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ALTERNATIVE APPROACHES TO CRIMINAL RECORDS: HOW CAN WE ACHIEVE JUSTICE AS FAIRNESS?
Abstract and Figures
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.
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