Two bills under consideration this legislative session could go a long way toward opening up both our juvenile justice and child protection systems to public inspection.
One would create a four-year pilot program to open juvenile court proceedings. The other would create an external panel to review fataltiies and near-fatalties of abused and neglected children.
That's all to the good. It's hard to come up with an example in which ongoing secrecy in the conduct of public busines ended with positive results. As Jefferson County Family Court Judge Paula Sherlock, who spoke to a legislative committee in favor of opening juvenile court proceedings, said, "closed courts just protect failed systems."
However, each bill, HB 239 on juvenile courts and HB 200 to create the external panel, has a serious, even fatal, flaw as currently drafted. In an effort to protect the privacy of juveniles — a serious and legitimate concern that is at the heart of most misgivings about opening court proceedings or examining social service records in child fatality cases — they go too far.
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The reason HB 239 sets up a pilot project is to give the parties involved time to work out the issues that are certain to arise in trying to both protect the privacy of juveniles and open proceedings. Here is where it goes too far: The legislation gives judges the ability to inspect reporters' notes.
There are any number of practical problems with this, but the bigger issue is that it could amount to giving a judge the ability to decide what is reported. Why else would he or she need to look at a reporter's notes?
This is known legally as prior restraint and has long been held to be an unconstitutional violation of our guarantee of a free press. The U.S. Supreme Court called prior restraint "the most serious and the least tolerable infringement on First Amendment rights," in a landmark 1976 case.
As for HB 200, while it admirably provides an arms-length examination of these tragic cases, it also proposes to close the committee's meetings to the public as well as any information it reviews.
This mirrors the problem that gave rise to the legislation, the reluctance, even stonewalling, by the Cabinet for Health and Family Services when demands are made to open up its internal reviews in these tragic cases. As Judge Sherlock noted, these restrictions "could very well result in an external review committee being no different than the information that you're getting from the cabinet."
It is important to give juveniles, who are not able to speak fully for themselves, heightened protections. That's why it's so important to have true transparency when the state gets involved in the lives of juveniles.