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Criminal justice & secrecy

This issue examines a few different ways that the criminal justice system limits access to records, often in the name…

This issue examines a few different ways that the criminal justice system limits access to records, often in the name of the public good. But in the end, the limits end up hurting the public understanding of how the process works, and some of these tough calls on secrecy really need to be made in the direction of greater openness.

The movement to expunge criminal records — sometimes just in cases where the defendant won an acquittal, but other times for a much larger class of records — is one such example. While there are very real examples of a person's criminal past being used to discriminate against that person in housing and employment, the solution should not be to throw that information down an Orwellian “memory hole,” but to better enforce those laws that keep such discrimination from occuring. The easy answer — hiding those records — is the most problematic, as information that was once the day's news is placed in a strange limbo where we must act like it never happened.

Mug shots also present privacy concerns, and the web sites that have sprung up only to demand a hefty fee for removal of a person's picture from the site do need to be reigned in. But there is still public value to making mug shots available. Access helps confirm the identity of suspects and avoid misidentifying innocent people with the same name, and it often shows how a person was treated during an arrest, which is often part of the newsworthy controversy. Additional witnesses also often come forward when they see someone who is accused of a crime.

Switching gears a little, we also look at access issues in the military justice arena. The system, clearly, is broken; base commanders have too much power over who does or doesn't get prosecuted, victims are often treated unfairly, and no one keeps an open public record of the proceedings. Greater access is necessary here, and the first thing Congress should do is require the military courts to maintain a public docket, like the federal courts do with the PACER system.

Each of these areas involve tough choices and distinctions, and call for careful deliberation of where to draw the line. Instead, officials all too often want to legislate with sledgehammers, denying the public the right to know about important actions in the name of protecting privacy interests. Obtaining a workable balance requires hard work, not a quick fix.