Author: James B. Jacobs

James Jacobs is Warren E. Burger Professor of Law at NYU School of Law and author of The Eternal Criminal Record (Harvard U. Press, 2015)(forthcoming).

Access to Individual Criminal History Information in India

  India, like the U.S., is a federal political system comprised of states. In both countries, the states have primary authority over creation, disclosure, use and collateral consequences of criminal records, albeit within a basic national framework. Police and courts both create and maintain criminal records required to carry out investigatory and adjudicatory functions. However, unlike in the U.S., Indian court records are not systematically available to the public and law enforcement agencies are generally prohibited from disclosing individual criminal history information for non-criminal justice purposes. There are no private information companies engaged in selling criminal background records to employers, landlords, volunteer organizations, and curious individuals.

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India’s History Sheet

The following post concerns the use of police records in India, which are (like police records in this country) generally not available to the public, yet have important implications for individual privacy.  In a later piece the authors will discuss Indian policy and practice on court records, which are publicly available and may be used by employers and others to deny benefits and opportunities.  Ed.  Comparative analysis is always good for the soul. As we think deeper and more broadly about the types, status and use of criminal records, it is helpful to consider laws and practices in other countries. Toward that end, this post illuminates the most salient and interesting type of criminal record in India, the “history sheet” and its cousin the “rowdy sheet”.  History and rowdy sheets are analogous to our criminal intelligence databases, but are more subject to legal constraints.  At the same time, they are more vulnerable to public disclosure because they call for intensive and frequently conspicuous monitoring both by police and civilian leaders.

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Retention of DNA Profiles and Fingerprints — Europe and the U.S.

Comparing the European Court of Human Rights’ (ECtHR) 2008 decision in S. and Marper v. the United Kingdom with the U.S. Supreme Court’s 2013 decision in Maryland v. King provides a window on the very different legal status of criminal records in the Europe and U.S.  S. and Marper also illuminates the growing chasm between the U.K. and continental Europe when it comes to informational privacy and police records.  As illustrated in prior posts, many criminal justice practices that are common in the U.S. are regarded as a serious invasion of privacy in Europe, and therefore a human rights violation.  As evidenced by the caselaw discussed below, this includes the blanket and indefinite retention of DNA and fingerprint information.

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Disclosure of nonconviction records may violate European Convention on Human Rights

This is the most recent in a series of posts by Professors James Jacobs and Elena Larrauri comparing criminal records disclosure policies in the United States and Europe.  The decision of the European Court discussed below invalidated a policy of the United Kingdom authorizing broad disclosure of non-conviction records relating to child victims.  (The U.K.’s policies on disclosure are closer to those of the U.S. than they are to those of continental countries.)  While the U.K. has subsequently narrowed its disclosure policy, it remains to be seen whether even as amended the U.K.’s disclosure policy will pass muster under the European Convention on Human Rights.

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Expungement of criminal records in Europe (Spain)

This is the fourth post in a series about European law and policy on criminal records by Professors Jacobs and Larrauri.  Prior posts noted that public access is never allowed where a record has been expunged.  This post discusses the types of records that are eligible for expungement, how the expungement process works, and what the effect of expungement is.   (Professor Larrauri’s more detailed discussion of “judicial rehabilitation” in Europe is available here.)  – Eds.  Just as there are variations in eligibility for and consequences of expungement in U.S. states, there are differences in detail in continental European countries. We focus on Spain, which we know best, though we have no reason to believe that Spain is an outlier when it comes to European countries’ law and policy.  (As in most all criminal record matters, the U.K. is more like the U.S. than continental Europe, making expunged records more accessible to the public than they are on the Continent.)

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