The Right to Social Expungement
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, legalized, or decriminalized to have stories about their past interaction with the criminal 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 retroactively 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.