Beyond Totem and Taboo: Toward a Narrowing of American Criminal Record Exceptionalism

35 Pages Posted: 6 Oct 2018

See all articles by Alessandro Corda

Alessandro Corda

Queen's University Belfast - School of Law; University of Minnesota Law School

Date Written: July 1, 2018

Abstract

Conviction records activate an increasingly broad range of de jure and de facto disabilities and restrictions that are “collateral” only in the formal sense of the word. The piling-up of statutory collateral sanctions and disqualifications is coupled with various forms of discrimination arising from the widespread availability of criminal records in today’s digital age. Essentially uninformed by privacy considerations, public access to criminal records in America over time has acquired totemic importance largely derived from the symbolic significance of the First Amendment and increasing risk aversion toward individuals with a criminal past. Yet the issue of criminal records management has recently become central to the debate on criminal justice reform. The Article argues that the awareness of what having a criminal record means today in the United States calls for the adoption of new policies limiting access to and dissemination of criminal history information by third parties and preventing sealed and expunged records from resurfacing online. The Article then contends that attempts aimed at limiting public access to criminal records need to be coupled with a robust and reliable process for determining rehabilitation that cannot depend simply on the passage of time. A procedure of judicially certified active redemption in which restoration of rights is earned through positive actions is presented and discussed. This judicial certification process would result not only in full restoration of rights, as proposed by the MPC: Sentencing, but also expungement of the record for both criminal and non-criminal justice purposes.

Keywords: criminal records, collateral consequences, background checks, stigma, digital punishment, right to be forgotten, restoration of rights, Model Penal Code, sentencing

JEL Classification: K14

Suggested Citation

Corda, Alessandro, Beyond Totem and Taboo: Toward a Narrowing of American Criminal Record Exceptionalism (July 1, 2018). Federal Sentencing Reporter, Vol. 30, No. 4-5, 2018, pp. 241-251. Available at SSRN: https://ssrn.com/abstract=3249022 or http://dx.doi.org/10.2139/ssrn.3249022

Alessandro Corda (Contact Author)

Queen's University Belfast - School of Law ( email )

School of Law
Belfast, BT7 1NN
United Kingdom

HOME PAGE: http://pure.qub.ac.uk/en/persons/alessandro-corda

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

HOME PAGE: http://robinainstitute.umn.edu/people/alessandro-corda

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