Another step toward tyranny

For decades, the women would stand their lonely vigil on the streetcorners of Buenos Aires and elsewhere in Latin America, holding signs that demanded an accounting for "Los Desaparecidos" -- husbands and sons who had been "disappeared" by the military juntas of the 1970s and '80s.

Most were surely dead. But there was so much less explaining for the strongmen to do if these "enemies of the state" -- often courageous journalists or churchmen, philosophers or labor leaders -- simply vanished, bodies disposed of where they would never be found.

No inconvenient public courtroom that could be turned into a bully pulpit for embarrassing challenges to be picked up and broadcast overseas. Just a silent terror for those left behind, knowing they had better keep their thoughts to themselves or they could easily be the next to round a corner ... and never be heard from again.

In Josef Stalin's Soviet Union, the technique was a little different. It also started with political opponents being grabbed and hauled away in the dead of night, tortured in some grisly basement till they would sign anything in exchange for the promise of a quick death.

But comrade Stalin added a charming refinement. Broken and disoriented, those who had already been tortured into confessing would be paraded into a courtroom for a show trial, squinting into the lights, deprived of belts or suspenders, struggling to hold their pants up -- any "defense attorneys" present being mere government stooges putting their assigned "conspirators" through their coached confessions ... unless the barrister wanted to take his own turn as a guest of the Lubyanka.

Now there are bad enough signs right here in America. Take the tendency of our own judges to tell defense attorneys which defense arguments will be permitted -- U.S. District Judge Charles Breyer threatening to jail defense attorneys for contempt, for instance, if they revealed to a 2003 federal jury that California "Ganja Guru" Ed Rosenthal had been deputized by the city of Oakland to grow medical marijuana in compliance with a 1996 law approved by California voters.

But so far, those who earn the displeasure of our political leaders still can't be "disappeared" here in America.

Why? Because their arrests are public records. The government is required to inform them of the charges against them in open court. Our strongest defense against abuse of the justice system is that, in every step of the process, that system is open to scrutiny, review and criticism by the press and public. You can only criticize what you can find out about, after all.

But now, a powerful group steps forward and wants to change all that. They want the public to lose access to arrest and court records, even those of people convicted of serious crimes.

Under the proposal, O.J. Simpson, the four Los Angeles police officers accused of assaulting motorist Rodney King, and actor Robert Blake (acquitted of murdering his wife) would be among those whose court records would be sealed. Prospective employers wondering if these characters would be good choices as beauty pageant security guards would be left in the dark.

Where is this proposal coming from? It's to be presented next week at the annual convention of ... the American Bar Association.

Ready access to court records has led to employment and housing discrimination against people who were arrested but never convicted of crimes or who have completed sentences and returned to society, the lawyers complain.

Well, sure. The fact that you'll have to answer "Yes" to those "Are you a convicted felon?" questions on job applications for the rest of your life is a pretty good reason not to rob, attack and steal, isn't it?

Limiting public access to such records would violate the First Amendment and make it harder to expose misconduct by police and prosecutors.

"How are we going to exercise oversight of law enforcement if we can't get the records?" asks Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

Other critics have noted that a secondary market would surely develop to gather arrest records prior to court action and store them for future sale. The information would be "available at a price to corporations and others who could afford to pay," warns Pete Weitzel of the Coalition of Journalists for Open Government.

Stephen Saltzburg, a George Washington University law professor who co-chairs the ABA's Commission on Effective Criminal Sanctions, said Wednesday he's considering asking the ABA to drop the arrest records language and focus on urging governments at some point to seal records "of old, minor convictions."

Depending on the details, that might be less dangerous. Even better, though, would be to stop arresting and processing people through the courts for mutually consensual forms of commerce that create no victims -- no complaining witnesses other than police or regulatory bureaucrats -- in the first place.

Would the ABA care to endorse that common-sense reform, in the interest of those 70 million Americans with criminal records -- many of whom have never hurt a fly?