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Document Type

Note

Publication Date

Winter 2023

Publication Citation

30 Indiana J. Global Legal Studies 393

Abstract

The United States is exceptional among Western nations in its treatment of criminal records. Today, an estimated one-third of Americans1 bear the “modern equivalent of branding”: the publicly-accessible criminal record.2 Far from remaining locked in digital limbo, these records serve a variety of purposes, from legitimate law enforcement use to extortion against arrestees seeking to scrub their mugshots from a Google search.3 It would be natural to assume that such records result from an individual’s commission of a crime, for which the individual is duly convicted and then marked with the brand of the state for the transgression. But the scarlet letter of criminality enshrined in a record is often imposed in the absence of formal conviction, in the form of an arrest record. The widespread availability of these records leads to damaging collateral consequences for arrestees. This note will argue that a foundational interest in dignity, more prominent in Western European and international law than in the United States, can be a meaningful driver for criminal record reform in the United States. This paper will proceed in three parts. Part I will examine the treatment of criminal records in the United States, specifically those harms resulting from the widespread public availability of arrest records. Part II will examine Western European and international approaches to criminal records and how a robust interest in dignity has mitigated many of the issues faced in the American system. Part III will examine the opportunity for dignity to become a meaningful foundation for implementing criminal record reform in the United States.

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