Commentary: My bill would bring transparency to show cause hearings

Back in 2018, the Boston Globe Spotlight Team exposed for many the truth behind show cause hearings, in which a clerk magistrate privately decides the outcome of criminal charges, including felony charges. These show cause hearings are done in private, behind closed doors, with no public notice, by clerk magistrates.

They are unique to Massachusetts. No other state in the country allows for adult criminal initial proceedings to be conducted in private. What was reasoned to protect individuals from personal embarrassment, has in fact led to criminal charges disappearing, Black and Latino individuals charged disproportionately to whites, domestic violence charges disregarded, and the privileged and connected being protected.

With the help of that initial press coverage, there was notable progress on the issue. In September 2019, the Supreme Judicial Court ordered the Trial Court to record all show cause hearings. But today, in 2022, show cause hearings are back in the news and for good reason.

An overhaul of the Massachusetts General Law (MGL) on show cause hearings is long overdue — which is why I have led the reform effort within the Legislature for the past two sessions. My bill, H.1474 An Act relative to transparency in clerk magistrate hearings, would make all show cause hearings public and properly recorded, like every other judicial procedure. A special case would have to be made to close the procedure from the public instead of the other way around as is current practice — and during that determination process, my legislation would allow for third parties, like journalists or public advocates, to directly argue why a case should remain open for public inspection. Instead of relying on a court order, my bill would also directly change the law to ensure all hearings are transcribed or recorded, so no information is lost. 

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The bill creates a balance between an individual’s or a family’s right to privacy with the public’s right to know. It shifts the burden of proof from “why a case should be open to the public” to “why it should be shielded from the public.” Without its passage, show cause hearings will continue to be closed to the public.

There is an obvious First Amendment argument to be made when a judicial decision is procedurally shrouded from public inspection. People have a right to know how our government is operating, particularly within the judicial system. This concern is not limited to individual cases of public importance or intrigue, but speaks to a larger picture of how the judiciary system distributes justice to different people — by race, by socioeconomic background, etc.

Transparency and accountability in government have been priorities for me throughout my career — and I am gratified to see the issue of closed show-cause hearings getting the attention it deserves. Massachusetts has striven to make progress on this front, but we must do better.

This legislative session, I have again focused on areas — access to public records, the open meeting law, and show cause hearings — where we can surpass the progress we have made and further improve the way our Commonwealth functions. But without the passage of this legislation, show cause hearings will continue to operate behind closed doors, and the potential problems that occur when these hearings are shielded from public scrutiny will continue. We must act now to bring transparency and accountability to the justice system.

State Rep. Antonio F.D. Cabral (D-New Bedford) has been a member of the Massachusetts House since 1990, representing the 13^th Bristol District.

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