Book review: “The Eternal Criminal Record”
Nobody disputes that an enormous number of Americans have a criminal record. For people with a criminal past, a segment of the population that in some cases faces a laundry list of social and economic challenges, these records define – and limit – their ability to reintegrate into the community. This is a complex policy that has not received a fraction of the attention it deserves.
James Jacobs’ new book The Eternal Criminal Record (Harvard University Press, 2015) digs deeply into the issue with a nuanced analysis of how this system works. Importantly, the book provides a step-by-step navigation though the process of how and when records are created, how they are shared for and, eventually, what these data can be used for. What results is the most authoritative picture of how the pieces of the administrative universe of criminal history data fit together.
While criminal records can, and most often do, including information on past arrests, convictions and punishments, changes in the use and ownership of these files has changed the landscape. These modifications are not necessarily all bad – for example, computerization and standardization have made instantaneous checks and intrajurisdiction data sharing possible – but they create significant challenges. Some criminal data are part of the public domain, others are now owned by private companies. Modernization cannot eliminate the creation and replication of errors- and these mistakes have meaningful consequences.
Jacobs tracks the growth of criminal records from an administrative record created to support governmental functioning into a product of an industry that mirrors the markets for financial data and straddles the public-private divide. Recognizing that there is significant variation across jurisdictions, a criminal record may include data on prior arrests- even those that do not lead to a conviction. When these data are released into the private sector, the public and legal policy rules that guide how such data are used can be diluted. Though commercial entities that sell access to such data have legal responsibilities, those that purchase (or, where freely available, access) such records may not. Consumers of criminal records include employers, educational institutions, neighbors and criminologists, among many others. This underscores the unique nature of both criminal records and the wide range of consequences when they are misused.
Jacobs effectively details the essential role criminal records play in the operation of the criminal justice system. Setting aside arguments about systematic inequality, the government can- and usually should- use the most accurate data possible when making the data-driven decisions are now commonplace. Few, if any, dispute this.
However, as the focus shifts from the intentionally impartial mechanics of data management into matters of access and usage, the degree of detachment does not keep pace with the drastic changes in context. There is an increasingly widespread recognition that the pervasiveness of criminal histories reinforces and exacerbates patterns of inequality already present in the criminal justice system. Jacobs fails to address this in a meaningful way. The overwhelming number of penalties associated with the mainstream availability of criminal information are largely ignored. Given the role that such information can play in housing and employment discrimination, for example, failing to address how criminal record can- and should- be used is a conspicuous omission. What remains is a largely one-sided deliberation that does not fully address the role of these data in criminal justice and social policy debates. The relationship between criminal records and systematic disadvantage cannot simply be solved by making data systems more open and efficient.
Mistakes can happen in any information system. Errors in criminal history data, however, have consequences that are unique and wide-ranging. The book does not address this issue head on and, in failing to do so, misses the opportunity to tackle a pressing policy challenge. For individuals with mistakes in their records, this is not an abstract consequence.
Criminal histories are used as screening tools for employment, public services, housing and for many other benefits. Records can also be used in risk forecasting and other data-driven assessments, potentially changing the nature of later prison or community supervision. The type of errors Jacobs takes care to detail can have an outsized influence on decisions in these areas, an impact acutely (but not exclusively) felt the subset of population with a criminal past. The relevant socioeconomic and racial correlates are well-documented. Though the call for increased accuracy and systemic changes in records creation and management systems are largely- and should remain- apolitical, it would be a mistake to lose sight of the true costs of errors in criminal records and the segments of the population that will shoulder their effects.
Given the high human and public safety costs at play, as well as concerns about equitability and basic fairness within the criminal records system, this matter could have been more deeply addressed. However, The Eternal Criminal Record should not be the last word on the matter. Instead, it shines a light on the inner working of a system that is understood by few and impacts many. What to do with this information – and how to change the system – is the next logical stage in the conversation.