Record sealing bills would prevent public oversight of courts

  Four bills intended to help poor, minority D.C. residents move on with their lives after contacts with the criminal justice system could have the opposite impact, the Coalition, The Washington Post, and the Reporters Committee for Freedom of the Press told the D.C. Council Judiciary Committee Dec. 14. The bills would automatically seal court and police records in many cases, impeding the public and news media from acting as watchdogs, and endangering public confidence that the D.C. criminal justice system treats every defendant equally and fairly.

  Robert Becker, Coalition government relations chair testified that in September, shortly after Mayor Bowser announced her intention to introduce Bill 22-560 and Councilmember Grosso circulated a draft of Bill 22-447, the Coalition went on record supporting their underlying goal — protecting individual rights. D.C. residents should be able to move on with their lives without fear that public or private entities will deny them jobs, housing, credit or other benefits due to past arrests, charges terminated short of conviction, and in some cases that end with convictions. We recognize as well that there may be cases where sealing records would be appropriate after full consideration of competing interests.

  As we said then, access to court records is crucial for the public to hold its governmental leaders, including law enforcement, prosecutors and the courts, accountable for arrests, prosecutions, and case outcomes. These bills seem to overlook the harm to public confidence in the criminal justice system and to individual rights that would result if large volumes of police and criminal case records are sealed.

  We encourage all involved to engage in an open process to determine how we can help D.C. residents improve their lives without infringing the public’s constitutional right to access information. We believe a balance is possible and appreciate the opportunity to work together to identify and achieve that balance.

  Our comments today focus on Bill 22-560, and apply equally to Bill 22-447. It appears to us that either bill subsumes the relatively minor definitional amendments in Bill 22-45. In light of at least three U.S. Supreme Court decisions between 1978 and 1989,[1] we believe Bill 22-404 is patently unconstitutional because it would act as a prior restraint on dissemination, for any purpose the D.C. Human Rights Commission deems not to be journalistic, of factually accurate information obtained legally by non-governmental entities.

  Our concerns about the proposed amendments fall into three categories. The first is that the First Amendment guarantees transparency of criminal case records because police, prosecutors and the courts wield enormous power over District residents and visitors. The public and news media must have access to effectively fulfill their duty as watchdogs over the criminal justice system to ensure that these powerful institutions mete out justice evenhandedly.

  The second concern under the First Amendment is that transparency of police and court records, even in cases that do not produce convictions, inspires public confidence in the criminal justice system. The U.S. Supreme Court has recognized that “[s]ecrecy is profoundly inimical to this demonstrative purpose…. Open[ness] … assure[s] the public that procedural rights are respected, and that justice is afforded equally.” Richmond Newspapers v. Virginia, 448 U.S. 555, 595 (1980). It elaborated that secrecy “breed[s] suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law. Public access is essential … to achieve the objective of maintaining public confidence in the administration of justice.” Id.

  The third is that transparency is key to protecting the individual rights of D.C. residents who come into contact with police and the courts, and by sealing records these bills would deprive residents of that protection. Strictly speaking these bills apply to criminal judicial cases, not law enforcement records. But we believe the Metropolitan Police will view the proposed amendments as creating a broad Freedom of Information Act exemption that would cover records documenting interactions between officers and civilians. Public interest groups and the media frequently use such records, as well as criminal case records, to document discriminatory enforcement practices, systemic corruption and officer misconduct.

  In preparing this testimony we enlisted Ropes & Gray, LLC, our outside counsel, to research the state of the law nationwide regarding sealing and expungement of court and police records in criminal cases. They identified 11 states that have sealing and/or expungement laws in which there recently has been active discussion of the issue before you today. What we learned is that statutes in each of those states require that defendants petition the court to initiate the process. This ensures that the process satisfies the U.S. Supreme Court’s procedural requirements.

  There is considerable variation among states, and within states among categories of offenses, in the amount of time defendants must wait before petitioning. In cases that end without convictions, Illinois, Massachusetts and in some circumstances Nevada permit defendants, when the case is closed, to request sealing; other states impose waiting periods. In some, defendants may move to seal non-violent misdemeanor convictions a year after completing their sentences, and in some they must wait up to 15 years before petitioning to seal felony convictions.

  All 11 states restrict the types of offenses that may be sealed and appear to exclude violent felonies. Maine permits only youthful offenders, those under age 21, to petition if the maximum penalty is six months in prison and a $1,000 fine. In Wisconsin, defendants must be under age 25, and the maximum penalty must be less than six years in prison. In New York, a defendant may request that no more than two offenses be sealed, including one felony. In Colorado, Massachusetts, Maine, New York, Pennsylvania and under certain circumstances in Wisconsin, a defendant who commits another crime becomes ineligible for sealing and previously sealed cases must be unsealed.

  A Pennsylvania bill would automatically seal records if a defendant is not convicted. Convictions for non-violent misdemeanors would be sealed after 10 years if the defendant does not commit any crimes during the waiting period. A Maine bill would automatically seal convictions after seven years if the maximum penalty for the offense is no more than six years in prison and a $5,000 fine, and the defendant has no subsequent convictions.

  The bills before you would seal criminal court records in a much broader range of cases than any of the 11 other jurisdictions. The proposed waiting periods from case disposition to sealing would be much shorter than comparable delays imposed elsewhere. The amendments before you would provide D.C. residents no greater protection than residents of other jurisdictions have, but the District would become a national outlier in revoking the public’s right of access to criminal case records.

Courts cannot automatically seal case records

  Bill 22-560 proposes a new D.C. Code § 16-803.01a(c) that would automatically seal all court and related police records in any case that does not result in conviction, unless the charge is defined in D.C. Code § 23-1331(3) as a “dangerous crime.” Whether the government dropped the charges, the defendant was acquitted after a lengthy trial, or the D.C. Court of Appeals vacated a guilty verdict due to a procedural trial error, all records would be hidden from public view unless prosecutors object. Bill 22-560, 6 – 7. Bill 22-447 goes further, automatically “expunging” within 90 days all records related to any charge for which the government fails to obtain a conviction, unless the statutory maximum sentence would be 15 years or more.[2] Id. at 5 – 7.

  A statute that would automatically seal criminal judicial records would not comply with First Amendment procedural requirements enunciated by the Supreme Court in at least five opinions.[3] The Court said the public’s right of access is not absolute. Richmond Newspapers, supra, at 581 n. 18. But before denying access a judge must determine that secrecy would further a compelling interest that overrides the public interest in access, that any restriction imposed be no broader than necessary to protect that interest, and that secrecy will, in fact, protect the competing interest. Globe Newspaper Co., supra, 606 – 8. Consistent with the First Amendment, a defendant must assert his or her desire to have records sealed; a judge cannot act on a presumption about the defendant’s wishes. Press-Enterprise I, at 512. In response to a defendant’s request, the court must apply the three-part test to the facts of the case before it and set out findings on the record supporting a decision to seal court records. Globe, supra, at 609. Because the Supreme Court placed such a premium on the benefits of public access, it required a detailed, written record to facilitate appellate review of the judge’s factual findings and legal conclusions.

  The automatic sealing provisions under consideration in Pennsylvania and Maine are more specific and limited than either Bill 22-560 or Bill 22-447. But they, too, would fail the Supreme Court’s procedural requirements.

There are more effective, narrowly tailored ways to protect D.C. residents

  These bills fail the Supreme Court’s test because they do not require judges to determine whether other remedies would protect a defendant’s rights and encourage sealing of records when doing so would provide a defendant no practical benefit.

  One of the problems individuals face after they have been arrested or charged with a crime for which they were not convicted is that they may be asked by prospective employers, landlords, lenders or licensing bodies about prior contacts with the criminal justice system. Bill 22-560 addresses this issue by stating that

(6) No person as to whom such relief has been granted shall be held thereafter under any provision of law to be guilty of perjury or otherwise giving a false statement by reason of failure to recite or acknowledge his or her arrest, charge, or trial in response to any inquiry made of him or her for any purpose except that the sealing of records under this provision does not relieve a person of the obligation to disclose the sealed arrest or prosecution in response to any direct question asked in connection with jury service or in response to any direct question contained in any questionnaire or application for a position with any person, agency, organization, or entity defined in § 16-801(11).

  Bill 22-560, 10 – 11. The First Amendment would bar sealing where the narrower remedy above would suffice to protect the defendant’s interests. A better solution might be to establish a procedure in cases that do not end with convictions directing judges to issue orders declaring that defendants may act in accordance with the provision quoted above.

  These bills do not entertain the possibility of preventing discrimination by prohibiting use of criminal case records in making employment, housing, credit and licensing decisions, or imposing penalties for such use. They presume, without supporting evidence, that enforcing information use restrictions would be too difficult or too costly. If the Council restricts improper use of these records it would be unnecessary to seal them.

Sealing records will not protect D.C. residents

  In a case that attracts media attention, sealing court and police records cannot prevent the harms these bills attempt to alleviate. Even if the records are sealed any news stories about the case will be readily available. In fact, public availability of court and police records might benefit the defendant by providing greater detail and context.

  The premise underlying Bills 22-560 and 22-447 is that sealing court and police records will protect D.C. residents against discrimination based on prior contacts with the criminal justice system. Bill 22-404, with its significant constitutional infirmities, demonstrates the fundamental error in that premise and why those bills fail the third prong of the Supreme Court’s First Amendment test.

  In the Internet age private entities scrape vast amounts of police and court data from online private and government databases. Even if the Superior Court seals police and court records under this legislation, it is likely that businesses and private investigators will be able to purchase and use the records. But if a case is dismissed for want of prosecution and sealed, the private data source, although accurate, may be incomplete. The data provider would be unable to update its records, and the person to whom the records relate will suffer the consequences.

  D.C. law does not prohibit discriminatory use of criminal case records in employment, leasing, licensing, financial and other contexts. Because bills 22-560 and 22-447 would deprive businesses and investigators of complete, as well as accurate, information, the secrecy these amendments would create would cause greater harm to D.C. residents’ individual rights than current law.

To prevent discrimination and protect residents’ rights, criminal case records must remain open

  Concurring in Richmond Newspapers, supra, at 604, Justice Blackmun wrote,

[t]he public has an intense need and a deserved right to know about the administration of justice in general; about the prosecution of local crimes in particular; about the conduct of the judge, the prosecutor, defense counsel, police officers, other public servants, and all the actors in the judicial arena; and about the trial itself.

 Justice Stevens concurred that

public access … acts as an important check, akin in purpose to the other checks and balances that infuse our system of government. The knowledge that every criminal [case] is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power…. Indeed, [without] publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account.

Id. at 596 (citations and internal quotations omitted).

  By sealing criminal case records, the bills before you would substantially remove the formidable check public scrutiny imposes on police, prosecutorial and judicial power. To illustrate why you should reject these proposals, we offer some examples of how public interest groups and the media have used law enforcement and court records, of the types these bills would seal, to challenge discriminatory practices most harmful to poor and minority community members.

  Recently, the Florida Times-Union in Jacksonville, and ProPublica published a series, Walking While Black,[4] demonstrating that

pedestrian tickets — typically costing $65, but carrying the power to damage one’s credit or suspend a driver’s license if unpaid — were disproportionately issued to blacks, almost all of them in the city’s poorest neighborhoods. In the last five years, blacks received 55 percent of all pedestrian tickets in Jacksonville, while only accounting for 29 percent of the population.

Reporters analyzed records of 2,200 citations between 2012 and 2017 — nearly 200 issued by one officer[5] — and interviewed numerous charged individuals, government officials and experts. The authors explained their methodology:

We obtained Traffic Citation Accounting Transmission data from Florida Court Clerks and Comptrollers through the Florida Sunshine Law. This dataset contains all tickets issued in the state of Florida from January 2012 to July 2017…. We narrowed our data to Duval County because of the completeness of its reporting and because black residents are ticketed at a higher rate there than in any other large county in Florida. This data set covered 2,232 pedestrian tickets. We removed 24 tickets issued to cyclists, producing a dataset of 2,208 pedestrian tickets.

The pedestrian ticket dataset included the recipient’s race, date of birth, gender and residence to the zip-code level.

We obtained disposition records from Florida Court Clerks and Comptrollers and court records from the Duval Clerk of Courts Summary Report System data to look at the status of cases resulting from pedestrian tickets.

  The Sheriff’s Department acknowledged that “officers typically [] questioned the pedestrians and often got them to consent to a search. Officers could also search an individual if they felt in some way threatened or the person failed to cooperate in showing identification.” Using court records the Times-Union and ProPublica

identif[ied] at least 149 cases in which a pedestrian violation led to a search and subsequent additional charge. Even more than the total pool of pedestrian violators, those that are charged with more serious offenses tend to be African American. Overall, the Times-Union/ProPublica analysis showed, 80 percent of those for whom pedestrian violations were accompanied by other charges were black; 77 percent of the additional charges involved drugs.

  A significant number of tickets were issued in error for such supposed offenses as not being able to produce identification when stopped for jaywalking.

  To illustrate the scope of the problem and the impact of the discriminatory enforcement, the Times-Union interviewed several individuals who had been charged and published details of their cases.[6] If the Council enacts the proposed amendments, such reporting would be impossible in Washington.

  Using criminal case records, the ACLU in Minnesota analyzed 96,000 arrests between January 2012 and September 2014 for low-level crimes — offenses for which penalties were less than a year in jail and fines no greater than $3,000.[7] It found that blacks and native Americans were nearly nine times more likely than whites to be arrested for such offenses.

  In its introduction to the report, the ACLU quoted Hennepin County District Judge Kevin Burke, who explained that a low-level arrest

can end up taking somebody who just got a job at Taco Bell and have him fired because they missed work because they were in jail for driving after a suspension case…. Because they missed [work], they’re now behind in their child support…. Because they’re behind in their child support, the county attorney’s office will try to hold them in contempt, to hassle them to get them to pay child support.

To make its point, the ACLU mainly relied on statistical analysis of the records. But under the amendments before you, even that would be difficult, if not impossible, because case records, including those created by police, would be sealed, often within 90 days.

  The Maryland Office of the Public Defender in 2016 relied on 700,000 court records to demonstrate the impact on poor, minority families of a predatory bail bond system.[8] It concluded that

[i]n practice, this system jails the poor and allows the rich to go free…. [S]tudies show that the widespread use of “secured bail” — which requires payment or security, such as a property title, posted directly to the court, or posting of corporate bond to obtain release — causes new crime, coerces convictions, and has little or no impact on defendants’ return to court….

A similar examination in Ferguson, Missouri, by the U.S. Department of Justice uncovered evidence of corruption in the bail system.[9]

  In Second-Chance City, a six-part series published between May and December 2016, Washington Post analysis of arrest, court records and sentencing data prompted legislation now before the Council to amend the Youth Act.[10] In the third article,[11] The Post explained how it researched the series.

To study the implementation of the District’s Youth Rehabilitation Act, The Washington Post drew from a number of sources, combining information where possible for a more complete understanding of the effects of the law.

The Post requested and received a data set from the D.C. Sentencing Commission containing all 3,188 felony sentences issued under the Youth Act from January 2010 to April 2016. The data did not contain information on the identities of those sentenced but included the ages of offenders, dates of conviction, charges at conviction and a statistical weighting of their criminal histories.

The Post wrote software to search the District’s online court database to identify all publicly available criminal cases, felony and misdemeanor, 168,265 between January 2007 and November 2016. The Post then pulled docket information on every case and analyzed the data, identifying all felony and misdemeanor crimes sentenced under the Youth Act that have not been expunged. By matching crimes and sentencing dates to the Sentencing Commission’s data, The Post was able to identify 85 percent of the 3,188 felony offenders sentenced under the Youth Act since 2010.

The Post also identified upward of 3,000 misdemeanor crimes for which sentences were given under the Youth Act. Because the Sentencing Commission does not track these crimes, reporters could not determine how many convictions have been expunged because sentences have been successfully completed.

The Post also requested data on those arrested on homicide charges in the District since 2010 from the Metropolitan Police Department. Using data pulled from the District’s court website, reporters identified 121 individuals arrested on homicide charges who previously were sentenced under the Youth Act. Reporters verified the identity of each offender by pulling files at D.C. Superior Court.

  In the future, if the Council enacts these amendments, The Post would be unable to do this type of in-depth analysis of criminal cases and provide D.C. residents and the Council a detailed explanation of how systemic faults impact this community.[12]

  Using records obtained through a FOIA lawsuit, The Guardian reported extensively on a secret facility Chicago police operated from 2004 to 2015 in which more than 3,500 individuals, 82 percent of them black, were held and “eventually charged, mostly with forms of drug possession … but also for minor infractions such as traffic violations, public urination and driving without a seatbelt.”[13] They were interrogated without access to counsel, and family members often did not learn where the detainees were until after they were formally charged.

  In 2014, USAToday analyzed arrest records nationwide and documented a “staggering” racial gap in arrest rates in several American cities.[14] It found that “[a]t least 70 departments scattered from Connecticut to California arrested black people at a rate 10 times higher than people who are not black.” Gannett newspapers in several of those cities used the data to publish stories focusing on local arrests.[15]

  The mayor of Buffalo, N.Y., established a Strike Force and Housing Unit in the police department to combat gangs, drugs and guns in public housing. The mayor’s goal was laudable, but, using police and court records, InvestigativePost found that “judges tossed out evidence seized by officers on the grounds police had no reasonable justification to conduct the searches. In two of those instances, judges raised questions about the testimony of officers because of conflicting video evidence or its sheer implausibility.”[16]

  Since September, we have cited some of these examples in discussions with D.C. government officials. They expressed the belief that the Maryland and Missouri bail bond examples are not relevant because D.C. does not have such a system.

  They are wrong. The issue before you is not about fixing specific flaws in the criminal justice system. It is about protecting individual rights, and whether sealing public court and police records will improve the lot of D.C. residents who have come in contact with the criminal justice system. These examples are very relevant because they demonstrate how public interest groups and the news media use these types of records to call attention to a broad range of systemic problems that deprive poor, minority community members of their rights.

  These examples make another important point. There is a very clear difference between the reports the ACLU, the Maryland Public Defender and the Justice Department prepared on one hand, and projects done by the Florida Times-Union/ProPublica, Washington Post, Guardian, USAToday and InvestigativePost on the other. The former relied almost exclusively on data analysis of publicly available agency records. The reports’ findings are shocking but, for most people in the community, remote and abstract. The latter used similar records to find cases, defendants and victims, and ultimately to show in a compelling way how the criminal justice system failed the community. Anyone who read Second-Chance City, Walking While Black or Homan Square could understand the problem and its impact on the community.

  Bills 22-560 and 22-447 are well-intentioned, but the remedies they propose cannot effectively achieve their goal. They might prevent discrimination against some individuals by some employers, landlords, financial institutions and licensing bodies. But they would do nothing to eradicate systemic impediments that prevent D.C. residents from moving on after encounters with the criminal justice system. In fact, by sealing criminal case records these bills would perpetuate systemic flaws that deprive residents of their rights.

[1] Landmork Communications v. Virginia, 435 U.S. 829 (1978); Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979); and Florida Star v. B.J.F., 491 U.S. 524 (1989).

[2] Bill 22-447 would replace “sealing” with “expungement” throughout relevant statutory provisions. Expunge “[m]eans to destroy or obliterate; it implies not a legal act, but a physical annihilation….” Black’s Law Dictionary, Rev. 4th Ed. (West 1968). But in the bill “ ‘Expungement’ means the removal from access, by anyone except the subject of the record, of any records of the Court, the prosecutor, any law enforcement agency, and any pretrial corrections or community supervision agency concerning the person’s arrest, charges, court proceedings, or conviction.” The records would remain available to police, prosecutors, correctional agencies and courts. Existing law, D.C. Code § 16-806(b), and Bill 22-560 define who may access sealed court and police records. It is unclear how using Councilmember Grosso’s definition of “expungement,” rather than “sealing,” would alter current law. What is clear is that use of “expungement” in a manner that does not connote destruction of the records would cause confusion and create false expectations among residents who believe the records have been destroyed.

[3] Gannett v. DePasquale, 443 U.S. 368 (1979); Richmond Newspapers, supra; Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press-Enterprise v. Superior Court (Press-Enterprise I), 464 U.S. 501 (1984); and Press-Enterprise v. Superior Court (Press-Enterprise II), 478 U.S. 1 (1986).

[7] Picking up the Pieces: Policing in America, a Minneapolis Case Study, American Civil Liberties Union of Minnesota, May 6, 2015.

[9] Investigation of the Ferguson Police Department, U.S. Department of Justice, March 4, 2016.

[10] Second Chance City (Part I), The Washington Post, May 14, 2016.

[12] Using records obtained under the Freedom of Information Act, The Post reported on increases in marijuana arrests since passage of Proposition 71. D.C. arrests for public use of marijuana nearly tripled last year, July 11, 2017.

[15] See, e.g., Who gets arrested most on Delmarva?, Delmarva now, November 18, 2014.

[16] Buffalo police who cross the line, InvestigativePost, September 20, 2017.