Disordered Punishment: Workaround Technologies of Criminal Records Disclosure and the Rise of a New Penal Entrepreneurialism

Abstract

The privatization of punishment is a well-established phenomenon in modern criminal justice operations. Less understood are the market and technological forces that have dramatically reshaped the creation and sharing of criminal record data in recent years. Analysing trends in both the United States and Europe, we argue that this massive shift is cause to reconceptualize theories of penal entrepreneurialism to more directly address the role of technology and commercial interests. Criminal records, or proxies for them, are now actively produced and managed by third parties via corporate decision-making processes, rather than government dictating boundaries or outsourcing duties to private actors. This has led to what we term ‘disordered punishment’, imposed unevenly and inconsistently across multiple platforms, increasingly difficult for both government and individuals to control.

“We Go Totally Subjective”: Discretion, Discrimination, and Tenant Screening in a Landlord’s Market

“…15 This situation raises interesting questions about the political and legal construction of social problems, including why policy makers in the United States have targeted landlords and employers in their efforts to mitigate the negative impacts of background screening, but have been slower to strengthen regulations on the commercial dissemination of personal background records (Jacobs and Larrauri 2012;Jacobs 2015). Findings from this study also shed light on the considerable technical difficulties associated with effectively regulating the dissemination of background information online (Corda and Lageson 2019), which has seriously jeopardized the efficacy of expungement procedures (Wayne 2012). While some of the rental industry experts in this study argued that BTB policies were unnecessary in Seattle because state law already prohibits consumer reporting agencies from releasing criminal history information over seven years old, 16 multiple renters maintained that they had been denied housing on the basis of convictions over a decade old.…”

Secondary ensnarement: Surveillance systems in the service of punitive immigration enforcement

“…Second, the participation of private companies in the development and maintenance of information systems challenges the state’s monopoly on enforcement (Corda and Lageson, 2019: 15–16; Longo, 2018: 174). More research is needed that speaks to the role of private entities and the immigration system implications.…”

The Costs of Seeking Shelter for Renters With Discrediting Background Records

“…Second, this study’s findings point to the need for additional policies that do not hinge on transforming the way landlords use background records but instead intervene in the earlier processes by which administrative records are created, archived, and sold to third-party data brokers. At a time when criminal records sealing and expungement procedures have been undermined by the widespread dissemination of personal background records by nonstate actors (Corda and Lageson 2020; Wayne 2012), recent innovations in eviction record-keeping procedures offer a promising model for minimizing the collateral consequences of stigmatizing background records. For example, Lawmakers in California and Washington have directed housing courts to automatically seal eviction cases under certain circumstances before they are ever digitally archived and disseminated by third-party screening companies.…”