The D.C. Open Government Coalition shares Mayor Muriel Bowser’s and Councilmember David Grosso’s desires to help D.C. residents move forward to lead successful lives after past arrests or convictions. But simply removing official proceedings from public view is not the answer. The goal is laudable, but these proposals as outlined are misguided and would do more harm than good. We ask that the Mayor and the Council proceed cautiously and consider some of the unanticipated consequences of broad sealing after hearing from various stakeholders.
Access to court records is crucial for the public to hold its governmental leaders, including law enforcement and the courts, accountable for arrests, prosecutions, and case outcomes. For example, a 2016 Washington Post analysis of arrest and court records showed that more than 100 offenders who received lenient sentences under the Youth Rehabilitation Act from 2010-2016 then went on to commit serious felonies, including robbery, rape and murder. Citing that investigation, Mayor Bowser called for legislation now before the Council Judiciary Committee to amend that law. Under Bowser’s and Grosso’s legislative proposals, those same records would be targeted for sealing or expungement, rendering them unavailable to the public and the news media to conduct this important oversight. In 2016, the Maryland Office of the Public Defender released a study relying on more than 700,000 court records to show the predatory nature of the bail bond system on defendants who are largely black and who live in Maryland’s poorest communities. Maryland’s attorney general and Court of Appeals have both come out with efforts to deter courts from setting high bail.
We are concerned that Mayor Bowser’s proposals requiring the automatic destruction or sealing of entire categories of criminal case records, with no meaningful judicial review or individualized findings, would undercut the public’s First Amendment right and ability to serve as a watchdog on government activity. As the U.S. Supreme Court has recognized, openness “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.”
The underlying goal of Mayor Bowser’s and Councilmember Grosso’s proposals is protecting D.C. residents from improper use of police and court records by employers, licensing bodies, landlords, financial institutions and others — which we strongly endorse. There should not be unreasonable impediments to rehabilitation; at the same time, there are situations where continued access to court records is necessary.
Future public hearings conducted by the Council may highlight more narrowly tailored ways to address that goal without sacrificing the public’s right to oversee the criminal justice system. Legislation prohibiting improper use of such records would provide residents more effective protection than attempting to hide the records from the public.
We look forward to working with the Mayor and Council to protect the public’s right to know and to hold our government accountable, while ensuring that D.C. residents who have not been convicted of crimes can continue or rebuild their lives after disruptive brushes with the legal system.
Contact: Corinna Zarek, President