Criminal Rehabilitation in the Digital Age
Criminal procedures usually carry collateral consequences. Upon rejoining society, individuals with a criminal history often face governmental and social restrictions on housing, employment, and educational opportunities, along with a revocation of other civic rights. In an effort to increase the chances of rehabilitation and reduce recidivism, many policymakers crafted expungement statutes—offering a legal process by which criminal history records are later vacated, reversed, sealed, purged, or destroyed by the state. In the pre-digital era, expungement statutes worked rather well. While an expunged criminal history could have lived on through public memory, newspapers or the activities of private investigators, its impact was rather limited: if one's records were expunged, one would have largely been treated by the public as if one never had a record in the first place. Digital technology, however, might lead to the extinction of criminal rehabilitation.
In the digital era, criminal history records that were expunged or sealed by the state could remain widely available through commercial vendors (data brokers) who sell this information to interested parties, or simply through a basic search of the internet. Many online service providers and hosting services enable the wide dissemination and accessibility of criminal history records, even if they were expunged. Legal research websites, websites that publish booking photographs taken during an investigation (mugshots), social media platforms, and media archives all offer access to expunged criminal histories, many times without charge, and all with the simple use of a search engine.
For jurisdictions that do not offer a so-called right to be forgotten or right of erasure for those with expunged criminal history records, this might pose a real threat to criminal rehabilitation. When the internet is packed with information on their wrongdoing, it leaves little chances of reintegration into society. Acknowledging the social importance of rehabilitation, American policymakers attempted to regulate the practices of data brokers by imposing various legal obligations and restrictions, usually relating to the nature and accuracy of criminal records and the purposes for which they may be used. But without legal intervention, these forms of regulations are insufficient to provide a fresh start, and thus rehabilitation in the digital age in the U.S. has become nearly impossible.
In my latest article, Digital Expungement, I explore the topic of criminal rehabilitation in the digital age. The article offers a legal framework for reducing the collateral consequences of expunged criminal records by offering to re-conceptualize the public nature of criminal records. It proceeds as follows: I begin with examining rehabilitation and expungement as facets of criminal law and exploring the challenges of digital technology to rehabilitation measures. Then, I evaluate and discuss potential ex-ante and ex-post measures that could potentially enable rehabilitation in the digital age. My argument is that while ex-post measures are both unconstitutional and unrealistic for enabling digital expungement, ex-ante measures could be a viable solution. I fear that regulating expunged criminal histories is highly insufficient in its current form and thus suggest implanting a graduated approach towards the public nature of criminal history records, which would be narrowly tailored to serve the interests of rehabilitation-by-expungement.
Eldar Haber, Faculty of Law, University of Haifa