Posted Aug 03, 2007 03:52 pm CDT
Two ABA groups’ suggestions about limiting access to criminal records—in order to make it easier for convicted criminals to find jobs and housing and thus promote their rehabilitation—have sparked a firestorm of criticism from free speech advocates.
In recommendations to the ABA House of Delegates expected to come up for a vote Aug. 13 or 14 at the conclusion of the ABA Annual Meeting in San Francisco, the groups have suggested limiting public access to records of criminal convictions and making confidential criminal records information that is now public under the laws of some states, says the Reporters Committee for Freedom of the Press in a press release.
But these suggestions by the ABA’s Commission on Effective Judicial Sanctions and the Criminal Justice Section “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 Reporters’ Committee contends.
In a written report to the ABA House of Delegates that is posted by the Mississippi Clarion-Ledger, the two ABA groups say that the “mark of Cain” created by a criminal conviction should be eliminated in two different types of cases: “where 1) an offender has served the sentence imposed, lived for a period of time in the community, and may be presumed not to pose a risk of reoffending; and 2) there has been no finding of guilt, including cases where charges have been dismissed.
“The most effective way to accomplish this is to limit access to the record itself, after a certain period of time and under certain conditions,” the report continues, later noting that “sealing would not affect access by law enforcement agencies” and would not apply to “convictions involving substantial violence, large-scale drug-trafficking, or conduct of equivalent gravity.”
The House of Delegates is the American Bar Association’s policy-making body, and recommendations are not effective until it votes to approve them. If the recommendations to restrict the amount of criminal record information available to the public are approved, the ABA presumably may lobby to persuade government entities to change relevant laws, since the ABA itself has no direct role in providing criminal record information to the public.
The ABA groups’ recommendations are also opposed by the American Society of Newspaper Editors, a trade group based in Reston, Va., which outlined its position in a recent letter to members.
The recommendations are not unanimously supported even within the ABA, says Gambit Weekly, a New Orleans alternative newspaper, in an editorial. “This would make journalists’ jobs infinitely harder without access to criminal records,” Chuck Tobin, Washington, D.C., lawyer who is a governing member of the association’s Forum Committee on Communications Law, tells the paper. “The public has a right to know. The press has a right to know.”
While the Gambit opposes the recommendations, it sympathizes with the goals: “We support the ABA commission’s goal of reducing recidivism through employment opportunities for past offenders,” the paper writes, “but the means by which this goal would be accomplished should be rejected.”
(Hat tip: blog post by Chris Joyner, a reporter for the Clarion-Ledger.)