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When people commit a criminal offense, many don’t know the never-ending implications of that offense. Once people become offenders, it seems impossible to get rid of that label. After release, ex-offenders have many challenges ahead. Unfortunately, once someone has a criminal record, they have to live with the burden of expectations associated with it (Quinn, 2017, cited in Moore, 2017). First, this essay will analyze the collateral consequences of punishment, especially when it comes to employing ex-offenders. It will then analyze the access to criminal records in the United States, and Europe, and see which model is the best. This essay will prove how the way a country allows access to criminal records says a lot about how ex-offenders are viewed and how important the criminal label is. If the offender is branded publicly because of their past, the chances of successful reintegration are slight (Pager, 2007 cited in Jacobs and Larrauri, 2012). Finally, this essay will present the case of sex offenders and look at the harsher collateral consequences of sexual offenses. The final part of this review will explain how the American model keeps punishing offenders even after release and how this model never allows the rehabilitation of ex-offenders, and how people have to carry publicly the label of criminal throughout all their lives according to this model.
When an offender completes their sentence, they still face consequences coming from their past crime. These consequences can be formal, discretionary, or informal. Formal consequences are imposed by the law and can’t be evaded. Discretionary consequences depend upon the access of organizations to criminal records and what they want to do with them. Informal consequences are based on the fact that people with a conviction are excluded from certain voluntary positions, jobs, social opportunities, and communities. The use of criminal records and the discrimination they cause are part of the discretionary consequences of punishment. They carry labels, stereotypes, discrimination, and status loss for people who have one (Link and Phelan, 2001 cited in Lageson, 2021). Criminal records are now accessed by private actors such as landlords or employers, who have the power of attaching the label criminal to someone (Lageson, 2021). When getting out of prison, ex-offenders have many challenges ahead: the need to secure a job, stay sober, find a house, and be financially secure (Moore, 2017). Having a criminal record makes it very difficult to find a job and access government funds and aid. It’s known that having a criminal record is negatively associated with future employment and earning potential (Freeman, 1987 cited in Pager, 2003). This is particularly true for young black men. First, 3 in 10 black men are likely to go to prison in their lifetime, this increases when talking about young black men who dropped out of high school. The figure states that 5 in 10 black men will serve a sentence in their lifetime (Pettit and Western, 2001 cited in Pager, 2003). Pager’s study (2003) proves the importance of race and criminal records for employers. In 50% of cases, employers were unwilling to hire a qualified applicant based on their criminal record. It gets even worse for black men, given the percentage of callbacks. Only 14% received call-back compared to 34% of white non-criminals. Even white men with criminal records had a higher call-back percentage than black people without a criminal record. it seems that employers, already reluctant to hire black people, are even more suspicious of blacks with criminal records (Page, 2003). People with a criminal record are stigmatized and this might lead to withdrawal from situations where discrimination might arise (Miller and Kaiser, 2001 cited in Moore, 2017), which has further implications for re-entering the community (Moore, 2017). Offenders have to live with the burden of having a criminal record and all the expectations associated with that identity (Quinn, 2017 cited in Moore, 2017). Besides that, they are discriminated against in the employment process and further marginalized.
Criminal records serve two functions. The first one is to inform and provide background on an individual’s misconduct, and the second is to punish. While the production of criminal records has always been an internal operation of criminal justice agencies, now private players are actively producing criminal records too (Corda and Lageson, 2020). The way publicity of criminal history is handled by the criminal justice system has important implications for the convicted offender’s future (Jacobs and Larrauri, 2012). Criminal records in the States are easily accessible by the public in three different ways. First, the federal and state criminal record repositories release criminal record information to all federal, state, and local law enforcement and finally to authorized public and private agencies. Second, anyone who wants to find out if someone has a criminal record can inspect and copy court records, which are also available online (Morrison, 2009 cited in Jacobs and Larrauri, 2012). Thirdly, people can obtain criminal records from private information vendors for a small fee. If a person obtains information about a criminal conviction, the First Amendment protects their right to pass that information along and publish it (Jacobs and Larrauri, 2012). Because of this freedom of information, a robust marketplace has taken place to collect, and repackage public records into consumer goods (Jain, 2018 cited in Corda and Lageson, 2020). Data brokers pay courts for bulk data sets, then integrate that data with consumer data, and then sell it to check services, market research companies, or even back to law enforcement (Etzioni, 2016 cited in Lageson, 2021). As seen, criminal records are a source of data for predictive algorithms. Big Data has transformed criminal records from an internal state tool to a piece of risk assessment given to employers, landlords, and other third parties (Lageson, 2021). However, this is specifically an American case, because private actors in Europe have to find some ways around regulation to access information about individuals’ criminal histories. European criminal records are less visible and considered internal affairs of the justice system (Demleitner, 2018:488 cited in Corda and Lageson, 2020). Preventing the indiscriminate labeling of individuals with a criminal past by the public is considered essential to social reintegration and to reducing recidivism by the EU (Council of Europe, 1984 cited in Corda and Lageson, 2020). The way Spain handles the disclosure of criminal records says a lot about its views on ex-offenders. The Spanish Criminal Code states that only courts and certain police agencies have access to criminal records, and court files and criminal judgments are to remain unavailable to public inspection. The vast majority of penal judgments, unless they involve notorious cases are never known. Only Supreme Court’s and Appellate Court’s decisions are published and even then, names and other identifying elements stay anonymous. This is explained by the right to honor and the right to privacy in the Spanish Constitution. The right to honor is the right to a good reputation and the right not to be humiliated in front of others. An example could be that someone is a prostitute and the disclosure of that violates her right. Spanish courts do not focus on whether what is disclosed is true or not, but on whether the communicator had the right to disclose that information. Right to privacy states that the Spanish Constitution guarantees the protection of the personal sphere from public scrutiny (Jacobs and Larrauri, 2012). Spanish lawmakers believe that making criminal records available to the public would go against the rehabilitation and social integration of ex-offenders (Grosso, 1983 cited in Jacobs and Larrauri, 2012). This model is quite different from the American one, where there is the assumption that there is no such thing as an ex-offender, but only people who have committed a crime and will re-offend (Lageson, 2021). US policy reflects the belief that people should be informed about the character of who they employ, rent accommodation to, or enter into business arrangements (Jacobs and Larrauri, 2012). People with criminal records have more protection from the law. The Rehabilitation of Offenders Act of 1974 established a rehabilitation period, after which an offense is considered spent and the offender rehabilitated (Dworkin, 1975 cited in Custer, 2018). As of 2014, the rehabilitation periods were greatly reduced. Incarceration sentences of 0-6 months have a 2-year rehabilitation period; sentences of 6-30 months have a 4-year period; and sentences of 30 months-4 years have a 7-year period (Ministry of Justice, 2014 cited in Custer, 2018). Sentences over 4 years are never spent and are always subject to disclosure (Ministry of Justice, 2014 cited in Custer, 2018).
Sex offenders not only have a criminal record but are listed on a sex offender registry which is stigmatizing for both the individual and their family (Goffman, 1963 cited Tewksbury, 2005). Both the United States and require sex offenders to register personal information with law enforcement officials (Long, 2009). The surge of sex offender legislation in the United States mirrors the public’s fear and opinion toward sex offenders. The approach is considered more reasonable though (Kate, 2013). Today, in the US, sex offenders’ registration and public access to information about sex offenders and their residences are available in almost all jurisdictions (Tewksbury, 2005). In 2010, there were over 700,000 individuals were identified as sex offenders in the US. Public notification of sexual offenders in neighborhoods exposes sex offenders to harassment and violence. Various murders have been caused by vigilante violence. Sex offenders are aware that authorities will notify the community when they enter. Currently, many states restrict sexual offenders to living within school and childcare centers (Long, 2009). This restricts access to sex offender information, contrary to the US (Long, 2009). There are currently around 50,000 registered sex offenders (RSOs) in Wales (College of Policing, 2016 cited in O’Sullivan et al., 2016). The use of the sex offender register was introduced in Wales as part of the 1997 Sex Offenders Act. This register contains the details of anyone convicted, cautioned, or released from prison for a sexual offense against a child or adult. It’s not a retroactive register, so it does not include anyone convicted before 1997(O’Sullivan et al., 2016). The has recently allowed families to have access to someone’s criminal record as a sexual offender if this person has a personal relationship and unsupervised access to their child (Home Office, 2008 cited in Lieb, Kemshall and Thomas, 2011)). New regulations require registered sex offenders to notify the police if they intend to travel outside for more than three days (Lieb, Kemshall, and Thomas, 2011).
This essay has critically analyzed the collateral consequences of punishment in both the US and looked at two different models. In the US criminal records, can’t be erased and are permanent, thus a US citizen with a criminal conviction is required to disclose it at all times (Custer, 2018). The label criminal in the US sticks with an ex-offender for all their lives and doesn’t let them try to create a better future for themselves. The wide access to criminal records in the States leads to the commodification of it and the further punishment of people. The European model is quite different and believes in the right to privacy and to honor an offender. However, limited public access to criminal records and court cases might make the criminal justice system processes more transparent. The scenario stands in the middle of the European model and the American one. Even if criminal records are a bit more accessible than those from other European countries, certain crimes stay on the criminal record for several years. However, the system seems to believe in the rehabilitation of ex-offenders, and certain offenses are spent after some time. All models are flawed, but at least the European ones are not as deterministic as the American ones, where ex-offenders are labeled for life with little to no chance of redemption.
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