Fundamental Rights and Legal Consequences of Criminal Conviction
Scholars writing about the consequences of criminal conviction in the United States have generally paid little attention to analogous laws and policies in other countries. Even those critical of the ‘American Way of Punishment’ rarely bother to examine more enlightened practices from other countries with which we tend to compare ourselves. (A notable exception is the recent interest in studying prison conditions in some European countries for what they can teach U.S. corrections authorities about rehabilitating those serving prison sentences (see, e.g., Ahalt et al., 2020).) For more than a half century, there has only been one study comparing the so-called ‘collateral consequences’ of conviction in this country with those in other countries. Nora Demleitner’s admirable 2018 essay is the only serious comparative treatment of collateral consequences in America and Europe since Mirjan Damaska’s two-part article published in 1968 (Damaska, 1968; Damaska, 1968; Demleitner, 2018). Given the importance of this subject for criminal justice reform in the United States, scholars and advocates in this country ought to welcome the essays in this new volume by European scholars and practitioners, aptly described by its editors as “a significant and under-researched area of law and criminology” (p. 3).
And yet some U.S. readers (including this reviewer) will find many of these essays hard going because the foundational premises of European legal systems are simply not replicated in our own. One of these premises, which is unquestioned (and usually unstated) in each of the essays in the volume, is that giving the public broad access to criminal records would be contrary to ‘fundamental’ considerations of privacy and human dignity protected by the European Convention on Human Rights, which implicitly limit loss of liberty and public stigmatization through disclosure of a past crime. Substantive concepts like utility and proportionality also constrain European lawmakers in authorizing access to records. Other individual rights, such as the right to work and to participate in civic affairs, are less universally protected in European constitutions but still have an outsize limiting influence on collateral consequences in many countries. As a result, American reformers looking for guidance and inspiration from the European experience must approach this book with humility and constrain their envy.
The European emphasis on privacy and dignity explain why laws and policies focus on access to criminal records, as opposed to formal restrictions on employment, housing, and voting. Thus, we learn from these essays that, in many if not most European countries, specific legal limits on individual rights and opportunities are rarely imposed by law on a categorical basis (driver’s license suspensions are one exception), although restrictions on opportunities and benefits may be imposed by courts as part of an individual’s sentence. We also learn that most of what we call collateral consequences are administered by giving certain parties the right to require applicants to produce their criminal records, and to reject those whose record is considered disqualifying. In no case may anyone (other than law enforcement) access a record directly; they must ask its subject to produce it. Moreover, the record that an individual produces for an authorized individual will have been curated by public officials at the records repository so that it contains only information considered directly related to the opportunity or benefit on offer. This is critical: in most cases employers and other authorized persons will not see all of a person’s criminal record, but only those parts of it that are officially deemed relevant in the specific circumstances. Individuals asked to produce their record may decide that the uncertainty of benefit is not worth the risk of exposure. In this fashion, individuals may take responsibility for achieving their own social redemption even if they lose an economic opportunity.
An overarching programmatic goal explains why criminal records are not easily accessible in European countries and are easily expunged: supporting the desistance process and recognizing desistance once achieved. Indeed, the law in some countries recognizes a “right to legal rehabilitation…underpinned by human dignity” (p. 11). Essays on the management of criminal records in Germany, Hungary, Switzerland, and Greece illustrate how these assumptions of reintegration and rehabilitation inform specific disclosure policies in these countries, and how restoration policies focus on an individual’s record of desistance rather than their risk of recidivism. By contrast, a “dystopian account” of Australia’s increasing reliance on preventive and data-driven policing, most notably in its immigration policies, should provide “a cautionary tale” for European lawmakers here and abroad who might be tempted to adopt features of that country’s “jurisprudence of risk” (p. 11).
One would be forgiven for thinking that America’s approach to those with a criminal record has quite a bit in common with Australia’s. Indeed, Nora Demleitner could have been describing Australia’s philosophy when she noted that “punitiveness, attitudes of exclusion, and fear of the risk of reoffending lead to offenders virtually ‘exiting’ American society, often without hope of reentry from outside this virtual—and for immigrant offenders physical—border” (Demleitner, 2018, p. 488).
England and other countries in the United Kingdom have taken a different path on disclosure of criminal records since enactment of its Landmark Rehabilitation of Offenders Act in 1974, gradually but systematically shifting the balance further away from individual rehabilitation and closer to protection of the public through broader disclosures. Still, even in the UK, criminal records are available only from a central state registry according to a three-tiered system of access and only when their subject authorizes disclosure to an authorized individual. While a system of ‘filtering’ allows for offenses to be gradually omitted from a person’s background over time, the regime’s original commitment to reintegration has been eroded over time for both adults and juveniles. Still, in contrast to records systems in the U.S., the UK has a single records system from which all authorized disclosures are made, so that it is exponentially easier to administer.
In short, as described in this fascinating volume, European legal systems incorporate basic privacy limits on disclosure of criminal record information that advocates in the United States have found hard to secure against an unchecked public desire for information about others with whom they may interact, reinforced by our long history of demonizing people with a criminal record. The premium the European legal system places on individual privacy means that the government maintains strict controls over who is privy to criminal record information and under what circumstances, and rations access through a graduated system of disclosure depending upon demonstrated need. In America, the ‘right to be forgotten’ has never existed in legal or social principle and disappeared as a practical matter with the closing of the frontier. And our government has never stepped up to defend individuals’ privacy rights once they run afoul of the law.
This may at last be changing, as American legislatures are at last recognizing the damage done to our social and economic fabric by creating such a large class of what Nora Demleitner first called “internal exiles” (Demleitner, 1999, p. 157). Reformers in this country may invoke the European experience as they advocate for limiting access to and use of criminal records in service to a shared ideal of rehabilitation. This volume will be an invaluable tool in this effort.
Ahalt, Cyrus, Haney, Craig, Ekhaugen, Kim & Williams, Brie. 2020. “Role of a US–Norway Exchange in Placing Health and Well-Being at the Center of US Prison Reform.” American Journal of Public Health. 110(S1): S27–S29.
Damaska, Mirjan R. 1968. “Adverse Legal Consequences of Conviction and their Removal: A Comparative Study.” Journal of Criminal Law, Criminology & Political Science. 59(3): 347–60.
- 1969. “Adverse Legal Consequences of Conviction and their Removal: A Comparative Study (Part 2).” Journal of Criminal Law, Criminology & Political Science. 59(4): 542–68.
Demleitner, Nora V. 2018. Collateral Sanctions and American Exceptionalism. In Kevin R. Reitz (Ed.), American Exceptionalism in Crime and Punishment (pp. 487–526). Oxford University Press.
- 1999. “Preventing Internal Exile: The Need for Restrictions on Collateral Consequences.” Stanford Law & Policy Review. 11(1): 153–71.
Margaret Love, Executive Director, Collateral Consequences Resource Center.