Many of you may recall a proposal to the American Bar Association
from one of its subgroups to restrict public access to criminal
cases that don't lead to convictions (in the name of helping
ex-cons re-enter society successfully). That was withdrawn after
opposition from media and other places. Now the same panel has
come back with a proposal that would also seal records of convictions
in many cases. Below is a letter a coalition of journalism groups,
including Criminal Justice Journalists, is sending to the ABA.

ABA leaders will vote on this as early as August 13. If you think
your newspaper or broadcast station would editorialize against
it, you should pass along the information. Or you might want to
do a story about it. Please message me privately (or Pete
Weitzel at pweitzel@rcfp.org) for more information.

Ted Gest, CJJ

We write on behalf of the Coalition of Journalists for Open Government and its
undersigned member organizations in opposition to the recommendations to the
House of Delegates of the ABA Commission on Effective Criminal Sanctions, which
are on the calendar for your August 2007 sessions in San Francisco.

We opposed an earlier version of this report and were pleased when it was
withdrawn. We are dismayed that a proposal even more deleterious to the
public’s right to know and to transparency in our justice system is now pending
before the House of Delegates.

We make clear at the outset that we take no position on other aspects of the
commission’s work to encourage prisoner re-entry into society. That is a
worthy goal that has been covered by many of our our members in news stories
and supported in editorials.

We believe the recommendation that criminal case records be automatically sealed
when there is no conviction is radical and ill-considered, and will do serious
damage to the public’s confidence in the judicial system. We believe the
proposal to allow subsequent sealing of conviction records opens the door to
special interest pleadings and another assault on the integrity of the system.

Last winter, our coalition and the Reporters Committee for Freedom of the Press
outlined in some detail why we opposed the commission’s earlier proposal. We
stand by those criticisms and here state our broader concerns about the new
version.

The commission’s commentary that its proposal should be considered valid “to the
extent permitted by the First Amendment” is disingenuous. What is being
suggested takes away the presumption of openness that has guided our courts for
more than 200 years. Our government of the people does not permit a “star
chamber” system. The proposal should be rejected on constitutional grounds
alone.

Moreover, the commission has cited no body of law to support its recommendation.
The fact that two state court decisions have supported sealing records in
individual cases with no consideration of the constitutional issues involved
does not provide justification; nor does the fact that some states have
provided for the expungement of certain records in minor cases.

The commission’s proposal calls for automatically closing records in which
charges are dismissed. The reasoning behind this appears to assume a flawless
justice system that never errs in its case dispositions. But just as we know
that many innocent people have been convicted and sent to prison, we know that
many guilty people have avoided trial or have not been convicted. How, then,
can the ABA even suggest that arrest and trial information of those not
convicted be denied a concerned public?

Under this proposal, the public, and the press as its surrogate, could review
and judge for itself only by gathering all relevant information on all criminal
charges before trial and then being present at every trial, an obvious
impossibility. No ex post facto review or investigation by a concerned public,
by the media, by advocacy groups, or by academics would be possible. A
significant portion of the criminal justice system – the records most likely to
reflect its failures – would be closed to all but the established law
enforcement system, which may have been complicit in those failures.

The unintended consequences of the proposal would be a significant unfairness,
and quite possibly abuse of the system by today’s information entrepreneurs.
The sealing of records would serve to shield those not convicted only if their
arrest or court proceedings have not already been publicly reported in some
manner. It would not protect those individuals whose arrests and trials had
been reported. Their names and records would be just a Google search away,
without ready access to exculpatory information.

Adding to the inequities, we can imagine this leading to an expansion of the
data-mining industry in gathering and selling the records of arrests and
initial court filings. This would result in the information that this proposal
would deny the average citizen being available at a price to corporations and
others who could afford to pay. What would then be public-for-a-price is the
same black spot but with no access to the public record that shows why or how
the mark was expunged. We believe this is likely to result in far greater
injustices and abuse of information than anything the proposal’s sponsors might
point to or envision under the current system of transparency.

There is an even greater reason for concern: the integrity of our justice
system. We have come to believe in the rule of law because we have been able
to see it operate, warts and all. Deny the public, and its surrogate, the
press, access to a significant portion of the justice system and its
accountability and subsequent public confidence will be lost. This proposed
closure of all records of proceedings when there was not a finding of guilt is
an open invitation to corruption. As the Reporters Committee previously
noted earlier this year, put into action, this proposal would “eliminate the
ability of the public and press to act as watchdogs of the criminal justice
system.”

The second provision, calling for the subsequent sealing of conviction
information, is simply naïve, and can only do more harm than good. Here
again, reports and other information already in the public domain remain there,
a few clicks away. The public would then have access only to limited, rather
than complete, information about the process that found an individual
innocent. Moreover, those most likely to avail themselves of this records
purge forward are most likely to be those who can afford representation. And
here, too, the basic information about arrest and conviction are still certain
to be available at data mines.

The inevitable consequence of both of these provisions is that the public loses.
It loses access to information it on occasion needs. It loses an open court
system and with it confidence in a critical branch of government.

This proposal would turn on its head more than two centuries of confidence
building in and support for our court system and the rule of law. It would
take away the public’s right to know about and to examine the full operation of
its courts, effectively burying information about vast numbers of criminal
cases in the United States.

In addition, the commission’s plan would create an unwieldy, multi-tiered
information system in which details of charges could be reported by the news
media and obtained by individual citizens while pending, but that same
information could be disclosed subsequently only if there is a conviction, and
then might later be sealed.

As this coalition told the House of Delegates last winter, “Closing these
records could have the effect of shielding those inside the criminal justice
system who want to avoid being held accountable for actions they take on behalf
of the public.”

We believe the proposal before the House of Delegates is a major first step
toward destroying the public’s confidence in the judicial system. We urge you
to reject this well-intended but badly flawed proposal of the Commission on
Effective Criminal Sanctions and to focus on other means to bring about
improvements to the nation’s prisoner re-entry apparatus.