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The Eternal Criminal Record

By James B. Jacobs
Cambridge, MA: Harvard University Press. 2015.

In this timely and comprehensive book, James B. Jacobs lays out the U.S. landscape of criminal histories, deconstructs criminal record law and policy, asks theoretical and ethical questions about why and how we use records, and details the consequences of these practices. Importantly, this work expands our understanding of records to include dismissals, investigative and intelligence databases, rap sheets, and court records. In doing so, he reminds readers that it’s best not to think of a criminal record as a “single” document: Technology has expanded accessibility to records, and while this shift brings important opportunities to law enforcement and investigations, it simultaneously increases the potential for error. Compounded with this proliferation of records is the increasingly common practice of using criminal histories in many aspects of life, including employment, housing, and even volunteer applications.

Jacobs first provides a solid history of public accessibility to criminal records, such as rap sheets and court records. Within this history, he points out that accessibility to records in the U.S. is a product of a series of social choices. To fully deconstruct this rich description of the legal and administrative context of criminal records, Jacobs looks at several specific policy issues to question our basic assumptions about how and when records should be created. For instance, what legal violation should trigger the creation of a record? Should this record be changed, updated, or deleted? Why are records publicly available? What are the consequences for those marked by a record?

While criminal records can be excellent tools for law enforcement, the push to make these data available to the broader public means that even minor infractions of the law result in a permanent label that affect individuals for life. Giving due credence to the public’s interest in having information about a specific crime, Jacobs questions the use of selling criminal records to private vendors, the absence of federal oversight or licensing of background check companies, the difficulty to remedy erroneous records, and the use of records in noncriminal justice settings.

There is a delicate balance between the public’s right to know and the convicted person’s right to privacy that Jacobs is careful to explicate without taking a firm stance. His strategy is to point out the high prevalence of error in records, loose record-keeping practices, and the dismal state of record updating. He also advocates strategies to limit discrimination against those with records that extend from far in the past, such as sealing or certifying the records of rehabilitated, law-abiding citizens. Overall, what good is criminal history information if it’s not pertinent information?

The implications of this sometimes messy, multi-jurisdictional information system are far-reaching. Criminal records, in their myriad forms, shape future judicial decisions for defendants, create barriers to employment, housing, and, in some U.S. states, voting. Because of this, criminal records permanently label, stigmatize, and categorize those who have interacted with the justice system. In the information age, the allure of transparency has opened the floodgates to the use of criminal histories as a convenient marker of character and morality. This book asks us to question the efficacy of this practice and to reconsider the production and use of criminal records in U.S. society.

Rutgers University-Newark

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