New York University Law School Professor James Jacobs, author of “The Eternal Criminal Record” (Harvard University Press), discusses the proliferation of electronic criminal records and the challenges they pose for a free society. (March 2015)

The following is a transcript

RAPHAEL POPE-SUSSMAN: Hi, I’m Raphael Pope ­Sussman of the Center for Court Innovation, and today I am speaking with James Jacobs, professor of criminal law at New York University and the director of NYU Center for Research in Crime and Justice. Jacobs is the author of the new book, “The Eternal Criminal Record,” which examines the public nature of criminal records and the impact they can have on everything from voting rights to employability for 16 million Americans.

Professor Jacobs, thank you for speaking with me today and welcome.

JAMES JACOBS: Thank you. It’s my pleasure.

POPE-SUSSMAN: So starting out, why do you write this book now?

JACOBS: I got interested in criminal records really in the early 2000s when I was working on a book about gun control and the Brady Law and the creation of the national instant check system, which enables federally licensed firearms dealers to determine instantaneously whether a prospective firearms purchaser has a criminal record. So I came at this from that kind of law enforcement perspective thinking that was truly an amazing accomplishment. Most people that work on criminal records come at it out of concern about collateral consequences. I too am concerned about collateral consequences. I deal with that in my courses and in some writing, but that was not my first impulse, and the book itself is not a book about collateral consequences. It’s a book about the information infrastructure of the criminal justice system.

POPE-SUSSMAN: Let’s talk about the 60 million Americans with criminal records. What does that include?

JACOBS: What triggers a criminal record is dependent upon the law of each state, and so states differ to some extent on the lowest level crimes. Here in New York we have a lot of crimes that have been redefined as violations and not all of those end up on your criminal record. Traffic offenses do not. Juvenile offenses also differ from one state to another. But a very interesting question is whether a criminal record includes arrests as well as convictions, and the general answer to that is, “Yes,” because our criminal records system is arrest-based. So once you are fingerprinted and booked, that establishes an arrest record and it is not normally erased even if you are not convicted.

POPE-SUSSMAN: Something that really stood out to me in the book is the difference between the American justice system, in which the right to know is privileged above all else, and the European system, where there’s more of a focus on the right to privacy. Can you talk about that?

JACOBS: Well, it’s a great example of American exceptionalism. I don’t think there are many if any other countries in the world in which criminal records are as public as they are in the United States, and I think that brings out our commitment to both free speech and to the transparency of governmental operations. Our court records have always been open to the public, to anyone who wants to see them.

In European countries, that’s not the case. You have to have a reason and convince the court you have a reason to look at a court record. Our police records are not open to anyone who wants to see them, but our state legislatures have passed many laws which give permission, authorization, to various industries and businesses and voluntary associations to obtain police records. There’s a big difference. In Europe they consider a criminal record to be personal information. Here we consider it to be quintessentially public information.

These are two different systems with different values. I don’t want to say one is right. There is a value to an open society. There is a value to open courts. But that also means that there’s negatives, and people are stigmatized by their criminal records, and they can’t be kept confidential.

POPE-SUSSMAN: Do you believe in a right to be forgotten?

JACOBS: I don’t really believe in a right to be forgotten. I don’t like the idea of changing history. To me it conjures up one of those movies about Eastern European dictatorships, and people going in and changing the historical record, and was this guy ever arrested or was he ever convicted for corruption. People have a right to know.

In general, I believe that we are better off with more information rather than less information. I’m one of these old fashioned guys who really has a strong commitment to First Amendment rights. I believe people have a right to speak and to convey information that they have. It’s also very difficult in the information age that we live in now to bury information.

POPE-SUSSMAN: Here in New York, low-level offenders are theoretically eligible to apply for a certification of rehabilitation, which pending completion of a sentence restores a range of rights and removes for example, legal barriers to employment. Why do you prefer this policy to the expungement or sealing of records?

JACOBS: Well, I think I do prefer certifications of rehabilitation to expungement. I don’t like changing history. There’s all kinds of confusions about changing history. A libel suit could come up. A newspaper could say this person now running for office, or such and such was once convicted of a crime. The person could sue the newspaper and say, “I’ve never been convicted of a crime because it was expunged; therefore it doesn’t exist.” You know, it doesn’t change.

We shouldn’t be thinking of changing history. History is what it is. I have no objection, in fact, I think it’s a sensible idea to try to help people overcome the bad and dangerous things they’ve done in their past. People do change. They can demonstrate that change. So maybe we should have more information rather than less, and this certification of rehabilitation is a step in the right direction. If the state recognizes that you have acted honorably and credibly and in a law abiding way since the time of your conviction, giving you the certificate to recognize that, I think is a very sound policy.

POPE-SUSSMAN: Homing in on the employability of former offenders. What is “Ban the Box”?

JACOBS: “Ban the Box” is a movement that started out in California, maybe a decade or more ago. A group of activists were lobbying to have the city of, I believe it was in San Francisco or Oakland, to stop putting on their employment applications, “Have you ever been convicted of a crime?” They said, “Eliminate that question because it screens out people to early in the employment process.” It can be used as an automatic screen so that anyone who puts, “Yes, I have been convicted” isn’t even considered regardless of the circumstances.

But the way that it was, and this isn’t always understood, the way that it was lobbied for in the beginning, anyway, and the way that it’s been enacted in many, many cities now and some states, is that it doesn’t mean that you’re never asked. It means that you’re not asked in the initial employment application, and so it gives the public employer a chance to look at you as an individual, and if they get to the point where they’re ready to make an offer, or you get fairly far down in the hiring process, then they ask the question, and they get the answer, and they’re looking at the answer in the context of someone for whom they’ve already developed a positive impression. So that arguably should be helpful.

POPE-SUSSMAN: You worry about the proliferation of intelligence databases that track persons who have not committed criminal acts, but are identified as likely offenders. Those labeled dangerously mentally ill or alleged gang members. What does it mean for American democracy that we’re becoming more and more reliant on these kinds of deterministic tools?

JACOBS: Well, part of this is the information revolution washing right across policing and law enforcement and courts. So we have the capacity to keep and create far more records than ever in our history. We can compile all kinds of databases and those databases can have all kinds of consequences. So if we keep a database, as I talk about in the book, on gang membership for example, there is some legitimacy to that. But people don’t get a hearing on whether they’re in the gang. They wouldn’t know whether they’re in the gang database.

We don’t know who has access to the gang database. For a gang database to make sense it has to be available to a lot of police officers who may come into contact with someone and have some legitimate reason to be interested in whether they are a member of a gang or not, as well as prosecutors. But that kind of information could be very detrimental to somebody, and it could also be inaccurate.

You know, it’s not all that clear what it means to be a gang member. So I mean we have to be very careful about putting those kinds of labels on people, and then doubly careful about who has access to that information. Because we don’t even know how accurate it is, and in fact as I talk about in the book and in some articles I’ve written, these gang databases have proliferated all over the place. So I mean, hundreds of thousands, perhaps millions of people are listed as gang members. It’s very hard to get off these databases once you’re in them. So I worry about that.

The issue of the dangerous mentally ill is very interesting because after the Sandy Hooks and some of the other mass shootings, there’s been a lot of calls for getting better intelligence databases on people who are mentally ill and dangerous so that they cannot purchase a firearm. Right? We don’t want people who are dangerous to have–so we create databases. Once we create a database and we insert somebody’s name and we populate the database with people’s names, we are labeling them as “mentally ill and dangerous.” Well, if I was an employer and, you know, the government has you on a list as “mentally ill and dangerous.” You know, and they won’t sell you a firearm, I’m not so thrilled about inviting you into my organization when there are hundreds of people who are applying for these jobs who are not mentally ill and dangerous.

Most people, the vast majority of people who have mental illness in their history are not dangerous. So if you can label people, whimsically label them, and they get onto databases as “mentally ill and dangerous’ without a hearing, without a way off, without knowing how they got on, I think that’s something to be very concerned about. And interestingly enough a lot of people in the mental health community have resisted cooperating with the government’s efforts to compile lists of people who are mentally ill and dangerous.

So now we have two groups competing. We have the people concerned about mass killings. They say, “What’s wrong with you? You should be giving us all this information so that we can prevent the next mass killing.” And then you have people in the mental health community saying, “This is so unlikely to prevent a mass killing, but what it is likely to do is to stigmatize hundreds and thousands and tens of thousands of people and maybe even deter them from seeking out assistance with problems of mental illness.”

So life is complicated.

POPE-SUSSMAN: I am Raphael Pope Sussman , and that was James Jacobs, professor of criminal law at New York University and the author of the new book, “The Eternal Criminal Record” from Harvard University Press. To learn more about the Center for Court Innovation please visit www.courtinnovation.org. Thank you for listening.