Saturday, March 8, 2008

Criminal History--The Digital Scarlet "C"

I've been reading, contemplating and researching issues relating to removal of a person's past criminal history from public scrutiny.

It's not only recent parolees and repeat felons who are now summarily being disenfranchised and eliminated from access to all sorts of jobs, housing, licensing and other opportunities.

Nowadays in our "post-911 world", because of easy, cheap access to permanent databases--either provided by a court system or by private data mining and "background check" companies--this disenfranchisement is being experienced by John Q. Citizen who has a criminal history that was in the distant past.

If you do basic google searching you will come across an amazing number of desperate people seeking to have their criminal histories removed from public scrutiny. Many of these people committed a crime 10, 20, even 30 years ago and have been crime-free since then.

Even cases that were dismissed, vacated or sealed by the courts are now showing up in these databases. Juvenile cases, misdemeanors, traffic tickets and parking tickets are listed. Even in cases where an arrest was made, but no charges were filed, or the person was exonerated, or the conviction was overturned--even in cases of utter innocence, governmental malfeasance, or mistaken identity--these are showing up in permanent, unregulated private company databases.

Some people who don't even have an actual criminal record are perpetually suffering because of ID theft falsely linking them in permanent databases to a criminal past. Even people who share common names are also being wrongly linked in permament private databases to a criminal with the same name.

So, John Q. Citizen, who has lived a clean life for years--before and after the period of criminal conduct and contact with the justice system--is now being "marked by the beast" with a permanent digital scarlet letter "C". John Q. Citizen is suddenly discovering he's not allowed to "get past his past" anymore--despite the fact that this is exactly what he has successfully done--and been doing--for years before the advent of e-docketing and permanent databases.

There's a large number of absolutists who believe that the "public has a right to know" everything about a person's past criminal conduct upon demand, and who believe that employers have a similar right to learn of long-past criminal conduct in order to make a current hiring decision.

All I can say is, well, "F-U. You don't."

There's tons of research available clearly demonstrating that the longer a person shows clean conduct (before and after committing a crime) the less likely it is that they will commit a crime--any crime whatsoever--in the future. Researchers know that in the three-year post conviction period that if there's no additional criminal conduct, the recidivisim rate plummets and rapidly reaches a level near-equal to people who have never had contact with the criminal justice system.

Lots of people have committed crimes and have engaged in anti-social conduct--but they may not have a criminal record.

So, if you take the absolutist position that an individual's entire criminal history must be made permanently available on demand for purposes of judging a person's character, then you must also logically take the position that courts should also permanently and openly publish all other court pleadings for all case types to the internet. That way the character of other people who don't have a criminal history record, but who have been subject to the judicial system, can also be "properly" judged.

Allegations and findings in divorce files, for example, could be extraordinarily pertinent, and much more helpful to an employer and to others for properly and fully evaluating a persons's character demonstrated over an extended period of time than would be a summary docket sheet from a single criminal incident from five, 10 or 20 years ago.

In divorces, judges are presented with highly-detailed character and conduct allegations and counter-allegations from petitioners, relatives, friends, employers, medical and psychological professionals, social workers, teachers, and neighbors, etc. Substantiated allegations of repetitive anti-social conduct, ugly behavior and even criminal conduct, allegations of sexual impropriety, child mistreatment, abuse and neglect, mental problems, assault, stalking, vandalism, addictions to drugs, alcohol, pornography and gambling, domestic violence, gross and/or deliberate financial irresponsibility, serial adultery, serial lying, theft, fraud, etc.--aren't atypical at all.

Based on the allegations and evidence presented in divorces, judges make findings of fitness and enter orders for parenting, visitation, parental contact, property division, parenting classes, drug/alcohol classes, restraining orders, anger management classes, psychological evaluations, counseling, financial support and the like.

Allegations in estate and guardianship matters are similarly extremely pertinent and also extremely helpful to evaluating character. Like divorce records, these records also contain allegations and counter-allegations from multiple persons about character and conduct (theft, fraud, elder abuse, etc.) upon which judges enter findings and orders.

But because states place near-automatic restrictions on public access to these types of records as a matter of course, and because sealing orders are readily granted to private citizens in divorces without even good cause showings--these types of court records--often containing clear, convincing and extremely pertinent information relevant to accurately judging "character"--are off limits.

And why are restrictions on these types of historical court files in place? Precisely because they contain embarassing "character" allegations and information that may be entirely true, but may also be taken out of context, may be fundamentally unjust or untrue, may be outdated, may be irrelevant, and at some point in time, maybe they really just aren't anybody else's damn business anymore.

Turns out that other groups and organizations have also been contemplating placing limits on access to prior criminal history records.

The American Bar Ass'n. recently published a position paper calling for significant restrictions on release and retention of criminal history information. Gov. Patrick Deval of Massachusetts is using their findings to follow up on his campaign platforms calls for common sense reforms to that state's criminal records release policies. Good for him.

Most of the reform discussions center around the idea that a citizen should have a right to "restored privacy" via limiting access to and retention of criminal history records once contact with the judicial system is over, and once a person has demonstrated a sustained period of clean conduct relevant to the seriousness of the crime committed.

But what I haven't seen articulated much as part of the discussion are concepts of other basic constitutional rights as well--namely, the prohibition against cruel and unusual punishment.

When a person commits a crime AND is caught, AND if the police are called, AND if the police show up, AND if the police then file a report, AND if a prosecutor then files charges (and a person may well be deliberately overcharged), that person is then subject to criminal prosecution.

If convicted or if they plead guilty, then that person is also subject to the jurisdiction of the correctional system. The existence of these systems and their roles and functioning are predicated upon the principles inherent in our laws and enumerated in the Bill of Rights, and are based on the idea that a codified, institionalized system of fair, open and standardized processes is the best way to protect private citizens, ensure proper punishment and promote rehabilitation.

A citizen facing criminal prosecution has a demonstrated need for a check/balance on the power of government, a demonstrated need for due process, and a demonstrated need for protection from vigilante justice by a mob or by private individuals.

Once the criminal prosecution and punishment are over, the state's case is dismissed, and the defendant is supposedly then free from "any disabilities or penalties."

But when the judicial system perpetually publishes or allows unfettered public access to past criminal history records, the judicial system is abdicating its express authority, responsibility, powers and fundamental role to fairly evaluate facts, evaluate character and determine and mete out punishments and "disabilities" in favor of allowing private citizens to do so over and over again--long after that person is no longer subject to the judicial system's oversight and control. Prohibitions against cruel and unusual punishment and "mob rule" are effectively gutted.

While it's true the state is not the "actor" and is not actively imposing extra-judicial punishment by its direct actions, and the court has "released" its interest in the citizen, by allowing permanent access to historical criminal records, the court is instead facilitating and encouraging unrestricted, extra-legal punishments by private citizens via its passive reliance on a generalized concept of a "right to know."

Certainly being "marked by the beast" with a permanent digital "C" which tacitly encourages and allows private citizens to engage in mob rule, or to judge, discriminate against, and punish other citizens long after the judicial system has already done so is cruel.

Unfortunately this scenario is becoming less "unusual" as these databases continue to exponentially expand.

More on this topic later.

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