More Justice and Less Harm: Reinventing Access to Criminal History Records

This Article challenges the conventional wisdom that public access and dissemination of criminal history information raise no special problems once a conviction occurs. The label “offender” burdens convicted individuals long after their debt to society has been paid. Numerous damaging effects labeled as mere “informal” collateral consequences of conviction go largely unquestioned. Contemporary debate revolves around partial remedial measures (“Ban the Box,” sealing and expungement schemes, issuance of certificates of relief/rehabilitation). These narrow although important proposals largely miss the point. For different reasons, they fail to effectively curb the devastating stigma produced by the current system that creates huge obstacles to people’s efforts to live law-abiding lives, and fosters unjust discrimination. How, when, and why criminal records should be generally accessible needs to be reconceived.

Until the mid-1970s, conviction records were largely inaccessible except to public officials. There was near consensus that widespread dissemination is undesirable and inimical to reintegration of ex-offenders. Yet the ill-fated combination of uncoordinated factors has led over time to unplanned results. The Article contends that the current state of affairs is an unintended consequence of post-Watergate open records movement and emphasis on public safety in criminal justice policy, compounded by the development of information technology and the Internet, and emergence of a private industry that trawls, sells, and often sensationalizes criminal records. Such industry has made access to criminal history information easy, cheap, ubiquitous, and unlimited in time. The Article argues for a reimagining of the way the criminal justice system and the legal system as a whole classify and use records of criminal convictions. In particular, it contends that the stigma that public access and dissemination entail must be reinvented as an ancillary criminal sanction that is ordered at sentencing, if at all, for a limited time as a deserved supplement to criminal sanctions imposed.