Facing Your Criminal Record: Expungement and the Collateral Problem of Wrongfully Represented Self
Myrick, Amy, Law & Society Review
While substantial sociolegal research has analyzed the deleterious effects of criminal records on life outcomes, little has examined the records themselves, or their relationship to the people they represent. In this article I take a novel tact, treating criminal records as the material, textual documentations of an individual's past. I then observe expungement seekers-people who encounter their own records-to understand their reactions. From this data, I use inductive theories of symbolic interactionism to theorize another collateral effect of the criminal record: it represents people in ways that depersonalize their social identities, and prevents them from communicating corrective self-understandings to the governing bodies that author the records. I conclude with my main theoretical contribution: "having a criminal record," literally, means having a textual proxy that the state has authored on its own terms, without input from the people whom it permanently represents, and while concealing from those people the apparatus behind authorship. As a consequence, the criminal records system serves as a barrier to reciprocal communication between ex-arrestees and a legal system that represents them in ways that they may want to contest. This "wrongful representation" is a collateral effect of having a criminal record that impedes the ability of ex-arrestees to manage or repair their relationship with the state that has punished them.
Sociolegal scholars have demonstrated the socially rupturing effects of having a criminal record. People with records are barred from jobs, housing, and forms of public aid. They often cannot vote. Their personal, family, and community ties may suffer, and they are subject to increasingly elaborate types of public surveillance. Much of this work treats the criminal record as general source of information about past involvement with the criminal justice system, focusing on what happens when knowledge of such history becomes available to employers, agencies, law enforcement, and the like. In this article I document and theorize another aspect of the criminal record: it exists as a material, textual set of documents. Whether paper or electronic, records are not just sources of information; they are literal records, complete with a format, coding scheme, and typographic errors. Recognizing this material property of criminal records leads to the inquiry that I address in this article: what happens when peoples' criminal records become available to themselves, and what can this process reveal about the long term social consequences that former subjects of the criminal justice system experience?
I analyze the unique legal process of expungement to show that when people encounter their criminal records, a process of truncated interaction unfolds, in which people try to re-negotiate how they appear in text, but are unable to succeed because no communicative channels exist through which subjects can advance their self-perceptions to state record-keepers. People experience this "effect" of their criminal record when they encounter them long after criminal justice involvement has terminated, and apart from their instrumental desires to manage their records in order to obtain employment or other benefits. The literal criminal record thus serves to constrain the ability of some former subjects of the criminal justice system to assert their own self-understandings, even as they comprehend the extent to which their records distort them.
In the sections that follow I briefly review sociolegal literatures that begin to theorize the criminal record, but stop short of treating it as a material account that its subjects may confront face-to-face. I then discuss symbolic interactionism as the theory that emerged inductively from my fieldwork on expungement. Using ethnographic data, I document and theorize four common reactions that expungement seekers experienced when they confronted their own textual records: dispersion, categorization, conflation, and multiplication of the self. …