I have previously argued that abuse registries can be helpful in preventing future abuse for institutionalized populations.[i] But the mere existence of a registry does not guarantee its success. Indeed, any such registry should be held to standards of accuracy and reliability for due process purposes, and should allow for the possibility of expunging. Unfortunately, many existing child abuse registries fail to live up to these standards.
As of 2008, over forty states maintained centralized child abuse and neglect registries.[ii] Currently, thirty-three states allow certain employers to access those registries in employment screening procedures, and some even require such procedures for job applicants in fields dealing with children.[iii] In Michigan, for example, the registry requirements are triggered not only for employment purposes, but also when a parent has another child, leading to automatic investigation by child protective services.[iv] In California, the penal code requires that the California Department of Justice wait at least ten years to remove a person’s name from the child abuse central index (CACI), even when a court has found that the individual is innocent.[v]
Indeed, there exists a great need to protect children. However, as in the recent case of the Federal Aviation Administration v. Cooper,[vi]
even agency records that are meant to remain private have a way of getting used for other purposes. In the case of child abuse registries, there are several problems. First, they are permanent, with no allowance for rehabilitation, deeming parents forever unfit to care for children without evidentiary proof of such permanent damage. Second, there is a circuit split over whether mistaken listing on a child offender database deprives an individual of a liberty interest. In Smith ex rel. Smith v. Siegelman, the Eleventh Circuit did not see a violation of due process just because the plaintiff could not prove diminished employment opportunities; while the Ninth Circuit found a due process violation under a similar fact pattern in Humphries v. County of Los Angeles.
Matthews v. Eldridge established a balancing test before states can deprive an individual of a liberty interest. The Supreme Court looked at the effects on an individual’s private interest; the likelihood of error; and the governmental interests at stake. The balance struck simply cannot be justified here, where a government action can prohibit an individual from pursuing an entire profession, which here would include nursing, childcare, and other such jobs. The Second Circuit found a violation of liberty interests when New York wrongly listed a woman in a child abuse database and prevented her from her chosen employment.[vii] There is a high likelihood of false listings in these databases, as shown by a 2004 California task force, which concluded that about half of the statewide listings were incorrect.[viii]
In addition, to prevent a constitutional deprivation of liberty, the registries should account for the possibility of rehabilitation.[ix] While there is variance by state, New Jersey statutes do not allow for any expungement or rehabilitation once a parent has been placed on the registry.[x] Sex offenders can petition for registry removal after time, and convicted criminal offenders can pursue expungments and rehabilitation, yet states such as New Jersey assume that someone who neglects or abuses a child is forever a risk for child abuse.[xi]
The problem is not inherent to the existence of databases. Instead, the problem is with a database that can have such dramatic effects on employment opportunities and future parenting within a system that lacks effective remedies for mistaken entries or acknowledgement of rehabilitation. States should ensure efficient removal procedures, because it would both protect liberty interests for mistakenly charged individuals, and because it would focus government resources on children who are actually in danger.