“More Justice and Less Harm: Reinventing Access to Criminal History Records”

This is the title of an important new article published by Alessandro Corda in the Howard Law Journal proposing a radical way of addressing the malign social impact of our current policies on public access to arrest and conviction records.  Corda traces the evolution of record dissemination policies and practices since the 1950s, contrasting the American and European experience where “informal collateral consequences” are concerned.  He critiques “partial remedial measures” like expungement and certificates of rehabilitation, and argues for making publication of a defendant’s record an “ancillary sanction” ordered (or not) by the court at sentencing.

While this solution may at first blush seem a bit ambitious, there are states (like Wisconsin) whose sentencing courts can offer the promise of set-aside and expungement upon successful completion of sentence, and that is indeed how the federal Youth Corrections Act operated before its repeal in 1984.

At the very least, Corda makes a convincing case that strong measures are necessary to mitigate the permanent stigma of a criminal record in the information age.  The historical and international material will be of particular value to those currently working on this problem in legislatures across the country.  Here is the abstract:

This Article challenges the conventional wisdom that public access and dissemination of criminal history information raise no special problems once a conviction occurs. The label “offender” burdens convicted individuals long after their debt to society has been paid. Numerous damaging effects labeled as mere “informal” collateral consequences of conviction go largely unquestioned. Contemporary debate revolves around partial remedial measures (“Ban the Box,” sealing and expungement schemes, issuance of certificates of relief/rehabilitation). These narrow although important proposals largely miss the point. For different reasons, they fail to effectively curb the devastating stigma produced by the current system that creates huge obstacles to people’s efforts to live law-abiding lives, and fosters unjust discrimination. How, when, and why criminal records should be generally accessible needs to be reconceived.

Until the mid-1970s, conviction records were largely inaccessible except to public officials. There was near consensus that widespread dissemination is undesirable and inimical to reintegration of ex-offenders. Yet the ill-fated combination of uncoordinated factors has led over time to unplanned results. The Article contends that the current state of affairs is an unintended consequence of post-Watergate open records movement and emphasis on public safety in criminal justice policy, compounded by the development of information technology and the Internet, and emergence of a private industry that trawls, sells, and often sensationalizes criminal records. Such industry has made access to criminal history information easy, cheap, ubiquitous, and unlimited in time. The Article argues for a reimagining of the way the criminal justice system and the legal system as a whole classify and use records of criminal convictions. In particular, it contends that the stigma that public access and dissemination entail must be reinvented as an ancillary criminal sanction that is ordered at sentencing, if at all, for a limited time as a deserved supplement to criminal sanctions imposed.

Margaret Love

Margaret Love is CCRC's Executive Director. A former U.S. Pardon Attorney, she represents applicants for executive clemency in her private practice in Washington, D.C.. She is lead co-author of Collateral Consequences of Criminal Conviction: Law, Policy, and Practice (4th ed. 2021), and served as an advisor to the ALI Model Penal Code: Sentencing.

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