Zombie Records: If the government killed it, what is that “thing” I see on the Internet?

By:  Doug Ammar

On Saturday 2/22/14, I was honored to be on a panel at the 23rd Annual Georgia Bar Media & Judiciary Conference – sponsored by the first amendment foundation.  The panel’s title, The Right to Be Forgotten v. The Factual Record, was a catchy phrase to present a thorny topic: restricting access to criminal records. 

When I received the call inviting me to participate, I asked if I should wear full body armor. .. because I suspected that I would be a lone voice in the wilderness.  In a room filled with the media and those representing the media (e.g. folks committed to the free flow of information), I was invited to support the opposing view (e.g. that some records should be forgotten).  I doubted whether I would have any sympathetic minds and hearts in the room.  And for the most part, I was right. But then again, I like a good debate.

This issue is currently a hot topic.  The Georgia legislature, for the last few years, has passed laws aimed at limiting the flow of information – and there is another bill pending as I write.  The “information” in question is criminal justice in nature:  Arrest reports, book-in photos, court documents.  In particular the question is the availability of that information once a case is dismissed, or the charge has been expunged, or the judge decides to seal a criminal file. 

Given all the work GJP has done sealing, restricting, and expunging criminal records, one group consistently raises concern about “hiding” official information:  the media – armed with the first amendment.  This concern is entirely understandable.

Normally I am on the same side as my first amendment colleagues.  Their concerns usually correspond with the concerns of most non-profit lawyers, at least theoretically – i.e. creating a check on the government’s power.  That concern is usually quite consistent with those of us representing the poor in the criminal justice system.  We see first-hand the impact of the government’s use of power.  Power, more often than not, lines up against those who have the least ability to fight it.  Thus the powerful are usually in a winning match against the powerless. This proverbial power dynamic is at the heart of many who do the kind of work GJP does – indigent criminal defense and fighting for the rights of the poor. 

However, with the passage of laws tightening the release of arrest and conviction records, the first amendment crowd is concerned.  If the public cannot get access to information, how will the society at large hold the powerful accountable?  They’re also concerned because more laws are being drafted and passed that limit the public’s access to criminal justice records. Expungement laws for example.

Though I am neither a first amendment scholar nor a practitioner, there is precedent on allowing the government to limit access to information.  Courts can seal records.  For instance laws are on the books in every state allowing juvenile records to be sealed.  Judges can seal the court records and other pleadings of a criminal or civil case.  And beginning over 70 years ago, legislatures created mechanisms to “expunge,” or otherwise restrict access to, certain criminal records.  First amendment challenges to these laws have been rebuffed by the courts, due to the compelling state interest in ensuring that those marked by the criminal justice system are not permanently marked.  It seems, however, that despite decades of states passing laws, despite those laws being upheld, the state’s interest in justice-involved individuals one-day rebuilding their lives is facing another challenge.  The culprit?  Not the courts, not first amendment lawyers, not legislatures.  It is the internet.

The free flow of information created by that beautiful thing (www.com) is undoing the best intentions of legislatures and judges.  It is undoing the effort to keep some information private. Often, like here in Georgia, information about an arrest that did not lead to conviction. (In Georgia, restricting criminal records primarily applies to not guilty, non-conviction outcomes.)  To be sure, this is a conundrum.  Prior to the internet, the courts had much more control of their information.  Now, once something is digitized and distributed via the internet, it is impossible to un-ring that bell. 

One point I was trying to make on Saturday is that the miracles of modernity should not dictate our understanding of or access to court information.  If a court could (in the past) decide that the wrong person was arrested and then seal all records to that arrest, the onset of more advanced technology does not obviate the power the court had, nor the public interest served in that action.  

Another point that seemed to create a modicum of interest among Saturday’s attendees is that this country has been on an arrest, conviction, and incarceration spree for the last 30 years.  The United States has 5% of the world’s population yet we have 25% of those incarcerated. The war on drugs and the war on crime, launched in the 1980’s, has led to America being the leader in incarceration.  According to the National Employment Law Project (NELP), one quarter of America’s population has a criminal record.  In Georgia it is even worse: nearly 33% have a criminal record. More troubling is that the vast numbers of those incarcerated today are non-violent offenders.  Before the law-on-drugs the jails and prisons were primarily filled with violent offenders.

Combine this fact with the advent of the internet and we have a combustible outcome.  Given that both of these phenomena (the internet and the war on drugs) have occurred over roughly the same time frame – the last 20-30 years – has exacerbated both issues.  They have combined to create a geometric progression of impact.  An impact that affects the poorest of our neighbors disproportionately (i.e. 90% of those arrested and charged in America are poor).  An impact that affects our neighbors of color disproportionately (i.e. 75% of every person arrested in America is a person of color). Legislatures all over the country, and even here in the Deep South, are recognizing this adverse impact and trying to address it.

This debate will, hopefully, continue.   For nearly 28 years the Georgia Justice Project (GJP) has attempted to lift up many of these issues.  (In fact we ran our own landscaping company for 17 years in an effort to create employment for our clients – employment too often denied because of a criminal record.)  Every day in our office, located directly behind the grave of Dr. Martin Luther King Jr., we encounter clients who are trying to un-taint themselves from arrests of convictions that are decades old.  Every week we hear stories of jobs and housing denied because of decades old digressions that, even if “put to rest” by the State via an expungement process, continue to live in the databases of criminal background check companies.  These records, deemed over and forgiven by the State, are re-animated courtesy of the internet.  These “zombie” records, perhaps like the zombies on TV and movies, do much more harm when they’re “dead.”

Thought my involvement on Saturday was not a debate, it is good to see the issues of criminal justice system being vetted and debated in the public square.  It is long overdue, and we welcome the opportunity to continue the discussion.