Negative Effects of Criminal Record Data Retention

By Demi Schindler, Houston College of Law
Best Research winner of the first annual law student writing competition.

In today’s fast-paced, open-book society, living a life of privacy exists as more of an idea than a reality due to the media’s unrelenting broadcast of private information. Whenever the personal accounts of one’s life become a topic of interest to the media, the ability to retract confidentialities die along with the once-lived secrecy. Information is frequently shared as a form of entertainment, but also as means of safeguarding the rights of the American people through public scrutiny over judicial actions. This aim of this indirect involvement is to safeguard the protected rights of an individual against infringement by the court system, but in turn, this “safeguarding” of rights disregards the rights of those within the open records. Criminal records have the potential to aid the criminal justice system in the prevention of future crimes, but the consequences of these records on the lives of those within the documents force us to question when the government should restrict that access. Due to resulting lifelong injury to those involved in the case through criminal records containing incomplete and incorrect data, as well as those in association to the case or its members, it is essential for the government to create greater restrictions on criminal case retention and dissemination.

Current laws regarding the preservation and distribution of criminal records require law enforcement officials to collect the personal identification data of any arrested individual. Once collected, the data is then stored in state and federal law enforcement agency systems and remains within those systems for an unquantified period of time. Anyone granted access to the contents within those databases continue to possess the information indefinitely, dispersing it at their discretion. In the event an arrest does not result in a charge, the information will continue to be retained as an “arrest record.” The “Usefulness” Doctrine, which proposes the information within an arrest will be of potential future aid in the prevention of crimes, supports the belief that past arrest records may lay the blue prints for future crime intervention (Chicago Law Review 855). Information within arrest records provide insights as to which events may lead up to a criminal act, and they also aid prosecutors in determining what charges are appropriate through the consideration of any criminal history. While record retention is justified in arrests where probable cause and arrest notation exists, it is unjustified when it has neither and when the arrest occurs as a result of mistaken information, leading to lifelong ramifications for the arrested individual (857).

Regardless of whether or not a client is a first time offender, the attorney’s duty is to ensure that the facts regarding the current offense are the only details which the criminal justice system weigh in deliberation of the cases next step. While many of our client’s cases result in a dismissal or acquittal, they still gain the label of a “criminal” in the eyes of society due to their involvement in the case. As unfortunate as that stigma is, the client will also carry that same label should they find themselves returning to the criminal justice system. Jeffery Stinson’s states in his article, “A Criminal Record” that according to Professor Kiminori Nakamura from the University of Maryland, most people who commit recidivism are likely to do so within three to five years after they are released from prison (2014). When those with criminal records have no further involvement with the law and are productive members of society, it is unjust to force them to forever live in association with the persona of a criminal. To further support Professor Nakamura’s statement, it was discovered in a study which she co-authored in 2009 that those with a criminal record are no more likely to be repeat offenders after they have been out for seven to ten years as are those who have never committed an offense before (2014). Many people fail to notice one difference which separates those who are labeled as a “criminal” and those who are not: the criminal was caught while the “non-criminal” was not. It is human to err and it appears as though the judges of both society and the legal system regard their own errs as less severe to than those found within a case.

Government mandated record retentions grant “reasonable public inspection” to all court records, but the damages faced by those within the records are insurmountable (Chicago Law Review 862). All arrests, and therefore identification information gathered by said arrests, are submitted to the FBI and remain within their system for an indefinite period of time. Some information sent to the FBI is that which was gathered during arrests occurring as a result of mistaken identity. Local courts quickly dismiss the charges that occur out of these circumstances due to the inaccuracy of the information, but there is no guarantee that these records will be removed by the FBI. In the article "As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime," Gary Fields and John Emshwiller noted that incidences such as these, along with the fact that only half of all records retained by the FBI consist “fully up-to-date information,” further stresses the need for restricting record access (2014). During a job hiring process, many applicants will agree to criminal background checks with the belief that they have a clean history only to discover that there is a mark on their record which they were unaware of. Fields and Emshwiller further went on to describe the experience Ms. Barbara Ann Finn who was denied a job as a cafeteria worker, underwent due to an incidence in 1963 when her friend was caught shoplifting in a department store. Linked with that crime out of association, Ms. Finn was arrested, along with the true perpetrator. Though Ms. Finn was declared innocent of the crime and later released without charge, she was fingerprinted when arrested, thus leaving her name and information within the system (2014). In an attempt to prevent the unrestrained collateral damage created by this failing system, many states are adopting the “ban-the-box” law in order to remove the box about criminal history on job applications. While this is still no guarantee that potential employers will not find out about the applicant’s prior arrests, it gives the applicant a chance to get their foot in the door and prove their abilities off of present stature and not past circumstances.

Arresting agencies and the court system provide the primary members involved in a case with access to the arrest records and related documents, but the largest provider of information is via electronic methods. As reported by the Privacy Rights Clearinghouse, there are two ways in which public records can be accessed electronically. The first method of electronic access is through government websites, which provide free or minimal cost access to criminal records. Not only do those with arrest records have to worry about the free or low-cost access provided by the government, but they must also worry about the commercial data compliers and information brokers who buy these personal records and release them to whomever they choose (PRC 2016). Through my experience in criminal defense firms, criminal record expungement consistently proves to carry a significant amount of weight in aiding a client’s case. It is not uncommon for criminal defense firms to receive frantic calls from clients post the completion of their expunctions regarding agencies who are still able to gather information about their prior arrests and charges. Although government agencies are legally obligated to remove all records associated with the crime petitioned in the expunction, non-governmental agencies are not. A client may do everything that they can to move forward from the past, but sometimes even legal documents cannot guarantee the removal of information once it has been published.

A criminal case’s private details were originally allotted public access in order to allow the “monitoring” of government actions within a case, but it has since then backfired by disregarding the danger presented to those involved in the case. In instances where one plaintiff in a divorce case has a current or prior criminal charge, a Scarlet Letter is immediately placed upon their chest. The civil case holds no regard to whether the charge resulted in a conviction or if the criminal case bears no significance in regards to the court matter other than the spouse. When our firm is retained to handle a criminal matter, the client’s anxiety regarding that matter is often intensified as a result of a pending civil matter. Not only are the potential ramifications for a criminal case terrifying and life altering, but the weight which the criminal matter may hold on their civil matter, such as a divorce case with possible custody battles, adds another level of anxiety. As the case intensifies between two entities, private matters are thrown into the open in order to help one side while destroying the credibility of the other. Not only can any criminal records affect the outcome of a divorce case, but other civil matters such as insurance disputes can result in lifelong ramifications if the opposing entity displays personal matter in order to receive a desired outcome. Information used within the courtroom is subject to public records once admitted in the court, and when accusations become so frequent that they are hard to decipher from the truth, they too become a part of public record.

Through the personal experience of collecting data on potential and current clients, there is truly nothing that cannot be discovered. While the broadcast of any information regarding a criminal charge already reveals too much information, the biggest threat to personal security lies within the uploaded images that are associated with a case. Mere bond paperwork reveals copious amounts of private information including phone numbers, addresses, driver’s license numbers, and other information provide by whomever posted the bond. This revelation of personal documentation infringes on the privacy of those in the case and any other person connected with the case. Should the county in which the case resides provide public access to criminal records, the issues of providing strangers with one’s personal information, once again, arises. The crime that goes unnoticed most occurs within the instances where a publicized documents reveals the client’s social security number. When someone reveals personal information that can be used in an identity theft, they are subject to prosecution. If the government commits the same action, does this mean that they are liable for potential identity thefts that occur as a result?

Whereas unregulated access to personal information greatly alters the quality of life for those with criminal records, it unfortunately, also threatens the quality of life for those indirectly involved in the case. Witness involvement in a case highlights an example for the dire need of restricted information. Not only do the unpleasant details regarding a case surface when it has become a topic in the media, but unfortunately, as do the details regarding the circumstances and involvement of the witnesses in the matter. Witnesses and their loved ones may face imminent danger if any identification information falls into the wrong hands. No matter how much protection a witness is afforded during and after a criminal proceeding, their family and friends also continue to face the potential threat of retaliation. Those who take a stand against criminal acts face dangers in and out of the courtroom due to the open access of criminal records, which has in turn dissuaded those who need to testify about a case or report one. According to the Privacy Rights ClearingHouse, a domestic violence expert stated that “many victims of stalking and domestic violence do not file cases in court because they do not want their private information being in the public arena for fear of it being used by the stalker to locate and harm them” (PRC 2016). Each of these scenarios present a hard case for why it is crucial to keep such information sealed from public eyes, and it allows the opportunity avoid reprisal by an opposing party. The threatening of one’s life is not limited only to acts of violence, but also includes one’s living situation. When those with a criminal record are attempting to find a home for their family, many times the owner of the building will run a background check. These background checks may result in a denial, thus leaving a family to look further for a place to live. This scenario not only posts a physical threat to those with the criminal record because of the lack of a home environment, but it also harms their family members and forces them to reap the same consequences out of circumstance. Criminal records that are easily accessible harm the innocent just as much as the guilty.

It is not an action that defines that actor, but the growth or regression exhibited by the actor after the action. We trust judges in the courtroom to deliberate the punishment of those who are found guilty, but we trust ourselves as judges in society to have those who face criminal charges pass our personal tests of innocence and guilt. If the unrestricted access to criminal records reinforces the “once guilty always guilty” stigma, then where is the justice? It is true that arrest records may aid in the prevention of future crimes, but what is freedom from prison worth to those with a criminal record if society places them in an invisible prison anyways? The fact that records contain incomplete data and causes injurious consequences to those within the records and those in any relation to those records affirms the fact that the government must place restrictions on criminal records. Public access to criminal records does not do more good for society than harm for the individual when the effects of such access causes a domino effect starting with the individual and ending with society.

Works Cited

Fields, Gary, and John Emshwiller. "As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime." WSJ. The Wall Street Journal, 18 Aug. 2014. Web. 24 June 2016.

Law Review Editors. "Retention and Dissemination of Arrest Records: Judicial Response." Chicago Unbound. University of Chicago Law Review: Vol. 38: Iss. 4, Article 9, 1 June 1971. Web. 17 June 2016.

"Public Records on the Internet: The Privacy Dilemma." Privacy Rights Clearinghouse. Privacy Rights Clearinghouse, 5 Mar. 2016. Web. 09 May 2016.

Sharp, Tim. "Right to Privacy: Constitutional Rights & Privacy Laws."LiveScience. TechMedia Network, 12 June 2013. Web. 10 May 2016.

Stinson, Jeffrey. "A Criminal Record May No Longer Be A Stumbling Block To Employment In Some Places." HuffPost Politics, 22 May 2014. Web. 9 May 2016.