Category: Scholarly articles

Commercializing criminal records and the privatization of punishment

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.

“Invisible Stripes: The Problem of Youth Criminal Records”

This is the title of a paper by Professor Judith McMullen of Marquette University Law School.  Professor McMullen points out that “the efforts of today’s young people to ‘go straight’ are hampered by nearly unlimited online access to records of even the briefest of encounters with law enforcement, even if those encounters did not result in conviction.”  She argues that “we need to restrict access to and use of information about contacts that offenders under the age of 21 have had with the criminal justice system.”

CCRC’s forthcoming study of how jurisdictions manage non-conviction records underscores the points made in this article.  It may come as a surprise to many that few jurisdictions automatically limit public access to and use of non-conviction records, and in fact many facilitate both through mass on-line posting of records – including arrests that never result in charges.  Even states that authorize courts to seal or expunge non-conviction records frequently impose daunting barriers to this relief, including financial barriers.  A decision of the Iowa Supreme Court last month, upholding a law conditioning expungement of dismissed charges on an indigent defendant’s payment of court-appointed attorney fees, vividly illustrates this access to justice problem that squarely frustrates efforts at reintegration.  There are a number of studies underway of the adverse effect of court debt on reentry, but none that we know of linking court debt to the operation of “clean slate” laws.

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Should potentially severe collateral consequences trigger enhanced procedural protections?

In two recent law review articles, Professor Paul T. Crane of the University of Richmond School of Law proposes that courts and legislators—when deciding whether a criminal defendant is entitled to a particular procedural right—should take into account potential exposure to severe collateral consequences.  The two articles together mark a major contribution to the literature.  Much attention has focused on alleviating or eliminating collateral consequences after the criminal case is closed, via restoration of rights, clemency, expungement, and other forms of relief.  Also, lawmakers, courts, and prosecutors have increasingly turned to diversions and deferred adjudications to avoid a conviction record in the first instance.  However, far less attention has been paid to the procedural rights provided to criminal defendants facing potentially severe collateral consequences.  As Crane points out, collateral consequences are “generally deemed irrelevant for determining what procedural safeguards must be afforded.”

In Crane’s first article, he argues that courts and legislatures ought to take into account a defendant’s exposure to potentially severe collateral consequences in determining whether procedural safeguards, such as the right to counsel and to a jury trial, apply.  In his second article, he proposes a framework for determining when defendants may be entitled to enhanced procedural protections.

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“Third-Class Citizenship” for people with a “violent” record

Professor Michael M. O’Hear of Marquette University Law School has an important new article titled “Third-Class Citizenship: The Escalating Legal Consequences of Committing a ‘Violent’ Crime.”  This marks the first effort to systematically study the full legal consequences of a “violent” criminal charge or conviction, including the collateral consequences that uniquely apply to violent crimes.  O’Hear documents the growing network of these consequences, noting that recent criminal justice reforms tend to exclude people with “violent” as well as “sexual” offenses from relief available to other individuals with criminal records.

O’Hear canvasses the wide range and reach of legal definitions of what actually qualifies as a “violent” crime, concluding that many of these definitions “sweep in large numbers of offenses that lie outside core understandings of what constitutes violence.”  After this, the article provides a 50-state overview of the statutory consequences of a violent charge or conviction, and raises concerns about whether these consequences are proportional, provide fair notice, and promote public safety.

The abstract of the article, to be published in a forthcoming issue of Northwestern University Law School’s Journal of Criminal Law and Criminology, follows:

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Symposium on felony disenfranchisement set for Friday in Missouri

On Friday, April 12, a day-long symposium on felony disenfranchisement will be held at the University of Missouri in Columbia, MO.  The event, hosted by the Missouri Law Review and Kinder Institute on Constitutional Democracy, is open to the public.

Three panels of scholars will address: (1) the historical origins of conviction-based disenfranchisement and its consequences for democracy—featuring CCRC board member Gabriel “Jack” Chin, among other panelists; (2) felony disenfranchisement, voting rights, and elections; and (3) the democratic challenges of voting rights restoration.  Pamela S. Karlan will deliver the keynote.

For further reference, see our 50-state comparison chart documenting the loss and restoration of voting rights across the country; Gabriel “Jack” Chin’s recent book review: “New book argues collateral consequences can’t be justified”; and our comment on Professor Beth Colgan’s article on how inability to pay economic sanctions associated with a criminal conviction results in continuing disenfranchisement nationwide.