A View from the Hill: Fairness shouldn’t require a sanitized public record

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For the record, I’ve never been convicted or charged for any crime (except by my parents and my kids). Like most of us, I could have been, but I didn’t get caught.

That makes me a lucky person, not a perfect one. 

So what to do about the unlucky, the unwise, the careless or, more likely, those whose socio-economic status made them more noticeable and vulnerable? How long should they carry the burdens of their mistakes once they have “served their time?” They aren’t likely to forget what they did, but for how long should records of their actions remain accessible to the public?

Worse, what if they were arrested but never charged or acquitted, but that didn’t get reported?

In the old days, before there was an internet, that was easy. Newspapers published all arrests, then hopefully followed up with whatever happened in court. The printed version stayed around for a while then moved to microfilm, where anyone who had lots of spare time and motion sickness medication could roll through year after year and find out when Uncle Frank was arrested and convicted of drunk driving. It was an issue, but not a big one.

Likewise, police and court information was not easily available to the general public.

Now everything goes online, where it lives forever, indelibly staining reputations, deservedly or not. Many companies get rich with promises to cleanse those reputations, but that’s really impossible, even for the serial geek. It’s everywhere. If you got arrested or even charged any time in the last couple of decades and it was reported in the press or by government agencies, it’s out there, whether you were convicted or not.

That’s the burr that Maine Sen. James Dill, D-Old Town, has under his saddle. Dill is behind a bill that would allow, under certain circumstances, people in Maine who have been convicted of a range of crimes to have their records expunged – made to disappear, forever. This could only happen after five years have passed and the expungement would have to be approved by a judge.

Dill doesn’t think it’s right that people should pay for the rest of their lives “based on a mistake they made and were punished for a long time ago,” he told the Judiciary Committee recently, according to the Portland Press Herald.

Dill isn’t alone in his concern.

Pennsylvania has been particularly aggressive, automatically wiping the slate clean (it’s called the Clean Slate law) after 10 years for a number of crimes and cases where there was no conviction or a fine was paid. Millions of records now disappear every month. Other states are considering automatic expungement after only five years.

In Maine, Judith Meyer, a newspaper editor and Maine Freedom of Information Coalition vice president, who opposes the bill, told the Legislature that crimes such as stalking or giving a handgun to a minor or witness tampering could disappear under Dill’s proposal.

News organizations face their own pressure to undo history. Many newsrooms are dealing with requests to “unpublish” past crime news by removing stories from their websites. In 2009, Kathy English, public policy editor at the Toronto Star, surveyed news organizations and found “public requests to unpublish are becoming increasingly frequent and are expected to increase.” And, she said, most newsrooms had no policy for dealing with unpublishing requests.

Few news editors would agree to unpublish, preferring alternatives such as updating a story when a defendant is acquitted or a case is dismissed. But policies need to be in place so that these requests can be addressed and “the first draft of history” is left intact.

Whether in the courts or in the press, this is an extremely complex issue. Nobody wants their dirty laundry hung on the internet for all to see forever.

But nor should we commit to sanitizing the public record.

All police, judicial and government activity needs to be closely monitored, recorded and permanently preserved by independent agencies outside the reach of law enforcement, including the press. Without that record, we might not be able to spot trouble when it’s developing. That’s why repressive governments around the world love secrecy.

“Uncle Frank? Never heard of him. Never happened.”

Andrew Marsters is an award-winning journalist and former journalism instructor at the University of New Hampshire. He lives on Munjoy Hill.

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