ChapterPDF Available

ALTERNATIVE APPROACHES TO CRIMINAL RECORDS: HOW CAN WE ACHIEVE JUSTICE AS FAIRNESS?

Chapter

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.
Content may be subject to copyright.
A preview of the PDF is not available
... A 2016 survey on a representative sample of US citizens showed that 71 percent of the respondents who had found a job in the previous year reported having been requested to provide proof of previous criminal convictions in the application stage, whereas this proportion decreased to 43 percent for interviewees reporting that their most recent job application was at least 10 years ago (Denver et al., 2018: 587). Less well known is that requests for information on criminal convictions have also increased in other Anglosphere countries, such as the UK (Henley, 2019;Thomas and Hebenton, 2013) and Australia (Heydon and Naylor, 2018). In addition, a more recent trend towards increased employment-related requests for CBCs has been documented in West European countries such as the Netherlands (Boone, 2011;Van't Zand-Kurtovic, 2017), Sweden (Backman, 2012) and Spain (Larrauri and Rovira, 2019). ...
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.
Presentation
Full-text available
The collation and use of criminal records by the state has conventionally been regarded as essential for the prevention and detection of crime, the administration of justice and the maximisation of public safety. For instance: the police may check the criminal records of suspects to determine whether they are ‘known offenders’; those working in the judicial sphere may investigate the prior ‘form’ of witnesses and defendants to adduce ‘bad character’ or determine an appropriate sentence; and educational authorities and social services departments may conduct criminal background checks to determine the ‘suitability’ of individuals to work with or foster children. Whilst not disputing that these official functions provided the original justification for state criminal record repositories, this paper will argue that other unofficial and quasi-penological functions are also served in the present by the collation, retention and dissemination of criminal background information. Indeed, it will explore how the boundaries of redemptive possibility in late-modern society are governed through a discriminatory biopolitics which uses criminal records as a moral technology for the regulation of life chances. Underpinned by neoliberal and authoritarian governmentalities, this biopolitics distinguishes ‘law-abiding citizens’ - constructed as deserving of a fuller range of rights and entitlements - from a ‘denizen class’ of convicted people whose ‘punishment’ is perpetuated through exposure to various exclusionary conducts.
Presentation
Full-text available
This presentation extends beyond the impacts and effects of criminal record on employment, to the wider consequences on people's access to the full rights of citizenship. It explores why the discrimination that people face is morally problematic, and sets out four principles that might comprise an alternative model of criminal records disclosure.
Chapter
Full-text available
In this chapter I offer an alternative perspective to the themes of ‘dying’, ‘loss’ and bereavement’ within criminal justice and explore the relationships which exist between social practices of punishment and the status or positioning of former lawbreakers who have been punished . First, I provide a brief history of punishments in England whose object was to bring about not only the literal death of the condemned person but also their ‘civil death’. Second, I connect these historical practices of juridical ‘othering’ to the ‘pains of criminalisation’ which exist in the present. These, I argue, are manifestations of ‘social death’ which are experienced by people with convictions due to the stigma of having a criminal record. Drawing on Erving Goffman, I then suggest that this ‘mortification of the self’ disrupts pre-and post-conviction social identity in ways which require us to develop wider conceptions of ‘loss’ and ‘bereavement’ in criminal justice research.
Article
Full-text available
The concept of stigma and labeling has been central to the sociology of punishment since at least the writings of Durkheim and Mead. However, the vast transformations brought on by the expansion of the internet over the past 20 years suggest the need for revisiting the dynamics of labeling. While the power to apply extralegal criminal labels is now in the hands of many, stigma in the form of a digital footprint is arguably more difficult than ever to escape. This paper draws on two small studies to better understand these new dynamics of labeling: a discourse analysis of the motivations of online labelers and interviews with individuals struggling to cope with online labels. This evidence describes how the internet has become a fertile space for the expression of public anxieties about social problems and a digital prison that can discourage the labeled from engaging with the processes of reintegration.
Article
Full-text available
This article discusses the relationships and tensions between the sentencing, statutory supervision and legal rehabilitation of lawbreakers under UK legislation. It does so with reference to both the Rehabilitation of Offenders Act 1974, which allows some criminal records to become ‘spent’ after a set period of time, and the Offender Rehabilitation Act 2014, which was designed to significantly expand statutory supervision arrangements. The article also demonstrates how, post-supervision, many former lawbreakers are cast into a state of ‘civic purgatory’, before suggesting that a more fully integrated approach to rehabilitation is required.
Chapter
This chapter presents a comparative analysis of collateral sanctions, which encompass a broad array of restrictions that befall offenders in addition to their sentence during the time they are under a criminal justice sanction and often well beyond. Differences between European countries and the United States with respect to the imposition, the number, the types, and the length of collateral sanctions reflect strikingly dissimilar philosophies about how to treat those with a criminal record. The European model prioritizes reintegration and rehabilitation while the United States continues to exclude and penalize those who ran afoul of the law. On both sides of the Atlantic, however, offenders considered at a high risk of reoffending have increasingly been subjected to collateral sanctions.
Article
A criminal history record is a valid indicator of the propensity for rule violation, and such records are rightly used in applied decision making both within and outside of the criminal justice system (e.g., employment screening). A criminal conviction, however, is a time dependent risk factor. During the past decade, researchers have examined desistance using statistical models of residual hazards. These studies find that after about 10 years offense-free (5 years for juveniles), the risk presented by most individuals with a criminal record is not meaningfully different from that of the general population. Similar time-free effects are found for both sexual and nonsexual offenses. Given that desistance is almost inevitable, record retention and access policies need to carefully consider the consequences of decisions being based on old records with little information value.