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

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.