No Secret Trials

By James H. Smith

Gov. Dannel P. Malloy and the Connecticut General Assembly are to be commended for their 2015 “Second Chance Society” legislation, reversing racist laws that filled our jails with nonviolent drug users, most of them African-American and Latino.

But it is ill-advised to pursue announced policies emanating from that corrective action, especially plans for secret trials of defendants in their early 20s.

Secret trials are unconstitutional. James Madison told Congress in 1789 that he was proposing what became our Bill of Rights, “To satisfy the public mind that their liberties will be perpetual.” Among his constitutional amendments was this: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,” one of the tenets of the Sixth Amendment.

Gov. Malloy has proposed taking state laws that allow low-risk teenagers to wipe clean criminal records and extend that practice to defendants up to age 25. He also has proposed allowing those between 21 and 25 to have their cases heard confidentially, their criminal records sealed, and possibly have those records expunged.

To apply our secret juvenile courts — questionable proceedings at the very least; who knows what happens to those kids? — to adults is no way to practice American justice. As a former prosecutor the governor should know better.

Open courts are a citizen’s right, but also the right of all the people to be able to assess how our criminal justice system works.

As we think about putting the adjudication of more citizens behind a wall of secrecy, claiming in part that their brains are not fully developed, we should remember that 18-year-olds can vote, they can marry and be mothers and fathers; by age 21 a person can teach, become a military officer and lead platoons into battle, or design bridges as an engineer. That is just for starters on what we entrust 20-somethings to accomplish.

We cannot erode basic American rights in a gullible effort to “expunge” criminal activity. Saying something never happened when it did is simply Orwellian. Rewriting history, or claiming it did not happen is an old Soviet ploy unworthy of free societies.

The governor is already dialing back from his initial announcement last week about more secrecy in our courts. He floated the idea. Government leaders are assigned to ponder it. It is very simple — it was written down in the first 10 amendments to the U.S. Constitution, our Bill of Rights — we have the right to “a speedy and public trial.”

James is a member of the New England First Amendment Coalition’s Board of Directors and is president of the Connecticut Council on Freedom of Information.


NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Robertson Foundation, The Providence Journal Charitable Legacy Fund, The Boston Globe and Boston University.

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