“Liberation is not deliverance. A convict may leave prison behind but not his sentence.”1 So stated Victor Hugo in his classic novel, Les Miserables, where we become acquainted with the story of protagonist Jean Valjean, an ex-convict, who spends his life trying to escape from his criminal past. Imprisoned for 19 years, Valjean is released, hardened by the nature of his sentence, and presumably relieved to put it behind him. But he quickly realises the true nature of his conviction and time imprisoned, which is expressed eloquently by Hugo in the following quote:
[w]hen at the time of leaving prison Jean Valjean heard the words, ‘You are free’, the moment had seemed blinding and unbelievable, as though he were suddenly pierced by a shaft of light, the true light of living men. But this gleam suddenly faded. He had been dazzled by the idea of liberty. He had believed for an instant in a new life. He soon discovered the meaning of liberty when it is accompanied by a yellow ticket. (Hugo 1982, p. 103)
Despite his embittering experience, Valjean resolves to change his life but finds that this yellow ticket, which he is obliged by law to display, subjects him to prejudice and stigma and forces him to be an outcast. He is obliged to produce this ticket at work and as a result receives less pay. He is also refused accommodation because of it and his ex-convict status incurs such suspicion from external forces that he is relentlessly hounded by police inspector, Javert, almost to his dying day. Jean Valjean’s redemption begins with his encounter with the Bishop Myriel, who is the first to treat him like a human being in the aftermath of his release. His initial success in overcoming his past is due to his change of identity, although he never truly escapes from the wrenches of the criminal justice system: ‘[a] man may leave prison, but he is still condemned’ (Hugo 1982, p. 104). Jean Valjean’s story has surprising resonance in today’s world. Although removed from the Parisian cesspool of nineteenth-century existence, today’s ex-offender must face difficulties that are often quite similar to those described in Victor Hugo’s novel. Fiction and reality are not that far removed, given that the same stigma and prolonged consequences often derive from the imposition of a conviction nowadays. Unlike the ‘yellow ticket’ possessed by the nineteenth-century ex-convict, today’s ex-offender is left with a criminal record that stays with him and that can affect his activities far into the future.
This book aims to examine the retention and use of previous criminal record information. The term criminal record is intended throughout to denote a conviction, rather than referring to cautions, arrests, or other police activity prior to actual conviction. A frequently unacknowledged fact is that once a criminal conviction is imposed, that conviction stays with the individual for life. There is a misconception that the finding of guilt at trial carries with it a de jure sentence alone and there is a failure to recognise the de facto multiple disadvantages that ex-offenders continue to experience as a result of having a criminal conviction. The reality is that a criminal record is not something that is simply imposed and subsequently forgotten about (after punishment) or left behind. The label of being an offender is one that stays with the individual for life, as a result of which he or she may encounter numerous difficulties and consequences in areas both within and outside of the criminal justice system. The law plays an instrumental role in instilling and perpetuating this label and as such examination of the laws and policies that facilitate retention and use of criminal records will form the focal point of this book. There is a surprising lack of discussion surrounding the complete range of legal and social mechanisms through which a criminal record can be employed. Analysis is often fragmented around a particular issue such as sentencing or access to employment, for example. This book aims to move beyond such fragmented discussion and examine the entire range of areas where criminal records are taken into account in decision-making processes both within the formal criminal justice system and beyond. This is not uniquely an Irish issue, but the foundations of the book will be premised upon the approach taken in Ireland and analysis of this approach will encompass the broader international context within which policy and social changes, influencing the use of criminal records, occur.
The manner by which an ex-offender remains legally condemned is something that is of particular interest to this author, as part of the broader criminological dialogue about criminal life trajectories. An individual’s life is profoundly changed after a conviction and imprisonment. The return of ex-offenders, whether from prison or just to normal activities in the aftermath of conviction, is beleaguered by particular problems posed by the status of ex-offender (Stojkovic 2017; Jacobs 2015; Maruna and Immarigeon 2004; Petersilia 2001; Maruna 2001). Rights, as they relate to privacy, liberty, and earning a livelihood, are ordinarily thought to be restored to the individual post conviction and release but this is not necessarily the case. Ex-offenders have needs and face circumstances that are unique to their situation. If they have spent time in prison then, on re-entry into society, many are ill-equipped to deal with the social and economic realities of the outside world. Thus, many find it difficult to break out of the cycle of poverty and crime. The criminal record becomes a further barrier to successful integration (Jacobs 2015; Thomas 2007). Criminal record information can be documented, accessed, and utilised by various agencies within the criminal justice system and beyond. It can be used in police investigations, in bail applications, as evidence at trial, and in sentencing hearings and decisions. It can also be used in order to impose additional constraints upon an individual in the aftermath of release, namely, through the implementation of policies such as monitoring orders, post-release supervision orders, and notification orders. Beyond the criminal justice system, the individual can continue to experience many collateral consequences of a conviction, whereby access to employment, travel, and licences (among other areas of social activity) can be limited (Forrest 2016; Jacobs and Larrauri 2015; Thomas and Hebenton 2013; Blumstein and Nakamura 2009; Pager 2003).
The trajectory of penal policy has changed in recent times. Crime control has become an increasingly important mode of dealing with offenders and new managerial styles of governance are developing. Security, risk, public protection, and exclusion are essential concepts that have reconfigured themselves as key elements in the penal sphere, amidst overtones of politicisation of law and order and increased emotive investment in crime policy. Using criminal records, while not a new idea, has certainly become increasingly more valued in this risk-conscious age. Collecting data, categorising risk, and monitoring movement is fast becoming the currency of new age criminal policies. The commitment to such narrative is strengthened through the international sharing of criminal record information between EU states. The significance of a criminal record to agency workers is obvious. It may enable the police to generate or confirm a suspect quicker. It allows the sentencing judge to acknowledge a repetitive pattern of offending behaviour. It may allow an employer to avoid hiring a candidate who is unsuitable for the position (e.g. a paedophile from working with children). But there is not always a coherent approach taken to the use of such information and there are many other consequences, often unintended, which can arise and have a very real impact upon the person’s ability to be able to move on with their lives. The stigma of the ‘convict’ label can be extremely difficult to break away from, leading many to become, or remain, disenfranchised and socially excluded. This n...