Journalists asked to help stop move to close criminal records
Reporters Committee
urges ABA to reject access limit on criminal justice records
July 26,
2007
The Reporters
Committee for Freedom of the Press urges the American Bar Association to reject
proposed resolutions that would drastically limit public access to criminal
justice system records. 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.
On August 13-14 in
San Francisco, the American Bar Association's policy making body, the House of
Delegates, will vote on some of the most potentially damaging proposals to the
cause of open government in recent history.
The ABA's Commission
on Effective Judicial Sanctions and the Criminal Justice Section are co-sponsors
of a series of laudable but perilously misdirected resolutions on the voting
ballot that purport to encourage the successful reentry and reintegration of
people with criminal records through increased employment opportunities.
The effect of these
policy recommendations would roll back 40 years of First Amendment jurisprudence
creating a presumption of openness in criminal proceedings, violate state open
records laws and eliminate the ability of the public and press to act as
watchdogs of the criminal justice system.
The commission's
recommendation urges 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. 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.
The U.S. Supreme
Court has long recognized that allowing public access to criminal justice
information is essential in order to have effective oversight of our legal
system. Journalists, lawyers, social scientists and concerned members of the
public use this information to investigate and analyze various aspects of law
enforcement, such as racial profiling, corruption and abuse of power in our
legal system.
As the First Circuit
Court of Appeals stated in a 1989 case that struck-down a Massachusetts statute
authorizing automatic criminal case sealing, "Without access to documents the
public would not have a 'full-understanding' of the proceeding and therefore
would not always be in a position to serve as an effective check on the
system."
In addition to
closing courthouse records, the proposed resolutions would also restrict public
access to government-retained criminal information in records repositories like
those found within state police departments and made accessible under many state
open records law.
The Reporters
Committee for Freedom of the Press strongly opposes these recommendations. While
the overall goal of reduced recidivism through employment opportunities for past
offenders is commendable, the means by which this end would be accomplished must
be rejected.
"The public's right
to know must not be sacrificed simply because employers are wrongly
discriminating against those who have encountered the criminal justice system,"
Reporters Committee Executive Director Lucy A. Dalglish said.
"Alternative
measures, including forbidding employers from using such records as hiring
criteria would be more effective and would not surrender the public's
fundamental rights of access," Dalglish said.
The Reporters
Committee for Freedom of the Press is asking local media to cover this attempt
to limit access to the public's criminal justice system records. The Reporters
Committee is also asking press organizations, open government groups and
concerned members of the public to let ABA attorney-delegates know their
positions against these recommendations through print editorials, group
discussions and direct communications.
The website for
inquiries to the American Bar Association is located at
www.abanet.org/contact/
The Reporters
Committee's latest news article on the proposal is available at:
www.rcfp.org/news/mag/31-3/police_blotter.pdf
A previous letter to
the ABA on this issue is available at
www.rcfp.org/news/documents/200719-lettertoab.pdf