Criminal Records, the Internet & Digital Footprints
A common topic of discussion early in my representation is the effect that the client's arrest and possible conviction may or may not have on their criminal record. Certainly this question is asked by many parents concerned about what a mistake at a young age may mean for their child's future. Thus, I found this April 28, 2011, New York Times article to be very interesting.
It begins and ends with a personal story, but includes some interesting points which I have excerpted below:
The pool of Americans seeking jobs includes more people with criminal histories than ever before, a legacy in part of stiffer sentencing and increased enforcement for nonviolent crimes like drug offenses, criminal justice experts said. And each year, more than 700,000 people are released from state and federal prisons, a total that is expected to grow as states try to reduce the fiscal burden of their overcrowded penal institutions.It is unfortunate that crimes committed in youth can haunt a person for life - as stated in the article the internet is playing an important role. In fact, there is now a website that publishes all arrests made in Oxford and Lafayette County, including arrests made on the campus of the University of Mississippi.
Almost 65 million Americans have some type of criminal record, either for an arrest or a conviction, according to a recent report by the National Employment Law Project, whose policy co-director, Maurice Emsellem, says that the figure is probably an underestimate.
Some, like Ms. Spikes, have left their criminal pasts far behind. Others have been convicted of minor offenses, or of crimes that appear to have little relevance to the jobs they are seeking.
Employers once had to physically search court records to uncover the background of people they were considering hiring. But the Internet and the proliferation of screening companies that perform background checks have made digging into a job applicant’s history both easy and inexpensive for prospective employers.
Advocates for workers say that the indiscriminate use of background checks by companies has made finding employment extremely difficult for millions of Americans.
“We’re spending a tremendous amount of money incarcerating people and then creating a system where it’s almost impossible for them to find gainful employment,” said Adam T. Klein, an employment lawyer with Outten & Golden in New York, a firm that has represented plaintiffs in class-action lawsuits against employers over criminal checks.
The site started publishing on April 12, 2011, and includes a statement that "all suspects accused of a crime, are presumed innocent, until proven guilty in a court of law" (I prefer not to cite the website by name as explained below). This is certainly true - the State must prove a person guilty, and must do so beyond a reasonable doubt. What I don't see on the site, however, is any reporting of cases dismissed at trial or before, or removal of arrests that have been expunged. There is now a permanent digital footprint of every arrest in the county, regardless of the eventual outcome.
While I believe that open records are important, and always champion transparent government, I also know that the ability to remove a public record of an arrest or conviction via expunction serves an important societal function. Certainly this has been recognized by legislatures as they have enacted laws allowing for criminal records to be expunged - in Mississippi the list of convictions eligible was broadened just last year.
What effect will digital records of arrests hosted by private websites have in the future? I wish I knew. One hope is that websites like the one described will honor a court ordered expunction and edit their websites accordingly. Another is that the stigma associated with the online publication of the arrest won't overshadow the eventual outcome of the case at trial.