At 34, Nick finally felt ready to explore his dream of working in law enforcement. So he arranged for a friend in the Whatcom County Sheriff’s Office to take him on a ride-along.
Nick and his seven siblings grew up in the county, which borders Canada in northwest Washington. “The last four of us raised ourselves,” he told The Appeal. “I was pissed off and didn’t know how to deal with my emotions.”
In his early teens, he stopped doing homework and was expelled from two schools. He smoked pot and shoplifted. At 15, he pleaded guilty to possession of marijuana and was sentenced to community service.
After a mandatory waiting period, Nick petitioned the court to seal his record. He didn’t want it “to follow me the rest of my days,” he said. When the judge assured him his record was as good as gone, he felt relieved that a couple of bad years wouldn’t affect the trajectory of his life.
And for the next two decades, it didn’t. He earned a GED and associate’s degree, found work in construction, got married, had two children, and became a church deacon.
Then, in 2016, as he was contemplating a law enforcement career, his juvenile record popped up on a background search. His friend revoked the offer for a ride-along. Still, Nick applied for jobs at the sheriff’s office, a police department, and with U.S. Customs and Border Protection. Each agency turned him down.
Nick had responded well to accountability. He’d paid his debt, then stayed out of trouble. But now, his long-ago scrape with the law seemed to be holding sway over his future. It wasn’t supposed to be this way.
He contacted the county clerk’s office to complain.
Complaints like Nick’s were flooding in. Dave Reynolds, the Whatcom County clerk, hadn’t seen anything like it in the more than 20 years he’d worked for the courts. The sealing process functioned well, and clerical errors rarely occurred.
But now decades-old sealed juvenile records were wreaking havoc on people’s lives. People who frequently crossed the U.S.-Canada border for work or to visit family told Reynolds they were now being denied passage. A Washington business owner who sells farm equipment on each side of the border told The Appeal he was detained for two hours and questioned about a 22-year-old arrest. The business owner had trouble getting a NEXUS pass, complicating his travel to and from Canada. Nurses and dental hygienists couldn’t find jobs because of long-ago infractions, Reynolds added. A police officer from Utah lost a promotion after the vetting process revealed a sealed juvenile record from the early ’80s.
Lawyers were hearing similar stories. Everyone assumed the records hadn’t been properly sealed, said George Yeannakis, special counsel at the Washington State Office of Public Defense. But they were wrong. “It wasn’t a mistake,” he said.
There are so many reasons why police officers shouldn’t have these records.
Hillary Madsen lawyer
Criminal records act as barriers to housing, higher education, and employment. In states with few confidentiality protections, a sealing order can help young people avoid such collateral consequences, so immature mistakes don’t hold them back as adults.
Until 2015, juvenile court records in Washington were public by default. Most were eligible for sealing, but that could be a daunting and expensive process. A person seeking to seal a record had to petition the court after a waiting period, appear at a hearing, and pay outstanding court-imposed fines and fees, such as attorneys’ fees or restitution. But once a record was sealed, all agencies with access to it removed from their databases nearly all the information relating to a charge, arrest, judgment, or diversion. Only a court order could unseal it.
In 2013, a graduate student’s analysis of the state’s sealing process found that although most young people were eligible to seal their juvenile records, only 7.5 percent actually did. The student, Tony Calero, also found that young people of color were “significantly less likely” than white young people to seal records. He cited costs associated with sealing and the “arduous nature of the process” as among the reasons more people didn’t take the opportunity.
State legislators took note, passing a law in 2014 that requires most juvenile records to be sealed automatically when the person who committed the crime turns 18 (with the exception of certain felonies and unless someone contests the sealing). Next, legislators tackled the costs associated with sealing. The YEAR (Youth Equality and Reintegration) Act, which passed in 2015 with overwhelming bipartisan support, removed the requirement that fines and fees be paid in order to seal a record, so a fresh start would no longer hinge on something like whether a young person reimbursed an insurance company for a broken window.
But, at the “11th hour,” said lawyer Hillary Madsen, legislators tacked on an amendment in response to concerns from law enforcement. Proposed by Republican Senator Steve O’Ban, a sponsor of the YEAR Act, it requires the Washington State Patrol to share sealed juvenile records with other law enforcement agencies, such as local police departments, U.S. Customs and Border Protection, and the Transportation Security Administration. In an email, O’Ban told The Appeal that he recalled law enforcement “said it needed the amendment for officer safety so they could see the juvenile file when they were doing traffic stops.”
“There are so many reasons why police officers shouldn’t have these records,” said Madsen, who lobbied for and shaped the YEAR Act. “There’s the fact that a clean slate should mean a clean slate, that there’s not a safety issue, that there is instead this opportunity for bias.” She and her team of law students pushed back but reluctantly accepted the amendment. “The choice would have been, do we want to try to kill our own bill or do we let it go with this?” she said. “And I don’t think that anybody at the time could have predicted what ultimately happened.”
It’s as if the records aren’t sealed.
George Yeannakis special counsel at the Washington State Office of Public Defense
What happened was a data dump. Reynolds, the county clerk, learned about it from a state police newsletter and connected it to the complaints. On July 24, 2015, the state patrol began adding sealed juvenile records information to its electronic identification database, WASIS. But it didn’t enter only new, automatically sealed records. It retrieved old records information that had been sealed by court order and entered it, too.
According to the state’s Administrative Office of the Courts, Washington judges sealed more than 52,000 cases from 1978 through July 2015—the time period that juvenile court records were public by default. Law enforcement agencies nationwide now have access to more than 5,500 of those records through WASIS. (Chris Loftis, the state patrol’s communications director, explained that the records of those who were arrested but not fingerprinted are not in their database.)
As a result, the last-minute amendment is undermining the YEAR Act’s purpose: to reduce barriers to rehabilitative outcomes. “Every time this information is viewed,” said Reynolds, “it is considered in a decision” — about housing, employment, the criminal legal system, and more. By sharing the old records, the state patrol is effectively reversing judges’ orders, said Yeannakis, special counsel for the public defender’s office. “It’s as if the records aren’t sealed.”
A bill introduced in January would have eliminated the amendment. But law enforcement again raised the issue of officer and public safety, and the bill stalled. Democratic Senator Patty Kuderer, one of the bill’s sponsors, hopes to push it through next year with a “workable compromise.” She may propose limiting police access to five years post-adjudication, because she believes at some point, juvenile records should cease to matter—that if a 15-year-old steals $25 worth of candy, it should have no bearing on the person’s life at 40. “I don’t know why that is even relevant,” she said.
O’Ban too indicated he would be open to working on a fix for the “unintended consequence” of his amendment. Kuderer’s idea “might be one I can heartily support,” he said.
When people come to Reynolds with complaints, he provides certified letters for them to give to prospective bosses or to law enforcement agencies or to whomever is in charge when problems arise. He explains in the letters that sealed records should be treated as though they don’t exist and that people may legally indicate on applications that they have no criminal record.
The letters seem to have done some good. Reynolds said border officials have reinstated NEXUS passes for some of those who’ve sought his help, and the out-of-state police officer has been promoted. Nick never got the ride-along, but he’s found a career outside of law enforcement that he loves.
Meanwhile, the complaints keep coming. In July, Tony C., was unable to renew his concealed-pistol license. A short joyride he’d taken at 14, in 1988, in a car belonging to a friend’s grandmother, appeared on a background check. (Like Nick, Tony asked The Appeal not to use his last name to avoid further consequences of having a juvenile record.) A health and safety manager for oil refineries, Tony routinely undergoes intense background checks. He says he can live without a gun on his hip, but he worries about the work-related security clearances.
Since July, border agents have pulled Tony aside three separate times on trips back from Canada, and asked about his 31-year-old record. One time when he explained that it was supposed to be sealed, he said, the agent shouted over to a colleague, “I got another one.”
This piece has been updated to include comment from Washington state Senator Steve O’Ban.