Expunged? Think Again.

A recent article in the New York Times speaks about the effect of technology on criminal expungment. But as Adam Liptak of the New York Times reports in Expunged Criminal Records Live to Tell Tales (10/17/06) (registration required) enormous commercial databases are quickly undoing the societal bargain of expungement — one that used to give people a clean slate and a fresh start. With credit reporting, the Government places limits on the information that can be told about a person’s financial past. Similar restrictions should be placed on the reporting of a person’s criminal past.

Daniel Solove’s Blog “Concurring Opinion” discusses this approach better than I can:

I think that the solution to this problem is for states making their records available to commercial databrokers to require them to promise that they will delete records when they are expunged and will correct records that initially had errors when a correction is later made to the record. This promise can be required as a condition of granting certain kinds of access (so long as the government isn’t constitutionally required to provide access to its record systems, it can require those seeking records to accept certain conditions in exchange for access). I explain why this approach is constitutional here. Unless something is done about the problem, people will lose the ability to expunge information from their records or to readily fix errors. Private companies are becoming one of the primary distributors of public records, and when they take on this role, they are often thwarting the existing balance the law establishes between privacy and open records.