Curbing Collateral Punishment in the Big Data Age: How Lawyers and Advocates Can Use Criminal Record Sealing Statutes to Protect Privacy and the Presumption of Innocence

By Borchetta, Jenn Rolnick | Boston University Law Review, May 2018 | Go to article overview

Curbing Collateral Punishment in the Big Data Age: How Lawyers and Advocates Can Use Criminal Record Sealing Statutes to Protect Privacy and the Presumption of Innocence


Borchetta, Jenn Rolnick, Boston University Law Review


INTRODUCTION

We have entered an era of big data in which law enforcement agencies are collecting and using an enormous amount of information about the public in daily investigative activities.1 In collaboration with technology giants such as IBM, police departments are implementing tools that allow for mass surveillance through databases that store a spectrum of information-from addresses to acquaintances, from cellphone locations to license plate movements.2 While a generation ago officers would have had to weed through paper files to investigate someone suspected of a crime, today some officers can use their department-issued smartphones to instantly access information from disparate and distance sources about a person they just encountered on the street.3

Arrests in general and arrests for misdemeanors in particular represent one discrete, and yet massive, body of information that is being collected and used by law enforcement agencies in this big data age.4 Police departments maintain information about contacts with the criminal justice system.5 That body of information reaches over sixty million Americans that have some kind of criminal record,6 including those who are arrested on felonies and misdemeanors.7 Between 2007 and 2016, there were close to four million misdemeanor arrests in the State of New York.8 At The Bronx Defenders, the public defender service where I am the deputy director of the Impact Litigation Practice, we represented over twenty thousand clients arrested on misdemeanor cases in 2017 alone.9 All of these criminal justice system contacts were uploaded into law enforcement databases.10

Arrest information can be used in myriad ways by various government entities. It can be used by law enforcement to direct police resources to certain locations;11 it can be used by prosecutors in bail applications;12 it can result in being labeled as a recidivist or gang affiliated, with potential immigration consequences;13 and it can be shared among government agencies and, in turn, could impact housing, employment, and family relationships.14 Moreover, because of racial disparities in police targeting, the use of data-and the collateral consequences of that use-disproportionately affects people of color.15

Meanwhile, a significant number of misdemeanor arrests result in dismissal or acquittal. In New York City, the number for dismissal alone is approximately fifty percent.16 At The Bronx Defenders, of our misdemeanor cases that closed in 2016, over ten thousand resulted in dismissals, acquittals, or adjournments in contemplation of dismissal ("ACD").17 The New York City Police Department ("NYPD") has a web of databases that collect information from a wide array of sources, including from the misdemeanor arrest records created by the department itself.18 The NYPD, in turn, uses arrest information for a host of investigative purposes, such as compiling photo identification arrays, determining whether to arrest or release, and interrogating witnesses.19 The NYPD also has said that it uses dismissed arrest records for "a variety of reasons."20 Indeed, records on file with The Bronx Defenders indicate that the NYPD maintains information about dismissed arrests in databases that are used for investigatory purposes.21 Given that the NYPD is a leading law enforcement agency in the United States, it is reasonable to expect that its practices might be emulated or followed in other jurisdictions. As a result, massive arrest information concerning legally innocent people is potentially being used by law enforcement agencies for surveillance and investigation.

Yet one readily available tool can curb this misuse of arrest data and its collateral consequences: Criminal record sealing statutes provide a mechanism to prevent arrest data from being used against people whose charges are dismissed. Criminal record sealing statutes exist in most states.22 Although they differ in scope and application, they are designed, to some extent, to protect privacy and the presumption of innocence when a criminal process fails to result in a criminal conviction. …

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