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Kenneth R. Rosen: When a Clean Record Can’t Change its Spots

How criminal records keep punishing long after they were intended to.

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Image courtesy of Flickr user George Self.

By Kenneth R. Rosen

No one is immune: The businesswoman caught in travel limbo, held up at US Customs for an offense committed in college. An arrest that spurred no legal action. The mother of three whose arrest record, believed to have been expunged, was sowed decades before during rows with her significant other. A lone parent with remedial arrests for failing to pay child support, because he couldn’t find an employer that would hire and sustain him. 


What lingers after an arrest—long after the trial, restitution, adjudication, sentencing, release, time-served and probation, or hope for the sealing and expunging of records—is depthless anxiety over a record that won’t go away.

Nationwide, 70 to 100 million people have some form of criminal record, which bars them from voting, obtaining licenses and having parenting rights. While many states are working to offer more records sealing options so that time served is just that, and while Virginia struggles to re-enfranchise some 200,000 of the state’s former criminals, subtle hurdles still exist.

Consumer reporting agencies are tasked with providing accurate background information to a litany of public and private entities. They stockpile arrest records, information about debt and other credit issues, and rarely update them. So when a person has an arrest record expunged, the old files with the information about an arrest that should no longer be public are still available.

That, many are arguing, is a breach of constitutional rights.

Five major lawsuits against employers who used ineffective and illegally obtained outdated records for employment checks were filed in 2010, with more lawsuits on the way.

“As many things we can do to remove the burden of a criminal record, we should do,” said Alison Wilkey, the re-entry policy director of the Prisoner Reentry Institute at John Jay College of Criminal Justice. “There’s no sense in disenfranchising Americans as part of the American dream.”

While the Fair Credit Reporting Act (FCRA) was essential to creating a means by which consumers could redress grievances for negligence, not just for malice, the reporting system is overwhelmed.

The Freedom of Information Act filed with the Federal Trade Commission, the agency tasked with overseeing consumer reporting agencies and subsequent complaints, revealed little more than a muddied system of reporting offenses against the Federal Fair Credit Reporting Act. But in the last five years, from New York, New Jersey, Georgia, Florida, Texas, Illinois, Washington and California, more than 9.1 million complaints were filed by consumers.

The recent surge in public interest for rehabilitative justice has shed light on several cases. Five major lawsuits against employers who used ineffective and illegally obtained outdated records for employment checks were filed in 2010, with more lawsuits on the way. Of those, what can be gleaned from open records searches reveals several pending against large reporting agencies, and many resulting in large judgments.

While going public to combat tainted records might seem antithetical to hiding the lingering offenses, many former convicts are left with no other choice.

Some states, like Massachusetts, have in recent years restructured the programs that allow for the release of offender records to non-criminal justice communities. Instead of relying on outside, third-party agencies, employees must go through the statewide Criminal Offender Record Information support services unit. The lack of regulation uniformity across our state governments is part of the problem.

A small, diligent group of lawyers has taken on the fight against the consumer-reporting agencies that gather public records and brought it to the federal level with Spokeo v. Robins, a case recently heard by the United States Supreme Court and remanded to a lower appeals court last month. While going public to combat tainted records might seem antithetical to hiding the lingering offenses, many former convicts are left with no other choice.

Spokeo, the online search engine that organizes “White Page listings, Public Records and Social Network Information to help you safely find & learn about people,” is just one example of intangible harm, unlike housing or employment opportunities.

“If I had a felony for assault with a deadly weapon and that’s out over the Internet, I think that’s damaging,” said Sam Easton, an Austin-based lawyer who handles Fair Credit Reporting Act violation lawsuits.

At issue was whether cheap alternatives to background checks—mug shot aggregators, Find An Inmate websites—constitute actual harm or injury. Think of this as a blanket covering all personal information, including the records of consumer reporting agencies: what remains available and what needs dismissing? And what further can we do to keep private records sealed?

For now, those with sealed or expunged criminal records face the same discrimination as a recently released Class A felon.

“If the ‘no-injury, no-harm’ standard grows, we could see an explosion of suits both from individuals and classes alike,” said Kathryn Rattigan, an associate at Robinson & Cole LLP who has written about the case, referring to the standards that dictate what can or cannot be considered damning over the Internet.

For now, those with sealed or expunged criminal records face the same discrimination as a recently released Class A felon.

Hartman King, an investment banker who was charged with assault, had his record expunged, and then was still repeatedly denied housing, now operates the website The Expunged Record, which aims to help those who are embattled by false reporting agency data.

While the courts wait to decide, he continues to hear stories about the first time someone learned their past was still with them, even with a record they believed was clean. Only after an application for a new rental apartment, a mortgage, or higher education institution was rejected did it become clear that something that was long since erased and forgotten had started showing up again.

“Consumers are helpless,” Mr. King said.

Kenneth R. Rosen works and writes for The New York Times.

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One comment for Kenneth R. Rosen: When a Clean Record Can’t Change its Spots

  1. Comment by Kalee OConnor on September 7, 2016 at 10:21 pm

    Kenneth, I have a friend who is incarcerated and she recently received a letter from you. What is your interest in her?

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