Guilty of Probable Cause: Public Arrest Records and Dignity in the Information Age

Guilty of Probable Cause:Public Arrest Records and Dignity in the Information Age Nicholas Thompson The United States is exceptional among Western nations in its treatment of criminal records. Today, an estimated one-third of Americans1 bear the "modern equivalent of branding": the publicly-accessible criminal record.2 Far from remaining locked in digital limbo, these records serve a variety of purposes, from legitimate law enforcement use to extortion against arrestees seeking to scrub their mugshots from a Google search.3 It would be natural to assume that such records result from an individual's commission of a crime, for which the individual is duly convicted and then marked with the brand of the state for the transgression. But the scarlet letter of criminality enshrined in a record is often imposed in the absence of formal conviction, in the form of an arrest record. The widespread availability of these records leads to damaging collateral consequences for arrestees. This note will argue that a foundational interest in dignity, more prominent in Western European and international law than in the United States, can be a meaningful driver for criminal record reform in the United States. This paper will proceed in three parts. Part I will examine the treatment of criminal records in the United States, specifically those harms resulting from the widespread public availability of arrest records. Part II will examine Western European and international approaches to criminal records and how a robust interest in dignity has mitigated many of the issues faced in the American system. Part III will examine the opportunity for dignity to become a meaningful foundation for implementing criminal record reform in the United States. [End Page 393] I. The American Approach This section will address two problematic facets of public arrest records: widespread access and collateral consequences. Before turning to the consequences of public arrest records, it is necessary to briefly chart some of the history and scope of the access to criminal records in the United States. A. Access The Nation's central repository for criminal records is the FBI's National Crime Information Center (NCIC), a collection of databases separated into twenty-one different "files," ranging from the National Sex Offender Registry to the Known or Appropriately Suspected Terrorists File, the Gang File, and the Protective Order File.4 The NCIC also operates the Interstate Identification Index or "Triple I," a national database that synthesizes state and federal rap sheets (lifetime records of individuals' arrests) for easier law enforcement accessibility.5 The NCIC constitutes an immense intelligence-gathering apparatus that touches nearly every aspect of actual or suspected criminal, quasi-criminal, or terrorist activity in the United States. In the early 1970s, Congress began to allow access to previously restricted NCIC criminal record data to a variety of nongovernmental or law enforcement actors. This trend continued through the late 1990s, and after the 9/11 terrorist attacks, expanded to include a slew of public agencies and private businesses under the Patriot Act of 2001.6 This federal trend was mirrored at the state level after a 1972 statute authorized the FBI to provide rap sheet information to private organizations covered under a particular state's own authorizing statute.7 The states subsequently passed over a thousand statutes authorizing private and public entities to obtain criminal background checks from the FBI.8 A criminal background check reveals much more than just conviction information, however, and as a result, nonconviction records such as arrests are readily available to the general public in the United States. An individual's arrest automatically enters the public record after the initial appearance before a magistrate.9 Prior to this [End Page 394] appearance, however, police departments can disclose records of the arrest through daily log books ("blotters"), press releases, or even sell the arrest information to a third party.10 In this way, an individual who as of yet has not been convicted of any crime can have their arrest record taken and filed by an interested party or simply the general public. In fact, most states make little, if any, distinction between conviction and arrest records. In his book The Eternal Criminal Record, the late professor...