The Eternal Criminal Record

James B. Jacobs

• Publisher: Harvard University Press
• Year: 2015
• ISBN:
  9780674967168
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

For over sixty million Americans, possessing a criminal record overshadows everything else about their public identity. A rap sheet, or even a court appearance or background report that reveals a run-in with the law, can have fateful consequences for a person's interactions with just about everyone else. The Eternal Criminal Record makes transparent a pervasive system of police databases and identity screening that has become a routine feature of American life.The United States is unique in making criminal information easy to obtain by employers, landlords, neighbors, even cyberstalkers. Its nationally integrated rap-sheet system is second to none as an effective law enforcement tool, but it has also facilitated the transfer of ever more sensitive information into the public domain. While there are good reasons for a person's criminal past to be public knowledge, records of arrests that fail to result in convictions are of questionable benefit. Simply by placing someone under arrest, a police officer has the power to tag a person with a legal history that effectively incriminates him or her for life.In James Jacobs's view, law-abiding citizens have a right to know when individuals in their community or workplace represent a potential threat. But convicted persons have rights, too. Jacobs closely examines the problems created by erroneous record keeping, critiques the way the records of individuals who go years without a new conviction are expunged, and proposes strategies for eliminating discrimination based on criminal history, such as certifying the records of those who have demonstrated their rehabilitation.

1	INTRODUCTION

To be labeled a criminal one need only commit a single criminal offense, and this is all the term formally refers to. Yet the word carries a number of connotations specifying auxiliary traits characteristic of anyone bearing the label. A man who has been convicted of housebreaking and thereby labeled criminal is presumed to be a person likely to break into other houses; the police, in rounding up known offenders for investigation after a crime has been committed, operate on this premise. Further, he is considered likely to commit other kinds of crimes as well, because he has shown himself to be a person without “respect for the law.” Thus, apprehension for one deviant act exposes a person to the likelihood that he will be regarded as deviant or undesirable in other respects.

—Howard S. Becker, Outsiders: Studies in the Sociology of Deviance (1963)¹

Today, background checking—for employment purposes, for eligibility to serve as a volunteer, for tenant screening, and for so many other purposes—has become a necessary, even if not always a welcome, rite of passage for almost every adult American. Like a medical record, a bank record, or a credit record, a background check record is increasingly a part of every American’s information footprint.

—SEARCH, Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information (2005)²

AN ESTIMATED twenty million Americans, about 8.6 percent of the total adult U.S. population, have recorded felony convictions.³ The number of individuals with recorded misdemeanor convictions is several times greater.⁴ Indeed, a conviction is not a criminal record prerequisite; a criminal record is created for every arrest, regardless of the ultimate disposition. All told, federal and state criminal record repositories contain criminal records for approximately 25 percent of the U.S. adult population.⁵ In addition, criminal investigative and intelligence databases probably hold information on hundreds of thousands more people (e.g., suspected gang members, organized crime members, suspected terrorists).⁶ These numbers have increased significantly over the last several decades on account of aggressive policing in the name of the war on drugs, zero tolerance, and broken windows.⁷ This criminal labeling creates a social divide between “law-abiding citizens” and “criminals.” It also reinforces the divide between African Americans and whites because of the disproportionate number of African Americans who have criminal records—in some cities, as much as 80 percent of young African American men.⁸

The police-created rap sheet, based on arrest and booking, is the best-known criminal record. However, it is best not to think of a criminal record as a single document. Information about arrestees, defendants, detainees, probationers, inmates, and parolees is recorded in numerous and overlapping files, records, and databases. Court dockets and case files constitute a massive reservoir of information about defendants.

The criminal record is a kind of negative curriculum vitae or résumé. Most readers are familiar with the self-created résumé that is prepared for college admissions and employment; it contains only positive, even embellished, information. By contrast, the criminal record contains only disreputable information.⁹ The longer the record, the more likely the offender will be defined, formally or informally, as a career criminal.

Comprehensive records on suspects, arrestees, pretrial detainees, defendants, probationers, inmates, and parolees make possible the processing of more than twelve million arrests per year. However, criminal records perform more than a bookkeeping function. They drive decision making at every step of the criminal justice process. Other things being equal, law enforcement agencies, courts, and corrections treat people with criminal record histories more severely; the more serious and extensive the record, the harsher the treatment. The practice is so deeply entrenched that it is rarely defended or even explained. Sometimes this criminal biography–based determinism reflects a belief that repeat offenders deserve greater punishment, but more often it reflects a belief that repeat offenders require more intense monitoring or incapacitation to prevent future offending.

The police give greater attention to an individual listed in an organized crime, gang, or other criminal intelligence database. In deciding whether there is probable cause to arrest, the police will be more likely to detain, search, and arrest the person who has a criminal record. Prosecutors give weight to the prior record in deciding whether to request bail and, if so, how much. Pretrial service agencies use formal risk assessment instruments to predict whether an arrestee presents a low, medium, or high risk of flight and danger to the community. These instruments assign significant weight to the arrestee’s prior criminal record, including arrests that did not result in convictions. Judges have prior record information in front of them in deciding on pretrial release or detention. Prosecutors base their charging and plea-bargaining decisions on the suspect’s prior record.

Sometimes the most important issue in plea-bargaining is what, if any, permanent criminal record will result. For many, perhaps the majority of, defendants the most serious consequence of an arrest is the resulting criminal record. It triggers negative formal (de jure) and informal (de facto) collateral consequences—for example, forfeiture of voting and firearms rights, ineligibility for occupational licenses, employment discrimination, and, for noncitizens, removal and deportation. If there is a trial, the defendant’s decision whether to testify often turns on the existence of a prior record that the jury would learn about on cross-examination. If convicted at trial or by guilty plea, the defendant’s prior record has a significant impact on the sentence. Recidivists are subject to heavy sentence enhancements. Probation, jail, and prison officials base their classification decisions (e.g., maximum vs. minimum security) and programmatic assignments on the probationer or inmate’s prior criminal record. Certain criminal records render prison inmates ineligible for some prison and early release programs. Parole boards consider criminal records in making early release decisions.

The criminal justice system’s harsher treatment of those with prior records is not inevitable but a deliberate and mostly unexamined policy choice. Is it fair to treat persons with criminal records more severely? Having served their sentence, haven’t they paid their debt? Are they perpetually to be treated as the “usual suspects”? Should police keep fingerprints, DNA profiles, and arrest information on defendants who ultimately were not convicted of anything or of a minor crime? Is it reasonable for police, prosecutors, courts, and corrections to treat prior arrests as a “black mark” because they predict future criminality? Is it proper for prosecutors to bring more severe charges against persons with prior convictions and arrests? Is it proper for judges to enhance the sentences of recidivists? Are restrictions on prison assignment and early release justifiable?

Created for criminal justice purposes, criminal records today are widely used to assess, sort, and categorize people in such diverse contexts as immigration, employment, housing, university admissions, voting, possessing firearms, serving on a jury, and qualifying for social welfare benefits.¹⁰ In an anonymous society where only a minuscule number of people are known personally to one another, an individual’s criminal record is considered one of the most important markers of character.

A criminal record is for life; there is no statute of limitations. Under the drumbeat of law and order politics since the 1970s, negative criminal record consequences have proliferated. A steady accretion of federal and state laws bars ex-offenders, or at least certain ex-offenders, from a range of citizenship rights, social welfare benefits, and public and private employments. The more transparent and efficient the criminal records system, the less chance an ex-offender has to blend successfully into society. The greater the discrimination against those with prior records, the more likely the ex-offender will recidivate. What sociologist Devah Pager says about convicted persons sentenced to prison applies to all those with felony (and even misdemeanor) records:

[Ex-offenders] are institutionally branded as a particular class of individuals.… The “negative credential” associated with a criminal record represents a unique mechanism of stratification, in that it is the state that certifies particular individuals in ways that qualify them for discrimination or social exclusion. It is this official status of the negative credential that differentiates it from other sources of social stigma, offering greater legitimacy to its use as the basis for differentiation.¹¹

This book shines a bright light on criminal records policies and practices in order to render them problematic rather than inevitable. Rarely asked is how much influence the criminal justice system should have in defining and categorizing people. The accessibility of an individual’s criminal history, due to publicly accessible court records, legislatively authorized access to rap sheets, and agencies’ information-sharing policies is a striking example of American exceptionalism.^{12 a} In continental Europe, convicted persons have a privacy interest in their arrest and conviction records.¹³ The records are not publicly accessible.

Today, in the United States, court records are more publicly accessible than ever before. Until computerization and the revolution in information technology, court records existed in practical obscurity. It took serious effort and expertise to find out whether someone had a criminal record and, if so, for what crimes. Today, court records are better organized and indexed. Many can be searched electronically. Private companies sell criminal background information to employers, landlords, volunteer organizations, and anyone else interested in finding out about someone’s criminal history. Hundreds of companies advertise criminal background checks to ensure reliable and honest business associates, employees, tenants, and volunteers.¹⁴ They warn employers that they will be held civilly liable if, having failed to obtain a criminal background check, an employee with a criminal record injures a customer, client, or fellow employee. Easily accessible and cheap criminal record information stimulates demand, and demand stimulates supply.

Criminal background checking has become a routine feature of American life.¹⁵ Many federal and state laws require certain public and private employers to obtain criminal background reports on job applicants. Even when not required by law, the majority of large employers conduct or commission criminal background checks for job applicants. In 1996, 51 percent of employers surveyed by the Society for Human Resource Management conducted or commissioned criminal history checks on at least some prospective employees. By 2003, that number had increased to 80 percent; 68 percent of employer respondents reported conducting criminal background checks for all hires. Ninety-two percent of employers responding to a 2009 survey reported obtaining criminal background information for at least some hires; 73 percent required criminal background checks for all hires.¹⁶

After the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon, Congress mandated criminal background checks for perhaps a million workers, including airport baggage screeners, port and chemical plant workers, workers in the transportation industry, private security personnel, and individuals handling certain biological agents. This response to 9/11 demonstrates the widely held belief that a criminal record is a valuable predictor of future unreliable and dangerous conduct.

Easy access to individual criminal history information arguably enables government employers and regulators to better protect the public as well as the government’s own interests and functions. It allows adoption agencies, immigration officials, and federally licensed firearms dealers to make better-informed decisions. Businesses and volunteer organizations screen prospective and incumbent employees and volunteers for honesty, reliability, and self-discipline.¹⁷ A 2002 survey of California employers found that although most employers would consider hiring a convicted misdemeanant, less than one-fourth would consider hiring someone convicted of a drug offense, 7 percent a property-related offense, and less than 1 percent a violent felony.¹⁸ Some landlords require criminal record checks for prospective tenants. Political campaigns (and media) sometimes check to see whether opposing candidates and their top staffers have criminal records.¹⁹ Attorneys obtain criminal background information on opposing parties, prospective witnesses, and potential jurors.²⁰ Information vendors urge private individuals to use criminal background reports to make informed decisions in selecting babysitters, roommates, friends, and lovers.²¹

The federal government and each state make their own criminal records policies. For example, states differ with respect to whether rap sheets include juvenile arrests and adjudications; whether they contain arr...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Preface
• 1. Introduction
• PART I: The Production and Dissemination of Criminal Records
• PART II: Key Policy Issues
• PART III: U.S. Criminal Record Exceptionalism
• PART IV: Direct and Collateral Consequences of a Criminal Record
• Appendix: Supreme Court Cases Dealing with Criminal Records
• Notes
• Index