A bill motivated by good intentions that will cause serious damage to governmental transparency is wending its way through the state House of Representatives.
Sponsored by Rep. Mike Weissman of Aurora, House Bill 21-1214 would allow the sealing of records of low-level crimes. It also would allow some convicted criminals with multiple offenses – habitual offenders – to petition to have their records sealed after fulfilling their sentences. It would automatically seal arrest records when no charges are filed. And more.
The good intention behind this bill is to help those who have been arrested but never charged and those convicted of lesser offenses get on with their lives without the onus of past bad behavior or accusations of bad behavior preventing them from doing so. Understandably, it can be difficult for such people to secure employment and housing and to reintegrate into society. Likewise, because our justice system has long discriminated against people of color, those marginalized groups tend to suffer more in this regard.
But the bill’s negative impacts outweigh any potential benefits. It would especially harm journalists’ capacity to act as government watchdogs for the public. Most importantly, by cloaking judicial records of proceedings paid for with taxpayer money, it would violate the public’s right to know.
Specifically, the bill would “hinder the ability of news organizations to identify systemic problems in the criminal justice system and hold public officials accountable,” according to Jeffrey A. Roberts, executive director of the Colorado Freedom of Information Coalition.
Denver journalist John Ferrugia, testifying in a House hearing, cited as an example a speeding driver who killed two people. The driver previously had been arrested 10 times, including for reckless driving, but pleaded to minor misdemeanors. Ferrugia said that by relying on arrest records, journalists were able to identify a pattern of behavior, prompting the state motor vehicle department to alter its practices to protect public safety.
Under HB 21-1214, such records could have been inaccessible.
This situation also is a reminder that acquittal, dismissal or a reduction in charges doesn’t mean an individual did not commit a crime.
Journalist Susan Greene has been investigating the fatal police shooting of an unarmed man in Kiowa County. She is working on a follow-up story about excessive-force allegations against a sheriff’s deputy involved in the shooting. Charges in other cases were dropped because of the deputy’s alleged misconduct. If those arrest records had been sealed, the public would have no way of knowing about the alleged pattern of excessive force, and no opportunity to hold the elected sheriff to task, she testified.
Similarly, full access to all judicial records allows voters to be informed about the criminal backgrounds of candidates. With full background information, we can decide how a history of petty drug offenses, for example, impacts our voting decisions.
Additionally, sealing and expunging records is not adequate to erase an individual’s past run-ins with the law: Once such information is available on the internet, it remains there in perpetuity. The only place from which it would disappear would be judicial system records. Those running background checks would still be able to access the information, though secondary sources may prove less reliable.
To be fair, this bill is limited in scope. Exceptions include arrest records for felonies such as murder, kidnapping, sexual offenses against a child, domestic violence, sexual assault and convictions for drunken driving and driving under the influence of drugs.
Still, the public – including journalists – should have access to all judicial records except those the law already protects, such as juvenile records.
HB-1214 will not succeed in protecting those it intends to protect. Other solutions are available and should be sought by advocates for those haunted by their pasts.
We join with the Colorado Press Association and Colorado Freedom of Information Coalition in opposing this bill. Please let your legislators know if you agree with us.