The Right To Social Expungement
The Right To Social Expungement,
American Criminal Law Review
Available at: https://digitalcommons.law.villanova.edu/facpubs/74
In recent years, policy makers advancing criminal legal reform have engaged
in attempts to correct years of harsh and expansive use of criminal laws. Two
main parallel trends dominate these attempts. One is forward-looking—the
decriminalization of many activities currently punishable by the criminal legal
system. The second is backward-looking, and related—expungement and vacatur
reforms that aim to allow individuals to start fresh.
While these latter efforts are intended to erase the criminal stain from official
criminal records, the non-official domain gained less traction, leading to an
absurd reality in which news stories about individuals’ criminal histories remain
accessible in the virtual world, practically forever. Tragically, these online news
stories are often more practically detrimental to reintegration than the official
criminal records. As such, they frustrate the criminal legal system’s efforts to
correct past mistakes.
The literature on criminal legal reform thus far has given less attention to this
crucial problem. This Article contributes to narrowing this scholarly gap. To do
so, it introduces “the right to social expungement”—which recognizes the right
of individuals arrested for or convicted of offenses now vacated, expunged, legal-
ized, or decriminalized to have stories about their past interaction with the crimi-
nal legal system removed from media websites.
Utilizing the case study of individuals arrested for or convicted of selling sex,
this Article provides two theoretical justifications for recognizing this right: (1)
the socio-legal paradigm of cultural shifts and its effects on existing law and policy, and (2) criminal law’s amelioration doctrine, which offers a path to retro-
actively apply lenient criminal justice policies. The piece further argues that,
counter to conventional wisdom, the right to social expungement can sit comfort-
ably within a plausible interpretation of the right to privacy and freedom of the
press. The Article concludes by offering preliminary guidance for establishing
the right to social expungement.
Law, criminial records, social expungement