It’s a “huge decision, one of the biggest juvenile-justice decisions in state history,” exults attorney Casey Trupin, managing attorney at Columbia Legal Services. He was talking about the Washington Supreme Court's ruling on Thursday that resoundingly affirmed the constitutionality of letting youthful offenders start their adult lives without the door-slamming stigmata of public criminal records. Newspaper publishers and some (but not all) open-records advocates were not so excited, calling the decision a blow to government accountability and public safety.
The case revolved around the young offender identified as “S.J.C.,” who’d been convicted of two gross misdemeanors at age 13. He had satisfied his probation terms but then, some four years later, found, as many ex-offenders do, that he couldn’t get a job with his record hanging over him. He tried to have the record sealed under the cumbersome process then prevailing in Washington. The King County Prosecutor opposed the effort in juvenile court, lost, then appealed. At which point all parties agreed to kick the case up to the Supreme Court, where it was bound to wind up anyway.
Thursday's Supreme Court ruling outwardly pertains only to an earlier state law, which allowed juvenile offenders who’d fulfilled their sentences, paid restitution and kept their noses clean for two years to ask that their records be sealed. But much more was at stake. There was the hard-won Youth Opportunities Act, passed by the Legislature last year, which makes sealing of records automatic for minors who commit nonviolent, non-sex-related crimes and settle their court debts; and this year’s Youth Equality and Reintegration Act, which amplifies that first law by relieving young offenders of most of the onerous legal financial obligations (or LFOs) that keep them from settling their tabs and starting fresh. (For more details, see Part 1 and Part 2 of Crosscut's series on sealing juvenile records.)
The practical impact of the court's decision had meanwhile grown in pace with the data-mining and records-checking businesses. Employers, landlords and schools use them to vet applicants with a click and purge those with criminal histories, regardless of when or how those histories accrued.
The significance of Thursday's decision wasn’t lost on advocates for sealing. Columbia Legal Services, the national Juvenile Law Center and the ACLU of Washington all filed amicus briefs in support of sealing juvenile records. Allied Daily Newspapers and the Washington Newspaper Publishers Association (representing, respectively, big and small papers) and the Washington Coalition for Open Government filed in opposition. On Thursday, in this clash of worthy purposes, the court came down strongly for confidentiality and rehabilitation rather than disclosure.
The legal crux involves whether the state constitution's dictate that “justice in all cases shall be administered openly” requires that any sealing meet what’s called the “Ishikawa test.” This is the five-part standard that emerged in 1982 from Seattle Times Co. v. Ishikawa, a suit brought by the Times and Post-Intelligencer to force a judge to unseal pretrial records in a sensational murder case. The Supreme Court ruled back then that once filed in court, documents could be sealed only if a compelling need were shown, and the sealing could be no broader than necessary to fill that need. That ruling is a cornerstone of public access in this state.
Yesterday, Supreme Court Justice Mary Yu declared, and six of her fellow justices concurred, that Ishikawa does not apply to laws sealing juvenile court records. In making her case, Yu cited the twin tests of “experience” — precedence, broadly construed — and “logic.”
“Experience” because going back to English common law and running through both the nation’s and this state’s histories, laws have treated juveniles and adults differently, granting more confidentiality to juveniles. “Logic” because of the dire effects that releasing juvenile records can have — “In public housing, a single juvenile offense might result in the entire family's eviction,” writes Yu, in the majority opinion — and because young brains are plastic and formative and their owners are more readily rehabilitated than adults, absent the stigma of a criminal record.
Adequate exceptions remain in place to protect public safety, Yu continues. (These have changed somewhat in the new law, but law enforcement agencies can still view sealed records for screening purposes, though they cannot release them.) Contrary to appellants’ claims, sealing doesn’t violate the constitutional need for justice “administered openly” because the juvenile court proceedings themselves remain open.
In a more modestly worded dissent, Justice Debra Stephens agrees that sealing can be good policy. But she denies “that exempting juvenile records entirely from the constitutional promise of open justice is the solution.” The majority overreaches in writing a blank check to those who want their records sealed, she argues. Instead, each trial judge should decide whether to seal based on an “individualized assessment.”
But that sort of case-by-case arrangement failed to work for many ex-offenders. In S.J.C.’s case, the juvenile court declared itself unable to perform the assessment, sending his case on to the Supreme Court.
Kick the case back to the juvie court and make them decide, says Justice Stephens position: The law should provide a framework for determining whether to seal, rather than a blanket pass. Would the case-by-case approach have served young offenders better if they weren’t burdened with impossible LFO debts? We’ll never know.
Rowland Thompson, Allied Daily Newspapers’ executive director, worries that the court's decision sets us off on a slippery slope. “I don’t know where it all ends," he says. "The people with unlawful detainers [tenants sued for defying evictions] are trying to get the same sort of protection. I don’t know where the legislature is going to go with all this.”
Wherever it goes, along the way, many people who screwed up at an early age will now find it easier to put the past behind them and make a fresh start.
