New York University Law School Professor James Jacobs, author of “The
Eternal Criminal Record” (Harvard University Press), discusses the proliferation of electronic criminal
The following is a transcript
RAPHAEL POPE-SUSSMAN: Hi, I’m Raphael Pope Sussman of the Center for Court Innovation,
Center for Research in Crime and Justice. Jacobs is the author of the new book, “The Eternal Criminal Record,”
which examines the public nature of criminal records and the impact they can have on everything from voting rights
to employability for 16 million Americans.
Professor Jacobs, thank you for
JAMES JACOBS: Thank you. It’s my
POPE-SUSSMAN: So starting out, why do you write this book now?
JACOBS: I got interested in criminal records really in the early 2000s when I was working
federally licensed firearms dealers to determine instantaneously whether a prospective firearms purchaser has a criminal
record. So I came at this from that kind of law enforcement perspective thinking that was truly an amazing accomplishment.
Most people that work on criminal records come at it out of concern about collateral consequences. I too am concerned
about collateral consequences. I deal with that in my courses and in some writing, but that was not my first impulse,
and the book itself is not a book about collateral consequences. It’s a book about the information infrastructure
of the criminal justice system.
POPE-SUSSMAN: Let’s talk about the 60
JACOBS: What
level crimes. Here in New York we have a lot of crimes that have been redefined as violations and not all of those
end up on your criminal record. Traffic offenses do not. Juvenile offenses also differ from one state to another.
But a very interesting question is whether a criminal record includes arrests as well as convictions, and the general
answer to that is, “Yes,” because our criminal records system is arrest-based. So once you are fingerprinted
and booked, that establishes an arrest record and it is not normally erased even if you are not convicted.
POPE-SUSSMAN: Something that really stood out to me in the book is the difference between
there’s more of a focus on the right to privacy. Can you talk about that?
JACOBS:
in the world in which criminal records are as public as they are in the United States, and I think that brings out
our commitment to both free speech and to the transparency of governmental operations. Our court records have always
been open to the public, to anyone who wants to see them.
In European countries,
Our police records are not open to anyone who wants to see them, but our state legislatures have passed many laws
which give permission, authorization, to various industries and businesses and voluntary associations to obtain police
records. There’s a big difference. In Europe they consider a criminal record to be personal information. Here
we consider it to be quintessentially public information.
These are two different
is a value to open courts. But that also means that there’s negatives, and people are stigmatized by their criminal
records, and they can’t be kept confidential.
POPE-SUSSMAN: Do you believe
JACOBS: I don’t really believe in a right
European dictatorships, and people going in and changing the historical record, and was this guy ever arrested or
was he ever convicted for corruption. People have a right to know.
In general,
guys who really has a strong commitment to First Amendment rights. I believe people have a right to speak and to
convey information that they have. It’s also very difficult in the information age that we live in now to bury information.
POPE-SUSSMAN: Here in New York, low-level offenders are theoretically eligible to apply
for example, legal barriers to employment. Why do you prefer this policy to the expungement or sealing of records?
JACOBS: Well, I think I do prefer certifications of rehabilitation to expungement. I
come up. A newspaper could say this person now running for office, or such and such was once convicted of a crime.
The person could sue the newspaper and say, “I’ve never been convicted of a crime because it was expunged;
therefore it doesn’t exist.” You know, it doesn’t change.
We
a sensible idea to try to help people overcome the bad and dangerous things they’ve done in their past. People
do change. They can demonstrate that change. So maybe we should have more information rather than less, and this
certification of rehabilitation is a step in the right direction. If the state recognizes that you have acted honorably
and credibly and in a law abiding way since the time of your conviction, giving you the certificate to recognize
that, I think is a very sound policy.
POPE-SUSSMAN: Homing in on the employability
JACOBS: “Ban the Box” is a movement
I believe it was in San Francisco or Oakland, to stop putting on their employment applications, “Have you ever
been convicted of a crime?” They said, “Eliminate that question because it screens out people to early
in the employment process.” It can be used as an automatic screen so that anyone who puts, “Yes, I have been convicted”
isn’t even considered regardless of the circumstances.
But the way that
way that it’s been enacted in many, many cities now and some states, is that it doesn’t mean that you’re
never asked. It means that you’re not asked in the initial employment application, and so it gives the public
employer a chance to look at you as an individual, and if they get to the point where they’re ready to make
an offer, or you get fairly far down in the hiring process, then they ask the question, and they get the answer,
and they’re looking at the answer in the context of someone for whom they’ve already developed a positive
impression. So that arguably should be helpful.
POPE-SUSSMAN: You worry about
as likely offenders. Those labeled dangerously mentally ill or alleged gang members. What does it mean for American
democracy that we’re becoming more and more reliant on these kinds of deterministic tools?
JACOBS:
we have the capacity to keep and create far more records than ever in our history. We can compile all kinds of databases
and those databases can have all kinds of consequences. So if we keep a database, as I talk about in the book, on
gang membership for example, there is some legitimacy to that. But people don’t get a hearing on whether they’re
in the gang. They wouldn’t know whether they’re in the gang database.
We
a lot of police officers who may come into contact with someone and have some legitimate reason to be interested
in whether they are a member of a gang or not, as well as prosecutors. But that kind of information could be very
detrimental to somebody, and it could also be inaccurate.
You know, it’s
of labels on people, and then doubly careful about who has access to that information. Because we don’t even
know how accurate it is, and in fact as I talk about in the book and in some articles I’ve written, these gang
databases have proliferated all over the place. So I mean, hundreds of thousands, perhaps millions of people are
listed as gang members. It’s very hard to get off these databases once you’re in them. So I worry about
that.
The issue of the dangerous mentally ill is very interesting because
databases on people who are mentally ill and dangerous so that they cannot purchase a firearm. Right? We don’t
want people who are dangerous to have–so we create databases. Once we create a database and we insert somebody’s
name and we populate the database with people’s names, we are labeling them as “mentally ill and dangerous.”
Well, if I was an employer and, you know, the government has you on a list as “mentally ill and dangerous.” You know,
and they won’t sell you a firearm, I’m not so thrilled about inviting you into my organization when there
are hundreds of people who are applying for these jobs who are not mentally ill and dangerous.
Most
people, whimsically label them, and they get onto databases as “mentally ill and dangerous’ without a hearing, without
a way off, without knowing how they got on, I think that’s something to be very concerned about. And interestingly
enough a lot of people in the mental health community have resisted cooperating with the government’s efforts
to compile lists of people who are mentally ill and dangerous.
So now we have
You should be giving us all this information so that we can prevent the next mass killing.” And then you have
people in the mental health community saying, “This is so unlikely to prevent a mass killing, but what it is
likely to do is to stigmatize hundreds and thousands and tens of thousands of people and maybe even deter them from
seeking out assistance with problems of mental illness.”
So life is complicated.
POPE-SUSSMAN: I am Raphael Pope Sussman , and that was James Jacobs, professor of criminal
Press. To learn more about the Center for Court Innovation please visit www.courtinnovation.org.
Thank you for listening.