By Dennis Hetzel, Executive Director
Senate Bill 143 is one of several recent measures in which an unusual amount of bipartisanship has erupted in the Ohio Legislature. All have the goal of helping many offenders get a second chance to overcome obstacles that anyone with a criminal record faces, no matter how well-motivated.
By and large, these are good bills. If I still had a newspaper editorial page to manage, I’d be supporting them. Our prisons are overflowing with non-violent offenders. We also have the absurdity of people being trained in prison for jobs that the law won’t allow them to fill, or they lose their driver’s licenses for offenses that have nothing to do with driving. Most people would agree that juveniles in particular deserve some extra consideration as they try to move on with their lives.
However, these bills also share a troubling, common thread – well-intentioned but wrong-headed efforts to seal and even destroy court records that today are open.
Last year, we worked to successfully remove a provision in one of these bills that would have allowed the expunging – the destruction – of records of those pardoned by a governor.
This is absurd. First of all, a pardon is simply that. The defendant is being excused for any number of reasons. It may or may not mean he or she is innocent. In most cases, the crime was committed.
Secondly, there are times when governors and presidents pardon people for less-than-noble reasons. (See “Bill Clinton and Marc Rich.” Or, recall Dick Cheney’s efforts to convince President George W. Bush to pardon Scooter Libby.) All pardons by elected political leaders deserve special scrutiny.
Most importantly from a journalist’s perspective, destroying and sealing records means hiding the most accurate and credible account of what happened in the case, making it much harder to assess why the system failed when someone is wrongly convicted. Sealing or destroying records protects those who screw up and those who cover up. It serves an important, greater good for these records to remain open, even though it causes pain for some individuals at times.
And that brings us to a real-world reason why these records should remain open. In our digital age, you cannot un-ring the bell, to cite a cliché often used in courtrooms. Sometimes life isn’t fair. Information you don’t want to be public will remain available no matter how hard you try to remove it all. You can seal court records but not gossip, innuendo and speculation.
In the case of SB 143, we were concerned about a provision that would have denied access to any information about juveniles being held in adult facilities. This is something that only should happen in Ohio under rare and highly regulated circumstances. The public has a right and need to know when and how juveniles are being held.
When I testified as to why this was a bad idea, I learned the impetus behind this provision was to block the “mug shot sites” from putting the booking photos of juveniles on the Internet or in publications. Mug shots are taken of anyone booked into an adult facility.
These sites are a national problem. Their business model should offend any decent person. In essence, the sites use public records as profit centers. They can obtain the photos because the mug shots are public records. Then they force people to pay them if they want the photos taken down. Even if you pay them, the photo can pop up on another site. That isn’t journalism. It’s commercial exploitation.
The thorny problem for First Amendment advocates like us is that it is a fundamental principle that government should not ban a public record because of a potentially bad purpose or usage.
Other means should be found to address the issue. And that is happening, which I pointed out to the committee. The Plain Dealer recently did an excellent story on this issue, as did the New York Times. An Ohio lawsuit is leading the charge against these operators, and the private sector is reacting in other ways. For example, PayPal, Discover and other credit card companies started to refuse to accept payments to these sites, which could put them out of business. Perhaps most significantly, Google has changed its search criteria so that links to the mug shot sites now are buried deep in the results if you search on someone’s name.
Still, I think there are logical reasons not to treat juveniles as though they are simply miniature adults. With SB 143, we have agreed to compromise language. Information about juveniles in adult facilities would be parallel to what is made available when youths are held in juvenile facilities. You will be able to learn the offense, county of residence and other demographic information but not specific identifying information. (It is important to remember that juveniles technically are not charged with crimes but are facing delinquency proceedings.)
This means the “mugs” of juveniles in adult facilities would not be released. The solution we accepted after quite a bit of negotiation avoids a bad precedent over public records. We’ll see what happens as SB 143 continues to move through the Legislature.
Then, on Oct. 22, the Ohio Supreme Court issued what we believe is a terrific decision that a governor’s pardon does not mean a criminal conviction should be automatically sealed.
“Although a pardon grants the recipient relief from any ongoing punishment for the offense and prevents any future legal disability … it does not erase the past conduct,” Justice Judith Ann Lanzinger wrote. “In other words, what’s done is done.”
That’s exactly what we have been saying for several years.
However, only a few hours after the decision was released, a juvenile-justice advocate urged senators during a committee hearing to amend SB 143 to reverse the Supreme Court so that it would be easier to seal such records.
I don’t think that will happen with this bill, but stay tuned. We must keep making our case that sealing and destroying more court records will neither serve the public nor protect individual offenders in the long run.
Postscript: For a fascinating perspective on our criminal justice system, here is an interview by the Today Show’s Matt Lauer with former New York City Police Commissioner Bernard Kerik, who just finished a three-year prison term for tax evasion. Kerik’s views have changed dramatically.