We've become a nation of digital scarlet letters.
Nearly every crime is now entered into massive databases that track transgressions nationwide. Increasingly, these databases are available to almost anyone for the asking -- law enforcement, border agents, foreign governments, future employers, even nosy neighbors.
Because of these perpetually available records, there is sometimes no way to put a crime behind you, even after you've paid your debt to society. A short prison sentence for a felony assault -- or for throwing a cup of soda at a passing car – can become a lifetime criminal record, complete with public disgrace in our era's town square, the Internet.
Computers know no gray areas. In the digital world, bits are either on or off. So it is with digital justice. To a database, if you've ever been a criminal, you are a criminal.
Last month, Jessica Hall was freed from jail after serving one month in a Virginia jail for throwing a cup of McDonald's soda at a driver who cut her off on the highway. The crime was throwing a “missile” from a moving vehicle, a felony in Virginia. Hall, a 25-year-old mother of three, is caring for the children by herself while her husband serves his third tour of duty in Iraq.
She won a legal victory in February when a judge reduced her sentence – originally slated for two to five years -- to time served and freed her from jail. Activists cried victory. But Hall, who aspires to attend nursing school, knows her fight is long from over. She has been tagged with a digital scarlet letter, and faces potentially perpetual challenges getting jobs, licenses, and applying to any school.
"Now people are going to see me as an angry, road-rage convicted felon," she told the Washington Post.
Trouble for the 'Clean Slate Clinic'
Margaret Richardson sees this problem every day. As director of the “Clean Slate Clinic” at the East Bay Community Law Center near San Francisco, Richardson helps former criminals clear their records so they can rejoin the work force and become productive members of society. She said the center has helped 2,500 clear their records in the past 18 months.
Getting criminal records expunged from court records is often easy. Multiple programs allow convicts to clear their names after proving they've cleaned up their act. But clearing the digital mess left behind can be much harder, she said. Commercial background database vendors gobble up criminal records, but many are not nearly as efficient at deleting records that have been expunged by the court system, she said.
"These databases take a snapshot of someone's record, then put it out in perpetuity," she said. "There's little oversight of the databases, and even less interest in updating people's information in them."
Richardson spends most of her time helping "wobblers." In California, some crimes can be charged either as felonies or misdemeanors. On that list: possession of firearms, driving while intoxicated, domestic violence, even petty theft with prior convictions. Those convicted of such "wobbler" felonies can appeal to have their record reduced to a misdemeanor after completing probation.
The reduction is hardly trivial. Many firms won't hire a person with a felony record. Richardson, who represents 30 to 40 clients a week, says judges often find room for mercy when her clients show they've cleaned up their act. Databases are far less forgiving.
"There is no requirement in the law that databases be updated in a certain amount of time," she said. "The person has to follow through and make sure the database is updated."
Richardson’s clients are reluctant to discuss their cases, as a story about their situation would also create a permanent electronic record of their felony conviction on the Internet. But she relayed the story of a client named Rachel who was convicted of a sex offense for public exposure years ago. Rachel was a drug addict at the time, and working as a prostitute to pay for her drug habit. Rachel, now clean, is stuck with minimum-wage jobs while trying to clear her sex offense record.
'Information can never be bad'
Firms that provide background checks say they have a duty to provide the maximum amount of information in their reports. Naveen Jain, who co-founded the information broker Intelius.com, says simply that "information can never be bad." Clients who order background reports deserve the maximum amount of information available, he argues.
Ed Peterson, also an Intelius co-founder, rejects the idea that, in this database era, it's harder for reformed criminals to escape their past and begin a new life.
"When we lived in smaller communities, 100 years ago, the whole community knew about (crimes)," he said. "Now we live in a transient society. ... It's easier to get away from your record now."
Intelius updates its records constantly, he said, removing felony convictions when notified by courts to do so. But he admits keeping the data up to date is a challenge because "every jurisdiction does things differently."
Consumers with erroneous records can appeal to the firm for corrections, he said. Generally, such errors originate with the jurisdiction that sells the data to his company, he said, and those seeking corrections must appeal to the original provider.
Firms like Intelius provide a critical tool that prevents criminals from simply moving around and getting away with the same crimes again and again, he said. Even after criminals serve their sentences, employers should know if prospective employees have a record.
"Employers have a right to ask those questions," he said.
No second chance
But others worry that electronic criminal records are making America a society that has abandoned the notion of forgiveness. Daniel Solove, a law processor at George Washington University and privacy expert, says "online shaming" cuts at the very heart of a founding principle of America.
"The original settlers of America were people who wanted a second chance, to start anew," he said. "That is evaporating because of all the transfer of information."
Congress planned for this very problem long ago, Solove said, and in the 1970s enacted limitations on reporting of criminal records for employment background purposes. The Fair Credit Reporting Act forbids listing of most felonies on employment background reports after seven years from the end of the sentence.
Most states also recognize the problem of perpetual felony records, and offer various processes to give reformed criminals a chance at a clean slate, he said. But crime databases can make that largely impossible. While federal law limits the time criminal records can be revealed to future employers, no law limits the access members of the general public can have. Your new neighbor can pay $50 to Intelius and see your criminal past at any time, reaching as far back as your teen-age years.
"Increasingly convictions are really becoming these permanent anchors preventing people from basically starting anew … data forever affixed to someone's identity like a digital scarlet letter,” Solove said.
The Web of scarlet letters may be wider than you think.
Smoked pot? You could be barred from Canada
Legal experts believe the sharing of crime data will pop up in more places as time passes and create unexpected problems. Those with long-ago crime records have always been legally prohibited from entering Canada, for example. Our northern neighbor, however, had few tools for enforcing the rule. Until recently, that is. The San Francisco Chronicle last month revealed that tourists are now frequently stopped at the border and turned back for convictions dating back to the 1970s -- for crimes as trivial as marijuana possession.
"With a (criminal) record, you have no right of entry (into Canada). They do not have to give you a reason for rejecting you or tell you the source of the information," said Chris Hoofnagle, a research fellow at Stanford University's Center for Internet and Society. "When you look at the percentage of Americans who have interaction with law enforcement, it's a huge percentage of the population and the problem is getting bigger and bigger."
If Nathaniel Hawthorne were alive today, perhaps the author of the novel “The Scarlet Letter” would be writing about companies like Intelius rather than Puritan New England. His heroine, Hester Prynne, managed to win a reprieve after being found guilty of adultery by impressing her community through consistent works of charity. One wonders if she would be able to repair her reputation as effectively today.
"The legal apparatus has systems in place that were set up centuries ago ... part of those processes is that somebody's status can change," Richardson said. "But the way these (databases) were set up, the opportunity for people to change status is not accommodated."