Washington State Sets Template for Protecting Kids’ Privacy in Court

This month, the Washington State Supreme Court took a bold step toward protecting children in the legal system.

With a few tweaks to existing court rules, the justices created a new requirement that children faced with criminal charges be identified in court documents by their initials and birthday rather than full name.^[1]

The court hopes protecting identities of children will save these kids from unwarranted long-term consequences.

A main problem with the prior rule—which allowed the regular use of full names—is that it amounted to a de facto nullification of the state’s expungement laws. Children have an easier pathway to expunge criminal records than adults, which makes sense because kids, categorically speaking, are inherently less blameworthy for bad behavior.

But what good is expungement if throughout proceedings their name was plastered over every court document, allowing this information to leach itself onto and across the internet? (There’s a reason most of us don’t post compromising pictures of ourselves: digital records never die.)

The permanency of this digital record meant expunging a criminal record was for most a fresh start in name only.

And like just about every other negative consequence in the criminal legal system, people of color bear the brunt. Black youth comprise 17 percent of the overall youth population, 30 percent of those arrested, and 62 percent of those ultimately prosecuted. ^[2]

It’s clear the weight of permanent digital records was falling mostly on their shoulders.

Despite the equity the rule looks to provide, not everyone agrees with it. In late April and early May, several critics harangued the justices for making shortsighted steps to fix a problem that they claimed needs a more “nuanced” approach.

The editorial board for the Seattle Times said implementing the new rule would “stir chaos in the legal system, prevent residents from holding their elected judges accountable and even, potentially, smear some of the young people the new rule purports to protect.” Days later a former justice said the rule would unjustly deprive the public of open access to their courts.

These critiques were leveled by some well-known folks, no doubt, but that doesn’t mean their views are widespread.

I sat down with an incarcerated local activist, Nick Hacheney, to get a sense of whether people agree with the recent criticisms.

Will the rule cause chaos? No. The rule will complicate the jobs of court officials because current software systems are designed to function with full names, not initials. This requires new software, yes, but that’s hardly chaotic. And most would agree that’s a small price for protecting children.

Will the rule prevent accountability for judges? No. Using initials in court documents will disguise the identity of the child defendant. It will not hide the facts of the case, nor conceal how the judge disposed of the case. The facts relevant for society to judge its judges will still be available, just like before.

Will the rule smear the young people it purports to protect? No. The rule purports to protect children facing criminal charges. It does nothing to increase “smear” launched at a child defendant, and if anything it mitigates the smear by ensuring it gets ladled on a set of initials rather a name.

Will the rule unjustly block the public from open access to courts? No. Access to certain information will no doubt be limited. But society doesn’t have a right to every piece of information in a criminal proceeding—where there’s a compelling interest for privacy, courts are free to put up curtains. Sometimes genuine justice requires this privacy.

Hacheney says the critics have focused their attention on one side of a polygon-shaped issue. “They’re so concerned about what ‘damage’ the new rule will do to the system. But they don’t seem concerned about what damage the existing rule does to these kids.”

He also reminded me that initials have been used as identifiers for years when the child at issue is the victim. He says, “By opposing this practice when it comes to child defendants, critics perpetuate a narrative that some kids deserve protection while others don’t.”

The narrative he’s touching on—that the world contains both deserving and undeserving kids—is an old one, with at least some of its roots in the now-disproven super-predator theory.

Yet in Washington State, at least at the level of the highest court, that narrative has been in retreat for some time. The last five years alone have seen multiple cases clawing away the ability of trial courts to impose disproportionate sentences: prohibiting life-without-the-possibility-of-parole sentences, ^[3] giving discretion on whether to impose what would otherwise be mandatory enhancements, ^[4] and requiring the characteristics associated with youth be retroactively considered in all cases. ^[5]

These decisions build upon the U.S. Supreme Court’s Miller Doctrine, which declares that children are different and these differences must be accounted for in criminal proceedings, ^[6] and they effectively insulate children from the most draconian of our modern sentencing practices.

Whether considering the recent rule change or the last five years of case law, it’s clear the court is fully on the side of protecting children—whether or not that results in criticism. People like Hacheney are saying, “Hopefully other states will look to do the same.”

ADDITIONAL READING: Protecting the identity of juveniles in court records is key to rehabilitation, Op Ed in Seattle Times by by Washington Supreme Court Justice Steve González  

Tomas Keen

Tomas Keen is an independent writer from Washington State, focused on issues of legal reform and social justice. He can be reached through Jpay or at tomaskeen310445@gmail.com.

^[1] The amendments were made to Washington’s General Rule 31 and Criminal Rule 2.1

^[2] Nell Bernstein. Burning Down the House: Ending the Juvenile Prison (New Press (2015)

^[3] State v. Bassett, 192 Wn.2d 67 (2018)

^[4] State v. Houston-Sconiers, 188 Wn.2d 1 (2017)

^[5] In re the Personal Restraint Petition of Ali, 196 Wn.2d 220 (2020)

^[6] The Miller Doctrine was announced in a 2012 case striking down the use of mandatory life-without-parole sentences for juveniles. Miller v. Alabama, xxx U.S. xxx (2012)