The Eternal Criminal Record

Author: James Jacobs
Publisher: Cambridge, MA: Harvard University Press, 2014. 416p.
Reviewers: Shawn Bushway and Megan Denver | March 2016

A recent national estimate found that 30% of all youth will experience an arrest by the time they turn 23 (Brame et al. 2012). Arrest is simply the starting point for an individual’s involvement in the criminal justice system. This involvement is summarized in the individual’s “criminal record,” a record that was created for the benefit of actors in the criminal justice system but is increasingly used, in the United States at least, by actors (i.e., employers), outside the criminal justice system. The Eternal Criminal Record is an ambitious, detailed guide to understanding and critiquing this complex “criminal record” and the increasingly expansive role it plays in many domains of life in modern America.

Professor Jacobs’ long career in law and sociology and expertise in criminal law is reflected in the grounding and interpretation of topics and substantive issues throughout the fifteen chapters. While most of the current work on criminal records explores the topic from a narrow focus on prisoner reentry, Professor Jacobs takes a more comprehensive approach with a review of the role that criminal records play inside and outside of the criminal justice system. In that sense, the book is particularly well suited for students and laypersons interested in exploring and thinking through the complex issues surrounding the creation, management and use of criminal history records.

The first section of the book focuses on how criminal records are created and distributed. This includes details on how police use different information databases to look “backward” (investigative) and “forward” (intelligence), discusses the FBI’s creation of a national rap (record of arrest and prosecution) sheet system that links together information across local police agencies, provides an overview of court record systems, and analyzes how commercial information vendors have privatized the criminal record market. Chapters 2-4 are among the best available descriptions of this landscape, and should be a must read for any reader who wants to fully understand the bewilderingly complex American system of criminal records.

While the early chapters read like a descriptive and objective text book, Professor Jacobs starts to introduce advocacy in Chapter 5. He describes commercial information vendors’ resistance to following the Fair Credit Reporting Act (FCRA) regulations with a section provokingly titled “Blackmailers?” In this section, he paints a dark picture of the companies who profit off the sale of individuals’ criminal records, often to the direct detriment of those individuals. However, he concludes the chapter with the acknowledgement that regulating this information is challenging, both practically and conceptually. He closes the first part of the book with the warning that “There is something dangerous in leaving it to government to decide what information people should have and what information they should be denied” (90). This tension between what “people” (including citizens, consumers, employees and friends) “should” be able to access is the core problem that Professor Jacobs attempts to address throughout the book, using both legal and philosophical approaches.

Part II of the book starts with broad policy recommendations, including a call for decriminalization, reduced enforcement of laws, downgrading offenses (i.e., from felony to misdemeanor and from misdemeanor to violation), reduced use of criminal records in criminal sentencing and several other options to decrease the number of individuals labeled with criminal records (Chapter 6). The scope of these recommendations is breathtaking. Given their scope, the book does not contain nearly enough detail or defense of these suggestions, and they end up being distractions for Jacobs’ more mainstream recommendations for what could be done now to reduce the negative impact of the records on the lives of individuals with records.

Professor Jacobs is clearly not a fan of many of the practices that led to the creation and use of records. Therefore, it might come as a surprise to many readers that Jacobs advocates against sealing and expungement, a practice he believes encourages “lying” (131). Instead, he believes that records, while too widely distributed, should be visible and open to interpretation. For example, he discusses formal documents like New York’s Certificate of Rehabilitation, a rarely used document that confers on the individual a formal stamp of rehabilitation. However, even here he is conflicted, since requiring strong evidence of “rehabilitation,” often through long periods of abstinence from criminal justice involvement, means that the document itself will not be of much use in helping individuals become rehabilitated. But the moment these documents become vehicles for rehabilitation, they lose their effectiveness as official signs of realized rehabilitation for employers and other consumers of criminal records.

This fundamental tension between concealing and revealing information in Professor Jacobs’ work emanates not only from an admirable pragmatism (e.g., genuinely destroying all traces of a criminal record may be infeasible in this technological age), but also to his deep understanding and appreciation of legal and cultural issues. For example, Jacobs features First Amendment concerns (123) when describing the inherently public nature of records in the U.S. In part III, he compares the transparent American criminal record experience with Spain’s (and Europe’s) much more restrictive attitudes towards records.  He also discusses the predicaments of arrest records that do not lead to convictions, and reviews theories of punishment as they relate to criminal record transparency. His point that criminal records are a culturally and politically embedded phenomenon is an extremely important one and one that Professor Jacobs has been primarily responsible for highlighting. Indeed, his choice of the title The Eternal Criminal Record can be read not as criticism, but as a statement about the inescapable permanence of the record in the American context.

The last part of the book, Part IV, reviews the negative impacts of having a criminal record both inside and outside of the criminal justice system. A full chapter (Chapter 14) is devoted to the negative impact of having a criminal record on employment, an emphasis that arises in Jacobs’s strong belief, not fully supported by the available research, in the vital role of employment in the process of desistance and rehabilitation.

While Jacobs’s discussion of the complicated nature of these issues is valuable, at some points readers may find themselves circling, particularly when considering his policy proposals. For example, Chapter 13 concludes with a proposal that government agencies accept more individuals with criminal records, which in turn might encourage the private sector to follow suit. This seems like a reasonable proposition. In Chapter 14, Jacobs reiterates that federal and state governments cannot realistically protect individuals with criminal records in the private sector while simultaneously denying them government jobs and benefits.

However, he never makes it clear how federal and state governments might begin to tackle this problem and distinguish between individuals with records to work in these government positions. Jacobs notes correctly that it is difficult to pair disqualifying convictions with jobs or job sectors, and he raises serious questions about the ability of the current research to easily distinguish between individuals with different levels of risk. Yet, if this information is available, how should it be used, if at all? If Professor Jacobs believes that criminal record information cannot be used to accurately predict risk, than it makes more sense to advocate against the use of this information, rather than on its more intelligent use. Or, if on the other hand, he believes that the information can be useful, direct advice on the steps necessary to move to a more rational system that would benefit all stakeholders would be advantageous to all involved. Jim Jacobs is perhaps better situated than virtually any other academic to provide guidance on this question, and his unwillingness to more clearly stake out a path forward registers as our single biggest disappointment in the book.

Of course, given the complexity of the issues involved, it may be too much to ask of one book (and one author) to both describe the bizarre wonderland of criminal records in the United States AND provide a comprehensive prescription for radically transforming that landscape. This is particularly true given that the author who can so richly explain the sophisticated political and legal origins of the American situation is also almost too acutely aware of the potential pitfalls and problems facing any proposed reform. This book should be therefore celebrated for the clarity with which it describes the nature and evolution of criminal records in the United States. It necessarily falls upon readers to use this backdrop to develop, evaluate, and promulgate solutions that will create a fairer, more transparent, and more research-based system of criminal records in the United States.

Brame, R., Turner, M. G., Paternoster, R., & Bushway, S. D. (2012). Cumulative prevalence of arrest from ages 8 to 23 in a national sample. Pediatrics, 129, 21-27.

Megan Denver, PhD Student, School of Criminal Justice, University at Albany

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