Scoppe: Is SC Legislature returning to 1984?

Associate EditorApril 21, 2014 

THERE WAS a time when a columnist could write “We’ve always been at war with Eastasia,” and anyone who read a newspaper would have comprehended an entire world of messages, and she could have moved on to the larger point to which that reference referred.

I grew up in that time — a time when George Orwell’s dystopian novel, Nineteen Eighty-Four, was set in an unimaginable future. Indeed, most people older than me and some a few years younger understand the reference and are waiting to see what outrageous thing our lawmakers are up to that would provoke it. But for people who came of Nineteen Eighty-Four-reading age after 1984 — everybody under 40, and nearly everyone under 45 — the book didn’t have the same force, if they read it at all.

So before I tell you how a bill working its way through the Legislature makes me think of our ever-war with Eastasia, I must explain: Nineteen Eighty-Four is set in a world of three superpowers perpetually at war, though with changing alliances. To keep the public from demanding answers about these shifting alliances, the governing elite in Oceana maintains a Ministry of Truth, which is really a ministry of propaganda: It not only spins the truth but rewrites it, erasing all records of any inconvenient facts. So when Oceana suddenly switches enemies from Eurasia to Eastasia and people see all the signs condemning Eurasia as the enemy, they rip them down, blame Eastasian spies for posting them and declare, “We’ve always been at war with Eastasia.”

And the historical record reflects that new reality, thanks to the protagonist of the book, a low-level bureaucrat in the Ministry of Truth named Winston Smith, whose job is to rewrite old newspaper articles so they support the current version of truth.

Which is akin to what would happen to records of investigations into people who are found not guilty of crimes, and even the records of some convictions, if the S.C. House gets its way. Wipe them away. Pretend they never existed.

You think the police unfairly targeted you for arrest? Too bad; you were found not guilty, so there’s no longer any evidence that you were even charged. And no evidence for the public looking for patterns of police misconduct or incompetence.

You have a news article that purports to document the arrest, trial and conviction of my client, who is now running for public office? Obviously, it’s a fabrication. I challenge you to find any official state record of the arrest. (Now, by the way, how much would you like to pay my client so as to avoid that nasty libel suit I otherwise will bring against you?)

Well, perhaps we needn’t worry about that second example: Sen. Brad Hutto told Charleston’s Post and Courier that the legislation “would not undo any media account of someone’s arrest or of a crime.” I feel so much better, don’t you?

The Legislature already passed a law, some years ago, to wipe out any evidence in cases where the charges are dropped or the accused is found not guilty or, in the case of minor crimes, where the convictions later were expunged — which is a fairly easy thing to have happen, as long as the convicted party doesn’t commit the same crime twice in three years.

A bill that the House passed 106-0 last month, H.4560, would seem to step back in the direction of truth-telling, by allowing police to keep those documents, under court seal, in order to defend themselves against lawsuits or to use in later investigations.

But open-government advocates say the bill does a lot more than that, because the law does a lot less than some legislators suggest.

That existing law has been interpreted by some — including the attorney general’s office — as wiping out only the bookkeeping entries for an arrest: fingerprints, booking reports and mug shots. Incident reports and other documentation of an investigation should be preserved, according to an attorney general’s opinion from last fall. And indeed, The Post and Courier reports that it frequently has been given such information on expunged crimes under the state’s Freedom of Information Act.

The concerns prompted a Senate subcommittee to delay action on the bill, and thank goodness for that.

There’s a difference between forgiving and forgetting. Forgiving means you give people a chance to start over. Forgetting is rewriting history. It’s saying a crime never occurred, that a sentence never was imposed. It is a lie. It’s a lie that cheats employers out of information they have a right to have about people they’re considering for sensitive positions. It’s a lie that denies police information that could be crucial in solving crimes, in the event that the expungement was ill-considered. It’s a lie that denies voters information that could be important in deciding whom to elect. Once you expunge a record, it’s gone. Forever.

There’s no good reason police shouldn’t be allowed to maintain investigative files after the suspect gets off. No good reason courts shouldn’t be allowed to maintain records of people who later have the convictions expunged.

And those records shouldn’t be available only to police and prosecutors, and only under court order. They should be available, to the extent that any police and court records are, to all of us.

Not only should we maintain the level of openness that the attorney general’s office believes current law requires; we should clarify the law so that there’s no question that we’re entitled to information that confirms that the past actually occurred.

Otherwise, we turn the clock back to Nineteen Eighty-Four, and we turn our government officials into Winston Smith.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.

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