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Abstract

A criminal conviction, if widely known, constitutes a life-long stigma that limits the convicted person’s employment and other opportunities. European countries, including Spain, recognizing an individual right of informational privacy and a societal interest in limiting recidivism, sharply restrict the dissemination of individual criminal history information. By contrast, the USA, in accordance with its commitments to judicial transparency, free speech and the individual’s right of self protection, allows (and even promotes) extensive dissemination of individual criminal history information. This article compares the profoundly different policies on providing public access to individual criminal history information in Spain and the USA, illuminating the cultural and legal values behind each country’s policies and the tensions both countries encounter in attempting to reconcile these policies with other socio-political values and goals.
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DOI: 10.1177/1462474511424677
2012 14: 3Punishment & Society
James B. Jacobs and Elena Larrauri
Are criminal convictions a public matter? The USA and Spain
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Article
Are criminal convictions
a public matter?
The USA and Spain
James B. Jacobs
New York University, USA
Elena Larrauri
Universitat Pompeu Fabra, Spain
Abstract
A criminal conviction, if widely known, constitutes a life-long stigma that limits the
convicted person’s employment and other opportunities. European countries, including
Spain, recognizing an individual right of informational privacy and a societal interest in
limiting recidivism, sharply restrict the dissemination of individual criminal history infor-
mation. By contrast, the USA, in accordance with its commitments to judicial transpar-
ency, free speech and the individual’s right of self protection, allows (and even
promotes) extensive dissemination of individual criminal history information. This arti-
cle compares the profoundly different policies on providing public access to individual
criminal history information in Spain and the USA, illuminating the cultural and legal
values behind each country’s policies and the tensions both countries encounter in
attempting to reconcile these policies with other socio-political values and goals.
Keywords
collateral consequences, court records, criminal records, informational privacy,
re-entry, rehabilitation
Introduction
Whether individual criminal history information should be public information,
available to anybody who is interested, or kept partially or totally confidential,
has important implications for a convicted offender’s future. The defendant may
Corresponding author:
James B. Jacobs, New York University – School of Law, 40 Washington Square South, 322A, New York,
NY10012, USA.
Email: james.jacobs@nyu.edu
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well regard the indelible stigma of ‘convicted criminal’ as more injurious than
community supervision, fines, or even incarceration. If a convicted offender has
to bear his conviction publicly, like a brand, his chances of successfully reintegrat-
ing into society are diminished (Pager, 2007). However, keeping information about
the conviction confidential might undermine deterrence and put individuals
and organizations at risk of being victimized by an individual of proven criminal
propensities (Jacobs, 2006).
Deciding to whom individual criminal history information should be accessible
requires balancing the values of free speech, judicial transparency, deterrence, and
individual and societal protection against the values of individual privacy, dignity,
and rehabilitation. Moreover, modern-day information technology makes it diffi-
cult to control how widely information about individual criminal history
disseminates.
US law and practice concerning the ‘publicness’ of an individual’s prior criminal
convictions contrasts strikingly with European law and practice. Although there
are minor differences among European countries, Spanish law and policy is typi-
cal of how European countries regard public disclosure of criminal history as
degrading (Whitman, 2003/2005). Focusing just on Spain allows for a manageable
and in-depth comparison between US and European policy.
1
The comparison
might persuade US readers that US policy and practice is not inevitable.
Likewise, this comparison may alert European readers that it will be difficult to
resist diverse pressures to make individual criminal history information more
widely available.
In the USA, criminal records can be obtained in three different ways. First, the
federal and state criminal record repositories release criminal record information
to all federal, state, and local law enforcement agencies and many other autho-
rized public and private agencies, organizations, and businesses. Second, anyone
who is curious about whether a particular person was previously convicted in a
particular court can visit that courthouse and ask to see the docket and any case
files that are of interest. Except for a small category of ‘sealed’ cases, it is not
difficult to locate a particular case file because each court’s docket of past and
pending cases is searchable by a defendant’s name. Members of the public can
inspect and copy court records. In addition, court records are increasingly avail-
able on-line and searchable from remote locations (Morrison, 2009). Third, the
inquisitive person who may not want to devote time and effort to searching court
records can obtain the desired information from a flourishing marketplace of
private information vendors. The vendors will, for a fee, search locally, statewide,
or nationally. They can locate the information by a document search at each
courthouse or, increasingly, by searching court files electronically. In some states,
the centralized court administration agency sells criminal record information to
private vendors.
US law and practice on access to individual criminal history information is
significantly determined by constitutional law and a politico-legal culture that
abhors secret courts and secret court judgments. If a person obtains information
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about a criminal conviction, the First Amendment protects her right to pass that
information along to others in an oral or written communication and/or publish it
in print or on the internet. The government cannot prevent or punish people for
disclosing true information about a named individual’s criminal record: ‘Once true
information is disclosed in public court documents open to public inspection, the
press cannot be sanctioned for publishing it’ (Cox Broadcasting Corp. v. Cohn, 420
US 469, 496 (1974)).
The US policy of liberal access to and dissemination of criminal history infor-
mation reflects and reinforces the belief that just deserts and deterrence are the
primary rationales for the use of criminal law. It is implicitly assumed that would-
be offenders are dissuaded from criminal conduct because they fear that, if caught,
they will be disgraced, shunned, and denied employment opportunities (Zimring
and Hawkins, 1973). As the eminent legal scholar Henry Hart (1958: 409) observed:
‘[A constitution maker] will be likely to regard the desire of the ordinary man to
avoid the moral condemnation of his community... as a powerful factor influenc-
ing human behavior which can scarcely with safety be dispensed with.’
US policy on open courts and open criminal records also reflects the belief that
people have a legitimate interest in being informed about the character of persons
whom they employ, to whom they rent accommodation, with whom they enter into
business arrangements, and with whom they become romantically involved. Many
federal and state laws prohibit people with criminal records from working in par-
ticular jobs, professions, and industries. Employers regularly screen and reject job
applicants with prior convictions. This kind of crime prevention requires that
public and private employers, and people generally, have ready access to the crim-
inal histories of those with whom they interact. Most Americans would think it
obvious that a bank should be able to find out whether a job applicant had been
previously convicted of embezzlement or theft; that school officials would be irre-
sponsible in failing to find out if a bus driver applicant had been previously con-
victed of drunk or reckless driving. Likewise, they would support a parent’s right to
determine whether a potential babysitter had ever been convicted of a sex offense
against children or any other criminal offense that might be relevant to admitting a
babysitter into their home. The state-level ‘Megan’s laws’ are a striking example of
this preference for making a person’s criminal record publicly available. They
require government officials to post on the worldwide web convicted sex offenders’
names, photos, and criminal convictions (Terry and Furlong, 2003).
By contrast, Spain, like other European countries (except the UK; Thomas,
2007; Thomas and Thompson, 2010), recognizes rights of privacy, dignity, and
honor that protect the individual from governmental and non-governmental dis-
closure of criminal record information. The Criminal Code (art. 136.4) provides
that the National Conviction Registry (NCR) may release individual conviction
records only to courts, certain police agencies, and to the record-subject. The
Spanish Constitution recognizes the right to a public trial (art. 120), but in order
to protect honor and privacy, court files, including criminal judgments, are not
available for public inspection. Indeed, published court decisions protect the
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defendant’s privacy by anonymizing real names and other identifying information.
While Spanish law treats a criminal defendant’s past convictions as relevant for
sentencing, it does not recognize shaming as a legitimate anti-crime or deterrence
strategy; indeed, Spanish jurists find that idea appalling (Dı
´ez Ripolle
´s, 2007;
Larrauri, 2000; Mir, 2008). The preference for keeping an individual’s criminal
history confidential is reinforced by Spanish law’s strong commitment to rehabil-
itation as the primary goal of criminal sentencing.
This article contrasts the very different Spanish and US policies on access to
individual criminal history information. Part 2 considers six Spanish cases involv-
ing disputes about access to court records or dissemination of information about
an individual’s conviction or sentence. In Part 3 we identify and compare the key
legal principles that differentiate Spanish and US law and policy on public access to
individual criminal history information; namely, access to court records, protection
of honor and privacy, protection of personal data, free speech and rehabilitation.
Illustrative Spanish cases
Is it possible to obtain criminal record information from court judgments?
Case 1: Tribunal Supremo (Sala de lo Contencioso-Administrativo, Seccio
´n1
a
)
STS, 3 March 1995. Grupo Interpres, S.A. supplies financial information to busi-
ness clients. In furtherance of its business, it asked to see the Castilla y Leo
´n and
Canarias court’s civil judgments, citing Constitution art. 120 (‘Judicial proceedings
will be public with the exceptions foreseen by the procedural laws’) and Ley
Orga
´nica del Poder Judicial (LOPJ)
2
arts 235 and 266 (‘Any interested person
can have access to the court’s judgment’). The lower court denied the request
and the company appealed. The Supreme Court ruled that the public’s right to
obtain information about court proceedings varied according to the stage of the
proceedings. The Court recognized that the publicity principle, contained in the
Spanish Constitution and the LOPJ, gives citizens a presumptive right to attend
court proceedings. However, only the litigants have a right to be notified of the
Court’s judgment. The Court then addressed the following question: May/should
the judge provide a copy of the judgment to a non-litigant entity or person? The
relevant statute (LOPJ) says that a signed judgment must be physically stored in
the judge’s office and made available for inspection by any interested person.
However, in the Court’s view, an ‘interested person’ is not merely a curious
person, but a person who can demonstrate a concrete and singular connection
with the case that is the subject of the judgment. Unfortunately, the Court did
not explain what constitutes ‘a concrete and singular connection’.
Even if an individual satisfies this test, however, she must also meet two addi-
tional requirements: (1) that release of the desired information would not affect the
litigants’ fundamental privacy rights; and (2) that the disclosed information will be
used for only judicial purposes (like sentencing). Because the Supreme Court found
that Grupo Interpres, S.A. had a commercial interest in the information, it rejected
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the company’s appeal. While this decision involved a dispute over access to infor-
mation about a civil judgment, all courts and legal commentators assume that it
applies to criminal judgments as well.
In the USA the public has a right to inspect and copy court records, including
dockets, judgments, sentences, transcripts, and lawyers’ briefs.
3
US judges, political
scientists and legal academics regard judicial transparency as a sine qua non of
democratic government (Fenner and Koley, 1981). In the USA, Grupo Interpres,
S.A. would have been able to read and copy any judgment at the courthouse where
it was rendered.
Can non-law-enforcement government agencies obtain criminal conviction
information from the NCR?
Case 2: STC 22 July 1999 (No. 144). The Spanish Supreme Court affirmed H’s
(the anonymized defendant) criminal libel conviction, sentenced him to prison for
one month and one day and temporarily suspended his right to run for office. The
libeled victim urged the Electoral Body to disqualify H from running for an elective
office. The Electoral Body followed up by requesting and receiving H’s criminal
record from the National Conviction Registry (NCR). Upon reviewing his record,
it disqualified H from running for elective office. H appealed this decision to the
Constitutional Court on the ground that the NCR violated his rights by disclosing
to the Electoral Body the information about his criminal conviction.
The Constitutional Court agreed that the constitutional right to privacy protects
an individual from having his personal information conveyed from one person or
agency to another person or agency. The Court pointed out that criminal history
information is private information that the NCR must keep confidential. The NCR
is only authorized to provide individual criminal history information to the record-
subject, a court, or certain police agencies. In the present case, the Electoral Body
was not authorized to request the information and the NCR was not authorized to
honor the request.
4
The Constitutional Court concluded that the right to privacy
requires the NCR to keep criminal judgments confidential because ‘the constitu-
tional right to privacy guarantees anonymity, a right not to be known, so that the
community is not aware of who we are or what we do.’
Each US state has a criminal records repository. These state-level criminal
record databases are connected and coordinated by the Federal Bureau of
Investigation’s (FBI) Interstate Identification Index and Integrated Automated
Fingerprint Identification System.
5
The public does not have a right to access
this law enforcement information system, but numerous federal and state laws
authorize the repositories to provide criminal history information to most public
agencies and many categories of private employers and voluntary associations.
A federal statute, passed in 1972, authorizes the FBI to release criminal record
information to any person or organization authorized by a state law (and approved
by the US attorney general) to make such a request. There are more than 1000 state
laws authorizing various public and private agencies, organizations, and businesses
Jacobs and Larrauri 7
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to obtain such information (Jacobs and Crepet, 2008). Therefore, in the USA a
government agency, like a state election supervising agency, would be authorized to
obtain information about an individual’s previous criminal convictions from the
state criminal records repository.
Do the media have more access to criminal judgments than the
general public?
Case 3: Tribunal Supremo (Sala de lo Contencioso-Administrativo, Seccio
´n7
a
),
6 April 2001. In March 1995 a journalist requested from a Spanish military court
a copy of a 1973 judgment that resulted in a death sentence. The military court
refused the request on the ground that the journalist did not satisfy the legal test for
an ‘interested party’. On appeal, the Catalan Superior Justice Court reversed,
holding that the military court’s decision violated the journalist’s freedom of
speech. The state lawyer appealed to the Supreme Court.
The Supreme Court reinforced the rule laid down in its Grupo Interpres, S.A.
decision. It reaffirmed that the constitutional right to a public trial does not give the
public the right to obtain transcripts or judgments from a completed trial. While
the public may attend court proceedings, the documents generated by those pro-
ceedings are only available to individuals or organizations with a ‘singular and
concrete’ relation to the case. Moreover, the Court explained that: ‘The dissemi-
nation of the judicial proceedings could affect, without any doubt, the fundamental
rights of privacy and honor of the people who took part in the criminal
proceedings.’
Had this case arisen in the USA, the journalist would have had no difficulty
obtaining the desired information. A journalist, or anyone else, can see and copy all
court documents related to a completed criminal case.
6
Legal scholars and others
routinely scrutinize and debate the fairness and reliability of the procedures and
fact finding of completed cases. Death penalty cases are often subject to intense
scrutiny.
If a private individual or entity posts information about a criminal conviction
of a named individual on a website, is it subject to criminal or civil liability?
Case 4: Tribunal Supremo (Sala de lo Contencioso-Administrativo, Seccio
´n6
a
),
26 June 2008. The Director of Police submitted a complaint to the Spanish Data
Protection Agency (DPA) that the Association Against Torture (the Association)
had posted on its website a list of the names of Civil Guard officers, police officers,
and politicians who had previously been found guilty of torture or whose criminal
prosecutions for torture were presently pending. For each name, the list included
the place where the torture was committed and, if there was a conviction, its date.
The DPA ruled that the Association violated the Personal Data Protection Law
(PDPL). It therefore fined the Association and ordered it to take the information
off its website. On appeal, the Association argued that: (1) the posted information
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constituted a report, not a database; (2) information about accused and convicted
torturers is not personal data because it does not pertain to an individual’s ‘private
sphere’; (3) the criminal judgments and formal criminal charges, from which the
information was obtained, are publicly accessible sources; and (4) the Association’s
dissemination of information about the identity of people found guilty of torture is
protected speech.
The Supreme Court agreed with the DPA, finding that: (1) information about
accusations against and convictions of named individuals is personal data; (2) the
PDPL makes it illegal to post such information on a website; (3) information
contained in court judgments is not publicly accessible data; (4) only a government
agency can maintain a database of criminal convictions; and (5) the Association’s
right of free speech does not outweigh the privacy rights of the persons named on
the posted list. (The Court added that a journalist’s free speech right is stronger
than a private individual’s or organization’s free speech right.)
In the USA, any individual’s or organization’s publication, whether in print or
on-line, of torture charges and convictions would be absolutely protected by the
First Amendment’s free speech guarantee. In N.Y. Times v. United States, 403 US
713 (1971), the US Supreme Court held that a newspaper’s publication of stolen
classified documents was protected by the First Amendment. American law makes
no distinction between print and electronic disclosure.
Can government agencies post on the web a named individual’s criminal
convictions?
Case 5: Sentencia de la Audiencia Nacional (10 February 2010). A member of
the Melilla Local Police was convicted and sentenced to two years imprisonment
(suspended) for sexually assaulting a Moroccan woman. After the Supreme Court
upheld his conviction, the Melilla City Hall fired him from the police force. For
that administrative sanction to become effective, City Hall officials had to notify
the officer, but his police colleagues prevented notification by warning him so that
he could elude the officials who sought to deliver notice. Finally, the City Hall
officials posted the negative personnel administrative action on their Legal Bulletin
website, an accepted means of providing notice of an administrative sanction. The
fired police officer filed a complaint with the DPA, charging that City Hall violated
his privacy right by publicizing his sexual assault conviction. The DPA agreed that
the fired officer’s right not to have his ‘sexual personal data’ published had been
infringed.
On appeal, the Court held that posting the officer’s name and conviction offense
on the City Hall website, even though not part of a database, constituted ‘process-
ing personal data’ under the meaning of the Personal Data Protection Law. While
City Hall officials had acted properly in posting the termination of service order on
the website, the posting should not have disclosed the officer’s criminal conviction.
Even if a newspaper had previously reported the conviction, this information
should not have been posted on the web because it is personal, even if already
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public, and therefore entitled to protection. Thus, the Court affirmed the DPA’s
decision.
There is no US constitutional right of informational privacy, although there is
increasing concern about misuse of both private and government databases. Most
relevant to our discussion here, neither US law nor public opinion considers a
criminal conviction to be personal information. In any event, the First
Amendment absolutely protects the publication of information about an individ-
ual’s criminal history.
Case 6: The domestic violence website. In 2001, Castilla-La Mancha’s
‘Preventing Battering and Protecting Women’ law authorized publishing a list of
names of men convicted of domestic violence against female partners. The law’s
proponents hoped that making offenders’ identities known would increase social
rejection of violence against women. The law’s preamble stated: ‘The sentence must
be imposed by the judge, but the government is responsible that victims not remain
silent and that sentences become known.’ Practically all legal and lay commenta-
tors criticized this law on the ground that it violated the convicted batterer’s con-
stitutional rights of honor, privacy, and rehabilitation (Bustos, 2002; Go
´mez, 2002;
Rallo, 2009; Rebollo, 2001; Silguero, 2008).
The DPA ruled that the PDPL prohibited posting such information unless the
posted data were already available from a public source, and that court judgments
are not a public source. Moreover, the DPA pointed out that no statute authorized
a City Hall to create a database of convicted offenders.
In the United States the best examples of governmental websites containing
individual criminal history information are the state sex offender registries that
provide the names and conviction offenses (and often provide photos and
addresses) of convicted sex offenders. In addition, some states post on a website
the names and criminal offenses of all prison inmates. A few states make all con-
viction records accessible via the internet. Private individuals and organizations are
free to post on websites any true information about convicted offenders and con-
viction offenses.
The controlling Spanish principles
The key legal principles that explain the difference between Spanish and US law
and policy on public access to individual criminal history information are in our
opinion: publicity of the judgment and access to court records; protection of honor
and privacy; protection of personal data, free speech, and rehabilitation.
Publicity of the judgment
As our discussion of several cases in Part 2 makes clear, there is a tension in
Spanish jurisprudence over whether criminal judgments are public. Spanish
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scholars and judges take as a matter of received wisdom that criminal judgments
are public. They base that conclusion on the Constitution’s article 120 which states
that:
1. Judicial proceedings will be public with the exceptions foreseen by the proce-
dural laws.
2. The trial will be mostly oral, especially in criminal law cases.
3. Judgments will always be justified and rendered in a public hearing.
In interpreting this constitutional provision, however, judges have distinguished
between the public’s right to be present at trial proceedings and its right to find out
about the judgment (Silguero, 2008). As we saw in the Grupo Interpres, S.A. case,
although the law states that interested persons shall have access to criminal judg-
ments, the courts have interpreted ‘interested person’ restrictively. Moreover, after
a 2003 amendment, the law (art. 266 LOPJ) now provides that: ‘Access to judg-
ments may be restricted when an individual’s privacy is affected’ (emphasis added).
Furthermore, a person who wants to find out how a criminal case was resolved
cannot even obtain that information by attending all court proceedings, because
criminal judgments are rarely announced in open court. There is no mechanism for
compelling judges to follow art. 120.3’s constitutional requirement that:
‘Judgments will always be justified and rendered in a public hearing.’
The vast majority of penal judgments, unless they involve a notorious case
widely reported in the media, never become known. Lower court judges are pro-
hibited from publishing or otherwise disclosing criminal judgments. Only the
Supreme Court’s and Appellate Courts’ decisions are published, and even then,
names and other identifying data must be anonymized by the Center for Judicial
Documentation (CENDOJ), a public agency created in 1997. CENDOJ changes
the names of persons, streets, cars, and so on, so that the defendant, victim, and
witnesses cannot be identified. Then CENDOJ indexes criminal judgments by date
and court. Unlike in the USA, Spanish court decisions are not known or cited by
the parties’ names, but by court, case number, and date. On account of the
Constitution’s art. 164, Constitutional Court decisions are not anonymized (STC
5 April 2006, no. 114).
7
That Court publishes its decisions, with the litigants’ real
names, in the Legal Bulletin (‘Boletin Oficial del Estado’) and on the Constitutional
Court’s own website.
The right to honor
The Spanish Constitution includes a right to honor and a right to privacy. Both
rights aim to protect the individual’s dignity against disclosure of shameful infor-
mation. Honor includes one’s reputation in the community and one’s sense of self-
worth and self-respect. The Constitutional Court explains the right to honor as the
right to a good reputation, the right not to be despised, and the right not to be
humiliated in front of others. While a criminal conviction itself impugns the
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defendant’s good reputation, the Constitutional Court has stated that the imposi-
tion of a sentence (STC 18 May 1981, no. 16) or sanction (STC 14 June 1983, no.
50) does not violate the right to honor, since ‘the injury to honor is not due to the
judgment and sentence, but to the individual’s own conduct; neither the
Constitution nor statutory law can guarantee honor to a person who has blighted
his reputation through his own conduct’. However, while the Court’s adjudication
of a criminal case does not infringe the right to honor, the dissemination of indi-
vidual conviction information can infringe that right unless disseminating the
information is protected by the right of free speech (see ‘Freedom of Speech’ later).
Honor can be injured by both truthful and untruthful information; even true
information can embarrass and humiliate. For example, even if it is true that X is a
prostitute, publication of that information violates her right. Thus, a journalist
would be infringing X’s right to honor by reporting in a newspaper article that
X is a prostitute unless, given the specific facts of the case, the journalist’s free
speech right trumps X’s honor right. Therefore, Spanish courts do not focus on the
truth or falsity of the injurious communication, but on whether the communicator
had a right to disclose the information.
Most Spanish judges and law professors strongly disapprove of some US juris-
dictions’ practice of publishing the names of persons convicted (or even worse, just
arrested) for prostitution or for patronizing a prostitute (Jacobs, 2009). They con-
sider this public labeling to be degrading punishment and have analogized pub-
lishing a convicted person’s name with the Spanish Inquisition’s practice of posting
a convicted person’s name and crime at a village’s entrance (Bustos, 2002; Go
´mez,
2002).
The right to privacy
The Spanish constitutional privacy right seeks to protect and promote individual
dignity. It guarantees the individual a personal life, a sphere that she can protect
from public scrutiny. The disclosure of information about an individual’s personal
life, whether by a government official or a private party, violates this right.
No Spanish criminal law treatise or law journal writer has addressed the ques-
tion of whether a criminal conviction is personal information belonging to the
individual’s private sphere (but see Del Carpio Fiestas, 2005). However, we saw
in Case 2 that the Constitutional Court found that the Electoral Body violated an
individual’s constitutional right to privacy when it requested and obtained his
criminal record from the NCR. While this Constitutional Court decision said
that information about a criminal conviction is protected by the right to privacy,
another of the Court’s decisions (STC 14 December 1992, no. 227) said that pub-
licizing an administrative sanction did not violate the right to privacy. To say the
least, the law on this question is unclear.
We think that the lack of scholarly discussion on whether convictions are private
information is due to the emergence of new laws on personal data protection in
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databases (PDPL, 1999). It really does not matter if conviction records are private.
They certainly are considered ‘personal data
8
and afforded constitutional protec-
tion (see ‘The right to personal data protection’).
Even if the constitutional honor and privacy rights do provide protection
against the embarrassing disclosure of a criminal conviction, a newspaper is still
able to make such a disclosure with impunity if that disclosure satisfies the free
speech test, that is, the news is truthful, newsworthy and germane (see ‘Freedom of
speech’ later).
The right to personal data protection
In 1981, the Council of Europe approved the Convention for the Protection of
Individuals with Regard to Automatic Processing of Personal Data,
9
which pro-
tects the individual from the misuse of personal information, explicitly including
criminal conviction information, collected and stored in electronic databases:
Personal data revealing racial origin, political opinions or religious or other beliefs, as
well as personal data concerning health or sexual life, may not be processed automat-
ically unless domestic law provides appropriate safeguards. The same shall apply to
personal data relating to criminal convictions. (art. 6, emphasis added)
In 1995, the European Union Directive 95/46/EC of the European Parliament
and of the Council of 24 October 1995 augmented the Convention: ‘Processing of
data relating to offences, criminal convictions or security measures may be carried
out only under the control of official authority,... a complete register of criminal
convictions may be kept only under the control of official authority’ (art. 8.5, emphasis
added). The Spanish PDPL, passed to comply with the Convention, provides that:
(1) personal data can only be maintained in a database from which information can
be retrieved with the consent of the affected person, except when a law provides
otherwise; (2) judicial judgments are not a public source of information; and (3) only
specially designated government agencies can create criminal offender databases.
The Constitutional Court (STC 30 November 2002, no. 292) has held that there
is a constitutional right to the protection of personal data, which provides broader
protection than the Constitution’s right to privacy. The PDPL protects any per-
sonal data, private or not that, if used by third parties, may affect that individual’s
rights. The individual has a right to know which agencies possess her personal data
and for what purposes. The PDPL authorizes the data subject to request that data
be corrected or deleted if they have been collected without consent for reasons not
foreseen by the law, or if they have been improperly transferred to a third party.
The DPA has issued several decisions prohibiting disclosure of criminal history
information via the internet. Moreover, although the PDPL does not prohibit
publishing data drawn from public sources, the DPA has emphatically ruled
that a criminal judgment is not a public source. Additionally the PDPL clearly
states that databases with criminal information can only be kept by specified
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governmental agencies. Therefore, posting on a website information about a
named individual’s criminal conviction violates that individual’s right to personal
data protection and the violator is subject to an administrative fine.
Freedom of speech
The Spanish constitution protects free speech (art. 20). Nevertheless, the courts
have been reluctant, even unwilling, to embrace fully the right to free expression
when it comes to dissemination of criminal history information. Instead, they have
sought to balance the media’s free speech right and the public’s right to receive
truthful information with the individual’s right to keep disreputable personal infor-
mation confidential, even if true.
To date, no Spanish court has squarely ruled on whether the right to free speech
insulates from criminal punishment or civil damages a person or entity that pub-
lishes (or otherwise discloses) the names of convicted offenders. The general posi-
tion of the Constitutional Court and of the Supreme Court is that publishing
criminal conviction information infringes honor and privacy, but free speech will
prevail over privacy and honor if the Court finds the injurious information to be:
true or the result of a good faith and reasonable effort to determine the truth;
newsworthy, meaning relevant to informing public opinion and not simply satisfy-
ing curiosity; and germane to the news story in which it is embedded. Based on that
test, the Supreme Court has recently rendered several decisions in favor of news-
papers and journalists.
We discern a trend toward interpreting ‘newsworthy’ more broadly, thereby
giving newspapers greater leeway to report on criminal cases.
10
However, we
hasten to add that this trend does not include allowing newspapers to publish
lists of convicted offenders or lists of criminal judgments as is routinely done in
the USA. The Spanish courts would almost certainly not deem newsworthy a list of
ordinary people’s criminal convictions, but the newsworthiness of politicians’ prior
criminal convictions would be a closer question.
We also emphasize that, whatever freedom newspapers and journalists have to
publish criminal conviction information, they are restricted in their ability to
obtain this information in the first place because courts almost never announce
criminal judgments or make them available, with real names, in any docket, set of
law reports, or in databases.
11
The principle of rehabilitation
The Spanish Constitution (art. 25) provides that ‘criminal punishments involving
deprivation of freedom should aim towards rehabilitation and social integration’.
Spanish law-makers and scholars believe that the rehabilitative goal would be
seriously undermined if criminal conviction information was available to the
public (Bueno Aru´ s, 2006; Grosso, 1983; Larrauri, 2011). Therefore, only judges,
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public prosecutors, certain police agencies, and the record-subject may obtain con-
viction information from the NCR.
While employers cannot obtain criminal record information from the NCR,
they are not prohibited from requesting job applicants to submit a certificado de
antecedentes penales, an official summary of past convictions or, if they have none,
documentary proof of a clean record. Spanish academics seem to universally
believe that Spanish employers, public and private, rarely ask job applicants to
submit a certificate, but data provided by the NCR cast some doubt on this widely
shared belief.
12
US law/policies permitting/compelling the publicity of criminal
conviction records
Open Courts and Court Records
In the USA the public trial right belongs to the public, including the media, as well
as to the criminal defendant (Press-Enterprise Co. v. Superior Court, 478 US 1, 7
(1986)). Members of the public have a right to attend court proceedings (Richmond
Newspapers v. Virginia, 448 US 555, 576 (1980)). For good reason, the trial judge
can exclude the public from certain pre-trial hearings. Furthermore, under very
limited circumstances the trial judge may clear the courtroom when a child witness
testifies. The public cannot be excluded, however, to protect the defendant’s
privacy.
13
Judicial transparency is regarded as an important check on police, prosecutorial,
and judicial abuse of power. As the Supreme Court said in Globe Newspaper Co. v.
Superior Court (457 US 596, 603 (1982)):
Whatever other benefits the guarantee to an accused that his trial be conducted in
public may confer upon our society, the guarantee has always been recognized as a
safeguard against any attempt to employ our courts as instruments of persecution.
The knowledge that every criminal trial is subject to contemporaneous review in the
forum of public opinion is an effective restraint on possible abuse of judicial power.
Recently, the US Supreme Court, in Presley v. Georgia (558 US, 130 S. Ct. 721,
724 (2010)), reaffirmed that the constitution’s First Amendment guarantee of free
speech gives the public, including the media, the right to attend criminal trials.
While the FBI, local police and other executive branch agencies do not have to, and
often choose not to, make criminal record information publicly available
(Department of Justice v. Reporters Committee For a Free Press, 489 US 749
(1972)), by law and tradition, American court records are available for public
inspection.
The US Supreme Court (e.g. Press Enter. Co. v. Superior Ct., 478 US 1 (1986))
has emphasized the importance of transparency, especially judicial transparency, in
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assuring the state’s legitimacy. As the Court said in Richmond Newspapers v.
Virginia (448 US 555, 592 (1980)):
Open trials are bulwarks of our free and democratic government: public access to
court proceedings is one of the numerous ‘checks and balances’ of our system, because
contemporaneous review in the forum of public opinion is an effective restraint on
possible abuse of judicial power.
In the US few criminal court judgments (the vast majority of which result from
guilty pleas) are published in law books, but they are all publicly available at the
courthouse and, increasingly, on-line. Federal court criminal judgments and those
of several states are accessible via the internet. Commercial companies publish
almost all appellate decisions in law reporters and electronically. Court opinions
are titled and indexed by the defendant’s real name (e.g., State v. Willie Jones or
United States v. Margaret Smith); except in reported juvenile proceedings, there is
no anonymizing of identifying information about defendants, witnesses or victims.
Indeed, the names and charges against defendants whose prosecutions resulted in
dismissal or acquittal are widely available; arrests are also public information
(Jacobs, 2010).
Admittedly, the US Supreme Court has never squarely held that there is a
constitutional right of public access to court documents, but it came close to
such a ruling in Nixon v. Warner Communications Inc. (435 US 589, 597 (1978)),
where it noted with approval that the common law has assumed that private
citizens can inspect and copy court records. While the Court also recognized
that, for compelling reasons, court records can be sealed, the long-standing practice
is to make court records publicly available. The 2002 federal ‘E-Government Act’
and its state equivalents have made many types of court records (including dockets,
indictments, motions, lawyers’ briefs, judicial rulings, trial and sentencing tran-
scripts, appellate decisions) accessible on-line.
14
Free Speech & Press
The US Constitution’s First Amendment is unrivaled in the protection that it
affords speech and other forms of expression (Chemerinsky, 2006). For example,
the federal government could not prevent the media from publishing a classified
history of the Vietnam War, even though the documents had been stolen from the
Pentagon (United States v. New York Times (403 US 713 (1971)). However, there
are exceptions. Criminal conspiracy, although committed via talking, is not insu-
lated from criminal prosecution. Expression can be regulated, even prohibited, if it
creates ‘a clear and present danger of imminent lawlessness’. There is no right to
shout ‘fire’ in a crowded theater, thereby causing a riot. Fighting words, obscenity,
commercial advertising, express incitement to unlawful conduct, child pornography
and false statements of fact that defame individuals can be prohibited and
punished.
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Disseminating true but highly embarrassing or humiliating information about a
troubled marriage, a debilitating illness, or a sexual escapade, is probably consti-
tutionally protected (against criminal, civil or administrative limitation), although
the matter continues to be debated (Voloch, 2000; Stone 2010). However, there is
no doubt that disclosing information about a previous criminal conviction is con-
stitutionally protected.
The First Amendment clearly protects private persons’ or entities’ communica-
tions about criminal records. Newspapers and electronic media can publish the
names of people who have been convicted, acquitted, or even arrested. A federal,
state, or local agency could not prohibit a private person from posting to the
worldwide web lists or databases of convicted persons. Publishing information
about an expunged conviction cannot be prohibited or punished. Information
vendors cannot be prohibited from supplying clients with individual criminal his-
tory information.
15
Informed Decisionmaking and Personal Security
American law and policy support an individual’s right to obtain information neces-
sary to make commercial and personal decisions, so that they can make informed
choices about whom to hire and with whom to associate (Lam and Harcourt 2003;
Holzer, Raphael and Stoll, 2004; Bushway, Stoll and Weiman, 2007). The sex
offender registration laws are a striking example of the belief that Americans
have a legitimate interest in protecting themselves (cf. the constitutional right to
keep and bear arms: Jacobs, 2002).
Members of the public have access to individual criminal history information via
court proceedings and documents. Private individuals and entities need no author-
ization to examine and copy court records. Some state court systems make indivi-
dual criminal history records available on-line or offer to provide them for a fee
(Jacobs, 2009). For example, for $65 the New York State Office of Court
Administration (OCA) will provide any requester a list of any person’s convictions
in New York State courts. If people do not wish to search court records themselves,
or do not know how to, they can pay an information vendor to obtain the desired
information. Scores of information vendors, including large national firms as well
as small local companies, collect and sell criminal record information. Some main-
tain their own databases constructed from information obtained from court
records. Other information vendors undertake, on a case-by-case basis, electronic
searches (and sometimes physical searches in the court house) for criminal record
information that a customer desires. They advertise on the internet and elsewhere;
for a small fee, anyone can seek and obtain criminal conviction information about
any person who is of interest to them.
In the US, public and private employers can easily obtain information about job
applicants’ and employees’ prior criminal convictions. Indeed, the licensing boards
for many professions and occupations must obtain such information because so
many occupations are closed to persons with some (or any) past criminal
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convictions.
16
Employers can obtain criminal record information from the criminal
record system maintained by the FBI and state criminal record repositories, from
court records, or from private information vendors.
Privacy
The US Constitution’s Fourth Amendment protects individual privacy by prohi-
biting unreasonable government searches and seizures. It prohibits government
officials from searching the individual’s person or property without a search war-
rant or probable cause. Government officials violate the privacy right implicit in the
Fourth Amendment by eavesdropping on telephone calls without court authoriza-
tion or by spying on people in their homes (LaFave, 2009). Some states also make
private individuals’ ‘invasions of privacy’ a criminal offense. Such laws prohibit
spying on or photographing someone who is nude or engaged in sex in a private
setting (N.J. Stat Ann. x2C:14-9). The victim of such an intrusion could also obtain
civil monetary damages. It is the intrusion on privacy, rather than the disclosure of
information revealed by the intrusion, that violates the US constitution. In Paul v.
Davis (424 US 693, 701 (1976)) the Supreme Court held that an individual’s con-
stitutional rights were not violated when a government official injured his reputa-
tion by disclosing a previous shoplifting arrest by means of a letter to local
businesses listing the plaintiff as an ‘active shoplifter’.
[Davis] claims constitutional protection against the disclosure of the fact of his arrest
on a shoplifting charge. His claim is based, not upon any challenge to the State’s
ability to restrict his freedom of action in a sphere contended to be private, but instead
on a claim that the State may not publicize a record of an official action such as an
arrest. None of our substantive privacy decisions hold this or anything like this, and
we decline to employ them in this manner.
The US is not unconcerned with data privacy (Regan, 1995; Nissenbaum, 2010),
but protection is far less than in Europe. The 1974 federal Privacy Act prohibits
federal officials from unauthorized disclosure of information maintained in govern-
ment databases; many states have similar laws (Solove and Schwartz, 2008).
16
Other laws prohibit private health insurance companies from disclosing medical
information to employers and marketing companies and prohibit universities from
releasing information about students’ grades. However, the First Amendment pre-
vents the government and the courts from restraining or punishing a media orga-
nization or private person who discloses personal information (Bartnicki v. Vopper,
532 US 514 (2001)).
Personal Honor
Most Americans would find the Spanish (and European) ‘right to honor’ quite
strange,
18
especially to the extent that it prevents disclosure of information about
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convictions. Is not public condemnation the essence of a criminal prosecution?
Why should the state guarantee that a convicted person can keep his image
clean and integrity unblemished? In the US, it is considered inevitable and perhaps
desirable that a criminal is shamed by his or her conviction. Doesn’t public con-
demnation serve retributive and deterrence goals of the criminal law? Won’t would-
be offenders be dissuaded by knowing that, if caught and convicted, their conduct
will be condemned before the community and in the name of the community? (For
a discussion of shame see Braithwaite, 1989; Duff, 2001; Kahan, 2006; Massaro,
1991; Pace, 2003; Whitman, 1998). In addition to serving deterrence goals, public
condemnation furthers the educative goal of criminal law. Even rehabilitation may
be served to the extent that shaming triggers repentance. Finally, wide dissemina-
tion of conviction information arguably enhances public safety because it allows
people to avoid convicted criminals or take precautions in their business and social
interactions with them.
Dignity
The US constitution makes no explicit mention of ‘dignity.’ However, individual
dignity as a constraint on governmental behavior, has come up from time to time
with respect to police searches and seizures and Eighth Amendment (cruel and
unusual punishment) jurisprudence. In its famous 1952 decision in Rochin v.
California (342 US 165), the Supreme Court held that it was unconstitutional for
police to force a tube with an emetic down a suspect’s throat so that the suspect
would vomit capsules of morphine swallowed to avoid a drug seizure. Finding that
such police tactics ‘shock the conscience’, Justice Frankfurter said: ‘Illegally break-
ing into the privacy of the petitioner, the struggle to open his mouth and remove
what was there, the forcible extraction of his stomach’s contents - this course of
proceeding by agents of government to obtain evidence is bound to offend even
hardened sensibilities. They are methods too close to the rack and the screw to
permit of constitutional differentiation.’ With respect to the Eighth Amendment,
the Supreme Court has said that cruel and unusual punishment ‘must draw its
meaning from evolving standards of decency.’ Under this standard, courts, from
time to time, have found certain prison conditions and practices to unconstitution-
ally infringe human dignity.
Rehabilitation
US law does not recognize a right to rehabilitation. Rehabilitation was once a
popular concept in the US, but since the 1960s ‘the rehabilitative ideal’ has been
in decline (Allen, 1981). In the last few years, however, there has been resurgent
support for rehabilitation (Maruna, Immarigeon and LeBel, 2004; Gideon and
Sung, 2010).
19
Notwithstanding that a majority of Americans tell pollsters that
they favor programs to assist ex-offenders become productive citizens (Heumann,
Pinaire and Thomas, 2005) and the existence of efforts to reintegrate offenders
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(Petersilia, 2003; Travis, 2005; Love, 2006), most Americans would likely find it
difficult to conceive of guilty verdicts that did not involve public condemnation. In
American policy and jurisprudence, such condemnation is thought necessary to
further the retributive, deterrent, educative, protective and perhaps even rehabili-
tative goals of criminal sentencing. As Professor Andrew Taslitz (2009) recently
observed:
‘[D]isesteem-imposition, even if not phrased quite this way, is a clear goal of our
criminal justice system. The system assumes that conviction carries stigma with it
and that the degrees of, and actual imposition of, various sentences reflect various
degrees of disesteem.’
Conclusion
The US and Spanish law and polices on dissemination of and access to criminal
conviction information differ dramatically. US court records have always been
open to the public, but before computerization, ordinary individuals had to
expend considerable time and effort to determine whether a particular individual
had previously been convicted of a crime. The IT revolution has made criminal
record information much more accessible. Some states post to a website the names
and conviction offenses of all persons incarcerated in that state. A few states make
individual criminal history records available over the internet, by request, usually
for a small fee. The computerization of criminal history information has spawned a
thriving private sector industry. At the present time, in the US, information about
an individual’s prior criminal convictions is readily available to anyone willing to
devote a modest amount of time and resources to find it.
A substantial number of US criminologists view this seemingly inexorable move-
ment toward completely public criminal records negatively (Demleitner, 1999;
Travis, 2002) because they believe that it poses a significant obstacle to prisoners’
reintegration and contributes to the reification of a criminal underclass isolated
from legitimate employment and social institutions. The question is: what, if any-
thing, can be done, given US constitutional and statutory law, to make individual
criminal history information less accessible to the public. This is not the place for a
comprehensive vetting of policy options (for an attempt to do so, see Jacobs, 2006).
Suffice it to say that it would be no easy matter to make individual criminal history
information less public. As long as court records are open for public inspection, it
will be impossible to shield an individual’s prior criminal record information from
public view. And as long as people want this information, there will be information
vendors ready, willing and able to sell it to them. The strong demand for such
information is consistent with the American emphasis on individual responsibility
and self-help.
Spain, for constitutional, cultural and policy reasons, treats individual criminal
history information as confidential. Spanish law values individual dignity, honor
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and privacy highly. Spanish judges, criminal law scholars, and policy makers
believe that because criminal history information belongs to the individual’s private
sphere, the dissemination of conviction information should be severely restricted,
indeed only cautiously permitted when free speech prohibits censoring or punishing
such dissemination. This commitment to confidentiality is reflected in and rein-
forced by the PDPL which prohibits posting databases of named criminal offenders
on the worldwide web.
Spanish and other European criminal law theorists oppose shaming sanctions.
Spanish criminal law scholars believe that the dissemination of information about a
criminal conviction constitutes an additional sanction that infringes both the pro-
portionality principle (von Hirsch and Wasik, 1997) and the legality principle
because the statute prescribing the range of possible sanctions for a criminal offense
does not include public humiliation. Thus, even if publicly naming an offender
would qualify as protected free speech, Spanish legal culture would resist publish-
ing this information.
There are probably many socio-legal explanations that account for the different
European and US law, jurisprudence and policy on the publicness of individual
criminal history information. This paper does not seek to provide a full explanation
of the motives that account for such diverse practices. In this paper we just attempt
to identify the legal principles responsible for the differences. A complete socio-
legal explanation would have to take account of the different levels of saliency of
crime in these societies (Zimring and Johnson, 2006), different conceptions of
privacy (Whitman, 2004), different weight given to governmental transparency,
and greater European confidence in government professionals. Furthermore, the
civil law system is more compatible with confidential court records than the
common law system which emphasizes judicial precedents.
While European commitment to keeping individual criminal history information
confidential is clear, maintaining the policies which implement these values is
becoming increasingly complicated, especially with respect to sex offenders
(Boone, 2011; Herzog-Evans, 2011; Morgenstern, 2011). The media, free speech
proponents, legal and social science researchers, and advocacy groups seek to
obtain conviction information about named offenders for purposes of reporting,
analysis, or political advocacy. Electronic databases and especially the internet
make retrieval and communication of information faster, cheaper, more efficient,
and more difficult to control. It remains to be seen whether the Spanish and
European effort to limit the stigma of a criminal record will continue to prevail
as part of a distinctive European crime policy (Snacken, 2010), or whether tech-
nology, politics, and emphasis on free speech will move Spain’s law and policy in
the direction of the US.
Notes
Both authors acknowledge the research assistance of Shira Peleg. We are also
extremely thankful for the extended and helpful comments of Dimitra Blitsa,
Jacobs and Larrauri 21
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James Forman Jr, David Garland, Lauryn Gouldin, Matti Joutsen, Maximo
Langer, Margaret Lewis, Stephen Schulhofer, Kathy Strandburg and Jackie
Ross. The Spanish part has been undertaken under the Research Project (DER
2009-08344 JURI: Ge
´nero y Marginacio
´n: Victimizacio
´n y Delincuencia) of the
Ministry of Science and Innovation and the support of the Departament of
Universities of the Generalitat de Catalunya to the Research Group in
Criminology (AGAUR 2009 SGR 1117).
1. While there are differences in detail among European countries, especially the
UK (Padfield, 2011; Thomas, 2007; Thomas and Thompson, 2010), all of these
countries are much more restrictive than the USA in making criminal records
available. One can therefore speak of a ‘European position’ which is also
reflected and reinforced by the Convention for the Protection of Individuals
with Regard to Automatic Processing of Personal Data (see ‘The right to
personal data protection’ later). We do not claim expertise in all countries.
For a further analysis see the following sources: for the Netherlands (Boone,
2011); for France (Herzog-Evans, 2011); for Spain (Larrauri, 2011); for
Germany (Morgenstern, 2011). In Finland information recorded in the criminal
register shall be kept secret and provided only to a restricted number of agen-
cies (statute number 1993/770) (Matti Joutsen, personal communication).
Greece does not allow the disclosure of criminal records either (Dimitra
Blitsa, personal communication). See information about some other countries
at: http://www.cpni.gov.uk/Docs/Criminal_Records_Disclosure-CountriesF-L-
March09.pdf
2. This law regulates the entire judicial system. Ley Orga
´nica 6/1985 de 1 de Julio del
Poder Judicial [LOPJ].
3. Adult criminal court cases, other than acquittals and dismissals, are never
completely sealed, but certain documents may be sealed, e.g. an affidavit
from an undercover agent. When case files are sealed, a court order, based
upon good cause, is required in order to see the file. Historically, juvenile
court records have been sealed. However, that tradition has been steadily erod-
ing (Laubenstein, 1995).
4. The Electoral Body had other legal means for disqualifying H’s candidacy. The
Constitutional Court refers to two different procedures by which the courts could
have informed the Junta Electoral about the criminal conviction and sentence.
What the Electoral Body could not do was directly request the information from
the NCR.
5. The FBI’s Interstate Identification Index (III) links the states’ repositories
together into a comprehensive national criminal record system that enables a
police officer anywhere in the country to find out if the person she has just arrested
(or stopped) has a criminal record anywhere in the country (Jacobs and Crepet,
2008).
6. Courts-martial of US military personnel are open to the public. However, it is not
clear whether ‘military commissions’ which try suspected foreign terrorists must
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also be open to the public. Since the 9/11 terrorist attacks, the issue of using mil-
itary commissions to try suspected foreign terrorists has been much debated. The
Obama administration has permitted journalists to cover the first military commis-
sion trial at Guantanamo Bay, but reporters have to agree to certain ground rules,
that is, not reporting the names of certain witnesses. Journalists who almost imme-
diately violated that ground rule were barred from attending the proceedings, but
not otherwise punished. It is not yet clear whether the records of these proceedings
will be publically available. See http://www.harpers.org/archive/2010/05/hbc-
90007004
7. The reasons why judgments of the Supreme Courts and all the other courts are
published without names and judgments of the Constitutional Court are published
with names are not easy to understand (see discussion in Arenas, 2006 and Salvador
Coderch et al., 2006). They might reflect a continuous tension between the more
open Constitutional Court and the more traditional Supreme Court (Aragoneses,
2009).
8. The PDPL defines personal data as any information that relates to an identified
physical person (art. 3).
9. Signed 28 January 1981; ETS (no. 108). http://conventions.coe.int/Treaty/en/
Treaties/Html/108.htm
10. The trend considers criminal cases as newsworthy even if the news refers only to a
private citizen. See Tribunal Supremo (Sala de lo Civil) 16 October 2008 (no. 948);
Tribunal Supremo (Sala de lo Civil) 28 October 2008 (no. 1013); Tribunal Supremo
(Sala de lo Civil) 23 December 2009 (no. 868); Tribunal Supremo (Sala de lo Civil)
9 March 2010 (no. 155); Tribunal Supremo (Sala de lo Civil) 28 April 2010
(no. 264).
11. There is no general law granting access to the judgments. Catalunya, for example,
has a regulation that declares a journalist an ‘interested party’ in order to grant her
access to the judgment (Instruccio
´n 5/2008 sobre Acceso a la Informacion Judicial
por parte de los medios de comunicacio
´n). See Rodriguez Valls (2010).
12. The NCR reports that in 2010 there were 1.512.166 petitions of such certificates.
Further research will be necessary to determine the purposes of these requests, e.g.
for submission to employers, to obtain residence permits or guns license (see Jacobs
and Larrauri, 2012).
13. All US courts, except for juvenile courts, are open to the public. The Supreme
Court has never held that restricting access to juvenile court proceedings is uncon-
stitutional. It also has never held that juveniles have a right to exclude the public
and the media from delinquency (criminal) proceedings.
14. The Public Access to Court Electronic Records (PACER) system provides public
internet access to federal courts’ case and docket information. An individual wish-
ing to use the system must register and provide her name, address, phone number,
and email address. While registration is free, users must pay $.08 per page viewed.
It is possible to search PACER by case file number or defendant name.
15. In the USA, libel does not exist as a criminal offense. US law does, however,
recognize a civil action for defamation/libel. For example, in the Paul v. Davis
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case discussed earlier, the Supreme Court noted that the plaintiff might be able to
sue the police chief under the State’s civil libel law. However, unlike in Spain, truth
is an absolute defense to defamation and libel actions (New York Times Co. v.
Sullivan, 376 US 254, 279–80 (1964)).
16. After the 9/11, 2001 Al Qaeda attack on the World Trade Center and Pentagon,
several federal laws mandated background checking in various industries and
sectors.
17. The Privacy Act, 5 USC s. 522(a), ‘protects the public from unwarranted collection,
maintenance, use and dissemination of personal information contained in agency
records ... by allowing an individual to participate in ensuring that his records are
accurate and properly used’. Section 522(b) states that ‘no agency shall disclose any
record which is contained in a system of records by any means of communication to
any person, or to another agency, except pursuant to a written request by, or with
the prior written consent of, the individual to whom the record pertains’, except if
one of several enumerated circumstances applies (Privacy Act of 1974, Pub. L. No.
93-579, 5 USC § 552a (1974). See Information Practices Act of 1977 CAL. CIV. CODE §
1798.)
18. But one does find concern for reputational honor here and there in US constitu-
tional jurisprudence, mostly in dissenting opinions by Supreme Court justices.
Two examples are Justice Field’s dissent in Brown v. Walker, 161 US 591 (1896),
and Justice Douglas’ dissent in Ullman v. United States, 350 US 422 (1956). Both
justices argued that the right against self-incrimination should not be limited to
shielding yourself from a criminal conviction, but rather also protect honor and
dignity.
19. The federal ‘Second Chance Act’ passed in 2007, authorizes federal grants to gov-
ernment agencies and non-profit organizations that provide services (i.e. employ-
ment assistance, substance abuse treatment, and family support) to criminal
offenders reentering the community. Second Chance Act of 2007: Community
Safety through Recidivism Prevention, Pub. L. No. 110–199, 122 Stat. 657 (2008).
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James B. Jacobs is Chief Justice Warren E. Burger Professor of Law and Director
of the Center for Research in Crime and Justice at New York University, School
of Law.
Elena Larrauri is Professor of Criminal Law and Criminology at the Universitat
Pompeu Fabra.
28 Punishment & Society 14(1)
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... The criminal record schemes in the various jurisdictions of the UK (England and Wales, Scotland and Northern Ireland) are notable for their breadth, and stand in contrast to those in other European countries where access to criminal records is much more restricted and where greater emphasis 2 This chapter focuses on the regime in England and Wales, although there are similar issues with criminal record regimes in Northern Ireland (Mason 2011) and Scotland (Weaver 2018), where different legal regimes apply. is placed on their private nature (Jacobs and Larrauri 2012;Larrauri 2014b;Kurtovic and Rovira 2017). In most European countries, a criminal record is considered to be a private matter and therefore not subject to public disclosure (Jacobs and Larrauri 2012). ...
... The criminal record schemes in the various jurisdictions of the UK (England and Wales, Scotland and Northern Ireland) are notable for their breadth, and stand in contrast to those in other European countries where access to criminal records is much more restricted and where greater emphasis 2 This chapter focuses on the regime in England and Wales, although there are similar issues with criminal record regimes in Northern Ireland (Mason 2011) and Scotland (Weaver 2018), where different legal regimes apply. is placed on their private nature (Jacobs and Larrauri 2012;Larrauri 2014b;Kurtovic and Rovira 2017). In most European countries, a criminal record is considered to be a private matter and therefore not subject to public disclosure (Jacobs and Larrauri 2012). This principle even extends to the sharing of criminal record information amongst agencies within the criminal justice system. ...
... Some of the reasons for varying approaches to criminal records internationally can be explained by different socio-cultural contexts and the distinctions between common law and civil law systems (Jacobs and Larrauri 2012). They are also refl ective of different approaches and attitudes towards privacy and rehabilitation (Kurtovic and Rovira 2017), and towards children and young people. ...
Chapter
WITHIN THE UNITED Kingdom (UK), an increasing emphasis on public protection, evident in criminal justice and wider social policy, has formed the background for the expansion of a criminal record regime that allows for the disclosure of old criminal records and even nonconviction information. Examples of disclosures on criminal record certificates include information on investigations that did not proceed to prosecution, circumstances where a person has been acquitted of an offence (ie where he or she is found to be legally innocent) and other background information considered to be relevant. The justification for such an intrusion into a person ’ s private life is that it serves a wider public interest, on the basis that disclosure of such information may prevent future harm. The criminal record schemes in the various jurisdictions of the UK (England and Wales, Scotland and Northern Ireland) are notable for their breadth, and stand in contrast to those in other European countries where access to criminal records is much more restricted and where greater emphasisis placed on their private nature (Jacobs and Larrauri 2012; Larrauri 2014b; Kurtovic and Rovira 2017). In most European countries, a criminal record is considered to be a private matter and therefore not subject to public disclosure (Jacobs and Larrauri 2012). This principle even extends to the sharing of criminal record information amongst agencies within the criminal justice system. Furthermore, where criminal records are disclosed, they typically only contain information on convictions. They do not provide information on so-called ‘ administrative sanctions ’ such as cautions, nor do they contain information on acquittals or police intelligence indicating that a person was previously investigated for an offence (Larrauri 2014a, 2014b). A further notable feature of criminal record regimes within the UK is the failure to adequately differentiate between criminal records acquired as a juvenile and those acquired as an adult. This is despite the fact that part of the rationale for the establishment of separate systems for dealing with juvenile offending is the view that children should be treated in a manner that limits the potentially harmful impacts of contact with the criminal justice system. Thus, from their earliest foundations, youth courts have underscored the importance of confi dentiality and sought to limit the identifi cation of children involved in criminal proceedings (Jacobs 2014). That a child ’ s welfare should be the paramount consideration in all proceedings is a fundamental tenet of the United Nations Convention on the Rights of the Child (UNCRC). Rights instruments specifi cally addressing juvenile justice emphasise the importance of privacy, and therefore the limiting of the disclosure of criminal records acquired as a juvenile.
... However, under this explanation, employers conduct CBCs only when they believe they are legitimized to do so. For instance, previous research has indicated that continental European employers are reluctant to conduct CBCs unrestrictedly owing to concerns about the confidentiality of this information (Backman, 2011;Jacobs and Larrauri, 2012). ...
... Secondly, Law 26/2015 created uncertainty for employers because it failed to establish a precise definition of what 'frequent' contact means, giving employers discretion to determine to which positions this condition applied (Agencia Española de Protección de Datos, 2015). This was in contrast to the previous Spanish legislation, which clearly specified positions for which CBCs should be conducted (Jacobs and Larrauri, 2012). ...
Article
Full-text available
The use of criminal background checks (CBCs) – requests for information on previous convictions during the employment recruitment process – is growing worldwide. This article seeks to explain the proliferation in CBCs by examining whether novel legislation introducing mandatory requests for some jobs also leads to an increase in requests for CBCs for jobs outside the scope of the law. The present research makes use of survey data collected from individuals requesting criminal records certificates before and after the introduction of new CBC regulation in Spain – EU Directive 93/2011/EU – which established the obligation to request a criminal record certificate covering sexual crimes for jobs involving frequent contact with children. The analysis detects only a small and unsustained growth in non-mandatory checks following introduction of the new law. However, the results suggest that the danger of the new legislation lies in employers requesting certificates with a higher level of disclosure than is required for the positions on which checks were made mandatory by the new law. In addition, the growth in non-mandatory CBCs observed during this period seems to be related not to the new legislation but to the emergence of tech companies, raising alarm regarding the role of novel forms of policy mobility and the new collaborative economy in limiting the re-entry of individuals with criminal records to the labour market.
... Research has demonstrated that, along with employment, housing is the strongest predictor of successful reintegration for those who were formerly incarcerated (LeBel, 2017). Yet, these individuals are often required to disclose their criminal history on housing applications, thereby increasing the visibility of their stigmatized status (Jacobs & Larrauri, 2012;Thacher, 2008). Evans and Porter (2015) had researchers pose as prospective tenants, either with or without a criminal record (child molestation, statutory rape, or drug trafficking), and call landlords to inquire about the availability of an apartment. ...
Article
Full-text available
Research suggests that formerly incarcerated individuals, and individuals belonging to racial minority groups, experience stigma and housing discrimination. The current study explored landlords’ attitudes and differential communications toward formerly incarcerated individuals – particularly wrongfully convicted individuals – of varying races. Using data from an experimental audit study, we examined the content of landlords’ email responses to rental inquiries from fictitious convicted and wrongfully convicted individuals, and members of the general public (i.e., control), who were either Black, Indigenous, or White. A content analysis revealed three main themes: 1) responding with courtesy; 2) probing for additional information; and 3) willingness to set up a viewing. Logistic regressions revealed that landlords were more likely to justify the rental’s unavailability, inquire about the renter’s financial stability and references, and to say they would follow up later when corresponding with convicted and wrongfully convicted individuals compared to control. Landlords were also more likely to ask White renters about their criminal history compared to Black and Indigenous renters. Surprisingly, individuals belonging to racial minority groups were not disadvantaged further in this data. The findings are discussed in the context of post-incarceration support.
... Jacobs and Laituri (2012) argues in this regard that the European legal system considers the data relating to criminal convictions as 'personal data' which have to be treated confidentially. 221 The Union law forbids the idea of creating individual criminal records which can be identified by data subject's name through its adoption of the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data 222 and Art. 8.5 of the DPD. ...
Thesis
Full-text available
Individual’s past personal data proved to have unimaginable impact on his or her present and the future in particular the spent criminal convicts’ faux pas committed in the past might trap oneself to an unchangeable present and the future. This impact is greater in this advanced communication technological era when personal information is just one click away through search engines and potential victims might be reformed sinners, minor offenders, adolescents and prospective employees who want to represent themselves in consistent with the respective societal interests and values. A successful exercise of right to be forgotten, a derivative of data protection privacy right under GDPR can aid in characterizing this aspiration of reintegration through a new inception of reformed life by restricting the access of the concerned information online. Since access to information is an aspect of right to freedom of expression, both need to be weighed against each other to prioritize one in each case. The established concept and jurisprudence of RTBF does not guarantee any spent criminal convict to erase the relevant history permanently, rather only to delink the hyperlinks from the Internet search engines which makes the retrieval difficult. Even, to reach that far, a series of certain balancing principles suffice in motion which need to be evaluated to weigh between RTBF and free expression, such as, whether the process at issues is a lawful or unlawful one, data subject is a public or private figure, and proportional processing or privacy interests in motion. These characteristics make a RTBF application non-exclusive in nature since it cannot be guaranteed to spent convicts as admittedly, it must face the risk of rejection.
... In continental Europe, there has previously been a greater emphasis on the privacy rights afforded to those with a previous conviction, with access to criminal records generally limited to the police and courts (see Jacobs and Larrauri 2012). However, this information is increasingly being used outside of the remit of criminal justice processes. ...
Chapter
Full-text available
This chapter seeks to critically examine current approaches to criminal records and their disclosure outside of criminal justice processes. In particular, it questions the rationalities underpinning disclosure practices where the rights of people with convictions (henceforth ‘PWCs’) to live a life free of stigma are often subordinated to the perceived need to maintain ‘public safety’ by disseminating criminal record information. Instead, an alternative approach is advocated which prioritises the achievement of justice through the introduction of common principles for the fair treatment of criminal records. The chapter begins by, firstly, discussing the problem of ‘collateral consequences’ in the United States and examining how negative impacts of a conviction are now expanding in the European context. Secondly, the chapter considers attempts in different jurisdictions to mitigate collateral consequences through systems of legal rehabilitation. Thirdly, the case for an alternative approach is made on the grounds that: (1) criminal records affect a substantial proportion of the population; (2) that criminal records checks have limited utility as a public protection measure; and (3) that a solely utilitarian approach to criminal records and their disclosure obstructs critique of the injustice done to PWCs who have already paid the penalty for their crimes. The chapter concludes by proposing four principles for fair treatment of criminal records (the ‘four Rs’ of retraction, relevance, recency and redeemability) upon which, it is argued, most reasonable self-interested people might agree if working from behind a ‘veil of ignorance’ in Rawls’ (1971) original position.
... The decision in NT1/NT2 is particularly relevant given the traditional hostility of common law jurisdictions to rights of privacy that extend to historical criminal convictions. 72 Common law jurisdictions have traditionally privileged principles of open justice in contrast to the approach of many civil law jurisdictions which, in general, opposes punitive shaming and presumes criminal records to be confidential. 73 The civil law approach is reflected in the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data as well as the Data Protection Directive art.8(5) and the General Data Protection Regulation. ...
Article
In NT1 and NT2 v Google and The Information Commissioner the High Court of England and Wales considered the applicability of the right to be forgotten to cases involving "spent" criminal convictions under the Data Protection Directive and in light of the decision of the Court of Justice of the European Union ( CJEU) in Google Spain v AEPD . The decision represents an important development in the evolving body precedent concerning the right to be forgotten in European law while also offering an insight into a potential shift in attitude among common law courts towards the applicability of art.8 rights in the context of criminal convictions.
... In France, academics (Pitoun and al., 2004) and practitioners (Peretti, 2007) have been particularly concerned with issues of procedural fairness (Herzog-Evans, 2011b) or privacy (also see for England and Wales, Roberts, 2005). As Jacobs and Larrauri (2012) have showed, privacy is a very important concept in European continental culture. ...
Article
This paper deals with the sentence feasibility with a special focus on electronic monitoring. The purposes of this research were first to test the ‘six month limit’ idea amongst practitioners, before the Prison Law was implemented; second to determine whether they tailored their decisions accordingly; third, how they initially welcomed the reform and in particular whether they thought that a two years ‘mesure sous écrou’ was feasible; lastly, whether they had actually implemented the new two year limit and whether this had had an effect on how they perceived the six month absolute maximum. The conclusions put forward some reasons for this limit from the professional's point of view.
Article
This article examines the challenges that the contemporary political economy of rental housing poses for new efforts to regulate tenant screening using antidiscrimination law. I draw on a case study of landlord practices in Seattle, Washington, where policy makers have been on the forefront of legal efforts to regulate how landlords screen and select rental applicants in the face of an acute housing crisis. The case study investigates tenant screening and selection practices from the divergent perspectives of the targets and intended beneficiaries of new fair housing regulations, using forty-six in-depth interviews with spokespersons or experts from the rental housing industry, independent landlords and property managers, and renters with criminal, eviction, and/or damaged credit histories. I use these data to examine how landlords’ discretionary decision-making and responses to regulation are shaped by the broader legal, institutional, and economic context in which they operate. The findings illuminate how a “landlord’s market” amplifies the power imbalance that is characteristic of landlord-tenant relations, exacerbates the housing access problems posed by the proliferation of background checks, and frustrates new legal efforts to dismantle screening-related barriers to rental housing.
Chapter
MODERN LEGAL SYSTEMS are often characterised by ‘ bifurcation ’ , according to Pratt (2002), who borrowed from Bottoms ’ earlier predictions (Bottoms 1977, 1980: 6). Bifurcation consists of a legal and practical dichotomy that opposes two main categories of offenders and how they are processed. One finds, on the one hand, ‘ dangerous ’ offenders, who are treated more harshly (with more constraints, fewer early prison releases, in some cases the violation of general criminal law principles and so on) but who are also subject to more scrutiny and attention – which may include more support. On the other hand, one finds ‘ run-of-the-mill ’ offenders, who are treated managerially, the main focus being on the prevention of prison overcrowding and the processing of cases as quickly as possible, with little attention paid to their psycho-social and criminogenic needs, and where the ideal of rehabilitation is abandoned and replaced by expedient procedures and measures. This prediction seems to have come true in the French (Herzog-Evans 2017a and 2017b) – and the Belgian (Scheirs et al 2015) – contexts. On the one hand, most offenders (the ‘ run-of-the-mill ’ ones) are processed via shabby prosecutor-led procedures, devoid of due process, which lead to measures that are purely formal, non-constraining – but also non-protective of victims and unsupportive of rehabilitation (up to 50 per cent of all offences are processed in this way – Danet 2013) – or via ‘ McJustice ’ factory-line felony courts processing (Ligue des Droits de l ’ Homme 2012). On the other hand, a small but increasing number of offenders who have committed serious offences ( ‘ the dangerous ’ ) have, during the ‘ Sarkozy era ’ , been the subject of a long series of reforms that have, inter alia, created various legal mechanisms allowing the authorities to subject them to potentially perpetual forms of supervision beyond their sentence. However, the French penal landscape is in fact more contrasting still: the legal system can be described as the patchwork outcome of opposing political stances and epochs; the dominant orientation being a ‘ purist ’ treatment and rehabilitation model, most offenders keeping their citizen ’ s rights and benefi tting from a very generous criminal record-expunging system. Even the most dangerous offenders are subject to only rather loose probation. A practical common denominator is also, unfortunately, that the managerial nature of French justice and probation, along with the impact of the merger between prison and probation services in 1999, has led to a purely formal form of supervision and societal re-entry system, where most offenders, whether run-of-the-mill or dangerous, are essentially left to their own devices (see, in 2014, Morgenstern and Robinson ’ s warning).
Book
Terry Thomas considers the use of criminal records within the criminal justice system and beyond - especially the growth of their use for pre-employment screening via the Criminal Records Bureau. This book also considers future developments and the impact that transferring criminal records across international borders will have.
Book
http://johnbraithwaite.com/monographs/
Article
Every year, hundreds of thousands of jailed Americans leave prison and return to society. Largely uneducated, unskilled, often without family support, and with the stigma of a prison record hanging over them, many, if not most, will experience serious social and psychological problems after release. Fewer than one in three prisoners receive substance abuse or mental health treatment while incarcerated, and each year fewer and fewer participate in the dwindling number of vocational or educational pre-release programs, leaving many all but unemployable. Not surprisingly, the great majority is rearrested, most within six months of their release. As long as there have been prisons, society has struggled with how best to help prisoners reintegrate once released. But the current situation is unprecedented. As a result of the quadrupling of the American prison population in the last quarter century, the number of returning offenders dwarfs anything in America's history. A crisis looms, and the criminal justice and social welfare system is wholly unprepared to confront it. Drawing on dozens of interviews with inmates, former prisoners, and prison officials, the book shows us how the current system is failing, and failing badly. Unwilling merely to sound the alarm, it explores the harsh realities of prisoner re-entry and offers specific solutions to prepare inmates for release, reduce recidivism, and restore them to full citizenship, while never losing sight of the demands of public safety. As the number of ex-convicts in America continues to grow, their systemic marginalization threatens the very society their imprisonment was meant to protect.
Article
Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and continental Europe. Some of the differences involve questions Of everyday behavior, such as whether or not one may appear nude in public. But many involve the law. In fact, we are in the midst of major legal conflicts between the countries on either side of. the Atlantic-conflicts over questions like the protection of consumer data, the use of discovery in civil procedure, the public exposure of criminal offenders, and more. Clearly the idea that there are universal human sensibilities about privacy, which ought to serve as the basis of a universal law of privacy, cannot be right. This Article explores these conflicts, trying to show that European privacy norms are founded on French and German ideas of "personal honor." Continental "privacy," like continental sexual harassment law, prison law, and many other bodies of law, aims to protect the "personal honor" of ordinary French and German folk. American law takes a very different approach, protecting primarily a liberty interest. The Article traces the roots of French and German attitudes over the last couple of centuries, highlighting the French experience of sexual license in the nineteenth century and the German experience of Nazism. The Article then discusses the current state of French and German law with regard to matters such as consumer credit reporting, public nudity, and the law of baby names. It contrasts continental approaches to what we find in American law. Throughout, the Article argues, American law shows a far greater sensitivity to intrusions on the part of the state, while continental law shows a far greater sensitivity to the protection of one's public face. These are not differences that we can understand unless we abandon the approach taken by most privacy advocates, since such differences have little to do with the supposedly universal intuitive needs of "personhood." Instead, they are differences that reflect the contrasting political and social ideals of American and continental law. Indeed, we should broadly reject intuitionism in our legal scholarship, focusing instead on social and political ideals.
Book
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Article
Criminal punishment in America is harsh and degrading-more so than anywhere else in the liberal west. Executions and long prison terms are commonplace in America. Countries like France and Germany, by contrast, are systematically mild. European offenders are rarely sent to prison, and when they are, they serve far shorter terms than their American counterparts. Why is America so comparatively harsh? This book takes a comparative legal history perspective and argues that the answer lies in America's triumphant embrace of a non-hierarchical social system and distrust of state power which have contributed to a law of punishment that is more willing to degrade offenders.