Haunted by the Eternal Digital Record

The court of public opinion is ever-more swift and damning.
October 12, 2015 AT 11:00 AM
Many people who are arrested and never charged fail to realize a criminal record still exists and can haunt them forever, most notably in housing and job applications, but also in the court of public opinion. Shutterstock.com/Jinga
By Ron Littlefield  |  Senior Fellow
Ron Littlefield, a former mayor of Chattanooga, Tenn., is a senior fellow with the Governing Institute and its lead analyst on the City Accelerator initiative. A city planner by career, he also consults to government through Littlefield Associates.

Over 1.5 million Americans are currently incarcerated in state and federal prisons – a number that has quintupled since 1980. This mass incarceration and its negative effects – often for generations – on the incarcerated individuals, their families and even the cities in which they reside is well documented and an ongoing source of fodder for media and political leaders.

Against just such a backdrop, the City of Baltimore's work as part of the City Accelerator is exactly on point. The team's focus is to bring currently and formerly incarcerated individuals into the work of designing improvements to the re-entry system.  That begins with better understanding the needs of the target population.  That is important – and hard – work.

These issues extend well beyond Baltimore. They are, in fact, disturbingly common across the country. According to The Sentencing Project, more than 60 percent of formerly incarcerated individuals are unemployed one year after being released and those who do find jobs take home 40 percent less annually. It’s not surprising then, that according to a 2013 study, the U.S. poverty rate would have dropped by 20 percent if not for the rising levels of mass incarceration over the past few decades.

While these are startling statistics, what caught my eye recently was an article titled “Not guilty or charged? A criminal record can still haunt you.” It turns out that being arrested, but never convicted or even charged with a crime has its own long-term implications. Opposite of how the justice system is supposed to work, to be charged with a crime – or even arrested but never charged – is oftentimes largely the same as being convicted when it comes to perception and the negative aftermath. After an individual is arrested, the record remains in the system even if the case is not tried or is dismissed or if he or she is found not guilty.

The article discusses how, in Davidson County, Tenn., Nashville Attorney Daniel Horwitz and Washington, D.C., Attorney James Danly are trying to right this wrong by asking a Davidson County judge to expunge the records of 350,000 cases that have been dismissed or not prosecuted. “Anybody can be arrested for suspicion of a crime,” Danly says. “And though they were doing nothing illegal, the system maintains a record of suspicion. …Tennessee is unusual in that it recognizes the problem that it has inflicted.”

The article notes many people who are arrested fail to realize this criminal record exists and can haunt them forever, most notably in housing and job applications, but also in the court of public opinion. I have an example. Several years ago, reporters asked me if I knew one of our city’s top administrators had federal charges brought against him in the past. I told them I did not and inquired about the charge. They weren’t sure of the details, only that it was documented in a reliable database. When later asked to explain, the administrator had trouble remembering what the recorded offense was. After carefully reconstructing the dates and details, he finally recalled receiving a traffic ticket in a national park while driving members of a youth baseball team to a game. National parks are policed and patrolled by federal rangers and even something as simple and mundane as a traffic ticket shows up as a “federal” charge. Who would have guessed?

Even high-ranking public officials are not immune. Charges against New Orleans Mayor Mitch Landrieu for “contempt of court” over fire department salaries and Texas Gov. Rick Perry's colorful indictment for “abuse of power” involving his veto of a budget item seem like excesses that will remain in the public consciousness far longer than the less exciting details of the matters involved. The “contempt of court” and “indictment” headlines are sticky terms that tend to color history. Details get lost.

Going further, social media has made it much easier to launch an attack against individuals and public officials. An arrest or record is not even necessary in this instance. Posts on Facebook, Twitter and other modern day means of “publication” make charges seem real even if they are without merit. These unsubstantiated charges don't just evaporate like a gassy cloud. They tend to get passed around and stick in the minds of anyone and everyone who comes into contact with them – forever. Misinformation can be durable since it is often more interesting than the actual truth.

I don't really have an answer to this problem. Dealing with the heat of publicity has always been a part of public life, and that's not likely to change. But the digital age has made it much easier for attacks to do real and lasting damage – and not just to politicians but to public employees and even to innocent citizens at large. It's so easy to publish accusations on the Internet, but difficult to respond and recover. It's practically impossible to completely clear the record. Digital information and misinformation lives on in perpetual suspended animation – just waiting to be retrieved, reawakened and released.

Perhaps there is no real answer and maybe there will never be, but making it easier to expunge criminal charges that were neither proven or prosecuted like those in Nashville is certainly a step in the right direction.

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