Patchwork disclosure: Divergent public access and personal privacy across criminal record disclosure policy in the United States

• Published date: 01 July 2022
• Author: Juan R. Sandoval,Sarah E. Lageson
• Date: 01 July 2022
• DOI: http://doi.org/10.1111/lapo.12193

ORIGINAL ARTICLE

Patchwork disclosure: Divergent public access and

personal privacy across criminal record disclosure

policy in the United States

Juan R. Sandoval

1

| Sarah E. Lageson

2

1

Department of Criminology, Law and

Society, School of Social Ecology, University

of California, Irvine, Irvine, California, USA

2

School of Criminal Justice, Rutgers

University-Newark, Newark, New

Jersey, USA

Correspondence

Juan R. Sandoval, Department of

Criminology, Law and Society, University of

California, Irvine, 2340 Social Ecology II,

Irvine, CA 92697, USA.

Email: jrsando1@uci.edu

Abstract

Scholars have paid minimal attention to state statutory

guidance that allows criminal justice agencies to dis-

close records that contain personal information about

arrestees, defendants, and incarcerated people. We ana-

lyze US state policy for police, courts, prisons, and

record repositories (N=200). Most states restrict

access to compiled criminal histories, but nearly all

allow broad public access to agency records. Divergent

policy guidance accounts for these differences, where

transparency laws govern agency records while state

criminal codes regulate records of arrest and prosecu-

tion, otherwise known as RAP sheets. These policy dif-

ferences contribute to widespread disclosures of non-

conviction records, raising questions about due process

and inequality in the big data age.

1|INTRODUCTION

Twenty years ago, the Bureau of Justice Statistics warned of a “smokestack approach”to crimi-

nal record access. The agency warned that different bodies of law governed access to a growing

collection of criminal records maintained across institutions (Bureau of Justice Statistics

[BJS], 2001):

one body of law for the comprehensive CHRI maintained by law enforcement at a

central State repository (sometimes referred to as a “rap sheet”); an entirely sepa-

rate body of law regulating the dissemination and use of the very same records

(albeit, not as comprehensive or complete) maintained in the courts; another sepa-

rate body of law and policy for the collection, use, and dissemination of this infor-

mation by various commercial compilers; and a different set of laws for the media’s

handling of this information (p. 1).

DOI: 10.1111/lapo.12193

©2022 University of Denver and Wiley Periodicals LLC.

Law & Policy. 2022;44:255–277. wileyonlinelibrary.com/journal/lapo 255

While the agency’s report offered a roadmap for reform, it remains largely unknown whether

and how public policy has evolved to address this patchwork approach to controlling criminal

record information.

In the meantime, technology has dramatically changed the availability and uses of criminal

records. In its report, BJS foresaw the changing marketplace for public record data, noting how

private companies are beginning to “harvest”and commercialize public record information,

such as arrest and conviction information. Consequently, they further forecasted that once in

the digital space, “companies or their customers may merge criminal records information with

an individual’s education, employment history, credit history, and other records . . . to create

informal but, nonetheless, powerful and comprehensive reports”(BJS, 2001, p. 57). This predic-

tion has proven to be prescient; today, the digital context has raised urgent new questions about

the dissemination and accuracy of aggregated and stored criminal record data, which private

companies regularly use for a variety of analytic and commercial purposes.

In the United States, the growth of digital criminal records has reached a substantial new

magnitude and continues to expand. In general, a permissive legal landscape has allowed for

the release of personally identifiable information (PII) contained in criminal record data

(Corda, 2016; Goggins & DeBacco, 2018; Lageson et al., 2021). With technological advance-

ments, non-conviction and criminal conviction records are now readily available through pri-

vate background check services, mugshot websites, and on local government websites

(Jacobs, 2015; Kaspero & Canhasi, 2018; Lageson, 2020). Uses for public criminal records

include deterrence, punishment, and information-seeking (see Horwath, 2018; Nashrulla &

Grygiel, 2019). Private data brokers use criminal records for profit-seeking enterprises, turning

governmental records into a valuable data commodity that results in sprawling, extralegal digi-

tal punishment (Lageson, 2020; see generally Rostron, 2013) and a new iteration of penal entre-

preneurialism (Feeley, 2002). In this light, we have reached a new, big data era in the “culture

of control”(Garland, 2001), whereby criminal records regularly function as a new “deviancy

control system”(Cohen, 1985), creating a difficult-to-rectify situation in which managing one’s

digital identity is nearly impossible (Corda, 2016; Corda & Lageson, 2019).

Nonetheless, knowledge remains scarce concerning the legal authority that guides disclosure

of criminal records, particularly as records have transformed in form and function in the digital

age. Broadly speaking, formal criminal records include arrest, non-conviction, and conviction

records that are regularly disseminated by the court, law enforcement, and corrections agencies.

However, as BJS pointed out in 2001, each type of criminal record has been historically

governed by separate and distinct policy guidance. Statutory guidance regulating the release of

criminal history information shifts substantially based on the type of record and the source of

law that governs it. These divergent trends invite an empirical assessment of the policies and

legal authority that guide criminal record disclosure across the United States, particularly as

these records are aggregated into big data.

This study analyzes state-level legal authority governing four types of criminal record disclo-

sure in each state: police records, criminal court records, correctional agency records, and state

criminal record repositories. We seek to better understand the policy context that allows for

broad dissemination of criminal history information by directly analyzing the law that allows

various types of criminal history to be treated differently by different legal regimes. Specifically,

our analysis aims to answer the following questions: (a) what policies govern variations in the

availability and types of public criminal record data? (b) what notions and principles guide

accessibility across public records systems? and (c) what are the implications of policy differen-

tials in a digital environment?

We find divergence in the types of criminal records produced by the state: a criminal record

can be conceptualized as referring to a single record documenting a specific legal interaction (a

record of state action) or a compiled history of an individual’s multiple legal cases (a record of a

person). The policies that commonly regulate records of state action allow for nearly unfettered

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