"Criminal court files are exactly the kind of public records that must remain open and available for public scrutiny," says Richard Karpel, executive director or the Association of Alternative Newsweeklies (AAN), a group that includes papers like Gambit Weekly across America. "Authoritarian governments may decide to deposit those kinds of records into a memory hole that only law enforcement officials have access to, but we don't do that here in the U.S." In addition to AAN's concerns, the Reporters Committee for Freedom of the Press has urged the ABA to reject the proposed resolutions.
"The measures would violate the First Amendment and state public disclosure laws and roll back the presumption of openness in law enforcement and judicial records," according to a statement by the Reporters Committee. The group called the proposals "some of most potentially damaging proposals to the cause of open government in recent history." We agree.
The resolutions have been put forth by the ABA's Commission on Effective Judicial Sanctions and the association's Criminal Justice Section. The resolutions seek to encourage the successful re-entry and re-integration of people with criminal records through increased employment opportunities. Gambit Weekly and many other alternative newspapers have long supported reform efforts that make it easier for offenders who have been rehabilitated to re-enter society on strong footings. However, the effect of these policy recommendations would be to roll back decades of First Amendment jurisprudence creating a presumption of openness in criminal proceedings. The resolutions, if adopted, would also contravene many state open records laws -- including Louisiana's -- and eliminate the ability of the public and press to act as watchdogs of the criminal justice system.
The ABA's various sections are not unanimous in their support of the proposed policy changes. "This would make journalists' jobs infinitely harder without access to criminal records," says attorney Chuck Tobin, a member of the governing board of the ABA's media section. "The public has a right to know. The press has a right to know." We hope Tobin's view prevails when the House of Delegates meets in two weeks.
While we join the Reporters Committee and other news media against the resolutions, we understand the concerns that gave rise to the proposals. Nearly a quarter of the people in the U.S. -- more than 70 million people -- have some form of criminal record, according to the ABA's Commission on Effective Judicial Sanctions. Attorneys and others who advocate for people with criminal convictions say the ready access to records often acts as an impenetrable barrier to their clients' re-entry into society. This is a very real problem, but, in our view, the solution to recidivism is not sweeping people's past crimes permanently under a rug; if someone is genuinely rehabilitated, he or she can be open and honest about the past and demonstrate a subsequent history of law-abiding behavior. The proposed resolutions, on the other hand, would create more problems than they solve.
If adopted, the commission's recommendation would make it official ABA policy to urge federal, state and local governments to immediately "limit access" to records of closed criminal cases without convictions to everyone except law enforcement agencies. "This measure alone, if adopted by federal, state or local governments as suggested by the recommendations, would dramatically impede the press's ability to oversee the criminal justice system," says the Reporters Committee. "It would allow police and prosecutors exclusive access to cases that did not result in convictions, including in cases of prosecutor or police misconduct. Equally troubling, the proposed resolutions also seek to automatically seal misdemeanor and felony conviction records 'after the passage of a specified period of law-abiding conduct.' However, law enforcement would again have exclusive access to these otherwise secret files."
In addition to media inquiries, the resolutions seek to significantly curtail the rights of prospective employers and credit reporting agencies to access accurate information about job and credit applicants. For example, applications for employment or licensing would be required to state affirmatively that an applicant is not required or expected to disclose a sealed arrest or conviction --Êand employers would be prohibited from requiring job applicants to disclose sealed arrests or convictions. Applicants with sealed arrests or convictions, in fact, would be allowed under the law to deny that the arrests or convictions even occurred, if the resolutions' recommendations were to be adopted by state and federal lawmakers. Employers also could not deny employment based on a sealed arrest or conviction -- a prohibition that no doubt would foster a whole new class of employment-related litigation.
The courts have long recognized the importance of allowing public access to criminal justice information and the role that such access plays in effective oversight of our legal system. We support the ABA commission's goal of reducing recidivism through employment opportunities for past offenders, but the means by which this goal would be accomplished should be rejected.