BrianGarst.com

The word ‘discrimination’ carries with it a very negative connotation in popular usage, especially in the political arena. This connotation is largely deserved as there are many once accepted types of discrimination which modern society has rightfully decided to eliminate. Many, particularly on the left, take this too far and attempt to bring indiscriminateness into everything. This is folly because discrimination is not necessarily a bad thing. In fact, discrimination is the foundation of rational thought.

Government officials must be able to discriminate between good and bad policy. Individuals make choices every day by discriminating against likely outcomes and choosing the path that will lead to the most desirable ends. Employers must discriminate between prospective hires on the basis of their qualifications. This is why it is necessary to question people who routinely throw around words like “discrimination”. We must be sure to determine whether the type of discrimination they are trying to eliminate is actually the type of which we disapprove, or if they are simply abusing the negative connotation of the word. With that in mind, consider this bit of news brought to our attention via Judicial Watch:

State, federal and local governments should severely limit public access to court records because it has led to discrimination against criminals, according to the legal profession’s influential national organization which claims to promote justice and respect for the law.

The American Bar Association (ABA) has actually proposed that state and federal laws be changed to deny public access to certain arrest and court records, even those of people convicted of serious crimes.

The powerful 400,000-member organization, which provides law school accreditation and assists lawyers and judges, believes ready access to court records has led to employment and housing discrimination for those returning to society after serving their prison sentences.

Criminal behavior is obviously something which people can rightfully discriminate against. Such discrimination is necessary to discourage people from engaging in activities that society has deemed inappropriate, usually (we hope) by consideration of the harm it causes another individual. Criminal law could not exist without such discrimination. ABA understands this, and they are not arguing to disallow any social discrimination against criminals whatsoever. But they are trying to prevent free individuals from discriminating against the same behavior which society has collectively decided is worthy of discrimination. Surely they must feel there is a basis for that argument. Most likely they are operating under the assumption that the state sanctioned discrimination (most often manifested as prison time) is sufficient to serve society’s end of reducing criminal behavior, and that beyond this it somehow crosses into the realm of undesirable discrimination.

Is this a legitimate position? I believe not. To prevent people the information they need to make legitimate discriminatory decisions is, first and foremost, an attack on freedom. But it’s also based on a faulty assumption. Specifically, the assumption that the state sanctioned discriminations against anti-social behavior can be counted on to provide society with all the discrimination that is desirable or beneficial. This is akin to denying people rights to guns based on the presence of a police force. Yet the government has demonstrated time and again that it is incapable of sufficiently curbing such behavior. Absent a judicial system that adequately treats criminality with all the discrimination that society demands, individuals must be free to ensure that social consequences exist for criminal behavior, and that requires public access to judicial records.