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March 2, 2023
"The Right to Social Expungement"
The title of this post is the title of this new article authored by Itay Ravid now available via SSRN. Here is its abstract:
In recent years, policy makers advancing criminal legal reform have engaged in attempts to correct years of harsh and expansive use of criminal laws. Two main parallel trends dominate these attempts. One is forward-looking — the decriminalization of many activities currently punishable by the criminal legal system. The second is backward-looking, and related — expungement and vacatur reforms that aim to allow individuals to start fresh.
While these latter efforts are intended to erase the criminal stain from official criminal records, the non-official domain gained less traction, leading to an absurd reality in which news stories about individuals’ criminal histories remain accessible in the virtual world, practically forever. Tragically, these online news stories are often more practically detrimental to reintegration than the official criminal records. As such, they frustrate the criminal legal system’s efforts to correct past mistakes.
The literature on criminal legal reform thus far has given less attention to this crucial problem. This Article contributes to narrowing this scholarly gap. To do so, it introduces “the right to social expungement” — which recognizes the rights of individuals arrested for or convicted of offenses now vacated, expunged, legalized, or decriminalized to have stories about their past interaction with the criminal legal system removed from media websites.
Utilizing the case study of individuals arrested for or convicted of selling sex, this Article provides two theoretical justifications for recognizing this right: 1) the socio-legal paradigm of cultural shifts and its effects on existing law and policy, and 2) criminal law’s amelioration doctrine, which offers a path to retroactively apply lenient criminal justice policies. The piece further argues that, counter to conventional wisdom, the right to social expungement can in fact sit comfortably within a plausible interpretation of the right to privacy and freedom of the press. The Article concludes by offering preliminary guidance for establishing the right to social expungement.
March 2, 2023 at 10:28 PM | Permalink
Comments
Wasn't this covered 74 years ago when Orwell published "1984"?
Posted by: Bill Otis | Mar 2, 2023 11:04:03 PM
I don’t believe I’ve ever seen an article on here where they claim punishments are “too lenient” or “just right.”
Weird how they always go in the direction of fewer consequences.
Posted by: TarlsQtr | Mar 2, 2023 11:29:17 PM
TarlsQtr --
"Weird how they always go in the direction of fewer consequences."
Ain't it though.
They really want no consequences at all, but understand that it would be bad PR to say so directly, so they head in that direction on the installment plan. Not very honest (what else is new?), but pretty effective.
Posted by: Bill Otis | Mar 3, 2023 1:22:16 AM
Hard to believe that the issue this article addresses is such a pressing social problem that it would justify the degree of intervention advocated, or that it would merit gutting the First Amendment to do so.
Posted by: Curious | Mar 3, 2023 8:37:20 AM
Curious makes a wise comment.
Posted by: federalist | Mar 3, 2023 8:51:44 AM
Of course this has nothing to do with the severity of consequences as cynical posters claim, those who clearly don't understand the full implications of the stigma of a criminal record.
It's not even suggesting that all criminal records be removed from public domains (which I advocate for), just those "vacated, expunged, legalized, or decriminalized." You could argue, I suppose, that previous offenses that have now been legalized or decriminalized could remain since, at the time of their commission, they were illegal. But why?
The criminal legal system is so stacked against people who break laws or are accused of breaking laws, there's no reason to argue against leveling the field. We preach fairness and rationality—and occasionally rehabilitation—but we bend backwards to deny those things. If were committed to them we would ensure each person gets a defense as robust as the prosecution, they are not denied pretrial liberty unless absolutely necessary, detention and harsh punishments are subject to review and, once a person has completed their obligations to the courts they are not forever burdened by their past.
Posted by: SBradley | Mar 3, 2023 11:20:45 AM
SBradley --
"....once a person has completed their obligations to the courts they are not forever burdened by their past."
We are ALL "burdened" by our past, and should be. You get credit for the good stuff because that's only fair. For the exact same reason, you should be able to be questioned about the bad stuff. The way to deal with the bad stuff is not to hide it (which is dishonest among other things), but to show that you've learned and changed.
Posted by: Bill Otis | Mar 3, 2023 2:06:00 PM
Bill, we don't give people a chance "to show that you've learned and changed." Many of these things disqualify people from any meaningful consideration for a host of important life opportunities.
Posted by: lknds | Mar 3, 2023 5:51:42 PM
lknds --
Hiding what you've done is dishonest and deceitful. Separately and in addition, some things SHOULD be disqualifying, i.e., if you're a child rapist, you don't get to work in a day care center, if you're an embezzler, you don't get to work at a bank, if you're a drug pusher, you don't get to work in a pharmacy, etc.
Other people are not here to wink an your criminality. You are here not to victimize others -- and if you do, at least to be honest about your past.
Posted by: Bill Otis | Mar 3, 2023 8:05:39 PM
Bill, I don’t believe there should be no criminal records, nor do I believe that some offenses should be disqualifying for certain jobs. But the level of disqualification—both strict and socially imposed—is staggeringly broader than the examples you listed, which again cuts against the idea that people get a chance to show that they’ve learned and changed.
Posted by: lknds | Mar 3, 2023 11:45:16 PM
Sorry, first sentence should read as follows: I’m OK with criminal records (with exceptions and time limitations for certain offenses), and I’m ok with some offenses being disqualifying for specific jobs.
Posted by: lknds | Mar 3, 2023 11:47:28 PM
lknds,
You say you are OK with some crimes being disqualifying for certain jobs. For the others, isn’t it the business owner and not you who gets to make those decisions?
Posted by: TarlsQtr | Mar 3, 2023 11:56:28 PM
No, I don't think it's the business owner who gets to decide. I think that there are some decisions that, due to unreasonable prejudice and negative social impact, shouldn't be left to people to make. But even if that were wrong, my point in response to Bill's comment still stands. I don't believe we give people a chance "to show that you've learned and changed," and so I don't think our policy should be based on such an assumption.
Posted by: lknds | Mar 5, 2023 7:46:58 PM
lknds --
Assuming arguendo that your premise about who gets to decide is correct (which is not my assumption at all), your remedy is still misdirected. The correct remedy is not to force the Orwellian erasure of history, but to require prospective employers to give face-to-face interviews, so that the previously convicted criminal will have the chance to explain himself. Some employers will be convinced and some won't -- but that's exactly what happens with any job competition regardless of your resume'. It's also the way it has to be unless we want to force employers to hire whomever the government says -- a dictatorial power that no serious person supports.
Posted by: Bill Otis | Mar 5, 2023 8:09:26 PM
And people like you have the nerve to call me a “fascist.”
Posted by: TarlsQtr | Mar 5, 2023 8:44:49 PM
Above comment was to lknds.
Posted by: TarlsQtr | Mar 5, 2023 8:45:26 PM
TarlsQtr: I don't know which people are "like me," nor who has called you a fascist. To the extent you are characterizing my view as fascist, it's hyperbolic. It's not uncommon to take some decisions out of peoples hands. Judges can preclude the introduction of evidence where potential prejudice is too high. Credit reporting agencies have to remove certain events that are too dated. There are other examples.
Bill: I think it's a bit much to call my suggestion Orwellian. Are the directives I noted above--where information isn't made available as freely as it could be--Orwellian? Putting aside that characterization, I like your idea of a requirement to interview, but that's not a current requirement, so it's still not the case that we really give people the chance to explain. As for whether that is the better remedy to what I suggest, I think that's an empirical matter. I don't profess to know the answer, but I doubt you can either. I'm glad, however, that we seem to agree the status quo is problematic.
Posted by: lknds | Mar 5, 2023 9:43:12 PM
TarlsQtr --
Haruuuuuuuumph!! I have never, ever called you a fascist.
Now racist...................................
Posted by: Bill Otis | Mar 6, 2023 2:24:13 AM
