Tag: Jacobs

Title VII protections based on criminal record are modest not coercive

In a recent series of posts on The Volokh Conspiracy blog promoting his book The Eternal Criminal Record, Professor James Jacobs “[speaks] strongly against a public policy that coerces private employers to ignore job applicants’ criminal records while leaving them to cover the costs imposed by ex-offender employees.”    His arguments suggest that employers are being saddled with such costs (for which no proof whatsoever is presented) because of social activism on behalf of people with criminal records. In fact, modest legal protections for people with criminal records derive from longstanding employment discrimination law principles.

Read more

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.

Read more

The Eternal Criminal Record

The Eternal Criminal Record is the title of Professor James Jacobs’ new book, just out from Harvard University Press.  This is the first comprehensive study of criminal records law and policy, and it deals with a range of contemporary legal and policy issues ranging from how records are created and disseminated, to how they are used by public and private actors, to how they are maintained and (perhaps) eventually sealed or destroyed.  Professor Jacobs examines important jurisprudential issues such as the right to public access versus the right to privacy; the role of criminal records in punishment theory; how U.S. criminal record policy compares to other countries; and the intersection of public safety and fairness in imposing collateral consequences. The book will be reviewed on this site in a couple of weeks.  In the meantime, here is the publisher’s description of it.

Read more

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.

Read more

Publishers not liable for internet posting of “erased” arrest records

When Lorraine Martin and her two sons were arrested in 2010 at their home in Greenwich, Connecticut on drug charges, it was widely reported in the local media.  A year later, when the state decided to drop the charges against her, the record was automatically “erased” and Martin was “deemed to have never been arrested” under Connecticut’s Criminal Records Erasure Statute.  But the contemporaneous news accounts remained available on line, and the publishers refused to remove them. Martin sued in federal court on various tort theories, including libel and invasion of privacy, relying on the “deemer” provision of the Erasure Statute.  The district court ruled that the publishers could not be held liable because the accounts were true when published, and the Erasure Statute “does not purport to change history.”  The Second Circuit affirmed. See Martin v. Hearst Newspapers, Docket No. 13-3315 (2d Cir., Jan. 28, 2015).

Read more