Symposium 2024

This Article explores criminal record expungement policy in the United States through the lens of privacy interests. Embarking on a historical policy analysis spanning from the 1950s to the 2020s, it unveils the evolving interplay between privacy rights and the shifting tides of rehabilitative and punitive ideologies and policies in the criminal legal system. The analysis shows that privacy concerns initially emerged as a silent underpinning of rehabilitative policies where privacy was recognized as key to rehabilitation but were subsequently dismissed in the “tough-on-crime” era, where emphasis was placed on public punishment and labeling in the name of public safety. The Article then posits that contemporary strides in criminal record expungement legislation and the embrace of automated record-clearing processes through algorithmic means find their roots in our current moment that emphasizes personal data privacy alongside criminal justice reform.

The Article argues that in the current data-driven landscape, informational privacy — the right of individuals to control and protect their personal data from unauthorized access or disclosure — has emerged as an essential yet often understated element in legal reforms addressing criminal record discrimination. These reforms are unfolding against the backdrop of societal calls for safeguarding individuals against lifelong stigmatization and unwarranted surveillance. Privacy considerations, serving as a surrogate for rehabilitation, also help avoid “soft on crime” criticism, redirecting attention toward providing individuals with an opportunity to rebuild their lives free from perpetual judgment.

However, the Article also introduces a nuanced perspective, cautioning against unbridled optimism in these technological advancements meant to mitigate the collateral consequences of having a criminal record. Specifically, it scrutinizes the potential pitfalls inherent in the algorithmic automation of record clearance processes, as technological realities may also undermine the purported success and fairness of recently enacted criminal record clearance mechanisms. Ultimately, the Article contributes a timely and critical analysis that not only illuminates the historical trajectory of privacy considerations in criminal record expungement law and policy but also injects a note of caution regarding the implications of contemporary technological solutions.