The deeply ingrained, indeed, constitutionally protected, U.S. tradition of the public trial and public records has led to a system where there are few restrictions on public access to criminal record information. Europe, by contrast, is more willing to limit the press in service of important goals such as reintegration of people with convictions. Alessandro Corda and Sarah E. Lageson have published an important new study on how this works on the ground. Disordered Punishment: Workaround Technologies of Criminal Records Disclosure and The Rise of A New Penal Entrepreneurialism, in the British Journal of Criminology, explains how these traditions play out practically in the United States and Europe.
The paper notes that systematically in the United States, and increasingly in Europe, private actors are “extracting, compiling, aggregating and repackaging records from different sources;” as the authors put it, they are “producing” not merely reproducing criminal records. In so doing they expand the reach of punishment. To the extent that any random Joe or Jane can obtain criminal records, then potential associates can make decisions based on records, accurate or inaccurate, showing convictions or even mere arrests or charges which were dismissed, diverted, or led to an acquittal.
The case study of the United States notes that employers, landlords, universities and civic organizations often engage in criminal background screening, but these uses are regulated by the Fair Credit Reporting Act. However, internet databases scrape and buy official and semi-official sources, criminal, financial, licensing, and many others, and make compilations available for a fee. These “people search” services, thus far, have successfully claimed they are mere information aggregators not subject to FCRA: “these websites provide disclaimers warning users they are not to use the information for any sort of decision-making (such as hiring or housing decisions) but rather can only use the information for review of public records in an information-gathering spirit.” One wonders: How often might employers, landlords and other decisionmakers skip official FCRA reports and go to an unregulated, perhaps cheaper, web search? Since the chances of getting caught and punished seem small, one might assume it happens a lot. In addition, the quality of this data is sometimes poor; are such things as expungements and set-asides pursuant to state law are reliably added to the databases?
The result is what the authors term “disordered punishment,” imposition of punishment is not restricted to the state: “Employers, insurers and landlords—but also neighbours, acquaintances and potential partners—ultimately determine whether impactful consequences are imposed and, if so, with what magnitude.” As a result, the consequences of a crime or an accusation become unpredictable. In some cases, the consequences will be vastly disproportionate to the underlying conduct, for example, when a serious charge has been made but dropped because authorities believe the accused is innocent or even prove the guilt of someone else. In such cases, decisionmakers may still conclude that looking for another tenant, employee, or date is the safest course.
The paper does not propose solutions, but the CCRC project on non-conviction records may lead to some reforms that could mitigate the problem. Perhaps the government should not make some records available at all, perhaps some entities now not subject to FCRA should be included, and at a minimum the law should be set up so that if a conviction has been subject to some sort of set-aside, that fact also must be disclosed.