Working in the Child Advocacy Clinic, one type of case we
take on is expunging juvenile “criminal” records in order to protect our
clients from the collateral consequences of juvenile arrests and
convictions.
Today we met regarding the current state of collateral
consequences and whether or not expungement is in fact an effective method of
protecting clients in today’s electronic community. The problem in today’s world is that third
party data collectors (such as “Instant Checkmate”) are quite diligent in
gathering all publicly available data on an individual. This publicly available data, of course,
includes arrest records as well as charges and convictions, even (in many
cases) charges brought to an individual under the age of 18.
While expungement used to be a valid option to give adults a
chance to get away from their past, the fact is that data collection agencies are
not all that likely to follow or even hear about an expungement granted by a
court. So the information continues to
exist on countless private databases, waiting to come back and haunt a person
who may not have even been convicted of any crime.
While there are laws in place regarding employers’
consideration of a criminal history when deciding whether to let a potential
employee “in the door” for an interview, those laws are not an adequate
protection in that they’re almost impossible to enforce (and thus, not
followed). A former government employee
at the CAC meeting stated quite frankly that a potential employee even having
an arrest record (not a conviction, but an arrest) was an automatic “no” for
the particular agency he had worked for.
If the government itself doesn’t follow its own rules, the idea that
private employers will even interview a person with an arrest record is a
considerable stretch.
This privacy issue here is one that can potentially affect
individuals for the rest of their lives.
The idea that mistakes we made when we were 17 can be used against us
(even if legally “expunged”) when we are 30 should call into question the
wisdom of having arrest and charge records so readily available (and thus open to
data collectors).
Arrest records in particular should not be a matter of
public record, whether dealing with adults or juveniles. The reality is that people will be judged
based on an arrest record, whether they did anything illegal or not. Our privacy should be protected in cases
where no actual wrongdoing has been proven, especially when dealing with juveniles.
This is one of the more challanging developments in modern society. The fact that the net never forgets means that any stupidity, rash words, or acts may follow you for life. Even anonomous postings may be later identified and analyzed. I wonder about nominees for prestigious positions, will only the completely disconected qualify? Whose past will be able to withstand scrutiny when the media looking for a story or an opponent looking to discredit.
ReplyDeleteI've known gang members who turned their lives around and went straight. I know people who have made serious mistakes but still managed to become responsible, contributiting members of society. What happens when we are no longer able to blind ourselves to someone's past? Can we learn to accept flawed people can still make contributions? I think few of our great presidents (e.g. Washington, Jefferson, Lincoln, TR, FDR, JFK)would stand up to the scrutiny that this generation will face in public life.
This reminds me of a recent Lifehacker article I read, about completely deleting your Internet persona. (It's colorfully entitled, "How to Commit Internet Suicide and Disappear from the Web Forever.") According to the article's comments at least, not all of the tips actually work. But it did link to a free site called Abine: The Online Privacy Company which I found really interesting, because it has a list of websites that collect myriad personal information like criminal records, and instructions on how you can contact those sites to take down your information. Of course the list isn't exhaustive, but if someone was in the position of having an expunged record still showing up online, it's a small way to make a dent in what potential employers/journalists/gossips can find.
ReplyDeleteThis reminds me of an article I read the other day that requiring minors convicted of sex offenses to submit to the lifelong registration and notification requirements of adult sex offenders is cruel and unusual punishment under the Eighth Amendment, due to the drastic impact it will have on their lives. While that's obviously a more extreme scenario than general expungement of records, it definitely raises interesting questions on the effects of a lack of privacy in the context of criminal convictions (or non-convictions even). Often the social and career effects of an arrest will be worse than the actual penalty itself. To what extent this is by design, perhaps for deterrence or public safety, and to what extent it's an overlooked and undesirable aspect of criminal sentencing is an intriguing question. The answers are obviously different depending on the type and severity of the offense and whether the culprit is a minor, but it's interesting to think about this intersection of privacy and criminal law.
ReplyDelete