Sealing the Past: Criminal Record Reform Could Help Coloradans Outlive Their Mistakes

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Deja was a college freshman when she got caught smoking a joint in her dorm room. It was 2018, years after Colorado had legalized recreational marijuana — supposedly treating it just like alcohol — for adults ages 21 and up. But she was eighteen, and charged for being a minor in possession.

“It is totally my fault,” Deja says nearly three years later, and laughs. “We didn’t even open the windows. It was painfully obvious we were gonna get caught.”

When the RA knocked on the door, Deja answered half stoned and half asleep. There was residue in a pipe and crumbs at the bottom of a bottle in the room. The RA called a police officer, who wrote Deja a ticket and scheduled a court date.

It didn’t matter that she’d done something many college kids do, or that no one got hurt. It didn’t even matter that she was safe in her dorm and nowhere near a car; the automobile insurance she shares with her parents tripled. Because of her record, InstaCart rejected her application.

Today a political science student at the University of Colorado Denver, Deja is interested in how the government shapes peoples’ lives. She has a passion for social justice and righting the wrongs of the world. She wants to go to law school and apply for internships at the State Capitol, but she’s worried that her conviction will make her untouchable.

She’s learned that getting rid of a record is a lot harder than earning one. Although expungement of marijuana records for adults was expanded last year, Deja’s possession conviction wasn’t affected because she was technically a minor at the time. In June 2020, she paid $224 to file a petition to seal her record.

The court denied her request before the end of July because she hadn’t waited long enough after her conviction. Come November, she will drive the four hours to Grand Junction — where the initial charges were filed — to fill out new paperwork and cross her fingers.

Chances are good that you know someone like Deja, someone with a criminal history. (Westword is not using the full names of those seeking to seal records who are quoted in this story.) After all, she is one of 1.9 million individual offenders with a Colorado criminal record, according to Survey of State Criminal History Information Systems, 2018,” which pulled from U.S. Department of Justice figures.

In recent years, Colorado has moved to allow more people to seal their records. Based on a review of 1,854 cases in the state, a 2020 report from Paper Prisons estimates that a third of those cases are now eligible to be sealed. Individuals who weren’t convicted of a crime can also seal most arrest charges, dismissals, acquittals and deferred judgments upon completion of sentences.

Sealing a record prevents it from showing up on most background checks for jobs and housing, but it remains accessible to certain court staff, law enforcement and victims. Only expunged records are completely erased from the system.

Still, sealing a record is the only option that many people with a criminal history have if they want to close off the past and get a fresh start on the future.
click to enlarge When Barb found that her criminal record blocked her chances for career advancement, she started her own business. - EVAN SEMÓN
When Barb found that her criminal record blocked her chances for career advancement, she started her own business.
Evan Semón
The concept of doing time to pay for a crime isn’t very controversial, nor is the idea that once that debt is paid, individuals should reintegrate and become contributing members of society. In reality, this is easier said than done when criminal records stand in the way of obtaining the stable employment and housing needed to overcome the circumstances that often led to the original offense...and contribute to recidivism.

“Papa John’s was the first job that I got before I even got released from prison,” says Barb, who lives in Aurora and served five years in prison and three on probation for a violent crime. Even though she was able to get that job with her record, she was unable to advance beyond minimum wage.

“The manager at the time kept telling me, ‘I would make you manager with your work ethic if you could pass a background check,’” Barb recalls. “All that did was just throw it in my face and make me remember, well, I can’t pass a background check.”

After completing life-skills classes and therapy, she learned to manage her anger and recognize triggers.
“When you have a fight-or-flight trauma response, it takes a lot of work to get out of there,” Barb explains. “I was always telling myself that I was this horrible person, and I kept telling myself that I was violent. But I’m not. I’m a pretty peaceful person; that was my way of handling situations.

“I don’t hurt people now, I help people,” she says.

Even though Colorado’s laws are becoming looser regarding record sealing, Barb is not eligible for that. As part of her plea deal, she also can’t apply for a pardon. Instead, she lives with her record and has built a new life around it. Barb earned her massage license and owns her own business. She bought a house to avoid landlord background checks and raised her wife’s kids, though she could never legally adopt them.

Today Barb is surrounded by supportive family and clients, but she says she is still afraid to apply for professional certification with organizations like the Herbalist Guild, because she dreads them pulling her criminal record.

“It’s those types of deterrents — like, I’m not even going to waste my time applying, because I would pay for this application and then probably be denied based on them seeing my background,” she notes. “The mental defeat is probably the hardest to overcome, and feeling like you deserve good things.”

"The mental defeat is probably the hardest to overcome, and feeling like you deserve good things."

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Proponents of reform consider a criminal record to be a virtual lifetime sentence that effectively prevents those who have completed sentences from pursuing education and well-paying careers.

Compared to people without records, the Brennan Center for Justice at the New York University School of Law estimates that those who were formerly imprisoned make about half as much as other Americans over the course of their lives.

“If we’re not going to live in the kind of society that keeps people incarcerated, then we have to prepare to stand in the same grocery store with them when they come home. And how do you do that? You embrace them,” explains Sean Ahshee Taylor, deputy executive director for the Second Chance Center, which was founded in 2012 to help the formerly incarcerated find their footing upon release.

After highly structured lives behind bars, many struggle with small things like buying work boots, navigating bus routes and getting used to cultural norms on the outside, he says.

“One of the things is the term ‘disrespect,’” adds Taylor. “In normal society, it is not disrespectful for someone to accidentally step on another person’s foot, but in prison, if something like that occurs and there’s not any immediate apology, then that is taken as quote-unquote ‘disrespect,’ and something has to happen.”

Steffan Richardson, director of business development at Tribe Recovery Homes, sees sobriety as another major hurdle for many former offenders.

With recovery homes in the metro Denver area and plans to expand to Boulder, the organization provides individual and group therapies for recovering Medicaid recipients, as well as outpatient treatment.

“Our philosophy is if you do drugs, at some point you’re gonna end up in jail,” Richardson says. “And when they come out, we need them to change their people, places and things; we need them to have an opportunity to have a safe, stable environment to get their life back on track.

“Oftentimes, when that is not available for individuals, they go right back to what they were involved in beforehand.”

Richardson sees this in clients just as he saw it in himself.

Over fifteen years, Richardson built a career in corporate America, working up to director of product management for a software firm with an office on the fourteenth floor of a Denver high-rise. But then a DUI when he was on pain pills landed him in jail.

After serving one year in prison, Richardson found the doors to those downtown offices he’d once strolled through closed shut. But the founder of Tribe Recovery Homes saw that Richardson was underemployed, and offered him a job to build the organization and help guide more people to sobriety.

“You know, all that being stripped away from me was actually a blessing. Because now I get to do what God had called me to do all along. I get to help people every single day,” Richardson says. “Our records unfortunately follow us around for too long, and a mistake that someone made years ago can prevent them from getting adequate stable housing, a better paying job, and economic stability or advancement.”

Richardson is still on probation, but he will apply to have his record sealed as soon as he’s eligible.
click to enlarge Steffan Richardson, director of business development at Tribe Recovery Homes. - COURTESY OF STEFFAN RICHARDSON
Steffan Richardson, director of business development at Tribe Recovery Homes.
Courtesy of Steffan Richardson
Until the late 1980s, any criminal record short of a class 1 felony could potentially be sealed. Then as part of the War on Drugs, federal and local lawmakers essentially prevented convictions from being sealed for nearly two decades.

In the early 2010s, criminal defense attorney Maureen Cain held statewide workshops on sealing records via civil petition, only to realize the system’s shortcomings. “The first workshop we did, 200 people lined up outside,” Cain says. What she learned during her work helped shape the reform introduced through the rest of the decade, as the state expanded eligibility and shortened waiting periods.

“The need was so significant,” recalls Cain, who is now the director of legislative policy and external communications for the Office of the Public Defender. “But most people weren’t even eligible for sealing until 2019.”

That’s the year that Colorado passed HB19-1275, the Increased Eligibility for Criminal Record Sealing Act, that streamlined the process in the criminal court and expanded eligibility to include more convictions for misdemeanors and petty offenses, as well as a Class 4, 5 or 6 felony and level 3 or 4 drug felonies, after waiting periods ranging from one to several years.

Once the paperwork to seal a record is filed, district prosecutors are notified; they may provide additional information that counts against the applicant. The entire process can take weeks or months, and the filing fees add up. Ultimately the decision is left to the judge, who weighs the needs of the individual with the needs of society.

By law, “the court shall order the records sealed unless the court finds by clear and convincing evidence that the public interest in retaining public access to the conviction records outweighs the harm to the privacy of the defendant, the dangers of unwarranted, adverse consequences to the defendant, and the intent of the full and unconditional pardon.”

The process can be intimidating, and there’s not much help available.

“It’s not like these are big money-generating cases. Many people need to find a pro bono attorney, and there really aren’t that many in Colorado,” says Jack Regenbogen, senior attorney at the Colorado Center on Law and Policy.

“The vast majority of people who could obtain relief aren’t able to because of those procedural barriers,” he adds. “Even then, it’s not that easy. People still have to demonstrate they have stayed out of trouble and have not sustained another conviction for several years.”

“The vast majority of people who could obtain relief aren’t able to because of those procedural barriers."

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Kristin, an Arapahoe County woman, filed to seal her record earlier this year. “I went through all of the steps, but I feel like it’s very confusing, and they don’t make it very easy,” she says.

Back in 2014, arriving home after a visit to the Children’s Museum with her then-three-year-old daughter, she’d let police search the place without a warrant after learning that her husband had been arrested for carrying more marijuana than was legal at the time. The police found paraphernalia that wouldn’t have been left out if she had been home, she says — and filed a report accusing her of child abuse.

“The only thing that would have stopped me from getting into that situation would have been to say, ‘I’m not going to let you into my home, you can come back with a warrant,’” she says. “I had never been in any trouble before, I had no sort of criminal record, so I was pretty baffled at how they really did treat me like a criminal.”

Although the court dismissed the case, the record of arrest charges remained — and surfaced when Kristin applied to volunteer at church and with her daughter’s Girl Scout troop.

Ultimately, the court granted Kristin’s petition to seal her record. Now, with new laws regarding the expungement of previous marijuana convictions, she says that she will help her husband navigate the process.

Westword reviewed 800 petitions filed in civil court since 2019, the vast majority of the requests filed there to seal records; about two-thirds were ultimately granted. Ten percent of the petitions were denied, while 5 percent were withdrawn or dismissed so that the petition could be refiled in criminal court.

But only a fraction of petitions to seal records are filed in civil court today. A new Colorado law redirects the majority of requests back to the criminal docket where they originated.

The Colorado Bureau of Investigation reports sealing only 4,546 arrest and court charges and expunging 2,528 juvenile records last year — about half of what courts cleared in 2019 — owing to COVID-19 disruptions.

According to the 2020 Paper Prisons analysis, Colorado had cleared 5 percent of records then eligible for sealing. At that rate, it would take the state 106 years to clear the rest of the backlog.
click to enlarge Robert Davis is the project coordinator for Denver's Reimagine Policing and Public Safety task force. - EVAN SEMÓN
Robert Davis is the project coordinator for Denver's Reimagine Policing and Public Safety task force.
Evan Semón
In its most recent session, the Colorado Legislature moved to further streamline the system.

The Record Sealing Collateral Consequence Reduction Act of 2021, or HB-1214, will allow certain drug offenses to be automatically sealed beginning in 2024, along with arrest records with no convictions.

For one of the bill’s sponsors, criminal record sealing is a small step toward creating equity and combating a racist system. “It’s really about understanding how our systems are setting up these larger inequalities,” says Representative Jennifer Bacon, a Denver Democrat.

A 2020 state analysis found that Black people made up 4 percent of the state’s population but accounted for 12 percent of arrests and summonses in 2019. Hispanic people account for 20 percent of the state’s population and 29 percent of arrests, while whites make up 71 percent of the state and only 57 percent of arrests.

“You find disproportionality for African-Americans when it comes to the criminal justice system, and it really does bleed into anything else,” Bacon says. “This country has a history of labeling African-Americans as a threat or criminal. Then the systems created not only reinforce those beliefs, but also institutionalize those beliefs.”

“You find disproportionality for African-Americans when it comes to the criminal justice system, and it really does bleed into anything else."

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While the issue is longstanding, she explains, people either weren’t asking questions — or weren’t listening to the answers.

“You can ask our communities,” she explains. “We can tell you what this is. In fact, the challenge is that our stories tend to need to be validated with data because you don’t believe what we’re saying.”

Bacon says that she was challenged during hearings on the bill. “It personally felt like me and my black skin telling you what this world is like does not qualify for you, and that someone else had the power to make determinations for me that had no idea what my experience was,” she adds.

Second Chance’s Taylor read Michelle Alexander’s groundbreaking work The New Jim Crow while incarcerated at the Arkansas Valley Correctional Facility.

“The book actually put things into perspective, that I was living on a plantation created after slavery was abolished,” he says. “I would go up to the men I knew were getting out and say, ‘Hey, listen, this clearly states that we have been sentenced to a modern-day cotton field. Please, when you get out of this place, please don’t return to slavery.’”

Many social justice activists see direct ties between the modern prison system and the system that enslaved millions of African-Americans well into the nineteenth century.

“One of the things that I do when I speak at Caucasian churches is say, ‘If you are okay with mass incarceration, you would have been okay with slavery,’” says Robert Davis, a former pastor with the Seventh-day Adventist Church who’s now the executive director of the nonprofit UnBoxed and project coordinator for Reimagine Policing and Public Safety, a community task force in Denver.

Davis himself served a three-day sentence in Louisiana in 1999, after a police officer charged him with speeding. That record prevented him from serving as a chaplain in the Army, Davis says, but it also allowed him to provide counseling to those who needed it at the Louisiana State Penitentiary, which was built over an old plantation.

“The argument for slavery was that blacks need to be slaves in order to save their souls, that they came from these heathen lands, and we, as good Christians, introduced them to Christ,” Davis explains. “That was a good argument for that time. The argument today is we’re doing our community a justice by getting these people off the streets.

“If you accept one argument,” he continues, “you would have accepted the other, because the issue is you just need something relevant to your time to go along with the status quo.”

Colorado’s reforms won’t help Davis seal his record in Louisiana, but he says the issue rarely comes up in his life. Still, if record sealing seems like trying to put a small period at the end of a heavy history book, he values the effort.

“The people who are pushing for the record-sealing are trying to do something,” Davis notes. “The old expression is it’s easier to curse the darkness than it is to light a candle, and I think that they tried to light a candle.”

Davis believes that crimes like robbery can be eliminated by fixing poverty and that ending addiction will cut drug crimes. He wants to see an end to mass incarceration, but he also sees limits. “I’ll be honest with you: I think one of the challenges is around sexual assault of minors or children,” Davis says. “If you have murder, I don’t know where that line is.”
click to enlarge Sean Ahshee Taylor, deputy executive director at the Second Chance Center. - EVAN SEMÓN
Sean Ahshee Taylor, deputy executive director at the Second Chance Center.
Evan Semón
In Colorado, records regarding class 1, 2 and 3 felonies, as well as sexual offenses and lifetime sentences, among others, are ineligible for sealing.

“We do believe that there are some things that should never be sealed. For example, sex offenses,” says Sterling Harris, chief deputy director of the Colorado Organization for Victim Assistance. Some of COVA’s clients are both victims of crime and holders of criminal records, so while Harris sees the allure of sealing records, she ensures that those who have been harmed by crime are not forgotten.

“A lot of victims choose to engage with the criminal legal system because they don’t want what happened to them to happen to someone else,” Harris says.

“I would say that most victims, survivors, surviving family members that I have met, they want to know that the person is taking accountability for the harm they have created,” she continues. “They want to know that person is never going to cause harm like that again. For me, I have absolutely no idea what it would take to rehabilitate someone who is capable of some of the actions that we’ve seen.”

At a bare minimum, Harris wants victims of crimes to be informed when a former offender files to have a record sealed, and to be given the opportunity to respond.

Background checks do what they are intended to do, Harris says, like flagging someone convicted of embezzlement who might apply for a job at a bank, or preventing someone with a sex offense from working with children, seniors or at-risk adults.

You can’t prove that you’ve changed by trying to prove that you’ve changed, Taylor says. Instead, “do the next good thing in line, if it’s helping someone off the ground who you just witnessed take a tumble, or if Miss Johnson across the street needs her garbage taken out, then get across the street to help her.

“Through the process of amelioration, all of the bad things that you’ve done in the past will not go away, but eventually they won’t be as recognizable because they will be covered by all of the positive things that you are putting in the universe now,” Taylor adds.

He’s speaking from experience. As a seventeen-year-old Blood in Park Hill in 1989, Taylor did the unthinkable.

“I was just trying to be cool,” he recalls. “I pointed a gun at someone’s house, trying to scare the people inside and trying to impress the gang that I was with. I just shot into the house one time. All I saw was a lamp and a wall and I thought that I was just going to hit the lamp, but it hit a person.”

That shot killed seventeen-year-old Dean Rahim. Taylor was sentenced to life in prison.

While incarcerated, Taylor earned his GED, read every book he could get a hold of, and turned to his Islamic faith. He served 22 years before Governor Bill Ritter commuted his sentence in 2011. He then completed five years of parole.

Taylor’s record is not eligible for sealing. But after devoting himself to the Second Chance Center for nearly a decade, he is applying to Governor Jared Polis for a pardon.

“The only thing that I want people to understand is that I am not trying at all to erase my behavior from the past, because you cannot erase what you’ve done.” Taylor says. “I’m only seeking a pardon so that I can expand this work and so certain restrictions upon people who have felonies are lifted off of me.”
For example, Taylor’s record won’t allow him to adopt a child — and that is where he thinks he can really make a difference.

“If I could have just had more positive people in my community, then I would have never ended up in prison,” he explains.

“There are a lot of kids in the world who are going to end up spiraling in the wrong direction; they’re going to end up in the school-to-prison pipeline because they don’t have that loving home,” Taylor adds. “I want to put myself into the arena to be one of the people to assist children like that so those bad things don’t happen in their lives.”

“The only thing that I want people to understand is that I am not trying at all to erase my behavior from the past, because you cannot erase what you’ve done.”

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Between record sealing and the pardon process, Colorado law is creating more opportunities for people with criminal backgrounds to look forward to the future. From the teenager who shot a rival gang member to the underage college student who smoked pot in her dorm, every case is complicated and unique. There is no guarantee of relief for those who have been found guilty. There are no easy answers to their questions, but they are still asking. Above all, they are asking for forgiveness.

“Even just the name, it’s called the correctional system, so the original idea was to correct and rehabilitate,” says Melanie Kesner, public policy director at the Interfaith Alliance of Colorado, which lobbies for social justice reform. “Unfortunately, as a society, we’ve moved away from those ideals, and now it’s become more of a punitive system.”

But record sealing could help change that, too. “We’re looking at forgiveness, we’re looking at second chances,” she adds. “And we’re looking at the fact that someone’s worst day should not define the rest of their life.”