Privacy, Punishment, and Criminal Background Checks

I argue that widespread use of criminal background checks has a privacy implication and fosters unjust punishment for ex-offenders. A criminal conviction has a twofold effect on the offender: judicial punishment in the form of court fees, incarceration, and similar court orders that temporarily restrict individual liberty; and non-judicial punishment in the form of social stigmatization attached to an arrest and/or conviction that marginalize the offender from society. Background checks indefinitely hinder reintegration by inhibiting the ex-offenders’ ability to obtain employment, housing and social acceptance. Permitting widespread use of background checks mismanages the intersection of privacy rights for the ex-offender and the 1st Amendment. I conclude by suggesting that a revised system modeled after European criminal background procedures would create a better balance between the ex-offender’s right to privacy and society’s interest in accessing public facts.