/k/a the Juvenile Justice Reinvestment Act), which took effect December 1, 2019. For years, I practically had to consult an abacus to answer the deceptively not-simple question on the Hotline: “What is the age of majority in North Carolina?” The answer always began with some version of “It depends.” I cannot say that Raise the Age utterly simplified the answer. If you search “North Carolina Raise the Age,” Google says you get “about 69,900,000” hits. However, the law creates some rules, and those rules have implications for how much access you will have to juvenile criminal records. If Hotline calls are an indication, the law also has created a bit of uncertainty about whether newspapers have any new restrictions on what they report with regard to juveniles.
I’ll tackle the second issue first, because it is easy. The U.S. Supreme Court says the publication of lawfully obtained accurate information that is a matter of public interest cannot be punished consistent with the First Amendment. Information about crime is, by definition, a matter of public interest. So you if you lawfully learn accurate information about a crime, the First Amendment provides protection if you publish it. It doesn’t matter how old the criminal/juvenile delinquent is; it’s an editorial decision, not a legal one.
The Raise the Age law establishes that 16- and 17-year-olds who commit crimes and infractions – other than motor vehicle violations – will be processed as juveniles rather than adults. There are exceptions to that rule. Certain felonies require automatic transfer to adult court. And someone under the age of 18 who has been tried as an adult for any offense will thereafter be tried as an adult for any subsequent offense. There’s an exception to the exception for youth convicted of certain misdemeanor motor vehicle offenses.
There are projections that this new rule for individuals younger than 18 will cause a massive increase in juvenile court matters. If so, a refresher on the laws of access to juvenile information might be in order.
There is a very strange dichotomy in North Carolina law that treats juvenile records differently from juvenile proceedings. “Disclosure of information concerning any juvenile under investigation or alleged to be within the jurisdiction of the court that would reveal the identity of that juvenile is prohibited …” G.S. § 7B-3100(b). Be on the lookout for what this law does not make confidential. It’s not uncommon for law enforcement to take the position that they must hide the identity of juveniles who are the victims of or witnesses to crimes (or simply passengers in a car involved in an accident). That is not what Section 3100 provides. It may be a discussion for another day whether you have a public records law right to that information, but the juvenile code does not exempt it from disclosure.
In contrast to the law compelling confidentiality of juvenile records, there is a presumption that juvenile delinquency hearings will be open. A judge may close the proceeding “for good cause,” taking into consideration a host of factors such as the nature of the allegations and age of the juvenile. G.S. § 7B-2402. There are similar statutory factors for a judge to consider in connection with proceedings related to abuse or neglect. G.S. § 7B-801. In either case, the proceeding cannot be closed over an objection of the minor.