“YO! Adrian”...in the age of Google.

An iconic line from one of the most iconic movies ever made. You know those 'security questions' we are invariably required to set up on whatever website / account?  At the risk of getting hacked, when the question asks 'What's your favorite movie?', my answer is always 'Rocky'. Ok, I'll admit it's a lot shorter to type 'Rocky' than 'To Kill a Mockingbird', but it's definitely in my top five.  You won't watch a better story of willpower, perseverance & flat out guts.  Just when Apollo Creed thinks he has Balboa beaten and ready to quit, he crawls back to his feet (yet again!) and with his face battered, his eyes swollen shut, he motions his gloves as if to say 'let's go'.  That moment gets.me.every.time. (Is it getting dusty in here? I'M not crying! YOU'RE crying...) But I'll save the movie reviews for another day... The YO! I'm discussing today is actually 'Y.O.'  Everyone has heard of 'Youthful Offender', but not many folks know exactly what it means and what it entails. More importantly, I'm gonna address a huge problem with our Youthful Offender statutes in Alabama. Y.O. is a status conferred upon a defendant by the Court, and is not connected in any way to the determination of guilt or innocence. In order to be eligible for Y.O, the incident that the defendant is accused of must have occurred prior to his or her 21st birthday. Notice I stressed the word 'incident'.  Many times, defendants aren't arrested until a later date, and if the date of arrest is after age 21, on its face it appears that the defendant is not eligible for Y.O.  The best Criminal Defense Attorneys will be sure to look at this issue in order to determine whether the alleged incident date occurred prior to age 21, making the defendant eligible for Y.O. status. Y.O. status is available in every type of case, not just the less serious charges. Certainly, the Court is going to look at the nature of the allegations when making a decision. I've represented a number of defendants charged with Capital Murder who were eligible for Y.O. The granting of Y.O. status in these cases is extremely rare, but the standard procedure is still followed by the Court. While the granting of Youthful Offender serves an extremely valuable purpose by sealing the court record of the person charged, regardless of the outcome, there is a major flaw in our Y.O. statutes that needs to be addressed and updated. Wanna find out about the new restaurant Downtown?  Maybe Yelp can help. Need to check out the beach forecast for next weekend?  You can consult James Spann's blog at alabamawx.com or maybe look at weather.com. Let's say the Human Resources Director at ‘X Corporation’ in Dallas wants to find out whether a certain job applicant named Adrian got it any trouble in Tuscaloosa while she was a student at The University of Alabama. So he Googles "Adrian Peninno Tuscaloosa". Let's hold that thought for a second. Adrian is a native of Dallas. She came to Alabama on an academic scholarship and graduated with honors, with a 3.89 GPA in Marketing. Adrian is an excellent candidate for the job she's always wanted, in the hometown she loves. But when Adrian was a 20 year old sophomore, she was approached by a friend that wanted to buy a few of her Adderall pills to get through exams.  Adrian didn't think anything of it, and committing a crime was the furthest thing from her mind, especially since she knew the girl has the same prescription. Little did she know her friend had been caught with marijuana a week earlier, and desperately agreed to cooperate with drug agents to 'set someone up' and avoid an arrest for POM2. Her friend was 'wearing a wire' when she gave Adrian $10 for two Adderalls. The day after she returned from Christmas break, Adrian was arrested for Unlawful Distribution of a Controlled Substance, a Class B felony punishable by up to 20 years in prison.  The arrest was published in the Tuscaloosa News and their website, tuscaloosanews.com.  The link to the story and her mugshot were passed around campus, and made their way onto social media sites. Adrian was kicked out of school, and moved back home.  She was allowed to return after serving a one year suspension.  In the meantime, her case made its way through the legal system.  She was eventually granted Y.O. and she reached a settlement whereby she was placed on probation, and given no jail time to serve. As such, the Court sealed the records regarding her case.  In fact, the only two people that can access the information in the future are Adrian and her lawyer. Notice my emphasis on the word 'future'. What about Adrian's past? Now let's return to the Human Resources Director, as he's about to click on the magnifying glass that represents the search icon... In that particular setting, where is the value of Youthful Offender status? The HR director has narrowed his hiring search to five potential candidates, including Adrian.  But what's gonna happen after he enters his Google search of her time in Tuscaloosa?  That's a rhetorical question. He's gonna trim his list down to four candidates. Adrian is out.  Adrian will continue to be 'out' every time someone searches her name online. It's way past time for our legislature to address this issue.  Our Youthful Offender laws were created long before Al Gore invented the internet. Procedures need to be established that automatically grant conditional Y.O. status upon arrest.  By doing so, the arrest information would remain confidential, and would only be transmitted within the arresting agency and court system for purposes necessary to the case. At the appropriate time, the Court could then review whether to Order the Y.O. status be made permanent, or remove its protection.  If Y.O. status is removed, then the case becomes public record, and subject to publication like any other adult case. As it stands now, people like Adrian can legitimately question whether our Youthful Offender laws have kept pace with the changing times. This lawyer says they have not, and that the protection afforded by our Youthful Offender statutes is severely limited by the public's real time access of arrest information.  Trust me, a story on the internet is there forever. Our Youthful Offender laws are stuck in the dark ages, while people like Adrian continue to be unfairly punished in the age of Google. Preventing the release of public information in cases where a defendant is eligible for Youthful Offender status must become a priority to our lawmakers.   Michael J. Upton, Attorney at Law Downtown Tuscaloosa http://uptonlawyer.com/blog/ new site header