Voluntary dismissal

ABA withdraws resolution seeking to spur federal, state and local governments into cutting off access to all criminal records

From the Fall 2007 issue of The News Media & The Law, page 30.

By Loren Cochran

A controversial American Bar Association resolution aimed at dramatically reducing public access to criminal justice system records was withdrawn at the last moment by the proposal’s sponsors amid journalists’ outcries.

For a time, debate over the resolution was shaping up to be an interesting spectacle on the floor of the American Bar Association’s House of Delegates August meeting in San Francisco. 

Criminology and penology activists backed a resolution urging federal, state and local governments to immediately “limit access” to records of closed cases without convictions as well as most misdemeanor and felony conviction records in an effort, they said, to reduce recidivism and prevent unfair discrimination against individuals with criminal records.

Meanwhile, media groups including The Reporters Committee for Freedom of the Press and open government advocates were sympathetic to the cause but furious over the implications such a recommendation would have on state sunshine laws and the First Amendment’s guarantee of access to the judicial process.

In the end, the buildup was much more eventful than the outcome. 

Rather quietly, the resolution’s sponsors withdrew it before the measure was ever formally addressed by the policy making body of the ABA. 

George Washington University Law School professor Stephen Saltzburg is the co-chairman of the ABA’s Commission on Effective Criminal Sanctions, which along with the Criminal Justice Section (which Saltzburg now chairs), drafted and introduced the resolution. 

Saltzburg said in interviews that the proposal was withdrawn so that it can be reworked and reintroduced later in a form that will gain broader support. 

“For now we threw in the towel,” Saltzburg told The Associated Press. “People agree there’s a problem. Everyone agrees there’s unfairness. But we don’t have a solution that gets people saying that’s one we can all support.”

Charles D. Tobin, chairman of the media practice group of Holland & Knight and a member of the governing committee of the ABA Forum on Communications Law, said the sponsors took a step in the right direction by heeding growing opposition and pulling of the resolution.

“I hope it also signals that — especially in the current environment — they now realize secrecy in our courts serves no one’s interest in the long run,” Tobin said.  

Prior to its withdrawal, opposition to the recommendation grew to a steady roar among journalists across the country. 

In addition to the Reporters Committee, other journalism groups, including the American Society of Newspaper Editors, the National Newspaper Association, the National Press Club, the Radio Television News Directors and others joined forces to defeat the proposal. 

Newspaper editorials across the country publicly rebuked the backers’ efforts to conceal records of the criminal justice system. 

“Public access to criminal records is not only an absolute right in an open society, it acts to deter criminal activity,” read an editorial from the Charleston Gazette & Daily. “If people didn’t have to live with the records they write for themselves, there’s no telling what the crime rate would be.” 

The reader advocate for the Fort Worth Star-Telegram, David House, opined: “A blindfold might be appropriate for the iconic Lady Justice, but the public should be free to see what’s being placed in her scales, who’s handling that job and how.” 

An editorial from Denver’s Rocky Mountain News gave an alternative solution for the problems of recidivism identified in the resolution. 

“ABA members who want to help those who face potentially unlawful discrimination by landlords and employers should take those victims as pro bono clients, and abandon the campaign to shield records in criminal cases from continuous public review.” 

Perhaps the most influential voice in opposition to the resolution, however, may not have come from a member of the media with concerns about the First Amendment and right-to-know laws, but instead from business entities that use criminal justice system information and other public records as the bread and butter of their industry.     

Businesses, including commercial database companies LexisNexis and ChoicePoint, and business groups, like the United States Chamber of Commerce and the Consumer Bankers Association united in a letter to the ABA House of Delegates chairwoman, urging attorney-delegates to join with the business law section’s Committee on Consumer Financial Services to vote down the proposition.                     

According to the letter, companies that use criminal records directly to make “day-to-day operational and legal decisions” and companies that provide criminal justice information as a paying service, primarily through background checks, opposed the measure because it “disregards the legitimate fiduciary interests of businesses, nonprofits, and government agencies to protect their employees, customers, and client populations, including society’s most vulnerable — children, the handicapped and the elderly.”          

“We implore the House of Delegates to not promote blanket governmental concealment of information about arrests and convictions without a full accounting of the impact such concealment holds for individuals and businesses,” the letter said.