In our years of litigating civil rights cases on behalf of people entangled in the criminal justice system in the South, a few truths have become evident. First, no good comes from permitting government officials to perform their duties in secret. Second, officials who have become accustomed to operating without accountability are loath to relinquish the power that comes from conducting their business without public scrutiny. Third, when public officials resist efforts to shine a light on their activities, there is often something to hide. Fourth, public scrutiny is often a prerequisite for changing harmful, entrenched practices.
Even as other government institutions are becoming increasingly transparent in their practices, many criminal justice agencies--prisons, jails, and other entities of "correctional" supervision--resist the idea that the public should play a role in their oversight. There is a deeply held belief that security will be compromised if the public is permitted to know how these institutions are performing. Additionally, there is a culture in the corrections field that fosters the notion that keeping quiet about correctional operations and incidents is the correct, moral thing to do. In our practice, we have encountered otherwise law-abiding public officials who violate open records laws, disregard discovery rules, hide or alter records, or otherwise break the law in an effort to shield public information from public view.
Accordingly, our organization and others have recently stepped up efforts to insist that prisons, jails, and law enforcement come out from behind a veil of secrecy. Rather than operating prisons and jails as hidden, mysterious places at the far edge of democracy, correctional institutions and all parts of the criminal justice system should be transparent and accountable to the public. The push toward transparency is vital because our criminal justice institutions are expanding and privatizing at an unprecedented rate, imposing huge financial and social costs on the taxpaying public.
Transparency is also vital because we cannot rely on courts to keep people in the criminal justice system reasonably safe from harm. Both transparency and accountability are necessary to uphold the rights of people under criminal justice control and to ensure that the criminal justice system evolves in ways that genuinely promote the public interest. It is imperative that we encourage a nuanced, evidence-based public debate on the efficacy of our criminal justice practices as the system expands.
To that end, this Article will examine: (1) recent accounts of criminal justice institutions' resistance to transparency and accountability; (2) the increased need for transparency as the criminal justice system expands and privatizes; (3) the limited role that courts can play in protecting criminal defendants and prisoners from abusive practices; and (4) the role of the media and the public in demanding that criminal justice institutions are accountable to the people who fund their operations. We conclude that the public has the right to information that will allow individuals to understand and intelligently consider the performance of our criminal justice institutions. We further conclude that the media and the public have a responsibility to provide much-needed oversight to these institutions.
THERE IS AN ENTRENCHED CULTURE OF SECRECY IN MANY OF OUR CRIMINAL JUSTICE INSTITUTIONS IN THE SOUTH.
As a general rule, in democracies like ours, the principles of openness and transparency in government are accepted and endorsed. (1) All fifty states and the federal government have some form of freedom of information law that permits citizens to examine the work product of government agencies. (2) Citizens can attend city council meetings, view public meeting minutes, review public expenditures, and otherwise comment on or participate in the operation of our government. (3)
The line between a public record and a "state secret" muddies considerably, however, when it comes to the operation of our criminal justice institutions. On the one hand, there is a growing recognition in the United States that these institutions must become more accountable to the public. In 2008, for example, the American Bar Association passed a resolution calling on governments to make correctional facilities more transparent. (4) In 2006, the Commission on Safety and Abuse in America's Prisons listed transparency as one of its chief recommendations to improve prison conditions. (5) We have seen the U.S. Department of Justice file suit against an Arizona sheriff who repeatedly failed to comply with requests for information regarding allegedly discriminatory practices by the county police department. (6) We have even seen an effort by the U.S. military to make prisons in Afghanistan and Iraq more transparent to the public. (7) Some of these calls for transparency are largely symbolic, but they signal the possibility of a new era in which the operation of our criminal justice institutions may be exposed to greater public scrutiny, thereby opening the door to careful reflection about policies and practices that often disparately impact the poor, communities of color, and other marginalized groups. (8)
On the other hand, in our practice, we have seen a resistance to and fear of allowing public scrutiny of criminal justice institutions. We have also seen the deleterious effects of permitting such institutions to operate without transparency: unfair and illegal criminal justice practices are permitted to flourish in secret. We provide the following accounts as example of instances in which criminal justice actors have (A) denied access to public records about prison operations; (B) failed to disclose personal financial benefit gained from the criminal justice system; (C) denied access to public information about police conduct; (D) condoned the closing of public courtrooms in violation of law, and (E) deterred public scrutiny of criminal justice institutions by imposing unreasonable fees on open records requests.
Denial of Access to Public Records Regarding Prison Deaths, Suicides, and Beatings.
We often encounter government officials who refuse to produce public records in violation of state open records laws. (9) Government officials often believe that these records are the property of the criminal justice agency rather than the property of the public.
In our experience, no government agency has been as hostile to the idea of openness in government as the Alabama Department of Corrections. Consider the case of Farron Barksdale.
On August 6, 2007, Farron Barksdale, a 32-year-old man with schizophrenia, was sentenced to life in prison without parole for the murder of two Huntsville, Alabama police officers. (10) Five days later, Barksdale was found comatose in his cell at Kilby Correctional Facility. (11) On August 21, 2007. Barksdale died. (12) An autopsy revealed numerous large bruises on his body. (13) In an effort to learn what caused her son's death, Barksdale's mother requested the incident report and other documents from the Commissioner of the Department of Corrections regarding her son's death. (14) The Commissioner denied the request, stating that the documents were part of the inmate's file and that inmates' files were not public records. (15)
The Department's refusal to produce the Barksdale incident report was not an isolated instance. (16) When the Southern Center for Human Rights sought to investigate claims of excessive force and violence at Donaldson Correctional Facility in Bessemer, Alabama, the answer was the same: no documents would be provided. (17) The Department maintained that it could forever shield from public view every document in its possession relating to incidents that occurred in Alabama prisons. (18) The Department's Commissioner admitted that the Department never disclosed such records:
Q: When a homicide occurs in prison, are there any documents generated by the Alabama Department of Corrections that may be released to the public under the Open Records Act?
Q: When a suicide occurs in prison, are there any documents generated by the Alabama Department of Corrections that may be released to the public under the Open Records Act?
Q: When a serious physical assault occurs in prison, are there any documents generated by the Alabama Department of Corrections that may be released to the public under the Open Records Act?
No. Q: When an incident of excessive force occurs in prison, are there any documents generated by the [Department of Corrections] that may be released to the public under the Open Records Act?
A: No. (19)
The Warden of Donaldson Correctional Facility further testified that he could see no reason why documented allegations of excessive force by officers should ever be made available to the public. (20) As in many criminal justice agencies, the culture of secrecy in the Alabama Department of Corrections runs deep.
Government actors often justify their resistance to transparency on the ground that production of documents could hamper security or interfere with prosecutions. And, of course, there are instances in which it may be necessary to redact or withhold documents for the protection of a confidential informant, to protect a witness, or to shield confidential medical information. (21) Too often, however, government agencies refuse to release public documents, citing only unsupported allegations that "the sky will fall" if public records are produced. In the Barksdale case, the Department came forth with no evidence to suggest that release of the requested records would jeopardize security. (22) Instead, the Department claimed that if the public could view documents describing injuries and deaths in its prisons, it would lead to prison riots; (23) public disturbances; (24) and "[a]ssaults, murders, rapes, [and] thefts." (25)
The Supreme Court of...