Analysis and discussion by Robert A. Bertsche
In a stark about-face, the highest court of Massachusetts today took a step toward reducing access to criminal court records. It reversed its own ruling from 20 years ago—and picked a fight with the federal First Circuit Court of Appeals that could someday be decided by the U.S. Supreme Court.
The unanimous 46-page decision from the Supreme Judicial Court is a victory for individual privacy rights at the expense of public access to the court system. It was a bow to our age of “rapid informational access through the Internet and other new technologies.”
The Court made it substantially more likely that a certain category of criminal court records—those that have been dismissed or have been the subject of a “nolle prosequi,” or decision not to prosecute—will simply vanish from public view.
Less than 20 years ago, the same Court had ruled that the First Amendment required a strong presumption favoring public access to the records of such cases. But the Court said today that its 1995 decision “no longer achieves the proper balance of interests,” and it lay down a new standard that makes it far easier for secrecy to prevail.
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Imagine this not-entirely-hypothetical scenario:
It is 2017, and the mayor of Smalltown, Mass., is considering his nephew, John Johnson, to be head of the town’s Department of Public Works.
You hear a rumor that, some years ago, Johnson was picked up by police. You ask Johnson about it, and he insists he has no criminal record. You go to Smalltown District Court, but you find no criminal records about him.
Nonetheless, and unknown to you, the rumors are true. In 2014, before he ever got involved in town affairs, Johnson was charged with operating a motor vehicle while under the influence of alcohol (OUI) and leaving the scene of an accident.
He admitted to facts sufficient for a finding of guilty, and in 2015, a Smalltown Municipal Court judge continued the charges without a finding for one year, suspending Johnson’s driver’s license for 45 days and sending him to rehab.
A year later, the judge dismissed the case on the recommendation of the probation officer—who just happened to be the niece of Smalltown’s state representative.
Why couldn’t you find any court records? Because as of today, under Massachusetts law as re-interpreted by the Supreme Judicial Court in Commonwealth v. Pon, Johnson only had to meet a deferential standard of “good cause” before getting his entire criminal case file sealed. The decision makes it clear that facts like those described above would warrant a judge to find that the “good cause” bar had been met.
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Here’s what you should know about today’s decision:
By statute (G.L. c. 276, § 100C), a judge may seal the criminal record of a former criminal defendant whose case resulted in entry of a nolle prosequi or a dismissal, if the judge determines that “substantial justice would best be served” by sealing. The question in 1995, and again in 2014, was what those words really mean.
In 1995, in Commonwealth v. Doe, the SJC said that sealing the record is permitted only if the defendant proves “that the value of sealing … clearly outweighs the constitutionally-based value of the record remaining open to society.” It said that sealing “should occur only in exceptional cases,” and that an individual’s general reputational or privacy concerns aren’t enough. “A defendant must show that specific harm is threatened by the continued existence of the record.”
The Court in 2014 is singing a different tune. Now, the requirement of “substantial justice” is met merely by a showing of “good cause” for the secrecy. That’s the same standard that governs when a court is asked to impound a particular document in the court record—but here it is being applied in a far more extreme setting, one in which the entire case is being made to disappear from public view.
The decision says “good cause” for secrecy is determined by a balancing test. But while it says it is striving to provide “clearer guidance” than under the prior standard, the scales it establishes seem already weighted in favor of sealing.
In one pan, the Court heaps amorphous ideals: the “general principle of publicity,” and the public’s “general right to know so that it may hold the government accountable.” Quoting its 1995 decision in Doe, the court does concede that “‘[e]ven [where] a case has not been prosecuted, information within a criminal record may remain useful’ to the public.”
The other pan overflows even before the weighing has begun. The SJC says there are “compelling” and “fully articulated” “governmental interests in reducing recidivism, facilitating reintegration, and ensuring self-sufficiency by promoting employment and housing opportunities for former criminal defendants.”
Judges don’t even have to make case-specific findings on that point; they “may take judicial notice that the existence of a criminal record, regardless of what it contains, can present barriers to housing and employment opportunities.” Those barriers are “heightened by the immediate and effectively permanent availability of criminal history on the Internet.”
As to the specific factors to be considered, the following is the non-exclusive list laid down by the Court:
–“the particular disadvantages identified by the defendant arising from the availability of the criminal record”;
–“evidence of rehabilitation suggesting that the defendant could overcome these disadvantages if the record were sealed”;
–“any other evidence that sealing would alleviate the identified disadvantages”;
–“relevant circumstances of the defendant at the time of the offense that suggest a likelihood of recidivism or of success”;
–“the passage of time since the offense and since the dismissal or nolle prosequi“; and
–“the nature of and reasons for the particular disposition.”
The Supreme Judicial Court had reached its anti-sealing ruling in 1995 by adopting the reasoning of a 1989 ruling from the federal First Circuit Court of Appeals. In 2014, the SJC is defiantly going it alone, noting that state courts “‘are not bound by decisions of Federal courts except the decisions of the United States Supreme Court on questions of Federal law.’”
In a footnote, the Court turns the principle of stare decisis on its head. It notes that the relevant federal precedents are more than two decades old, from which it concludes that because “our society has changed drastically since either we or the Federal courts have given great thought to the consequences of sealing,” Therefore, “[c]learly, the issue is ripe for revisiting….”
In 1995, following the lead of the First Circuit , the SJC repeatedly spoke of the First Amendment-based “constitutional right of access to judicial records.” By 2014, the First Amendment is on the sidelines: “We conclude that the records of closed criminal cases resulting in these particular dispositions are not subject to a First Amendment presumption of access.”
The Court acknowledges that its conclusion is “at odds with that of the First Circuit” and other federal appellate courts, but finds solace in the fact that “at least one” other state supreme court (Florida) has reached the same result. Take that, First Circuit.
The Court briefly acknowledges that commercial background check services may disclose the criminal arrests that are meant to be hidden by a court-ordered sealing of records. While noting that such services are “immune in practice (but not in law) from sealing,” it says that to factor in the futility of court-ordered sealing would lead to the apparently unacceptable result of barring sealing altogether: “Were we to accept this argument, sealing would never be justified.”
There is a second problem with the commercial background check services: that they can be inaccurate, a fact that the Court acknowledges. The Court fails to note, however, that if actual court records are put under lock and key, then the public and media will be more likely to turn to those commercial services. In other words, unreliable information will take the place of reliable information.
One can take some comfort from the fact that the Court notes, in an aside, that if the former criminal defendant is a public figure, then “a different analysis may be necessary.” Certainly it seems less justifiable to seal a sitting politician’s past brushes with the law, than to seal the same material when it relates to a private individual. The problem is that today’s private individual may be tomorrow’s public figure. In the hypothetical above, John Johnson obtains sealing as a private figure; only later does he go into public life, and by then his prior arrest record is safely hidden away.
The Court says it will not address the public-figure issue because “those facts are not before us.” It is not as reticent when it comes to discussing whether the eased sealing standard it sets out should also apply to the records of criminal court proceedings that end in an acquittal instead of a dismissal or nolle prosequi. In a page-long footnote, the Court suggests that even if one cannot enforce the purported statutory requirement of mandatory sealing of court records of cases that result in acquittals, nonetheless discretionary sealing can occur, and should be subject to the same “good cause” standard.
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It should not, perhaps, be altogether surprising that the SJC has established a new, more deferential standard for sealing of certain cases. The Court is primarily concerned with effectuating what it sees as the legislative goal of CORI reforms: to foster rehabilitation and integration into the community of former arrestees, and to reduce the housing and employment blacklisting of those who have been through the judicial system and come out of it without a criminal conviction. The Court is also concerned that the legislative goal is made more difficult by the impossibility of erasing facts from the Internet.
What is surprising, and disturbing, about the Pons decision is how little discussion there is of the public right to know, or the media’s role in monitoring the integrity of the judicial system. Take the hypothetical of John Johnson, above. In that situation, there is a public interest in knowing why the charges against John Johnson led only to a continuance without a finding, followed by a dismissal after a politically connected probation officer testified.
If You Don’t Like This Decision: Who’s to Blame?
CALL TO ACTION: Perhaps those of us who represent the media and who advocate for public access to the courts have ourselves to blame. The Supreme Judicial Court routinely calls out for amici curiae to submit briefs to help the Court consider points of view that will not be adequately represented by the parties. In this case, such briefs came only from parties who supported a more deferential sealing standard.
Is it time for a coalition of public access advocates and media entities to step up to the plate to be sure that the arguments in favor of public access are adequately represented to the Court?
Robert A. Bertsche is a partner in Prince Lobel’s Media and First Amendment Law Practice. You can reach Rob at 617 456 8018 or rbertsche@PrinceLobel.com.