I’m writing today not about a piece of journalism, but rather a piece of legislation against which our new colleague, John Ferrugia, and I have been testifying at the State Capitol.
Colorado House Bill 1214 seeks to seal wide swaths of criminal records – many automatically – from public view, threatening the work reporters do uncovering patterns of excessive force, racial profiling and other abuses of police power as well as holes in the state’s regulatory system.
The so-called “collateral consequences” bill is motivated by good intentions. Sponsors say it would give many Coloradans a second chance by keeping prospective employers or landlords from knowing they have certain kinds of low- and mid-level arrests and/or convictions. Proponents point out that because Black and Brown Coloradans long have been disproportionately accused and convicted of crimes, the bill could help untangle many people of color from a thicket of lifelong systemic oppression.
But, like similar measures being pushed in statehouses nationwide by an unlikely alliance of the Koch brothers, Mark Zuckerberg and progressive groups, HB 1214 would have alarming collateral consequences of its own.
Arrest and conviction records are never only about the defendant. These documents, even in low-level criminal cases, speak volumes about Colorado’s criminal justice and regulatory systems.
Only by combing through them can we see the small details that make up patterns of misconduct among certain police officers or departments. Things like racially profiling suspects, excessive force and other abuses of power.
Only by reviewing them can we tell which prosecutors or DAs’ offices have habits of filing frivolous charges or, as in a story I’m reporting right now, have had to drop seemingly legitimate charges because an overly amped-up deputy kept using excessive force in situations that didn’t merit it.
Only with access to these little stories can we understand the players behind big stories – like whether a mass shooter has been previously arrested, but not charged, or convicted of a string of lower level offenses, for example, or whether a candidate for elected office has a rap sheet for a string of Ponzi schemes. It is also in these documents that we can learn whether Coloradans foster-parenting children or nursing seniors with Alzheimer’s, for example, have criminal backgrounds regulatory agencies didn’t catch.
House Bill 1214 is a pickle, pitting 6th Amendment rights of the accused against 1st Amendment rights to government transparency, accountability and knowing what our government officials are up to. Journalists throughout Colorado spend lots of time combing through the kinds of records some proponents of this bill insist “are not interesting to the public” to investigative stories that our metrics show Coloradans deeply care about. These stories have prompted some of the criminal justice reforms that proponents of HB 1214 have championed and are sponsoring this year.
The bill’s supporters argue journalists and members of the public can always petition judges to unseal criminal records that would be hidden by HB 1214. Easier said than done. That process is too slow to meet news needs. Besides, Colorado has the dubious distinction as the only state whose Supreme Court has ruled that the public has no First Amendment right to court records. I’m pretty sure most of us don’t want judges deciding what is and isn’t newsworthy. Nor do we want state lawmakers making those decisions.
I believe in second chances and my career watchdogging the criminal justice system is proof of that conviction. But second chances for individuals – even those oppressed by systemic racial disparities and misconduct – cannot come with a hasty, wholesale erasure of the very public records that bring those kind of problems to light.
HB 1214 is still in the House and has yet to reach the state Senate. Please join me, COLab partner media, the Colorado Press Association, the Colorado Freedom of Information Coalition, news consumers and bipartisan believers in government transparency and accountability statewide in urgently asking your lawmakers to oppose this well-meaning, but dangerous bill.
This post was sent as a letter to our email subscribers on Saturday, May 1, 2021. Join our email list to learn more about COLab and the work we are doing.