ABA commission pulls proposal on criminal records

Out in San Francisco at the American Bar Association annual meeting, we've just heard word that a controversial proposal that urged sealing records of certain past criminal convictions and arrests has been pulled from the agenda of the association’s House of Delegates meeting here.

The proposal, offered by the ABA’s Commission on Effective Criminal Sanctions, was aimed at making it easier for convicted people who have served their time, and those whose arrests never led to a conviction, to gain employment and housing without the stigma of past records that can be found in online databases and elsewhere. “A criminal conviction is, in a very real sense, a mark of Cain which sets its bearer permanently and indelibly apart from the rest of the society,” the commission said in a report to the House of Delegates, which meets Monday and Tuesday at the association’s annual meeting.

The commission wanted the ABA to favor legislation at all levels, “to the extent permitted by the First Amendment,” to restrict access to records of dismissed or acquitted indictments, and records of past convictions after a period of time, to law enforcement agencies only. But news media organizations protested that the proposal would seal off from the public a significant segment of public records that are important in holding law enforcement agencies accountable for past arrests and investigations.

Perhaps more significantly, business groups chimed in in recent days in opposition to the proposal, because they seek this same information in connection with background checks for employment and housing.

For whatever reason, the commission on Friday night decided to withdraw the proposal from the agenda for the association’s policy-making body. Commission chair Steven Saltzburg, a professor at George Washington University School of Law, could not be reached for comment.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, who led the media group objecting to the proposal, applauded its withdrawal, but said it should have never gotten as far as it did. She said media groups had tried for months to discuss the proposal with the commission, but “we were written off as whining media people.” It was not until business groups also raised red flags that the commission paid attention, she said. “There is a real public interest in this information.”

Dalglish said the way for the commission to achieve its goal of erasing the stigma of past criminal records is not to seal the records but to make such discrimination by employers and landlords illegal.

UPDATE: Professor Saltzburg says the commission decided to withdraw the proposal so it can go back to the drawing board in search of a new proposal that will gain broader support. "Most people understand the problem. We just can't find the solution that works for everybody," he said in an interview Sunday. "But we haven't given up." He also defended the commission's deliberative process. "We listened to everybody."

(Note: Tony Mauro, author of this post, is Supreme Court correspondent for Legal Times and American Lawyer Media, and is also a member of the steering committee of the Reporters Committee for Freedom of the Press.)