We have come to an inflection point where the collateral consequences of criminal records provides a rare opportunity for emerging LegalTech to help solve.
But the legal landscape is complex.
There’s an estimated 108 million records in over 3,500 court systems.
And not everyone stands on equal ground.
1 in 3 Americans have some form of criminal record history. But it would be unfair to call them “criminals.” Surprisingly, 80% of them have low level misdemeanors. And even with thoughtful state legislation, there is no mechanism to remove arrests that were never prosecuted, charges that were dismissed, or convictions that were expunged/sealed.
Yet, the most vulnerable to having these past embarrassments jeopardize a date, a job, a loan, or a license–are the professional “white-collar class.” Which can be an over-simplified characterization.
The Shaky Ground for “White-Collars” and Execs
To be more accurate, those 80% are composed of anyone who went to college, has a job, perhaps a certification or license, and basically anyone who lives an ordinary life and not committing crimes for a living. That sounds like the rest of us.
With alarming employment trends, professional stagnation, and a looming recession around the corner, there’s no better time than now to tackle this historic roadblock to the American dream.
How Elites Started Hiding their Past
A tool was developed in 2016 that could only be used by lawyers and pretty much reserved for private clientele (highly sensitive occupations, investor pools, and such). A few years later, the license to use the platform was opened up to consumers.
RecordFixer remains the only LegalTech automation tool that detects criminal history databases and removes qualifying records for their customers.
The Market for Privacy has been Ready for a Proof of Concept
The public is now demanding a historically overlooked piece in the fight for access to justice–the almost permanent stigma of a criminal record.
The vast majority of defendants walking through criminal courthouses get 1 to 3 year probation sentences with no jail.
So it seems largely unfair to single them out from employment, housing, professional licenses, education, government benefits, voting, contracts, loans, naturalization, volunteering, the right to bare arms, or enjoy a simple reputation built on their own history and character.
Yet, the US imposes 9,977 consequences to those who have a misdemeanor conviction on their record. The vast majority of those consequences (60%) apply directly to employment and occupational licensing. The kind of talent shortage that could cripple industries.
Arming yourself with Legal Privacy Tools
With data privacy emerging as a tangled battleground between consumers and BigTech, let’s not forget what kind of data we want most private–and willing to pay for.
True criminal record privacy is no longer a privilege reserved for the well-funded and connected. If it’s effective and legal, offering it at scale can drive new markets in unforeseen ways.
Here’s what the problem looks like. And the solution to tackle it head on.
Collateral Consequences Caused by Criminal History (a brief intro)
Most professionals are shocked to learn that they are actually more vulnerable than their working class counterparts when it comes to keeping their past offenses private.
The Fair Credit Reporting Act (“FCRA”), which is one of the more broader laws at the federal level, prevents disclosure of non-convictions beyond seven years (that’ means arrests and dismissed charges).
But it does not protect white collar professionals who face the same criminal record stigma.
This is because if the job you seek pays more than $75,000, the Act doesn’t apply to you and employers can do all the digging they want [unless the particular state law prevents this].
In fact, some would argue that professionals are more likely in general to face higher reputational exposure due their increased online presence (such as: LinkedIn, Company websites, Twitter profiles, etc.).
That’s a lot of collateral for something that resulted in some programs with fines and fees.
How to Define Collateral Consequences
Without jumping too much into legalese, collateral consequences are all the additional punishments that society will render on you outside of your probation and sentence terms.
Basically, whatever is beyond incarceration and the hoops the court makes you jump through.
For example: did you know it’s much harder to get a hard liquor license for your business if you got a DUI before?
This will never be told to you as you plead guilty to the judge you report to. That’s probably because nobody would ever leave court if they had to list all of the hidden limitations that will be imposed on you.
Collateral limitations can range from the obvious to the ridiculous: (i) restrictions on volunteering, (ii) extensive background checks on any matters concerning the elderly or children, (iii) access to resources such as business loans, (iv) the right to vote, (v) restricted immigration status, (vi) denial of state and local benefits, (vii) federal assistance, the list goes on.
But the biggest detriment of all is the one that annoys almost anyone if they have Googled themselves: readily available public data revealing our address, marital status, age, and yes…criminal past.
Our reputations can be hacked before we ever introduce ourselves to the neighbors.
The Misconceptions of a Large Criminal Justice System
Ignoring the horrific newsworthy stories of crime that find their way onto your news feed, our nation’s law & order infrastructure is surprisingly docile. To put it all in perspective, let’s take a look at the worst offenses first:
The Reality of a Felony Conviction Imposed Sentence
Out of the total criminal prosecutions in the nation (2.3 million in 2018), about 115,000 resulted in a prison sentence from criminal convictions.
That’s about 5.1%.
By law, this equation is the standard for incarceration. At the center of it, a felony (and a few misdemeanors) is related to and appropriately called serious conduct. And the process is such that the most serious conduct will lead to imprisonment (that’s jail or prison). This population is rarely released into the public after their arrest.
After that group, it’s the rest of us–including the famous.
Search for any celebrity that has been arrested, and the news will typically say that they are “looking at a maximum of 3 years on prison” (the typical max exposure for the lowest level felonies in California).
But we all know that doesn’t happen. States have the ability to use their sentencing guidelines to reserve the life sentences for the worst offenses. The applicable collateral consequences in those circumstances appear fitting to most: losing the right to vote, firearm restrictions, denied licenses with fiduciary duties.
Many would say that those are appropriate collateral consequences because society may want to place some safeguards to those who made some really bad choices.
What about Drug Offenders?
Drug offenders are offered support and rehabilitation assistance overwhelmingly across the U.S. States understand that many who are convicted of a crime with drugs had never hurt anyone or caused any significant loss or damage to other.
They just need help. The law delivers abundantly and the public agrees.
What about DUI’s and Domestic Violence abusers?
Both DUI’s and Domestic Violence cases have historically low recidivist activity and highly isolated incidences (not patterns of conduct).
Although there are some horrific loses of life in alcohol related offenses, that lion’s share of DUI arrests go to those straddling the lanes.
Few outside the criminal justice system are aware that a majority of domestic violence cases amount to shoving matches before someone angry enough calls the authorities. Once they arrive, someone’s leaving with them. This is in no way attempts to minimize real domestic abuse and unreported incidences (see above for serious conduct).
The Collateral Consequences of Criminal Guilty Pleas
Now that you know that 1 in 5 fall into the felony category, that leaves a very large population in low level crime categories where no victim or property damage resulted.
Without any significant punishment, the lasting effects of being convicted of a crime are far more broader than most people can imagine.
What happens to the 80% in Court?
Diversion & Non-Conviction Alternatives
An increasingly large population (and hard to enumerate) are given diversion and alternative sentence programs. They avoid having a conviction entirely. Although their privacy remains alarmingly at risk.
Some would say they suffer the least collateral consequences due to their non-conviction status. However, the brutally efficient data broker industry would convince you otherwise.
Those who avoided a guilty plea unfortunately still find themselves hovering into multiple criminal databases.
The Guilty Group
After considering their options, most defendants plead guilty and that begins the first step of a criminal conviction.
The court is then likely to issue a probation sentence. Once imposed, there will be fines and civil fees and for some, driver’s license restrictions. The punishment is traditionally the minimum for first-time offenses.
Thus, the law provides the lightest sentencing standards to those who aren’t likely to return to be convicted again.
What that punishment boils down to is above all: no prison.
Typical Conviction: Classes, fines, and some court supervision to make sure you do all of it. Most complete these obligations without issue.
All of them, unfortunately, will be stuck with a “criminal category” title associated to their names and impact the most important aspects of their lives: (1) Work, (2) Housing, (3) Dating & Personal Relationships.
The Real Impact of Collateral Consequences
Convicted of a Crime? Welcome to the New Monitored Class
Ask any ride-sharing App worker what happened to their income after their driver’s license got revoked. It’s a larger number than you think.
After someone is convicted, the FCRA (and many state laws) says it can be reported for life.
The following are the most prevalent and entirely legal consequences imposed by all states in the US.
Collateral Consequence and Employment
People’s jobs stand at the top as the single most stressful concern for those facing criminal conviction.
Taken as a whole, criminal records place the largest toll on job seekers. With over 50 million background checks being generated each year, it goes without saying that employment ranks at the top when it comes to the damage done by collateral consequences.
Collateral Consequences and Licensing
Apart from limiting driver’s from their primary jobs for reckless automobile crimes, the longest list of collateral consequence apply to occupational licenses issued by states and their respective agencies.
These collateral consequences mirror the same impediments on education and ones ability to obtain financial aid. Many of the most talented researchers who come to the US on immigration visas will quickly see their stay jeopardized.
Housing and Tenant Screening
A rapidly growing concern for many with conviction histories is tenant screening background checks. Landlords are increasingly becoming mindful of exposing themselves to liability for crime and housing incidents that could occur under their watch.
Some critics have suggested that the scarlet letter of a criminal history creates a new second-class citizen who is prevented from accessing safer living areas–prolonging an already harmful cycle.
It should also be noted that many lawsuits have been brought for landlords denying housing to tenants with past civil eviction histories. Most housing applicants will not even know they were denied for those reasons unless they probed the issue or had an attorney inquire.
Dating Apps & PeopleSearch Lookup
Collateral consequences reach much further than just regulatory statutes that sit in dusty legal books.
Before popular dating apps transformed the way we now meet our significant others, there was the curious lover’s bag of search engine tricks that would attempt to uncover as much information as possible about the new prospect.
Now, the apps do the work for you and include their own background checks.
Swiping Right = Might have a Past
The reigning champions of mobile phone dating apps (and newer players on the market) have added background check capabilities as supplemental features intended to put their users slightly more at ease after the new media brought light to dates ending tragically. Thus, most would stress this was a good move.
But there are unintended consequences that come with this heightened exposure towards primarily male users. Some may never get the chance to present their best foot forward of course. But the equally polarized opponents would be very satisfied with that result given the risk women take on when choosing to engage the unknown dating pool.
No matter which side you’re on, however, it almost goes without saying for those who fall into the trivial 80% category:
If you’ve done everything possible to redeem yourself after spending a night in jail on what was an otherwise explainable out-of-character moment, it may not matter much to the one who has made a judgment call on your profile before taking things any further. You’re out of the game–whether or not the mistake you made was significant.
It’s easier to decline a second date than to probe someone about their troublesome past.
Shouldn’t there be a way to be released from having to explain yourself indefinitely?
Criminal Conviction Data and Database Management Systems
The greatest leaps in our modern society have come recently from harnessing large amounts of data and leveraging those insights. But the proliferation of data has also brought new pain points when left unchecked.
The problems and the solutions exist within the database management systems that store of our most private histories.
Our research has uncovered that BIDW and RDBMS’s are structurally unfit if we were to pour a privacy water hose over them.
There are complex reasons why that’s the case, but here is a simplified explanation for how each criminal event gets logged into large database systems:
(1) Arrest Data: within hours of release from jail, a half-dozen private companies will have recorded your stay at the local police department–and readily accessible to those with access.
(2) Criminal Charges: one a prosecutorial decision has been made to file a public offense against you, the allegations are now officially public for the world to see.
(3) Expungements: After one is convicted of a crime, they can petition the court in most states to withdraw the guilty plea and earn the legal right to deny the existence of the conviction (in most circumstances).
In all three of the above scenarios, avoiding a conviction or reversing one through a petition unfortunately does not guarantee its removal.
Public data businesses are not in the business of removing data. Passing laws to clear cases from courts is tragically a small piece of the puzzle. Background check companies operate in their own ecosystems–separate and apart from the judicial system.
What About Clean Slate Legislation?
Automatically expunging or clearing cases from state repositories is a historical jump and should be adequately applauded. Countless advocates have devoted their entire lives to showing the light to traditionally conservative law and order establishments, and have largely succeeded in finding a balance between public safety and equitable reentry.
But a large impediment stands in the way to truly clearing a person’s name, and it rests in the private database industry.
A LegalTech Startup for Consumer Privacy
Deleting the Data that Hurts the Most
Ask anyone about some of the most embarrassing moments of their lives, and there’s a good chance one of them involved handcuffs.
Why not tackle an issue that a third of the country would truly value some privacy on?
RecordFixer came on the scene before the Clean Slate initiatives trend began taking hold across two-thirds of the nation. With that kind of head start, the platform was battle-tested and sweeping up the Byzantine puzzle of our justice system at scale.
It should be evident that those with prior arrests no longer fear incarceration because it is no longer the norm. The real fear rests in collateral consequences and the shame of having one’s reputation be categorized with one simple overarching phrase.
There is now a workable product to lend support for the convicted as well as for those who have avoided conviction but still fear the day a sophisticated database outs their past and ruins an incredible opportunity to work, live, or meet someone of our choosing.
With escalating headlines that are centered on our nation’s economic well-being, it’s time that we begin to invest in technology aimed at helping secure our already fragile reputations that keep the market running.