Editor's Note: This is the second installment in our 2-part series on sealing (or unsealing) juvenile records.
Kim Ambrose, the director of a UW legal clinic for young people dogged by juvenile criminal records, says she sees it again and again: They come in after getting barred or even ejected from housing, jobs, schools, scholarships or professional licenses because background checks have turned up juvenile convictions, sometimes for relatively minor offenses. Her clinic helps these young people apply to get their records sealed — a slow, exacting process.
“What’s really troubling,” says Ambrose, “is that often they don’t even know that they need to do this. They thought their records already were sealed.” So do many other people. "There’s something deeply embedded in our collective psyche that says juvenile criminal information shouldn’t be distributed,” says Ambrose.
For most of the past century, they weren’t. Minors were considered less culpable and more reformable and were spared what is for most offenders the most enduring penalty: the stigma of a criminal record.
Many who see the effects of those records — from ex-offenders and civil rights advocates to some judges and prosecutors — would like to return to that sort of policy. Ironically, the changes that made minors more culpable for their transgressions grew out of a move to protect their civil rights.
Over the years, the response to juvenile crime has swung like a pendulum between punishment meted according to the offense committed and rehabilitation administered according to the offender’s needs. Until the Progressive Movement took root in the early 20th century, punishment prevailed, and even young children were tried as adults. The progressives made rehabilitation the goal, and in 1913 Washington established a separate justice track for juveniles.
In many ways this paternalistic system resembled child protective services more than criminal justice; proceedings were confidential and conducted without legal representation, and varied greatly between jurisdictions. Courts exercised wide discretion over what were then called “juvenile delinquents.” Very often young miscreants were released with an admonishment to their parents, but chronic truants were sometimes locked away with serious offenders.
In 1967 the U.S. Supreme Court ruled that juveniles accused of crimes were entitled to the same due process as adults — except for trial by jury. However much they talked about making kids take “responsibility,” adults weren’t ready to empanel juries of youthful peers.
In 1977 Washington brought its law in line. Rising crime rates and drug use, even faster-rising fears of the same and news reports about horrible deeds committed by the shockingly young further propelled reforms here and elsewhere. “Delinquency,” a condition to be corrected, left the lexicon, replaced by crimes and offenses to be punished. Kids would be entitled to lawyers and open, public proceedings, which assured fairness and uniformity. Legislatures lowered, and lowered again, the age at which juveniles could be tried as adults for certain serious crimes. Juvenile records became public, just like adult ones.
Still, minors had one out that was not available to adults: If they made restitution, kept their noses clean for a specified number of years and jumped through a series of procedural hoops (effectively requiring they get a lawyer), youthful offenders could get their court records sealed. In 1997 the legislature narrowed this option: Henceforth, records of Class A felonies and sex crimes could not be sealed, and the waiting period for other felonies was raised to as much as 10 years.
Meanwhile, a growing body of brain and behavioral research was showing what parents of teenagers had long suspected: Just because young people look and sometimes act grown up doesn’t mean they are. Brain development — specifically in the cerebral cortex, the seat of judgment, foresight and self-control, among other functions — continues into the 20s. Character is then a more plastic thing, fragile and impressionable but also reparable. Teenagers do stupid, reckless, boundary-pushing things for reasons they don’t understand either. They aren’t necessarily locked into those behaviors for life. But they may be hounded by those deeds, thanks to new technology.
The proliferation of online data brokers and background-search vendors made it irresistibly easy to probe anyone’s past, especially in the very few states, like Washington, that sell their criminal records, adult and juvenile, in bulk. In Washington’s case, those records are conveniently indexed and updated quarterly. Every suspicious snoop — employers, landlords, social services, college admissions, prospective dates — took a seat in the digital panopticon.
Open juvenile records became what Jim Theofelis, King County Juvenile Detention’s former mental health director, calls “a barrier to starting adult life.”
A decade ago the pendulum began swinging the other way. A growing chorus of judges and other officials, lawyers and academics, youthful ex-offenders and the social services assisting them decried open juvie records as a perverse scheme that costs both ex-offenders and society at large dearly. Starting in 2004, the legislature progressively extended the list of crimes youthful perpetrators could petition to get sealed, and reduced the length of time they’d have to wait. In 2011 lawmakers established a joint House-Senate task force to determine how to restrict access to juvenile records without the onerous application and hearing process.
The task force failed to agree on a solution, but Rep. Ruth Kagi (below), a longtime youth advocate, went ahead with a bill to make juvenile records in all but the most serious sex and violent crimes confidential. Last session, in its third try, HR 1651 bill won unanimous approval in the House. It might well have passed the Senate if the Human Services and Corrections Committee chair, Mike Carrell, hadn’t left several major amendments pending when, terminally ill, he went into the hospital. (Carrell died in May.)