CCRC is pleased to announce that we are undertaking a major study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals.   Law enforcement agencies and courts frequently make these records available to the public allowing widespread dissemination on the internet, both directly and through private for-profit databases.  Their appearance in background checks can lead to significant discrimination against people who have never been convicted of a crime, and result unfairly in barriers to employment, housing, education, and many other opportunities.  Research has shown that limiting public access to these records through mechanisms like sealing and expungement is valuable in economic terms for those who receive this relief, and improvements in their economic status will in turn benefit their families and communities.

While almost every U.S. jurisdiction makes some provision for limiting public access to non-conviction records, such relief varies widely in availability and effect, and is often difficult to take advantage of without a lawyer.  What’s more, arrest records may remain accessible on the internet long after official court files have been made confidential or even destroyed.  While CCRC’s Restoration of Rights Project now includes state-by-state information on how non-conviction records may be sealed or expunged, our new project will examine the operation of applicable laws more closely.

The first phase of this project will produce by early June 2019 a detailed inventory of the laws in each U.S. jurisdiction for limiting public use of and access to records of arrests and/or judicial proceedings that do not result in conviction.  Among other things, this inventory will examine both: (1) categorical or automatic relief (such as general confidentiality laws and limits on considering non-conviction records by employers and licensing boards); and (2) case-specific relief (such as sealing and expungement, either automatic or by application).  For this second type of relief, the study will look at eligibility criteria (including waiting periods and overall criminal record), procedures (including filing fees or other financial barriers), and effect (entities excepted from restrictions on access and use). It will also note where state law or court rulings permit redaction of records so that dismissed charges may be sealed even if one or more charges in a case do result in conviction.

After completing the research phase of the project, CCRC will consult with scholars and practitioners to prepare a nationwide analysis, examining specific issues across all jurisdictions, identifying patterns and gaps in existing laws and policies.

The second and final phase of the project will be launched at a roundtable meeting on August 16-17, 2019, hosted by the University of Michigan Law School. The roundtable will produce a set of policy recommendations and model legislation aimed at neutralizing the effect of non-conviction records.  Professors JJ Prescott and Sonja Starr of the Law School faculty will serve as conference hosts and collaborators on this second phrase.  A number of legal scholars, practitioners, judges, law enforcement officials, and legislators have already agreed to participate.  At least three of those invited themselves have criminal records.  We expect to have several technology experts at the table to advise about the operational implications of the policies and legislation we are considering, in light of how states manage their criminal records systems.

Following the August roundtable, we will finalize its recommendations and model law with the assistance of scholars and other experts; publish them in a report; and promote them widely in the academic and advocacy community.

The principal value of this project will be to inform and strengthen efforts underway in legislatures and advocacy organizations across the country to mitigate the disabling effects of a criminal record on the lives of people who have one, on their families and on their communities.  We believe that reforming the law is as important a part of the reintegration agenda as advocating for and providing services to those who are seeking a second chance, and we hope this project will be the first stage of a larger national law reform effort to address access to and use of all types of criminal records. In light of the intense interest in legislatures across the country in mitigating the effect of criminal records, as evidenced in our 2018 report on relevant laws passed just last year, there is an obvious need for such guidance.  The first months of 2019 have evidenced an even greater level of legislative interest, on which we expect to report again shortly.

To mark the launch of our project on non-conviction records, we are pleased to publish the following op-ed, prepared for CCRC by Professors Jordan M. Hyatt and Sarah E. Lageson, which calls on legislators, law enforcement, and scholars to address the damage caused by bulk publication on the internet of pre-conviction information such as booking information and mugshots. 

It’s Time to Address the Damage of a ‘Criminal’ Digital Reputation

By Jordan M. Hyatt and Sarah E. Lageson  

“Kill this secret arrest bill,” advocated a recent editorial in an upstate New York newspaper.  “Mugshot proposal pits privacy versus the right to know,” claimed another. These articles and op-eds were in clear opposition to NY Governor Andrew Cuomo’s recent proposal to halt the routine release of criminal mug shots unless there is a compelling law enforcement reason to do so. In his 2020 executive budget, the governor overtly recommends broad limitations on the unregulated release of potentially damaging pictures and information gathered during the arrest and pre-conviction processes.

The rationale for ending bulk disclosure of criminal record data lies in the harms presented by relatively unfettered access to all forms of criminal “records” on the internet. The current levels of availability have led to massive extortion and blackmail schemes, and leave mugshot subjects with enduring “digital punishment.” In Cuomo’s view, the only way to prevent such abuses of criminal justice data is to prevent the release in the first place. If his measure gains support, the public release of booking information and mugshots would no longer be permitted in New York, as their distribution would be considered “an unwarranted invasion of personal privacy.”  Many advocates agree that this reform would directly benefit individuals currently impacted and stigmatized by these policies.

New York is not the first state to grapple with the question of mugshots and arrest records. Several states, including California and Pennsylvania, have taken affirmative action against the release of mugshots through criminal charges and class action lawsuits. Dozens of states have passed laws banning mugshot extortion schemes, which monetize these harms by charging takedown fees to people who request that their photo be removed.

Limiting public access to mugshots, arrest records, and other pre-conviction records means recognizing that those records are part of the sources of collateral consequences. A criminal digital reputation can fuel stigmatization and negatively impact individuals for much longer than they ever spent behind bars — especially if charges were later dismissed or an arrest was expunged or sealed. Having a universally accessible criminal record – even for an arrest – also means being permanently labeled on the internet as an “offender,” presenting a host of collateral consequences. Research has established that opportunities for employment, housing and governmental services are sharply curtailed, social and familial relationships are strained, and reputations are often irreparably damaged.  These conclusions have been drawn by stakeholders across the ideological spectrum, from the ACLU to the Heritage Foundation.

For scholars, it might be time to consider the ways that digital access has expanded the scope of the traditionally recognized collateral consequences. Today, criminal records are much more than the official court file. A shadowy industry has worked to expand this definition. These images and records, frequently indexed by search engines, are more visible, harder to correct and more likely to trigger collateral consequences than any court record. The accompanying information is often incomplete or inaccurate. Not only does this line the pockets of the website’s owners, it disproportionately impacts the poorest citizens.

While many reforms are progressive, they are not without precedent.  There is currently a legal justification for making some, but not all, criminal history data publicly available for reasons of public safety, including through sex offender registries.  These are the reasoned actions of the state and an elected government.  But, in this digital world, meaningful rehabilitation requires a more nuanced approach – one that prevents the damage inflicted from the publication of a dismissed charge and that protects people’s ability to move on from an outdated conviction.  Any solution must protect arrestees from extortion while preserving law enforcement’s ability to do their job.

Legislators and law enforcement must take action at the federal, state and local levels.  And as Governor Cuomo has suggested, the conversation must begin by openly reconsidering the scope of publicly available mugshots and arrest data.  Authorities should start treating these records as truly sensitive information and consider if these data should be released and, if they are, what usages are acceptable.

At a minimum, the rights of potentially-innocent arrestees should be protected by limiting access to booking photos at least until after a preliminary hearing in front of a judge.  Systems must be put in place to ensure that the criminal records that are released are accurate and complete.  The industry of mugshot extortion must be legislated out of existence.

Progressive statutory and enforcement reform may be necessary to facilitate this change. Failing to check the usage of illicit mugshots for fiscal gain undermines confidence in law enforcement, the courts and ongoing efforts to undo the harms of a criminal justice system with a documented history of inequity and disparate treatment.

Jordan M. Hyatt is an Assistant Professor in the Department of Criminology and Justice Studies, Drexel University (Philadelphia, PA).

Sarah E. Lageson is an Assistant Professor in the School of Criminal Justice, Rutgers University (Newark, NJ).